Concrete Services, Inc. v. Robert Kanany ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CONCRETE SERVICES, INC., a
Washington corporation, DIVISION ONE
Plaintiff,
No. 68578-3-
UNPUBLISHED OPINION
ROBERT KANANY, a single man,
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Appellant,
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OVIDIO ESCAMILLA, a single man, s^-
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Respondent, 35» co.-.-, j_
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FRONTIER BANK, a Washington CD
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Bank, MORTGAGE ELECTRONIC cn ~™ "!C
REGISTRATION SYSTEM, INC., a
Delaware Corporation, and
PRIMELENDING, A PLAINSCAPITAL
COMPANY, a Texas Corporation, FILED: May 20, 2013
Defendants.
Dwyer, J. — Robert Kanany appeals from a trial court order denying his
request for relief from a default judgment entered against him. Kanany asserts
that the default judgment was satisfied by a $10,000 payment made by a title
insurance company on behalf of Ovidio Escamilla in order to obtain dismissal of
No. 68578-3-1/2
claims asserted by Concrete Services, Inc. against Escamilla and to assign the
default judgment in favor of Concrete Services against Kanany to Escamilla. We
determine that substantial evidence supports the trial court's finding that the
$10,000 payment constituted consideration for dismissal of the claims against
Escamilla and assignment of the default judgment against Kanany—not
satisfaction of that judgment. Accordingly, we affirm the trial court's denial of
Kanany's request for relief. We additionally affirm the trial court's grant to
Escamilla of an award of attorney fees incurred in defending against vacation of
the default judgment. Finally, because we determine that Kanany's appeal is
frivolous, we grant to Escamilla an award of attorney fees on appeal against both
Kanany and his counsel.1
I
On February 18, 2009, Concrete Services filed an amended complaint
seeking to collect amounts owed and to foreclose upon a lien encumbering six
parcels of property owned by Kanany, who had failed to pay for the installation of
concrete improvements to those properties. Without disclosing the existence of
the lien, Kanany had subsequently conveyed one ofthe six parcels to Escamilla.
Accordingly, the complaint filed by Concrete Services named both Kanany and
Escamilla as defendants.2 Concrete Services sought judgment against Kanany
1As explained below, the award ofattorney fees on appeal against Kanany is warranted
pursuant to Civil Rule (CR) 11 and RCW 60.04.181—the bases for the fee award in the trial
court—in addition to Rule of Appellate Procedure (RAP) 18.9(a). The appellatefee award against
Kanany's counsel is warranted based solely upon RAP 18.9(a).
2 Concrete Services also named as defendants Frontier Bank, Mortgage Electronic
Registration System, Inc., and Primelending, a Plainscapital Company, each of which claimed an
interest in the subject real property. Thus, Concrete Services sought judgment that the liens of
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No. 68578-3-1/3
in the amount of $7,688.83 with interest at a rate of 12 percent per annum,
coupled with an award of reasonable attorney fees and costs. Concrete Services
additionally sought foreclosure of the lien and application of the proceeds toward
payment of the amount owed.
In March 2009, Escamilla contacted Ticor Title Insurance Company, which
had issued a title insurance policy insuring the parcel conveyed to Escamilla by
Kanany. Escamilla requested that Ticor Title resolve the Concrete Services
lawsuit on his behalf pursuant to the insurance policy. Escamilla thereafter
answered Concrete Services' complaint and asserted cross-claims against
Kanany for breach of warranties in the statutory warranty deed pursuant to which
the parcel was conveyed, intentional and negligent misrepresentation, breach of
contract, and unjust enrichment.
Kanany, however, failed to answer Concrete Services' complaint.
Accordingly, Concrete Services moved for entry of an order of default and default
judgment against Kanany. On September 4, 2009, the trial court granted
Concrete Services' motion, entering a default judgment against Kanany in the
amount of $11,306.26.
In May 2010, Ticor Title, on behalfof its insured, Escamilla, negotiated
with Concrete Services a resolution of the claims against Escamilla. Ticor Title
issued a check in the amount of $10,000 payable to Concrete Services "for the
purpose of settling" the insurance claim asserted by Escamilla. Escamilla's
these defendants against the subject property were inferior and subordinate to the lien upon
which Concrete Services sought to foreclose.
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No. 68578-3-1/4
attorney thereafter mailed the settlement check to Concrete Services, enclosing
three documents, entitled (1) "Stipulation and Order of Dismissal of All Claims
Between Concrete Services, Inc., as Plaintiff, and Ovidio Escamilla, as
Defendant Only"; (2) "Assignment of Default Judgment by Plaintiff Concrete
Services, Inc. to Defendant Ovidio Escamilla"; and (3) "Partial Release of Lien".
Concrete Services was authorized to cash the settlement check only upon
signing and returning the stipulation and dismissal of claims against Escamilla,
the assignment ofthe default judgment against Kanany to Escamilla, and the
release of the lien against Escamilla's property.
The assignment of the defaultjudgment by Concrete Services to
Escamilla was filed in the trial court on June 18, 2010. Three days later,
pursuant to the stipulation and dismissal signed by the parties, the trial court
ordered that all claims between Concrete Services "and
Defendant/Crossclaimant, Ovidio Escamilla only" be dismissed with prejudice.
Following assignment of the default judgment and dismissal of Concrete
Services' claims against Escamilla, Kanany moved, on May 25, 2011, to vacate
the default order and judgment entered against him more than 21 months earlier.
He asserted that the order and judgment were void as a matter of law due to
insufficient service of process and, thus, a lack of personal jurisdiction over him.
Contrary to Kanany's contention, the proof of service indicated that, on March 1,
2009, the summons and complaint had been personally served upon Kanany at
his Bonney Lake residence by leaving them with a co-resident named "Cameron
Kanany." Kanany alleged, however, that his step-brother, Kamran Kanany, had
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No. 68578-3-1/5
never resided at the Bonney Lake home. Kanany testified at a subsequent
deposition that he did not receive the summons and complaint in March 2009; he
further testified that he did not become aware of the lawsuit until after the default
judgment was entered in September 2009.
In order to disprove Kanany's assertions, Escamilla submitted to the trial
court evidence that Kanany had been aware of the Concrete Services litigation
prior to entry of the default judgment. He provided a declaration of Greg Colbo, a
senior title officer and underwriter at Ticor Title, who stated that he had received
a telephone call from Kanany on March 11, 2009. During this call, Colbo
asserted, Kanany stated that he had received the summons and complaint and
discussed resolution of the lawsuit. Escamilla also submitted a handwritten note
faxed by Kanany to the title officer inquiring as to whether Ticor Title would
resolve the matter; the summons and complaint were faxed along with the note.
Moreover, Escamilla's attorney stated in a declaration that Kanany had contacted
him numerous times during July and September of 2009 regarding the Concrete
Services litigation.
On September 26, 2011, the trial court held an evidentiary hearing on
3The handwritten note identifies the sender as "Robert Kanany" and states: "This is the
paperwork you asked for. Are you going to answerthis or do I need to move forward with an
attorney to deal with them. Please get back to me." Kanany admitted during his deposition that
the handwriting was his own and that he had sent the fax.
A letter from Colbo to Escamilla, dated March 16, 2009, further corroborates Colbo's
recollection of the events. The letter informs Escamilla that Ticor Title had received his claim
relating to the Concrete Services litigation. It further states:
We have been in contact with your seller [Kanany] as well as the attorney
representing the lien claimant. It is my understanding that Mr. Kanany is in the
process of obtaining a release of the mechanic's lien and dismissal of the lien
foreclosure action. We are currently working with him to help expedite resolution
of this matter.
No. 68578-3-1/6
Kanany's motion to vacate the default order and judgment due to improper
service. Kanany testified that Kamran had never resided at the Bonney Lake
home. In addition, he again testified that he had no recollection of being served
with the summons and complaint in the Concrete Services litigation. However,
evidence presented at the hearing indicated otherwise. Recent photographs of
Kanany and Kamran, the testimony of the process server who had been asked to
serve the summons and complaint on Kanany, and notes that had been made by
the process server at the time of service established that Kanany had, in fact,
been personally served with the summons and complaint. The evidence further
suggested that Kanany, upon service, had erroneously identified himself as
"Kamran Kanany" and stated that he resided at the Bonney Lake home.
Two days later, on September 28, 2011, Kanany filed a motion to amend
his motion to vacate the default judgment "to add CR 60(b)(6)[4] as the basis for
relief from default judgment." Kanany asserted that he had received "new
evidence" that the $10,000 payment to Concrete Services had been made by
Ticor Title, rather than by Escamilla. Although Kanany admitted that only
Escamilla was an insured pursuant to the Ticor Title insurance policy, he
nevertheless alleged that the defaultjudgment against him had been satisfied by
the $10,000 payment to Concrete Services.
At an October 6, 2011 hearing, Kanany conceded that service had been
4CR 60(b)(6) provides: "On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment, order, or proceeding" where "[t]he
judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application."
No. 68578-3-1/7
proper. Rather, he contended that the default judgment had been satisfied when
the $10,000 check was delivered to Concrete Services and, accordingly, that the
assignment of the default judgment to Escamilla was improper. Conversely,
Escamilla asserted that the $10,000 payment, rather than being intended to
satisfy the default judgment, instead constituted consideration for dismissal of
Concrete Services' claims against Escamilla and assignment of the default
judgment from Concrete Services to Escamilla.
On March 7, 2012, the trial court entered findings of fact, conclusions of
law, and an order on Kanany's amended motion to vacate the default judgment
and order. The court determined that Kanany's testimony regarding whether he
had seen the summons and complaint in March 2009 "was not credible." Rather,
the court explained:
It was clear to the court that Robert Kanany had been personally
handed the summons and complaint at his home on March 1, 2009,
and that he had told the process server that he was Kamran
Kanany, in order to mislead the process server, and in preparation
for misleading this court.
The trial court additionally rejected Kanany's argument that the $10,000 payment
to Concrete Services constituted satisfaction of the default judgment. Instead,
the court found that "[t]he evidence clearly establishes that the $10,000 was not
paid to satisfy the Default Judgment, but was consideration for the assignment of
the Default Judgment against Defendant Robert Kanany to Defendant Escamilla
and the dismissal of Concrete Services, Inc.'s, claims against Defendant Ovidio
Escamilla."
The court concluded that (1) Kanany had been properly served with the
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No. 68578-3-1/8
summons and complaint; (2) the $10,000 payment to Concrete Services did not
result in satisfaction of the default judgment; (3) "[wjhether the check was paid by
Defendant Escamilla or Ticor Title Company is of no consequence to the issue of
whether or not the Default Judgment should be vacated"; and (4) the default
judgment was properly assigned to Escamilla. Thus, the court ruled that Kanany
had failed to demonstrate that he was entitled to the relief he requested pursuant
to CR 60(b)(6).
Finally, the trial court awarded to Escamilla attorney fees and costs
incurred in defending the default judgment. The court determined that, because
the default judgment included an award of attorney fees, such an award was
authorized, pursuant to the same statute, for expenses incurred in defending that
judgment. Moreover, the court concluded that an award of attorney fees was
justified pursuant to Civil Rule (CR) 11, given that "Robert Kanany lied to this
court" and that his motion to vacate "was a frivolous motion without legal or
factual basis" that "served to waste resources of the parties, attorneys, and the
court." On March 28, 2012, the trial court entered a supplemental judgment
regarding the default judgment, awarding to Escamilla $22,825 in attorney fees
and $556.20 in costs incurred in defending the default judgment against
Kanany's motion to vacate.
Kanany appeals.
II
Kanany first contends that the trial court abused its discretion by denying
his request for relief from the default order and judgment pursuant to CR
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No. 68578-3-1/9
60(b)(6). This is so, he asserts, because the $10,000 payment made by Ticor
Title on behalf of Escamilla to Concrete Services constituted satisfaction of the
default judgment against him. However, the trial court's finding of fact that the
$10,000 payment constituted consideration for dismissal of Concrete Services'
claims against Escamilla and assignment of the default judgment—not
satisfaction of that judgment—is supported by substantial evidence. Accordingly,
the trial court did not err by declining to award the requested relief.
"We review a trial court's decision on a motion to set aside a default
judgment for abuse of discretion." Little v. King, 160 Wn.2d 696, 702, 161 P.3d
345 (2007). "A trial court abuses its discretion when its decision is 'manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.'"
Tribble v. Allstate Prop. & Cas. Ins. Co.. 134 Wn. App. 163, 170, 139 P.3d 373(2006) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775(1971)). "In reviewing a trial court's findings and conclusions, we determine
whether substantial evidence supports challenged findings of fact and, in turn,
whether the findings support the conclusions of law." State v. McEnrv, 124 Wn.
App. 918, 924, 103 P.3d 857 (2004). "Substantial evidence is evidence sufficient
to persuade a fair-minded, rational person of the truth of the finding." McEnrv,
124 Wn. App. at 924.
"A judgment creditor can assign his rights in the judgment to a third party.
However, if the judgment debtor satisfies the judgment before it is assigned by
the judgment creditor, the satisfaction would bar the assignee from enforcing the
judgment." 47 Am. Jur. 2d Judgments § 811 (2013). Pursuant to this "one
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No. 68578-3-1/10
satisfaction" rule, a judgment creditor can receive only one satisfaction of a debt;
accordingly, once the judgment has been satisfied, the judgment creditor no
longer has an interest to assign. 47 Am. Jur. 2d Judgments § 811 (2013).
"Satisfaction" is "[tjhe giving of something with the intention, express or implied,
that it is to extinguish some existing legal or moral obligation." Black's Law
Dictionary 1460 (9th ed. 2009). Thus, a judgment is not satisfied where a third
party's payment to the creditor is intended to purchase the debt rather than to
extinguish it:
A third person's payment of a debtor's obligation differs from
the third person's purchase of the debt in that payment discharges
the debt while purchase does not discharge the debt, which is
enforceable by the third person. Ordinarily, the intention of the
parties determines whether a transfer of money by a third person to
a creditor constitutes a discharge or purchase of an underlying
debt.
60 Am. Jur. 2d Payment § 5 (2013).
Here, the trial court found that the evidence clearly established that the
$10,000 payment to Concrete Services was intended as consideration for the
assignment of the default judgment against Kanany to Escamilla and the
dismissal of Concrete Services' claims against Escamilla. The court found that
the $10,000 payment was not intended to satisfy the default judgment against
Kanany. Accordingly, the court concluded that, contrary to Kanany's assertion,
the $10,000 payment did not result in the satisfaction ofthe default judgment
against him.
Substantial evidence supports the trial court's findings. The record shows
that Ticor Title issued a title insurance policy to Escamilla insuring the title of the
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No. 68578-3-1/11
parcel conveyed to Escamilla by Kanany. It was pursuant to this policy that
Escamilla requested that Ticor Title resolve the Concrete Services litigation on
his behalf. Ticor Title thereafter issued a $10,000 check, payable to Concrete
Services, indicating that the check was "for the purpose of settling" the insurance
claim asserted by Escamilla.5 Ticor Title and Concrete Services agreed that, in
exchange for the $10,000 payment, Concrete Services would dismiss its claims
against Escamilla, release the lien against Escamilla's property, and assign the
default judgment in its favor against Kanany to Escamilla. The letter to Concrete
Services accompanying the $10,000 check explicitly states that Concrete
Services was authorized to cash the check only upon signing and returning the
stipulation and dismissal, assignment of the default judgment, and partial release
of the lien. In stark contrast to the abundance of evidence indicating that the
$10,000 payment constituted consideration for dismissal of the claims against
Escamilla and assignment of the default judgment is the complete absence of
evidence suggesting that the payment was intended to satisfy the default
judgment entered against Kanany.
Moreover, the amount of the default judgment was $11,306.26. Thus, the
$10,000 payment would not constitute full payment of the judgment, further
supporting the trial court's finding that the payment was not intended to satisfy
5 In contending that the $10,000 payment satisfied the default judgment against him,
Kanany asserts that the payment constituted settlement of Concrete Services' claims. However,
the record clearly demonstrates that the $10,000 payment was intended to settle only those
claims by Concrete Services asserted against Escamilla, thereby settling Escamilla's insurance
claim against TicorTitle. Nowhere does the record indicate that the $10,000 payment was
intended as settlement of Concrete Services' claims against Kanany. Indeed, Concrete Services
had already obtained a defaultjudgmentagainst Kanany; thus, there were no pending claims
against Kanany to be settled.
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No. 68578-3-1/12
that judgment. Finally, because, as he admits, Kanany is not an insured
pursuant to the Ticor Title policy, Ticor Title had no incentive to satisfy the
judgment on Kanany's behalf. Rather, TicorTitle, having paid $10,000 to settle
the claims against Escamilla, its insured, had incentive to purchase the judgment
and proceed against Kanany in order to recover that expense.6 Thus, the record
clearly demonstrates that the parties intended the $10,000 payment to constitute
consideration for assignment of the defaultjudgment, not the satisfaction of that
judgment.7
Substantial evidence supports the trial court's finding that the $10,000
payment was intended as consideration for dismissal ofthe claims against
Escamilla and assignment ofthe default judgment to Escamilla—not to satisfy a
judgment against a non-party to that contract. This finding supports the trial
court's conclusion that the $10,000 payment did not result in satisfaction of the
default judgment against Kanany. Notwithstanding repeated requests at oral
6As the trial court found, and as Kanany now admits, the title insurance policy states that
Ticor Title shall be subrogated and entitled to the rights of Escamilla where Ticor Title settles a
claim pursuant to the policy. Thus, contrary to Kanany's contention, the fact that Ticor Title
issued the $10,000 check to Concrete Services, and yetthe default judgment was assigned to
Escamilla himself, is of no moment.
7Kanany argues at great length regarding the timing of the delivery of the $10,000 check
to Concrete Services, asserting that, because the check was delivered prior to the assignment of
the default judgment, the default judgment had been satisfied and could not thereafter be
assigned. Because, however, the evidence supports the trial court's determination that the
$10,000 payment was not intended to satisfy the default judgment, the timing of the delivery of
the check is ofno consequence. Consideration for assignment ofa judgment does not satisfy
that judgment simply because the consideration was delivered prior to the assignment. Kanany's
argument is wholly without merit.
Moreover, the cases cited by Kanany in support of his argument are inapposite. See
Charles P Young Co. v. Anava. 119 N.M. 449, 891 P.2d 1203 (1995); Strong Mem'l Hosp. v.
AlmacBldc. Maint.. Inc.. 122 Misc.2d 246, 470 N.Y.S.2d 542 (1983). No judgmentwas obtained
against Escamilla. Accordingly, judicial authority regarding the obligations of joint debtors is
irrelevant.
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No. 68578-3-1/13
argument that he do so, Kanany points to no evidence in the record indicating
that the $10,000 payment was intended to satisfy the judgment against him.
Accordingly, we reject Kanany's specious argument and hold that the trial court
properly denied his CR 60(b)(6) request for relief from the default judgment.8
Ill
Kanany additionally asserts that the trial court erred by granting an award
of attorney fees and costs to Escamilla. However, both RCW 60.04.181(3),
pursuant to which fees were awarded as part of the default judgment, and CR 11
provided applicable, independent bases for the trial court's grant of the fee
award. Accordingly, the court did not abuse its discretion by granting that award.
We will not disturb a trial court's decision to grant or deny an award of
attorney fees absent an abuse of discretion. Roats v. Blakelv Island Maint.
Comm'n, Inc., 169 Wn. App. 263, 283-84, 279 P.3d 943 (2012). Similarly, we
review for abuse of discretion an award of sanctions pursuant to CR 11. Marina
Condo. Homeowner's Ass'n v. Stratford at Marina. LLC, 161 Wn. App. 249, 263,
254 P.3d 827 (2011). As explained above, "[a] trial court abuses its discretion if
its order is manifestly unreasonable or is based on untenable grounds." Marina
Condo. Homeowner's Ass'n, 161 Wn. App. at 263.
Here, fees were awarded as an element of the default judgment against
Kanany pursuant to RCW 60.04.181(3), which provides authority for a court to
8Kanany challenges numerous other findings offact and conclusions oflaw made by the
trial court. After a complete review of the record, we conclude, with regard to the challenged
findings and conclusions, that either (1) the findings and conclusions are ofno moment to the
resolution of this case or (2) substantial evidence supports the challenged findings, which
themselves support the court's conclusions.
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No. 68578-3-1/14
allow the prevailing party in a priority of liens action to recover, among other
expenses, "attorneys' fees and necessary expenses incurred ... in the superior
court, court of appeals, supreme court, or arbitration, as the court or arbitrator
deems reasonable." Accordingly, the trial court determined that, because the
default judgment included an award of attorney fees and costs against Kanany,
Escamilla was entitled to an award of fees incurred in defending the default
judgment. The court additionally determined that
Escamilla is entitled to an award of costs and attorneys' fees under
CR 11 .[9] Robert Kanany lied to this court. His motion to vacate the
default and default judgment was a frivolous motion without legal or
factual basis. It served to waste resources of the parties, attorneys,
and the court.
In its supplemental judgment, the court explained that itfound "this sanction, in
light of the particulars of this particular case, to be the least severe necessary to
deter baseless filings and to curb abuses of the judicial system."
In challenging the fee award, Kanany baldly asserts that the trial court
granted the award "without a fair and impartial assessment of all the
circumstances comprising this matter." Br. of Appellant at 46-47. He additionally
asserts that the fee award was unwarranted because, according to Kanany, the
entire matter was caused by Concrete Services' and Escamilla's "fail[ure] to
9CR 11 provides that the signature of a party or attorney on a pleading, motion, or legal
memorandum constitutes a certificate by that party or attorney that the pleading, motion, or legal
memorandum is well grounded in fact, warranted by existing law or a good faith argument for a
change in existing law, is not interposed for an improper purpose, and contains only factual
contentions or denials warranted by the evidence. CR 11(a). Where a pleading, motion, or legal
memorandum is signed in violation of the rule, "thecourt, upon motion or upon its own initiative,
may impose upon the person who signed it, a represented party, or both, an appropriate sanction,
which may include an orderto pay to the other party or parties the amount ofthe reasonable
expenses incurred . .. , including a reasonable attorney fee." CR 11(a).
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No. 68578-3-1/15
acknowledge full payment and satisfaction" of the default judgment. Br. of
Appellant at 47. The record belies Kanany's assertions.
Instead, the trial court correctly determined that, because the default
judgment included an award of attorney fees against Kanany, such an award was
authorized for those expenses incurred in defending that judgment. See RCW
60.04.181(3) (providing for a fee award to the prevailing party in a lien action
where the fees are incurred "in the superior court, court of appeals, supreme
court, nr arbitration"^: see also Aecon Bldas. Inc. v. Vandermolen Constr. Co.,
Inc., 155 Wn. App. 733, 743, 230 P.3d 594 (2009) (granting a fee award to the
prevailing party for expenses incurred in defending against an appeal of a default
judgment where the underlying contract provided for such an award in the event
of litigation between the parties). In addition, CR 11 provided a sufficient and
independent basis for the award of attorney fees granted by the trial court. The
trial court's determination that Kanany lied to the court is not reviewable on
appeal. See Frank Coluccio Constr. Co.. Inc. v. King County, 136 Wn. App. 751,
770, 150 P.3d 1147 (2007) ("The trial court's credibility determination and its
resolution ofthe truth from conflicting evidence will not be disturbed on appeal.").
Moreover, the record supports the trial court's determination that the motion to
vacate the default order and judgment was frivolous and without legal orfactual
basis.
We hold that an award of attorney fees in the trial court was warranted
15
No. 68578-3-1/16
pursuant to both RCW 60.04.181 (3) and CR 11.10 Accordingly, we affirm the trial
court's grant of a fee award in the instant litigation.
IV
Escamilla requests an award of attorney fees on appeal. Such an award
is warranted against Kanany pursuant to both CR 11 and RCW 60.04.181, the
bases for the fee award in the trial court. In addition, because we conclude that
Kanany's appeal is frivolous, an appellate fee award is warranted against both
Kanany and his counsel pursuant to Rule of Appellate Procedure (RAP) 18.9(a).
An appellate fee award in favor of Escamilla and against Kanany is
authorized by the same grounds justifying the trial court's award of attorney
fees—CR 11 and RCW 60.04.181. An award of attorney fees on appeal is
authorized by CR 11 where sanctions have been imposed in the trial court
pursuant to that rule, as responding to the appeal "could reasonably be viewed
as a cost of collecting the judgment" entered by the trial court. Skilcraft
Fiberglass. Inc. v. Boeing Co.. 72 Wn. App. 40, 48, 863 P.2d 573 (1993),
abrogated on other grounds by Morin v. Burris. 160 Wn.2d 745, 161 P.3d 956(2007). Moreover, an appellate fee award is available to the prevailing party on
appeal pursuant to RCW 60.04.181(3). Woodstream Constr. Corp. v. Van
Wolvelaere. 143 Wn. App. 400, 409-10, 177 P.3d 750 (2008).
Moreover, because we determine that Kanany's appeal is frivolous, we
grant to Escamilla an award of attorney fees on appeal, pursuant to RAP 18.9(a),
10 On appeal, Kanany asserts that the fees awarded pursuant to CR 11 must necessarily
be in a lesser amount than the fees awarded pursuant to the statute. Because we affirm the
award on both bases, we need not further address this contention.
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No. 68578-3-1/17
against both Kanany and his counsel. RAP 18.9(a)11 provides for the imposition
of sanctions where a party brings a frivolous appeal. Here, the record clearly
supports the trial court's finding that the $10,000 payment from Ticor Title to
Concrete Services was intended by the parties to constitute consideration for
dismissal of Concrete Services' claims against Escamilla and assignment of the
default judgment to Escamilla. To prevail on appeal, Kanany must demonstrate
that this finding is not supported by substantial evidence. This he does not even
attempt to do. Moreover, Kanany fails to point to any evidence in the record
indicating that the $10,000 payment was intended to satisfy the default judgment
against him; indeed, no such evidence exists. Accordingly, because Kanany's
appeal "presents no debatable issues upon which reasonable minds could differ
and there is no possibility of reversal," his appeal is frivolous. Wellman &Zuck.
Inc. v. Hartford Fire Ins. Co.. 170 Wn. App. 666, 681, 285 P.3d 892 (2012),
review denied, 176 Wn.2d 1019 (2013). RAP 18.9(a) sanctions against both
Kanany and his counsel are thus warranted.
Upon proper application, the commissioner of this court will enter an order
awarding to Escamilla attorney fees and costs on appeal consistent with this
opinion.
11 "The appellate courton its own initiative or on motion of a party may order a party or
counsel. . . who . . . files a frivolous appeal... to pay terms or compensatory damages to any
other party who has been harmed by the delay or the failure to comply or to paysanctions to the
court." RAP 18.9(a).
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No. 68578-3-1/18
Affirmed.
^ \ y^U~^A
We concur:
J/l"y"-j H.Cj. tt-
18