* 21st Mortgage Corporation, Respondent V. Duncan Robertson, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
21ST MORTGAGE CORPORATION, a
Delaware corporation,
Respondent,
v.
LINDA C. NICHOLLS,
Defendant,
DUNCAN K. ROBERTSON,
Appellant,
and
OCWEN LOAN SERVICING, LLC, a
limited liability company,
Respondent,
RESIDENTIAL FUNDING COMPANY,
LLC, a limited liability company;
NORTHWEST TRUSTEE SERVICES,
INC., a Washington corporation;
MARY A. MILLER, an Iowa resident;
TYRONE THOROGOOD, a
Pennsylvania resident; DOES 1-10,
Third Party
Defendants.
No. 86482-3-I
DIVISION ONE
OPINION PUBLISHED IN PART
HAZELRIGG, C.J. — This is Duncan Robertson’s fourth appeal from the
underlying judicial foreclosure action, which 21st Mortgage Corporation (21st)
initiated to foreclose a deed of trust encumbering a property that Robertson
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purchased through a previous foreclosure sale. In the last appeal, we directed the
trial court to grant a decree of foreclosure in favor of 21st after a jury found that it
was in possession of both the original underlying promissory note and the original
allonges evidencing its status as a holder entitled to enforce the note.
In this appeal, Robertson claims he has new evidence showing that 21st
did not have standing to enforce the note. In the published portion of this opinion,
we grant 21st’s motion to dismiss Robertson’s appeal as untimely. 	In the
unpublished portion of this opinion, we address the alternate basis to grant 21st’s
motion, that Robertson failed to preserve his challenges for appeal, and grant
21st’s request for fees on appeal.
FACTS
The facts leading up to Robertson’s last appeal are set forth in our prior
opinions. 	See 21st Mortg. Corp. v. Nicholls, 25 Wn. App. 2d 795, 525 P.3d 962
(published in part), review denied sub nom., Robertson v. Residential Funding Co.,
1 Wn.3d 1023 (2023); 21st Mortg. Corp. v. Robertson, No. 75262-6-I, slip op.
(Wash. 	Ct. 	App. 	Oct. 	30, 	2017) 	(unpublished), 	https://www.courts.wa.gov/
opinions/pdf/752626.pdf.1 Accordingly, they will not be fully restated here. Briefly,
Robertson purchased the underlying property, a house in south King County
(Property), after he foreclosed on a deed of trust securing a loan he made to the
Property’s former owner, Linda Nicholls. 	See Nicholls, 25 Wn. App. 2d at 798.
1 Pursuant to GR 14.1(c), we may cite unpublished opinions as necessary for well-
reasoned opinions. They are cited here solely to establish procedural facts related to this litigation.
On a related procedural note, Robertson initiated and then voluntarily withdrew another
appeal in the time between Robertson and Nicholls.
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Robertson’s deed of trust was junior to a deed of trust securing a loan that Nicholls
had previously obtained from Old Kent Mortgage Company (Nicholls Loan). Id.
In 2014, 21st filed a complaint for judicial foreclosure against Robertson.2
21st alleged that it was “the owner and holder of the Deed of Trust and the Note
secured thereby.” Robertson answered and filed counterclaims against 21st and
cross claims against others, including Ocwen Loan Servicing. 	“In summary,
Robertson claimed that 21st did not have standing to bring a foreclosure action
because it had obtained the note underlying the foreclosure fraudulently,” and he
claimed that Ocwen also participated in the fraud. Id. at 799.
21st and Robertson both moved for summary judgment. 	In support of his
motion, Robertson relied on an affidavit and report from James Kelley, a purported
expert in forensic document examination, who had examined what 21st Mortgage
claimed were the original promissory note evidencing the Nicholls Loan and the
original allonges evidencing 21st’s status as a holder entitled to enforce the note.
Kelley concluded that the note was “not the original adjustable rate note but a copy
thereof”; he also concluded that various endorsements and allonges were copies.
The trial court denied Robertson’s motion for summary judgment, granted
21st’s motion, and concluded that 21st was entitled to a decree of foreclosure. On
appeal from that order, we reversed in part and remanded, holding, “To the extent
that [Kelley’s] affidavit is an admissible expert opinion, which is a question that is
not before us, it creates a genuine issue of fact whether 21st is the holder of the
note” and “entitled to enforce [it].” Robertson, slip op. at 7.
2 21st also named Nicholls in its complaint. Nicholls did not answer and was found to be
in default.
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On remand, 21st moved to exclude Kelley’s testimony, and the trial court
granted the motion, concluding that Kelley’s training and experience were not
sufficient to qualify him as an expert. Nicholls, 25 Wn. App. 2d at 801. The case
was then submitted to a jury, which “f[ound] that 21st was in possession of the
original note (verdict question 1) and the original allonges (verdict question 2), but
that the original allonges were not affixed to the original note on July 24, 2014, i.e.,
the date the complaint was filed (verdict question 3).” Id. at 802. 21st moved for
judgment as a matter of law to strike verdict question 3. Id. The trial court denied
the motion and declared Robertson the prevailing party. Id.
Robertson appealed and challenged the exclusion of Kelley’s testimony. Id.
21st cross appealed and challenged the denial of its motion for judgment as a
matter of law, arguing that “verdict question 3 (and its related jury instructions) had
no factual or legal basis.” Id. at 803. We agreed with 21st, holding that “whether
21st possessed the note and allonges (affixed or not) at the time of the complaint
or indorsement does not affect the outcome of the foreclosure as a question of law
or fact.” 	Id. at 813. 	Accordingly, we reversed the denial of 21st’s motion for
judgment as a matter of law and remanded to the trial court with directions to “grant
the decree of foreclosure in favor of [21st], which the jury found possessed the
original note and allonges.” 	Id. at 813, 797. 	We also affirmed the trial court’s
decision to exclude Kelley’s testimony, holding that the trial court’s conclusion that
Kelley was not qualified as an expert was supported by “Kelley’s own testimony
about the limitations of his qualifications.” Nicholls, slip op. (unpublished portion)
at 26, https://www.courts.wa.gov/opinions/pdf/833472.pdf.
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On October 4, 2023, on remand from Nicholls, the trial court entered a
money judgment and decree of foreclosure (judgment) in 21st’s favor. 	The
judgment declared that 21st’s deed of trust was a “valid first security interest” in
the Property, foreclosed the deed of trust, ordered the sale of the Property via
sheriff’s sale, awarded 21st its reasonable attorney fees and costs, and directed
that the “proceeds of sale shall be applied toward the satisfaction of [21st]’s
judgment awarded herein and any and all costs of sale incurred by [21st]; and the
surplus, if any to the Clerk of the Court to be distributed to such party or parties as
may establish their right thereto.”
On November 3, Robertson filed an “Objection” to the judgment and a new
declaration from Kelley that, according to Robertson, “serve[d] to charge and
support with unrefuted (and irrefutable) evidence the fact that 21st does not now
and has never had standing or authority to bring this Action or to be awarded any
relief, costs or attorney fees resulting from it” and “to provide fair notice of
forthcoming 	filings 	of 	a 	Motion 	for 	Evidentiary 	Hearing; 	Motion 	to 	Vacate
Judgments and Orders; Motion in opposition to awarding of Court Costs, attorney
fees or any relief to [21st] . . . , and/or other appropriate motions.”
On December 29, the King County Sheriff sold the Property and deposited
the sale proceeds with the King County Superior Court Clerk. 	On February 23,
2024, the trial court entered an order confirming the sale, and on March 7, the trial
court entered an order authorizing the clerk to disburse the sale proceeds to 21st.3
3 According to the sheriff’s return on sale, there was no surplus from the sale but instead a
deficiency.
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On March 22, Robertson filed a notice of appeal designating the March 7,
2024 order to disburse funds, the February 23, 2024 order confirming the sale, the
October 	4, 	2023 	judgment, 	and 	“[a]ll 	other 	judicial 	orders 	upon 	which 	the
[foregoing] Orders . . . are premised.” 21st moved to dismiss Robertson’s appeal,
and a commissioner of this court referred the motion to this panel.
ANALYSIS
I. 	Motion To Dismiss
21st argues that Robertson’s appeal must be dismissed because it is both
untimely and procedurally improper. We agree.
A. 	Timeliness
To properly initiate an appeal, the party seeking review must file a notice of
appeal “within the time provided by [RAP] 5.2.” 	RAP 5.1(a). 	Under RAP 5.2, as
relevant here, an appellant must file their notice of appeal in the trial court within
“30 days after the entry of the decision of the trial court that the party filing the
notice wants reviewed.” RAP 5.2(a).
Here, Robertson contends that he has new evidence that “reveals the falsity
of all courts’ presumptions that 21st has ever been a ‘Holder’ of the [note] in
question” and that the courts “were deceived that 21st has ever had lawful
authority/standing/capacity to initiate and litigate this Case and be awarded relief.”
In other words, the “decision of the trial court” that Robertson “wants reviewed,” for
purposes of RAP 5.2, is the trial court’s judgment which declared that 21st had a
valid lien on the Property, foreclosed that lien, authorized the sale of the Property,
entered judgment in 21st’s favor, and directed that the proceeds of sale be applied
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to satisfy the judgment. The trial court entered that decision on October 4, 2023.
So, Robertson had until November 3, 2023 to file a notice of appeal challenging
the judgment. However, Robertson did not file his notice of appeal until March 22,
2024, long after that deadline had passed, and, thus, his appeal is untimely.
Still, Robertson contends that review is proper because the judgment was
not the final decision in the case. 	In support, he cites Franz v. Lance, where the
court stated, “A party need not file a notice of appeal within 30 days of every
appealable order or judgment but may instead await the final decision in the case.”
119 Wn.2d 780, 781, 836 P.2d 832 (1992) (per curiam). 	The question in Franz
was whether an appeal from a postjudgment order awarding attorney fees also
brought an earlier judgment up for appeal. 	See id. 	In that case, the earlier
judgment did not resolve the parties’ entitlement to fees. 	See Kemmer v. Keiski,
116 Wn. App. 924, 934-35, 68 P.3d 1138 (2003) (discussing Franz). Franz does
not excuse a party from timely appealing a judgment, like the judgment entered in
this case, that “finally determines the rights of the parties in the action[,] . . . even
if it directs performance of certain subsidiary acts in carrying out the judgment, the
right to the benefit of which is adjudicated in that judgment.” Wlasiuk v. Whirlpool
Corp., 76 Wn. App. 250, 255, 884 P.2d 13 (1994) (emphasis added); accord
Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518, 133
N.E.3d 470, at ¶32 (2019) (foreclosure decree that resolved all rights and liabilities
of parties was final, appealable judgment even though it did not specify all amounts
due); MDG Supply, Inc. v. Diversified Invs., Inc., 41 Haw. 375, 380, 463 P.2d 525
(1969) (“A judgment of foreclosure . . . is final, although it contains a direction . . .
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to make a report of sale and to bring the proceeds into court for an order regarding
their disposition.”).
Robertson also contends that his timely appeal from the postjudgment
orders confirming the sale and authorizing the disbursement of sale proceeds
brought the judgment up for review, apparently relying on the rule set forth in RAP
2.4(b). Robertson is incorrect.
RAP 2.4(b) provides:
The appellate court will review a trial court order or ruling not
designated in the notice [of appeal], including an appealable order, if
(1) the order or ruling prejudicially affects the decision designated in
the notice, and (2) the order is entered, or the ruling is made, before
the appellate court accepts review.
A previous order prejudicially affects the order designated in the notice of appeal
“if the order appealed cannot be decided without considering the merits of the
previous order.” 	Right-Price Recreation, LLC v. Connells Prairie Cmty. Council,
105 Wn. App. 813, 819, 21 P.3d 1157 (2001).
This requires some connection between the two [orders] other than
that the appealed order would not have occurred if the earlier order
had been decided differently. The issues in the two orders must be
so entwined that to resolve the order appealed, the court must
consider the order not appealed.
Id. (emphasis added).
Here, Robertson’s opening brief does not address the trial court’s decisions
to confirm the sale and authorize the disbursement of proceeds, much less raise
any issues about those decisions that are so entwined with those addressed in the
judgment that this court must consider the judgment. 	Cf. RCW 6.21.110(3) (trial
court must confirm sale unless there were substantial irregularities in the sale
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proceedings to the probable loss or injury of an objecting party); RCW 61.24.080
(explaining order in which sale proceeds must be applied). Instead, as explained,
Robertson’s challenges on appeal go directly to the propriety of the judgment itself.
It cannot be, given the well-recognized interest in finality of judgments, that
Robertson may belatedly attack the judgment by appealing later orders that merely
carried out the directives contained in that judgment, particularly where he does
not even address the merits of those later orders. 	See In re Marriage of Burkey,
36 Wn. App. 487, 491 n.3, 675 P.2d 619 (1984) (recognizing “the policy favoring
the finality of judgments”); accord Shuput v. Lauer, 109 Wis.2d 164, 173-74, 325
N.W.2d 321 (1982) (“There is general agreement that . . . a party who wishes to
contest the judgment of foreclosure . . . must appeal from that judgment” and an
appeal from an order confirming the sale is limited to challenging the “regularity of
the proceedings subsequent to the judgment of foreclosure.”).
We grant 21st’s motion to dismiss Robertson’s appeal as untimely. 	Cf.
Buckner, Inc. v. Berkey Irrig. Supply, 89 Wn. App. 906, 911, 951 P.2d 338 (1998)
(“A necessary prerequisite to appellate jurisdiction is the timely filing of the notice
of appeal.”).
Having concluded that the remainder of this opinion has no precedential
value, the panel has determined that it will be filed for public record in accordance
with the rules governing unpublished opinions. See RCW 2.06.040.
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B. 	Procedural Propriety of Appeal
21st also argues that Robertson’s appeal must be dismissed because the
issues he raises are not properly before us. 	We agree, albeit for slightly different
reasons than those advanced in 21st’s motion to dismiss.
The thrust of Robertson’s appeal is that the trial court “took no appropriate
action” in response to his November 2023 “objection” to the judgment, in which he
presented what he described as “irrefutable proof” that “this entire case and all relief
granted has been based upon false evidence and therefore false premise.”
(Emphasis and boldface omitted.) But, although Robertson stated that his objection
served to provide the parties notice of forthcoming motions seeking appropriate
relief, the record does not reveal any such motion. For example, although Robertson
asserts that Kelley’s November 2023 declaration constituted new evidence proving
forgery and falsification by 21st and Ocwen, it does not appear that Robertson
sought relief under CR 59(a)(4), which governs motions for a new trial based on
newly discovered evidence, or CR 60(b)(3), which governs motions for relief from
judgment based on newly discovered evidence.4 Robertson’s failure to preserve his
claims for relief by bringing an appropriate motion or motions before the trial court is
an independent basis to dismiss his appeal.5 See RAP 2.5(a) (“The appellate court
may refuse to review any claim of error which was not raised in the trial court.”); RAP
12.2 (“The appellate court may reverse, affirm, or modify the decision being
4 To the extent Robertson did seek such relief, it was his burden to so demonstrate by
perfecting the record on appeal. See In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266
(1990) (“The appellant has the burden of perfecting the record so that the court has before it all the
evidence relevant to the issue.”).
5 We express no opinion as to the merits of such a motion.
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reviewed and take any other action as the merits of the case and the interest of
justice may require.”).
II. 	Fees on Appeal
21st requests an award of fees on appeal as a sanction for violating the Rules
of Appellate Procedure and for filing a frivolous appeal. RAP 18.9(a) authorizes this
court to sanction a party for filing a frivolous appeal or not complying with the rules.
“Appropriate sanctions may include . . . an award of attorney fees and costs to the
opposing party.” Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849 (2008).
We are persuaded that sanctions are warranted here. As a commissioner of
this court observed in a previous ruling, Robertson repeatedly filed versions of an
opening brief that did not comply with the RAPs. When the commissioner directed
Robertson to file a corrected brief before March 17, 2025, he failed to do so, and
this 	court 	accepted 	his 	earlier, 	non-compliant 	brief 	as 	his 	opening 	brief.
Nevertheless, Robertson later filed yet another brief without permission from this
court.6 And, even though we have considered that brief, it still does not comply with
the rules. 	For example, together with his brief, Robertson filed five volumes of
appendices, in plain contradiction of RAP 10.3(a)(8), without submitting a motion to
supplement the record or otherwise seeking permission from this court as required
by RAP 9.11(a).7 Additionally, Robertson makes various factual assertions without
6 Robertson filed a declaration in which he attested that he did not receive the
commissioner’s earlier ruling directing him to file a corrected brief. But, he did not submit a motion
to extend time, and his declaration does not excuse his earlier failures to comply with the rules.
7 Accordingly, we do not consider the appendices.
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citation to the record, in contravention of RAP 10.3(a)(5), which requires “[r]eference
to the record . . . for each factual statement.” (Emphasis added.)
Furthermore, although we do not reach the substance of Robertson’s current
appeal, we observe that it relies entirely on a new declaration from Kelley, who the
trial court previously excluded based on his lack of qualifications, a decision we
affirmed in Nicholls. Yet Robertson does not assert that Kelley’s qualifications have
changed in any material respect.8 	Cf. Folsom v. County of Spokane, 111 Wn.2d
256, 263, 759 P.2d 1196 (1988) (questions determined on appeal will not be
revisited in subsequent appeal absent substantial change in evidence). 	Nor does
he proffer any argument, supported by legal authority, as to why it would be
procedurally appropriate to revisit Kelley’s qualifications at this juncture where, as
discussed, Robertson failed to seek appropriate relief from the trial court in the first
instance. 	Cf. Haugh, 58 Wn. App. at 6 (“[A] contention unsupported by legal
argument is deemed waived.”). For the foregoing reasons, we grant 21st’s request
for an award of fees on appeal, subject to its compliance with RAP 18.1(d).
We dismiss this appeal.
WE CONCUR:
8 We note that a federal district court recently excluded Kelley from testifying in a different
case because he lacks the requisite knowledge, skill, experience, training, or education to provide
expert testimony on forensic document examination and because his testimony “fails to meet the
reliability threshold.” See Church of the Gardens v. Qual. Loan Servs. Corp., No. 3:23-cv-06193-
TMC, 2025 WL 2524463, at *6-7 (W.D. Wash. Sept. 2, 2025) (court order).
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