Opinion
No. 58457-0-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-39867-1, Dean Scott Lum, J., entered May 18, 2006.
Affirmed by unpublished per curiam opinion.
Attorney Kevin M. Winters appeals from the King County Superior Court's order imposing $2,500 in sanctions on him personally for his untimely response to Titan Mechanical, Inc.'s, motion to dismiss. Winters contends the trial court incorrectly found that his delay was a "tactical" maneuver to bring his motion to compel private arbitration before the court. Winters further argues that the amount of the award is excessive. Titan, citing no compelling authority, requests compensation for costs and fees incurred on appeal. Rejecting both Winters' and Titan's arguments, we affirm the trial court's sanctions order and deny Titan's request for an award of costs and attorney fees on appeal.
"Only an aggrieved party may appeal to this court." Breda v. B.P.O. Elks Lake City, 120 Wn. App. 351, 353, 90 P.3d 1079 (2004); RAP 3.1. "A lawyer who is sanctioned by a court becomes a party to an action and thus may appeal as an aggrieved party." Breda, 120 Wn. App. at 353. See Splash Design, Inc. v. Lee, 104 Wn. App. 38, 44, 14 P.3d 879 (2000).
FACTS
Sunrise Cascade, LLC, Sun's Construction, Inc., and Sun's Sun Light, LLC, contracted with Titan Mechanical for the installation of fire sprinklers on two separate construction projects. In December 2005, Titan Mechanical filed a breach of contract claim against Sunrise Cascade and Sun's Construction, both represented by Winters. On February 10, 2006, Winters filed an answer, a counterclaim, and a third-party complaint asserted by Sun Light, which was not a party to Titan's action. Titan's counsel subsequently requested that Winters dismiss Sun Light's claim; Winters refused. On May 10, 2006, Titan filed and served its motion to dismiss Sun Light's claims.
Winters filed and served a motion to compel private arbitration on May 11. Winters did not comply with the noon, May 16, 2006 deadline for responding to Titan's motion to dismiss and did not file or serve a response until after 3 p.m. the next day. With the response, Winters also faxed a letter to the trial court and to opposing counsel, claiming that the late response was inadvertent and requesting that Titan's motion to dismiss be decided on the merits. Titan then sent a fax opposing consideration of Winters' responsive pleadings.
On May 18, 2006, the trial court entered an order allowing Winters' responsive pleadings, but imposing $2,500 sanctions personally on Winters. The court found that Winters' delay was "tactical," stating that, "[c]learly [Winters'] tardy opposition to [Titan's] motion is linked to an attempt to get its own motion [to compel private arbitration] before the Court."
Winters filed a motion for reconsideration of the sanctions order, which the trial court denied. Winters then filed a notice of appeal, seeking review of both the trial court's sanctions order and the order denying his motion for reconsideration. A commissioner of this court stayed the appeal pending the outcome of the underlying litigation. The underlying litigation having been settled, Winters' appeal of the trial court's sanctions order is now before us.
DISCUSSION Sanctions
Winters contends that the trial court abused its discretion in imposing sanctions of $2,500 against him. Finding no error, we affirm the trial court's order.
A trial judge has broad discretion to determine reasonable sanctions. Absent a showing that the trial court abused its discretion, the amount of the sanctions will be upheld on appeal. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998). "[A] trial court's inherent authority to sanction litigation conduct is properly invoked upon a finding of bad faith. A party may demonstrate bad faith by, inter alia, delaying or disrupting litigation." State v. S.H., 102 Wn. App. 468, 475, 8 P.3d 1058 (2000). Here, the trial court found that Winters acted in bad faith. Specifically, the trial court found that Winters filed a motion to compel private arbitration before he untimely responded to Titan's motion to dismiss in order to attract the court's attention to the motion to compel. As the trial court's finding was reasonable, there was no abuse of discretion. Further, $2,500 is a reasonable penalty for Winters' bad faith conduct. We affirm the imposition of sanctions.
A trial court abuses its discretion only when its decision is "`"manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."`" In re Estate of Black, 153 Wn.2d 152, 172, 102 P.3d 796 (2004) (quoting State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004)).
Award of Costs and Fees on Appeal
Titan requests an award of costs and attorney fees incurred on appeal. As Titan cites no dispositive authority, and as we find none, we deny Titan's request.
"Attorney fees may only be awarded if authorized by `contract, statute, or recognized ground in equity.'" Bowles v. Wash. Dep't of Ret. Sys., 121 Wn.2d 52, 70, 847 P.2d 440 (1993) (quoting Painting § Decorating Contractors of Am., Inc. v. Ellensburg Sch. Dist., 96 Wn.2d 806, 815, 638 P.2d 1220 (1982)). To receive an award of attorney fees and costs, a party must devote a section of its brief to the fee request and include argument and citation to authority. RAP 18.1(b); Phillips Bldg. Co. v. An, 81 Wn. App. 696, 704-05, 915 P.2d 1146 (1996).
Titan requests fees pursuant to RAP 18.9, authorizing such an award where an appeal is frivolous. "Under RAP 18.9(a), `[a]n appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.'" State v. Chapman, 140 Wn.2d 436, 454, 998 P.2d 282 (2000) (quoting State ex rel. Quick-Ruben, 136 Wn.2d at 905) (alteration in original). As Titan cites no additional authority, we "may assume that counsel, after diligent search, has found none. We therefore do not consider points unsupported by argument or law." Grant County v. Bohne, 89 Wn.2d 953, 958, 577 P.2d 138 (1978). Because Winters' appeal is not totally devoid of merit, we decline Titan's request for an award of attorney fees on appeal. As the prevailing party on appeal, Titan may apply to our commissioner for an appropriate cost award.
Washington case law has explicitly established several equitable grounds for awarding attorneys fees, including bad faith conduct in litigation. City of Seattle v. McCready, 131 Wn.2d 266, 274, 931 P.2d 156 (1997). After considering such alternative bases for compensating Titan for costs and attorney fees incurred on appeal, we found no applicable alternative. See Clark v. Horse Racing Comm'n, 106 Wn.2d 84, 93, 720 P.2d 831 (1986); Miotke v. City of Spokane, 101 Wn.2d 307, 338, 678 P.2d 803 (1984); Hsu Ying Li v. Tang, 87 Wn.2d 796, 799, 557 P.2d 342 (1976); Pub. Util. Dist. No. 1 v. Kottsick, 86 Wn.2d 388, 390, 545 P.2d 1 (1976) ("Washington has recognized a number of equitable exceptions to the no-attorney-fees rule. A court may grant attorney fees to the prevailing party if the losing party's conduct constitutes bad faith or wantonness."); Lyzanchuk v. Yakima Ranches Owners Ass'n, Phase II, Inc., 73 Wn. App. 1, 10 n. 2, 866 P.2d 695 (1994) ("Bad faith has been recognized as a basis for the imposition of attorney fees in a number of Washington cases."); Bentzen v. Demmons, 68 Wn. App. 339, 349 n. 8, 842 P.2d 1015 (1993); Malarkey Asphalt Co. v. Wyborney, 62 Wn. App. 495, 509 n. 2, 814 P.2d 1219, 821 P.2d 1235 (1991); Victoria Tower Partnership v. Lorig, 40 Wn. App. 785, 789, 700 P.2d 768 (1985).
Affirmed.