Margaret Garrison v. Delbert Lee Mcgill ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
August 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARGARET GARRISON, No. 53501-7-II
Respondent,
v.
DELBERT LEE MCGILL, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Delbert L. McGill filed a notice of appeal designating the superior court’s
order denying motions to reconsider restraining order and attorney fee awards. However, the
superior court’s order is not an appealable order under RAP 2.2. Furthermore, we decline to grant
discretionary review of the order under RAP 2.3(b). Accordingly, we dismiss McGill’s appeal.
FACTS
Margaret Garrison was appointed the full guardian of the person and estate of Vernon Jacob
Horst, her father. As Horst’s guardian, Garrison filed a petition under the Trust and Estate Dispute
Resolution Act (TEDRA), chapter 11.96A RCW, against McGill. The petition sought to invalidate
deeds, contracts, or gifts Horst made based on fraud, undue influence, and lack of capacity. The
petition also sought McGill’s removal as Horst’s attorney in fact and a finding that McGill engaged
in financial exploitation of a vulnerable adult.
No. 53501-7-II
Garrison filed a motion to show cause to restrain McGill and his attorney from contacting
Horst. A show cause hearing was set for March 22, 2019. Around the same time, McGill filed a
motion to compel discovery. The motion to compel was also set for March 22.
On March 29, the superior court entered a judgment and order on Garrison’s motion to
show cause. The order restrained McGill and his counsel from knowingly making contact with
Horst. The order also provided that “[a]ny party may seek relief from these restraints.” Clerk’s
Papers (CP) at 259. And the superior court awarded Garrison her attorney fees and costs in the
amount of $4,562.50.
Also on March 29, the superior court denied McGill’s motion to compel and granted
Garrison costs and attorney fees in the amount of $1,050.00. The superior court entered a judgment
and order on McGill’s motion to compel discovery.
McGill asked the superior court to make a CR 54(b) certification that the judgments were
final. The superior court declined, stating “I don't believe it's a final judgment, no.” Verbatim
Report of Proceedings (VRP) (March 29, 2019) at 8.
McGill filed motions to reconsider both of the superior court’s March 29 judgments and
orders. The trial court denied McGill’s motions to reconsider and entered an order denying the
motions to reconsider restraining order and attorney fee awards.
McGill filed a notice of appeal designating the order denying the motions to reconsider
restraining order and attorney fee awards. McGill acknowledges that the TEDRA petition had not
yet been tried when he filed his notice of appeal.
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No. 53501-7-II
ANALYSIS
A. APPEALABILITY
McGill argues that we should review the order denying his motions to reconsider the
restraining order and attorney fee awards under RAP 2.2(a)(3) because the attorney fee awards
were reduced to judgment. But even though the attorney fees were reduced to judgment, the order
denying reconsideration does not meet the requirements of RAP 2.2(a)(3) and is not appealable.
RAP 2.2 governs which superior court decisions may be appealed. RAP 2.2(a) states, in
relevant part,
Unless otherwise prohibited by statute or court rule and except as provided in
sections (b) and (c), a party may appeal from only the following superior court
decisions:
....
(3) Decision Determining Action. Any written decision affecting a
substantial right in a civil case that in effect determines the action and prevents a
final judgment or discontinues the action.
McGill relies on Herzog v. Foster & Marshall, Inc., 56 Wn. App. 437, 738 P.2d 1124 (1989), to
argue that the superior court’s decisions meet the requirements of RAP 2.2(a)(3). But Herzog is
inapplicable.
In Herzog, the court held that an order denying a motion to stay litigation pending
arbitration was appealable as a matter of right under RAP 2.2(a)(3). 56 Wn. App. at 442. The
court’s decision relied primarily on the fact that the motion to stay litigation was simply a variation
of a motion to compel arbitration, which could have been filed as a separate action, independent
of the underlying litigation. Id. at 441-42. Therefore, the order denying the motion to stay
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No. 53501-7-II
effectively terminated that separate action. Id. at 442. The determining factors were that the
decision was an independent matter and not allowing an appeal would result in a judgment that is
too late to effectively review. Id. at 442-43. In considering whether appeal would have been too
late to effectively review, the court relied on the strong public policy in favor of arbitration which
would be undermined by allowing the case to proceed to trial. Id. at 443. Neither of the
determining factors found in Herzog apply here.
Here, the motion for show cause and the motion to compel were inextricably linked to the
underlying litigation. Neither could have been filed independently from the TEDRA petition. And
although the judgments for attorney fees may result in McGill paying money to Garrison prior to
the final judgment, those judgments can still be effectively reviewed and remedied if they are
determined to be in error.
In contrast, if the order in Herzog was not reviewed until after final judgment, there would
have been an entire trial and the “benefits of arbitration [would] thus be irretrievably lost,” and the
strong public policy of favoring arbitration would be frustrated. 56 Wn. App. at 443. But here,
nothing will be irretrievably lost if the superior court erred by ordering McGill to pay attorney
fees; the judgment and order can be reversed, and Garrison can be ordered to repay the fees.
Furthermore, the superior court specifically allowed the parties to seek relief from the restraints of
the restraining order, so that order did not determine any action.
Despite the fact that the attorney fee awards were reduced to judgments, the order denying
reconsideration of those judgments is not a written decision affecting a substantial right in a civil
case that, in effect, determines the action and prevents a final judgment or discontinues the action.
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No. 53501-7-II
And the record confirms that the judgments were not final judgments from which an appeal can
be taken. Therefore, the order denying the motions to reconsider the restraining order and attorney
fee awards is not appealable under RAP 2.2(a)(3).
However, a “notice of appeal of a decision which is not appealable will be given the same
effect as a notice for discretionary review.” RAP 5.1(c). For the reasons discussed below, we
decline to grant discretionary review.
B. DISCRETIONARY REVIEW
Alternatively, McGill asks us to grant discretionary review because the superior court’s
order denying his motions to reconsider the restraining order and attorney fee awards was obvious
error. We disagree.
RAP 2.3(b)(1) allows us to accept discretionary review when “[t]he superior court has
committed an obvious error which would render further proceedings useless.” Here, McGill
asserts that it was obvious error for the superior court to designate the underlying orders as
judgments without written findings. However, McGill fails to show, or even argue, that further
proceedings are rendered useless by the superior court’s alleged obvious error. And even if
McGill’s assertion of obvious error is true, he fails to show that any error renders further
proceedings useless.
The superior court’s restraining order allows for the parties to seek modification of the
restraints imposed, and therefore, the restraining order does not render further proceedings useless.
As for the superior court’s judgments awarding attorney’s fees, they have no impact on the
underlying TEDRA litigation.
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No. 53501-7-II
Thus, the order denying McGills’ motions to reconsider the restraining order and attorney
fee awards does not render further proceedings in this case useless. Because the order denying the
motions to reconsider the restraining order and attorney fee awards does not render further
proceedings useless, discretionary review under RAP 2.3(b)(1) is inappropriate.
ATTORNEY FEES ON APPEAL
Garrison requests that we award attorney fees on appeal under RCW 11.96A.150 and this
court’s equitable power to award sanctions. McGill also requests attorney fees on appeal under
RCW 11.96A.150.
RCW 11.96A.150(1) provides,
Either the superior court or any court on an appeal may, in its discretion, order
costs, including reasonable attorneys' fees, to be awarded to any party: (a) From
any party to the proceedings; (b) from the assets of the estate or trust involved in
the proceedings; or (c) from any nonprobate asset that is the subject of the
proceedings. The court may order the costs, including reasonable attorneys' fees, to
be paid in such amount and in such manner as the court determines to be equitable.
In exercising its discretion under this section, the court may consider any and all
factors that it deems to be relevant and appropriate, which factors may but need not
include whether the litigation benefits the estate or trust involved.
This statute leaves it to the court’s discretion to determine whether awarding attorney fees on
appeal is equitable. We exercise our discretion and award Garrison her attorney fees on appeal,
and we deny McGill his request for attorney fees.
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No. 53501-7-II
Because the superior court’s order is not an appealable order under RAP 2.2 and we decline
to grant discretionary review of the order under RAP 2.3(b), we dismiss McGill’s appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Maxa, J.
Siddoway, J.P.T.1
1
Judge Siddoway is a Division III judge serving with the Court of Appeals, Division II, under
CAR 21(a).
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