Shannon Cunningham, Respondent V. Jon Karwoski, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SHANNON CUNNINGHAM, an
unmarried individual,
Respondent,
v.
JON R. KARWOSKI and ELIZABETH
ANNE COLLINS a/k/a ELIZABETH
ANNE KARWOSKI, husband and wife
and the marital community comprised
thereof,
Appellants.
No. 79753-1-I
DIVISION ONE
UNPUBLISHED OPINION
APPELWICK, J. — The Karwoskis appeal the enforcement of a settlement
agreement between them and Cunningham. They argue that the trial court erred
in failing to hold an evidentiary hearing because a genuine dispute existed as to
the agreement’s terms. They further contend that CR 2A required their attorney to
sign the agreement. Last, they assert that the agreement is unenforceable
because it lacks consideration. We affirm.
FACTS
This appeal arises out of a dispute over a boundary line between neighbors
Shannon Cunningham and Jon and Elizabeth Karwoski. In 1991, Cunningham’s
predecessor in interest granted Jon1 a “Single Family Side Yard Easement.”
1 For clarity, we refer to Jon and Elizabeth individually by their first names.
We refer to them collectively as “the Karwoskis.”

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2
Cunningham’s garage is located within a portion of the easement area. It has
stood in that location for over 10 years. Cunningham also has a fence and rock
wall located within the easement area.
In October 2017, Cunningham filed a petition for an order of protection
against Jon. She alleged in part that Jon had threatened to kill her and her
domestic partner, Thomas Brelinski, had surveilled her as she was leaving her
home, and had parked his vehicles in a way that blocked her vehicle and delayed
construction work on her home. The district court granted Cunningham’s petition
in November 2017. It restrained Jon from contacting her, surveilling her, entering
her property, or interfering with signs related to construction outside her home for
one year.2
A few months later, in February 2018, Cunningham sued the Karwoskis,
asserting claims for trespass, outrage, assault, declaratory relief, adverse
possession, estoppel, and quiet title. She alleged in part that, despite the order for
protection, Jon had continued to harass her, dismantled portions of her fence,
entered her property without permission, and nailed material to the side of her
garage. She further alleged that Jon had asserted his ownership over the
easement on her property and had threatened to cause further damage to her
fence and garage. In her prayer for relief, she sought a declaratory judgment that
the Karwoskis had abandoned the easement and had no further right, title, or
interest with respect to the easement. She also sought an injunction restricting the
2 Brelinski also sought and was granted an order of protection against Jon.

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3
Karwoskis’ actions with respect to the trial court’s ruling on the parties’ rights under
the easement, damages, and attorney fees and costs.
The day after she filed her complaint, Cunningham filed a motion for a
temporary restraining order and an order to show cause. She specifically asked
the trial court to enjoin the Karwoskis from entering her property, including the
easement area, while the matter was being litigated. The trial court granted her
motion the same day. Two days later, attorney Ryan Yoke filed a notice of
appearance on behalf of the Karwoskis.3
In early March 2018, the parties stipulated to an agreed order for a
preliminary injunction. The injunction restrained the Karwoskis from entering
Cunningham’s property, including the easement area, during the pendency of the
action. The Karwoskis also agreed not to damage, move, or alter Cunningham’s
fence or any other personal property located on Cunningham’s property or
belonging to her.
On May 3, 2018, the parties participated in mediation. Counsel for
Cunningham, Samuel Meyler, and counsel for the Karwoskis, Yoke, were both
present. After several hours of mediation, the parties reached a settlement and
executed a “CR 2A Settlement Agreement.” The agreement included the following
provisions:
1) Permanent Injunction/No Contact Order to be entered
preventing Karwoskis from, direct or indirect, contact/
harassment/surveillance of Cunningham and her guests,
invitees and tenants.
3 The City of Seattle filed criminal charges against Jon based on his alleged
continuing harassment and violation of the order protecting Brelinski.

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2) All claims and counterclaims by all parties asserted in [this
case] to be dismissed with prejudice, subject to entry of Order
specified above.
3) Full mutual release for all claims and causes of action between
all parties to the pending litigation up to the date of this CR 2A
Agreement, including claims of adverse possession.
4) Cunningham and Brelinski to advise prosecutor in criminal
prosecution of Karowski that they are no longer interested in
pursuing the matter. Cunningham and Brelinski shall not be
restricted from responding to any lawfully served subpoenas
and shall not be liable to Karwoskis in any way for responding
to subpoenas.
5) Karwoskis release/extinguish Single Family Side Yard
Easement – to be recorded with King County Recorder’s Office.
6) Karwoskis release/extinguish Accessory Structure Agreement.
7) Karwoskis acknowledge surveyed lines of Cunningham
property as the boundary lines, that Cunningham owns the rock
wall bordering properties, laurel hedge bordering properties and
fence.
8) Karwoskis shall not enter Cunningham’s property at any time in
the future for any reason without prior express consent.
9) Cunningham shall not enter Karwoskis’ property at any time in
the future for any reason without express prior consent.
10) Both parties release and waive any present or future claim of
adverse possession.
11) Cunningham’s fence to remain in place in perpetuity with the
right to repair and replace as necessary.
12) Karwoskis to pay Cunningham $12,500 with[in] thirty 30 days
from the date of this CR 2A Agreement secured by a
Confession of Judgment executed by Karwoskis to be held by
Cunningham’s counsel and filed in the event that payment is
not made. The Confession of Judgment shall provide for
interest at 12% and attorney’s fees for enforcement and
collection.
. . . .

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16) Cunningham and Brelinski shall stipulate to vacating
antiharassment protection orders currently in place, noting that
it is stipulated as part of the resolution of their civil case.
17) Karwoskis waive[ ] any claims for malicious prosecution against
Cunningham and/or Brelinski.
Cunningham, Brelinski, and the Karwoskis all signed their names at the bottom of
the agreement.
In late May 2018, Meyler inquired with Yoke as to the status of the
Karwoskis’ $12,500.00 payment to Cunningham under the CR 2A settlement
agreement. Yoke advised Meyler that the Karwoskis would deliver the check to
his office the week of June 4, 2018. On June 4, Meyler again inquired as to the
status of the payment. On June 8, Yoke advised Meyler that the Karwoskis were
mailing a check to his office that same day. The Karwoskis failed to mail the check.
On June 15, Meyler inquired a third time as to the payment’s status. On June 19,
Yoke advised Meyler that Jon was working on getting the payment together, and
that he would let him know once that was done. This never occurred.
On July 30, 2018, Yoke sent Jon an e-mail asking him to confirm that he
was okay with Yoke agreeing to the entry of a notice of settlement. On August 1,
before Yoke received a response from Jon, the parties filed a notice of settlement
of all claims against all parties, signed by their attorneys. The notice
acknowledged the CR 2A settlement agreement. It stated that “all claims against
all parties in this action have been resolved, subject to finalizing the settlement
documents and carrying out the terms of the settlement.” It also stated that the
trial court could dismiss the case under King County Local Civil Rule 41(b)(2)(B) if
the parties failed to file an order dismissing all claims within 45 days and failed to

No. 79753-1-I/6
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file a certificate of settlement without dismissal. On August 6, Yoke sent Jon
another e-mail explaining that when he did not hear back from him, he agreed to
the entry of the notice of settlement. In response, Jon told Yoke that he could have
called or texted him. He also stated, “This is extortion.”
On October 1, 2018, Meyler sent Yoke an e-mail regarding the Karwoskis’
failure to adhere to the terms of the CR 2A settlement agreement. He stated that
if Yoke did not make progress in contacting the Karwoskis and getting them to
cooperate, Cunningham would be forced to file a motion to enforce the agreement.
On October 9, Meyler sent Yoke a letter stating that if the Karwoskis did not return
the fully executed settlement documents by October 19, Cunningham would file a
motion to enforce the agreement and seek attorney fees and costs.4 Two days
later, Yoke filed a notice of intent to withdraw as counsel for the Karwoskis effective
October 18, 2018. On October 22, Yoke informed Meyler that he had exchanged
several e-mails with Jon, but that Jon never signed the settlement documents.
On November 13, 2018, Cunningham filed a motion to enforce the CR 2A
settlement agreement. In doing so, she offered a copy of the agreement signed
by all the parties. She explained that, in accordance with the agreement, she had
stopped cooperating with the prosecutor pursuing criminal charges against Jon,
and that those charges had been dismissed. Despite her satisfaction of that term,
4 The settlement documents included (1) the “Confession of Judgment,
Agreed Permanent Injunction/No Contact Order and Final Order Releasing Bond
and Terminating Case,” (2) the “Easement Agreement and Notice of Termination
and Release,” and (3) the “Stipulated Orders Vacating Protection Orders.”
(Formatting omitted.)

No. 79753-1-I/7
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she stated that the Karwoskis had failed to pay her the agreed $12,500.00 and
refused to execute the settlement documents required by the agreement.
A hearing on the motion to enforce the agreement initially took place on
December 14, 2018. At the hearing, Jon appeared pro se and moved for a
continuance. He presented copies of several e-mails from October and December
2018 between Meyler, Yoke, and the trial court regarding the motion and a hearing
date. Jon was not a party to any of the e-mails, except for a December 10 e-mail
from Meyler sending him a proposed copy of a judgment and order for the
December 14 hearing. Handwritten notes on the e-mails indicated that the
Karwoskis lacked notice of the hearing. Jon failed to identify who wrote the notes
on the e-mails. However, notes such as “Mr. Meyler knows Mr. Yoke is withdrawn
and I am not represented” indicate that one of the Karwoskis wrote the notes. Jon
also presented copies of several e-mails from July and August 2018 between him
and Yoke. In those e-mails, Jon took issue with Yoke’s decision to agree to the
entry of the notice of settlement. One of the e-mails included a handwritten note
that stated, “I never agreed to an agreement.”5 The trial court granted Jon’s motion
and continued the hearing to February 2019.6
At the second hearing, the trial court granted Cunningham’s motion and
enforced the CR 2A settlement agreement. It awarded Cunningham a total
5 Last, Jon presented copies of e-mails from March 2018 between him and
Yoke, and a copy of a June 2018 e-mail from an attorney named Brooks de
Peyster. The e-mails between Jon and Yoke involved scheduling for the May 2018
mediation. The e-mail from de Peyster addressed a June 2018 court date. It is
unclear from the e-mail what that court date was for.
6 The trial court subsequently continued the hearing to a later date in
February due to inclement weather.

No. 79753-1-I/8
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judgment of $13,784.17. This amount included the $12,500.00 provided for in the
agreement, $1,113.70 in prejudgment interest, and $170.47 in costs.
Cunningham then filed a motion seeking $6,138.00 in attorney fees. She
specifically sought fees under the CR 2A settlement agreement, the settlement
and mutual release agreement, and the easement agreement. She also sought
fees under RCW 4.84.185, arguing that Jon raised only frivolous arguments as to
why he should not be held to the terms of the settlement agreement. The trial court
granted Cunningham’s motion and awarded her $6,138.00 in attorney fees. It
explained,
[T]he arguments and defenses presented by [the Karwoskis] were
frivolous, not supported by any rational argument and advanced
without reasonable cause. Attorney’s fees are therefore owing
pursuant to RCW 4.84.185. The Court further finds that the CR 2A
agreement contains the following attorney’s fees provision: “The
Confession of Judgment shall provide for interest at 12% and
attorney’s fees for enforcement and collection.” The confession of
judgment was not entered solely because [the Karwoskis] violated
the terms of a valid CR 2A agreement. Had they signed the
confession, [the Karwoskis] would have been liable for the fees now
sought for entry of certain additional orders ancillary to the judgment
in this matter (to extinguish a side yard easement and an accessory
structure agreement). Instead, those orders were entered by the
Court pursuant to contested motion to enforce the CR 2A agreement.
The Karwoskis appeal.
DISCUSSION
The Karwoskis assert that the trial court erred in enforcing the CR 2A
settlement agreement. First, they argue that the trial court erred in failing to hold
an evidentiary hearing because they “established that serious disputes existed
relative to the terms” of the agreement. Second, they argue that CR 2A required

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their attorney to sign the agreement. Last, they argue that the agreement is
unenforceable because it lacks “any reference to consideration.”
CR 2A governs the enforcement of stipulations in court proceedings. It
provides,
No agreement or consent between parties or attorneys in
respect to the proceedings in a cause, the purport of which is
disputed, will be regarded by the court unless the same shall have
been made and assented to in open court on the record, or entered
in the minutes, or unless evidence thereof shall be in writing and
subscribed by the attorneys denying the same.
CR 2A.
Under RCW 2.44.010, an attorney and counselor has authority:
(1) To bind his or her client in any of the proceedings in an
action or special proceeding by his or her agreement duly made, or
entered upon the minutes of the court; but the court shall disregard
all agreements and stipulations in relation to the conduct of, or any
of the proceedings, in an action or special proceeding unless such
agreement or stipulation be made in open court, or in presence of
the clerk, and entered in the minutes by him or her, or signed by the
party against whom the same is alleged, or his or her attorney.
The Washington Supreme Court has noted that “[t]he purpose of the cited rule and
statute is to . . . give certainty and finality to settlements and compromises, if they
are made.” Eddleman v. McGhan, 45 Wn.2d 430, 432, 275 P.2d 729 (1954)
(discussing the predecessor of CR 2A, former Rule of the Superior Courts 10
(1951), which used substantively identical language).
CR 2A applies when (1) a settlement agreement is made by parties or
attorneys in respect to the proceedings in a cause and (2) the purport of the
agreement is disputed. In re Marriage of Ferree, 71 Wn. App. 35, 39, 856 P.2d
706 (1993). An agreement is disputed within the meaning of CR 2A if there is a

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genuine dispute over the existence or material terms of the agreement. In re
Patterson, 93 Wn. App. 579, 583-84, 969 P.2d 1106 (1999). The party moving to
enforce a settlement agreement carries the burden of proving there is no genuine
dispute as to the agreement’s existence or material terms. Brinkerhoff v.
Campbell, 99 Wn. App. 692, 696-97, 994 P.2d 911 (2000). If the moving party
meets its burden, “the nonmoving party must respond with affidavits, declarations,
or other evidence to show there is a genuine issue of material fact.” Patterson, 93
Wn. App. at 584.
We review a decision regarding the enforcement of a settlement agreement
de novo. Lavigne v. Green, 106 Wn. App. 12, 16, 23 P.3d 515 (2001). “The trial
court follows summary judgment procedures when a moving party relies on
affidavits or declarations to show that a settlement agreement is not genuinely
disputed.” Condon v. Condon, 177 Wn.2d 150, 161-62, 298 P.3d 86 (2013). The
trial court must view the evidence in the light most favorable to the nonmoving
party and determine whether reasonable minds could reach but one conclusion.
Cruz v. Chavez, 186 Wn. App. 913, 920, 347 P.3d 912 (2015).
We apply general principles of contract law to settlement agreements. Id.
A valid contract requires a meeting of the minds on the essential terms. Evans &
Son, Inc. v. City of Yakima, 136 Wn. App. 471, 477, 149 P.3d 691 (2006).
Washington follows the objective manifestation test for contracts. Keystone Land
& Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 177, 94 P.3d 945 (2004). Thus, for a
contract to form, the parties must objectively manifest their mutual assent. Id. at
177-78. To determine whether a party has manifested an intent to enter into a

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contract, we impute an intention corresponding to the reasonable meaning of a
person’s words and acts. Multicare Med. Ctr. v. Dep’t of Soc. & Health Servs., 114
Wn.2d 572, 587, 790 P.2d 124 (1990), overruled in part on other grounds by Neah
Bay Chamber of Commerce v. Dep’t of Fisheries, 119 Wn.2d 464, 832 P.2d 1319
(1992). “Acceptance” is an expression, communicated by word, sign, or writing to
the offeror, of the intention to be bound by the offer’s terms. Veith v. Xterra
Wetsuits, LLC, 144 Wn. App. 362, 366, 183 P.3d 334 (2008).
I. Waiver
As an initial matter, Cunningham argues that the Karwoskis waived all of
their arguments on appeal “due to their failure to proffer any admissible evidence
or any legally supported arguments to the trial court.” She relies on RAP 2.5(a).
Under RAP 2.5(a), we may refuse to review any claim of error not raised in
the trial court. But, a party may raise the following claimed errors for the first time
on appeal: “(1) lack of trial court jurisdiction, (2) failure to establish facts upon which
relief can be granted, and (3) manifest error affecting a constitutional right.” RAP
2.5(a).
The only documents that the Karwoskis filed in response to Cunningham’s
motion to enforce the settlement agreement were the e-mail copies discussed
above.7 One of the printed copies of the e-mails between Jon and Yoke included
7 Cunningham argues that these e-mails were not admissible because they
were not attached to a declaration or otherwise authenticated. But, she failed to
raise this argument below. In its order granting Cunningham’s motion, the trial
court included these e-mails in the list of “papers and pleadings” it reviewed in
reaching its decision. Cunningham does not appeal any portion of that order.
Therefore, we decline to reach her admissibility argument.

No. 79753-1-I/12
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a handwritten note that stated, “I never agreed to an agreement.” We liberally
construe this handwritten statement as the Karwoskis’ evidence disputing the
existence of an agreement. This evidence alone is not enough to overcome the
fact that he and his wife both signed the mediated settlement agreement.
The Karwoskis did not raise in the trial court the arguments they make here
regarding (1) a requirement that their attorney sign the agreement and (2) a lack
of consideration in the agreement. The Karwoskis fail to demonstrate that these
arguments fall under one of the exceptions in RAP 2.5(a). As a result, they have
waived both arguments on appeal.
Even if they had not waived both arguments, the Karwoskis’ attorney did
not need to sign the agreement in order to bind them under CR 2A. We have
previously held that when a party “undertakes a settlement directly with the other
party, reduces it to writing, and signs it . . . the requirements of CR 2A are met just
as if the attorney had participated.” Patterson, 93 Wn. App. at 585. And, the
agreement was clearly supported by consideration. Both parties made a number
of promises in the agreement, including a promise to waive any present or future
claims of adverse possession. “[F]orbearance to prosecute a valid claim or assert
a legal right constitutes sufficient consideration for a contract.” State v. Brown, 92
Wn. App. 586, 594, 965 P.2d 1102 (1998). Accordingly, both of the Karwoskis’
arguments would fail.
II. Failure to Hold an Evidentiary Hearing
The Karwoskis argue that the trial court erred in failing to hold an evidentiary
hearing because they “established that serious disputes existed relative to the

No. 79753-1-I/13
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terms” of the settlement agreement. They do not detail what those disputes were.
Instead, they imply that they generally disputed the existence of an agreement.
In moving to enforce the settlement agreement, Cunningham had the initial
burden of proving there was no genuine dispute as to the existence of an
agreement or its material terms. See Brinkerhoff, 99 Wn. App. at 696-97. She
met that burden when she filed a copy of the agreement signed by all of the parties,
including the Karwoskis. At that point, the burden shifted to the Karwoskis to
disprove the existence of the agreement or to show there was a genuine dispute
of a material term. See Patterson, 93 Wn. App. at 584. All that the Karwoskis
provided in response were the e-mail copies discussed above. The only relevant
information in those e-mails was a handwritten note that stated, “I never agreed to
an agreement.” That self-serving after the fact annotation of an e-mail was
insufficient to show a genuine dispute as to the agreement’s existence.
Accordingly, the trial court did not err in granting Cunningham’s motion to enforce
the agreement.8
III. Attorney Fees
Cunningham and the Karwoskis both request attorney fees on appeal under
the settlement agreement. Cunningham also requests attorney fees on the basis
that the Karwoskis’ appeal is frivolous.
8 The Karwoskis also argue that if this court vacates the order enforcing the
agreement, it should vacate the judgment awarding attorney fees to Cunningham.
Because we affirm the order, we decline to vacate the attorney fee judgment
below.

No. 79753-1-I/14
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To support their attorney fee requests under the settlement agreement,
Cunningham and the Karwoskis cite RAP 18.1, RCW 4.84.330, and a fee provision
in the agreement.
RAP 18.1(a) allows a reviewing court to award a party reasonable attorney
fees if applicable law grants a party the right to recover them and the party requests
them in compliance with RAP 18.1. Under RCW 4.84.330,
where [a] contract or lease specifically provides that attorneys’ fees
and costs, which are incurred to enforce the provisions of such
contract or lease, shall be awarded to one of the parties, the
prevailing party, whether he or she is the party specified in the
contract or lease or not, shall be entitled to reasonable attorneys’
fees in addition to costs and necessary disbursements.
The settlement agreement includes the following fee provision:
Karwoskis pay Cunningham $12,500 with[in] thirty 30 days from the
date of this CR 2A Agreement secured by a Confession of Judgment
executed by Karwoskis to be held by Cunningham’s counsel and filed
in the event that payment is not made. The Confession of Judgment
shall provide for interest at 12% and attorney’s fees for enforcement
and collection.
(Emphasis added.) The confession of judgment was never entered because the
Karwoskis violated the terms of the settlement agreement. However, the
agreement clearly contemplates an attorney fee award in the event that
Cunningham has to enforce collection of the $12,500.00. And, Cunningham and
the Karwoskis agree that the provision applies to the prevailing party on appeal.
Because Cunningham prevails on appeal, we award her attorney fees under the

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fee provision in the settlement agreement, subject to her compliance with RAP
18.1.9
We affirm.
WE CONCUR:
9 Thus, we decline to consider Cunningham’s alternate request for fees
based on a frivolous appeal. We also deny each party’s motion to impose
sanctions for citation to unpublished opinions in violation of GR 14.1(a).