Brenia Laguna Creek, Llc., App/cr-resps V. Jon A. Wood And Jane Doe Wood, Resp/cr-apps

Citations and pin cites are based on the Westlaw online version of the cited material.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LAGUNA CREEK CALIFORNIA
PARTNERS, LLC, a Washington
limited liability company; LAGUNA
CREEK ADMINISTRATION, INC., a
Washington corporation,
Respondents/Cross-Appellants,
v.
BRENIA LAGUNA CREEK, LLC, a
Washington limited liability company;
BRITTINGHAM LAGUNA CREEK,
LLC, a Washington limited liability
company; CHANG LAGUNA CREEK,
LLC, a Washington limited liability
company; CHRISTENSEN LAGUNA
CREEK, LLC, a Washington limited
liability company; CHRISTENSEN II
LAGUNA CREEK, LLC, a Washington
limited liability company; DD LAGUNA
CREEK, LLC, a Washington limited
liability company; DECKER I LAGUNA
CREEK, LLC, a Washington limited
liability company; DECKER II LAGUNA
CREEK, LLC, a Washington limited
liability company; DREIS LAGUNA
CREEK, LLC, a Washington limited
liability company; DYKIER LAGUNA
CREEK, LLC, a Washington limited
No. 79808-1-I
DIVISION ONE
UNPUBLISHED OPINION

No. 79808-1-I/2
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liability company; EIGHT-ELEVEN
LAGUNA CREEK, LLC, a Washington
limited liability company; FOUR
TWELVE NINETEENTH STREET
LAGUNA CREEK, LLC, a Washington
limited liability company; GOULD I
LAGUNA CREEK, LLC, a Washington
limited liability company; GOULD II
LAGUNA CREEK, LLC, a Washington
limited liability company; HO LAGUNA
CREEK, LLC, a Washington limited
liability company; HSIEH II LAGUNA
CREEK, LLC, a Washington limited
liability company; LEE I LAGUNA
CREEK, LLC, a Washington limited
liability company; KRUEGER I
LAGUNA CREEK, LLC, a Washington
limited liability company; KRUEGER II
LAGUNA CREEK, LLC, a Washington
limited liability company; KWAN
LAGUNA CREEK, LLC, a Washington
limited liability company; LARSON
LAGUNA CREEK, LLC, a Washington
limited liability company; LEUNG
LAGUNA CREEK, LLC, a Washington
limited liability company; LIPNOSKY
LAGUNA CREEK, LLC, a Washington
limited liability company; MARUMOTO
LAGUNA CREEK, LLC, a Washington
limited liability company; POON
LAGUNA CREEK, LLC, a Washington
limited liability company; RICHARDS
LAGUNA CREEK, LLC, a Washington
limited liability company; SWAN
LAGUNA CREEK, LLC, a Washington
limited liability company; SWEDBERG
LAGUNA CREEK, LLC, a Washington
limited liability company; TAYLOR G.
LAGUNA CREEK LLC, a Washington
limited liability company; and
WHITNEY LAGUNA CREEK, LLC, a
Washington limited liability company,
Appellants/Cross-Respondents,

No. 79808-1-I/3
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PAUL S. BRENIA TRUST; WILLIAM
BRITTINGHAM, a Florida resident;
JEAN CHANG, a Taiwan resident;
ELIZABETH CHRISTENSEN, a
California resident; STEVE
CHRISTENSEN, a California resident;
M. STEVEN DAVISON, a California
resident; DONALD DECKER, a
California resident; ALICE DECKER, a
California resident; MARTIN DREIS, a
California resident; CHELSEA AND
ENRICHETTA DYKIER TRUST;
EIGHT ELEVEN CORP., a Virginia
corporation; FOUR TWELVE
NINETEENTH STREET LLC, a Virginia
corporation; ANA GOULD, a Virginia
resident; JEFFREY GOULD, a Virginia
resident; BANG L. HO, a California
resident; LEH-AN-HSIEH, a Maryland
resident; JOHN R. KRUEGER and
BOBE HA KRUEGER, Texas
residents; ALAN KWAN, a California
resident; HELEN LOUISE LARSON
REVOCABLE TRUST; LIN-NAN LEE,
a Maryland resident; LEUNG
PROPERTY TRUST; JULIE THERON,
a California resident; SUGAKO
MARUMOTO, a California resident;
FLORENCE AND CHRIS FAMILY
TRUST; RICHARDS FAMILY TRUST;
DONNA LEE SWAN REVOCABLE
TRUST; SWEDBERG 1997 FAMILY
TRUST; GARY and EMMA TAYLOR,
California residents; and JOAN
CAROLYN M. WHITNEY, a California
resident,
Third-Party Plaintiffs/Appellants/
Cross-Respondents,
v.

No. 79808-1-I/4
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JON A. WOOD and “JANE DOE”
WOOD, Washington residents;
ROGER E. KUULA and “JANE DOE”
KUULA, Washington residents;
and 1031 XPRESS LAGUNA CREEK,
INC., a Washington corporation,
Third-Party Defendants/
Respondents/Cross-Appellants.
MANN , C.J. — A group of investors, through their single-purpose investor limited
liability companies (LLCs) invested in a 160-unit apartment complex in Elk Grove,
California, beginning in November 2003. In 2017, Laguna Creek California Partners,
LLC, and Laguna Creek Administration, Inc., (collectively, Laguna) sued the investor
LLCs (collectively, Brenia) to enforce the underlying project master LLC agreement.
Brenia asserted counterclaims seeking injunctive relief, declaratory judgment and
damages for breach of contract, breach of fiduciary duty, unjust enrichment, and breach
of the Washington State Securities Act (WSSA), ch. 21.20 RCW. The trial court granted
summary judgment and dismissed Brenia’s contract claims on the merits, and Brenia’s
non-contract claims as time barred. The trial court subsequently awarded Laguna its
attorney fees under the terms of the master LLC agreement.
Brenia did not appeal within 30 days of the trial court’s orders dismissing its
claims, but instead appealed after the trial court entered judgment on Laguna’s motion
for attorney fees. Laguna seeks dismissal of Brenia’s claims on the underlying merits
as untimely. Laguna cross appeals the trial court’s judgment awarding attorney fees.
Laguna argues that the trial court erred by not awarding fees against the individual
investors, only their corresponding LLCs.

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We agree with Laguna that Brenia’s appeal on the merits was untimely and
dismiss their appeal on those claims. We also affirm the trial court’s award of attorney
fees against the Brenia LLCs. Because the trial court’s award of attorney fees is
unclear as to whether it intended the attorney fee award to be against the LLCs and the
individual investors, or just against the LLCs, we remand for clarification.
Dismissed in part, affirmed in part, and remanded for clarification of the award of
attorney fees.
I. FACTS
A. The Project and Original Investment
In 2003, the American Capital Group, Inc. (ACG) developed, built, and financed
The Laguna Creek Apartments (the Project), a 160-unit complex located in Elk Grove,
California. The Project was originally owned by Laguna Creek Apartment Associates
Partners, LLC (LC Associates). In 2003, LC Associates offered the Project for sale to
individual investors as tenants in common (TIC).1 LC Associates sought investors that
were interested in benefiting from Section 10312 of the Internal Revenue Code.
Potential investors received a 225-page confidential private placement memorandum
(PPM) describing the risks, fees, documents, entities, processes, and structure of the
investment.
The appellants here represent 31 of the original 39 original investors in the
Project. We refer to the 31 original investors collectively as Brenia or the Brenia
investors. Each of the Brenia investors received the PPM prior to investing. The PPM
1 According to ACG in the early 2000s, TIC structures were commonly used to own, manage, and
finance commercial real estate projects.
2 Section 1031 allows investors to sell income-producing real property, then roll profits from the
sale of that property into a new real estate investment without having to pay capital gain taxes.

No. 79808-1-I/6
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established that the Brenia investors would have a passive role, giving the Project’s
manager the ability to make management and financing decisions on their behalf.
Each of the individual Brenia investors each formed single purpose LLCs and
then signed a subscription agreement to acknowledge the terms of the PPM. By
signing the subscription agreement, the Brenia investors represented that they were
accredited investors as defined in the securities laws, had experience and expertise,
had the opportunity to review investment in the Project with legal and tax counsel,
understood the risk of the Project, and were purchasing the project “as is.” The
subscription agreement included a limited power of attorney authorizing the Project
managers to execute and file on behalf of investors any necessary amendments to the
original LC Associates LLC agreement and other Project Documents.
LC Associates sold approximately 98% of its interest in the Project to the Brenia
investors, retaining approximately 2% of its interest in the Project. Each Brenia investor
was subject to an investor operating agreement that was intended to hold each
investor’s interest in the project through its membership in the LC Associates LLC. The
investors operating agreements contained safeguards to ensure that the individual
investors remained passive investors. Safeguards included naming Laguna Creek
Administration as the “Special Purpose Manager” (Manager) that had the sole authority
to execute documents required to finance or refinance the project on behalf of the
Investor LLCs. The Manager could not be removed without Laguna Creek
Administration’s authorization.
Management of the Project was originally governed by the “Master Lease
Agreement.” The Master Lease Agreement ran between LC Associates and 1031

No. 79808-1-I/7
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Xpress Laguna Creek, LLC, an ACG affiliate. The Master Lease Agreement identified
LC Associates as the “Landlord” and 1031 Xpress Laguna Creek as the “Master
Tenant.”
The Brenia investors were also subject to an option to purchase. The option to
purchase granted the Master Tenant an option to purchase the Project at fair market
value beginning November 21, 2008. It also allowed the Master Tenant to purchase an
individual ownership interest of a defaulting individual investor at 50 percent of fair
market value.
B. Recession and Beyond
For the first few years, the Project rental income and appreciation value were
consistent with projections. In 2009, a real estate crisis hit, helping precipitate the
“great recession.” The recession devastated real estate throughout the country,
including the Project. Despite the recession, ACG took measures that prevented the
Project from failing and being lost to foreclosure.
On September 8, 2009, the Manager issued a $2,324,574 capital call, stating that
the Project’s initial lender required return of overpayments and advanced cash
payments. All Brenia investors answered this capital call.
In 2014, the Project’s initial financing was scheduled to come due, requiring ACG
obtain a source of permanent financing. In addition to the real estate market, the
recession affected the lending market as well. Notably, lending institutions were
hesitant to issue loans to TIC structured projects due to a higher default rate. As a
result, in 2012 the Manager proposed refinancing the project by consolidating the TIC
interests into a single LLC.

No. 79808-1-I/8
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Prior to consolidating the TIC interests into a single LLC, the Manager sent notice
and consent authorizations to the Brenia investors. Ninety-five percent of investors
approved the conversion, five percent did not return their ballots, and none voted
against the conversion. Following this vote, the Manager formed Laguna Creek
California Partners, LLC (the Master LLC), and its corresponding LLC agreement (the
Master LLC Agreement). The Master LLC Agreement converted the former TIC
interests into a percentage ownership of the Master LLC. The Master LLC Agreement
maintained that investors had a passive role, and decisions to sell were limited to an up
or down vote that must achieve approval by members meeting 51 percent ownership
interests. The Master LLC Agreement also reaffirmed primary provisions of the Master
Lease and option to purchase. On December 13, 2013, the Manager refinanced the
Project.
In 2016, the Manager decided to sell the Project. It sent out a notice of sale and
a consent authorization. Investors representing 67.1% of ownership approved the sale.
The remaining investors did not return their authorization. No member voted against
the sale.
In 2015, the Project began having water intrusion issues. During the winter of
2016-17, the Manager updated and obtained bids for necessary repairs to the roof,
stairway, and individual units, informing the Brenia investors on March 20, 2017.
On April 21, 2017, presumably unsatisfied with the Manager’s performance,
Brenia began a resolution to replace the Manager and revoke their consents to sell.

No. 79808-1-I/9
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C. Procedural History
On April 24, 2017, the Master LLC and the Manager (collectively, Laguna) sued
Brenia for the breach of the Master LLC Agreement. On May 2, 2017, the Manager
issued a second capital call in order to address the repairs stemming from water
intrusion. Three of the Brenia investors did not answer the capital call, so the Manager
exercised the Purchase Option on their ownership interests.
On June 23, 2017, the trial court granted Laguna a preliminary injunction
prohibiting Brenia from replacing the Manager, affirming the validity of the capital call for
repairs, and barring Brenia from rescinding their consents to sell.
On September 11, 2017, Brenia amended their answer, adding eight counter
claims including: injunctive and declaratory relief, an accounting under the Project
Documents, damages for breach of the Master LLC Agreement, breach of fiduciary
duty, unjust enrichment, violation of the WSSA, and fraud.
Laguna’s litigation costs began to accrue, increasing the Project’s overall
operating expenses. With cash reserves low, the Manager issued a third capital call of
$1 million on January 18, 2018, in order to create a reserve for debt services. The
Brenia investors did not pay this capital call. As a result, Laguna exercised its purchase
option and the purchased the Brenia investors’ ownership interests in the Master LLC.
On March 30, 2018, the trial court granted partial summary judgment in favor of
Laguna. The court determined that Laguna was entitled to declaratory judgment that
Brenia had no right to remove the Manager and that Laguna had the right to sell the
Project under the terms of the Master LLC agreement and executed consent to sell. In
doing so, the court affirmed the Brenia investor’s consent to sell and held that the

No. 79808-1-I/10
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Brenia investors had breached the subscription agreements, the Investor LLC
agreements, the buyer acknowledgement agreement (including the master lease
agreement referenced therein), and the Master LLC Agreement by seeking to remove
the Manager and challenging the authority of the Manager to sell the Project pursuant to
the terms of the executed consents to sell. The trial court also dismissed Brenia’s first
cause of action for injunctive relief and second cause of action for declaratory relief
finding the second capital call valid and enforceable. Finally, the trial court determined
that Brenia had abandoned and therefore dismissed their cause of action claiming
Laguna breached the Master LLC Agreement. The court granted Brenia’s CR 56(f)
motion to continue summary judgment on their WSSA claim. Brenia moved for
reconsideration. The trial court denied the reconsideration as part of its subsequent
order granting Laguna summary judgment.
On June 19, 2018, Brenia again moved to amend their answer. The trial court
denied the portion of the proposed amendment involving claims related to the TIC to
LLC conversion, capital calls, and the consent to sell, stating:
[such claims] cannot be resurrected through amendments or through the
addition of other entities which [Brenia] knew about and now claim were
acting for [API] and were known at the time of the [first] Summary
Judgment Motion.
The trial court allowed Brenia to add claims relating to investments, water intrusion, and
receivership, directing them to submit a proposed amended answer to allow Laguna to
raise objections.
On August 14, 2018, Brenia filed their second proposed amendment, three days
before Laguna’s second summary judgment motion was due under the trial court’s CR

No. 79808-1-I/11
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56(f) order. As reflected in Brenia’s redlined comparison of their June and August
proposed amendments, Brenia changed almost none of the alleged facts and struck
only one of the causes of action proposed in June. Laguna opposed the motion to
amend, and concurrently moved to dismiss all of Brenia’s “counterclaims and third party
claims,” that had not previously been dismissed, including those asserted in the
proposed amendment.
On October 26, 2018, the trial court granted Laguna’s second motion for
summary judgment, determining:
• 	Brenia’s securities and fraud claims under the WSSA were barred by a plain
reading of the WSSA and the parties’ relevant contracts and dismissed with
prejudice.
• 	Because it had previously confirmed the TIC to LLC conversion was valid,
Brenia’s challenge to the conversion or Master LLC’s ability to act were
dismissed with prejudice.
• 	Because it previously confirmed the second capital call was enforceable, and
Laguna’s enforcement of the third capital call, Brenia’s challenges to the second
and third capital calls were dismissed with prejudice.
• 	Brenia’s remaining fraud, breach of fiduciary duty, and improper maintenance
claims were time barred and dismissed with prejudice.
• 	By approving the as is provision in the TIC purchase and sale, Brenia’s claims for
construction defects were waived and dismissed with prejudice.

No. 79808-1-I/12
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In summary, the trial court determined that “[b]ecause there is no genuine issue of fact
regarding any of [Brenia’s] claims, [Laguna is] entitled to judgment as a matter of law on
all [Brenia’s] claims, and all of [Brenia’s] claims are dismissed with prejudice.”
The trial court also expressly stated that it assumed that Brenia’s proposed
second amended counterclaims and third party claims were approved in part and before
the court on summary judgment. The court explained that the amendment “continues to
be problematic, continuing to try and bring back in already dismissed or abandoned
claims.” The trial court rejected as “not the case,” Brenia’s contention that “the claims
they bring now are [based on] different, more recent acts” and found they “are obviously
the very same claims, the very same course of conduct.”3 The court denied Brenia’s
motion to add three claims of its 14 claims and confirmed “the remainder of the [second
amended] complaint is deemed filed without those claims and was considered for
purposes of summary judgment.”
Finally, the trial court determined that Laguna was the “substantially prevailing
party in this lawsuit” and that Laguna was entitled to an award of attorney fees and
costs “to be determined after further submission of proof and argument by the parties as
to the amount of those fees and costs.”
Brenia did not seek reconsideration, argue that the trial court left claims
unaddressed, or appeal the October 26, 2018, order granting summary judgment and
dismissing all of their claims with prejudice.
3 The trial court also noted Brenia’s counsel had a “regular habit of violating or ignoring local (and
state) rules on filing, page limits, time deadlines, etc. and asking for forgiveness later, or not at all.”

No. 79808-1-I/13
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On November 30, 2018, Laguna moved for an award of attorney fees as
authorized by the October 26, 2018, order, stating that they had prevailed on all of their
claims and defenses, and that they would be concurrently moving to dismiss their two
remaining claims: damages and Brenia’s breaches of contract. On December 12, 2018,
Laguna filed its CR 41 motion for voluntary dismissal without prejudice, which the trial
court granted leaving no further claims by either party remaining. Brenia did not oppose
the CR 41 motion.
On December 12, 2018, Brenia opposed Laguna’s fee motion. Brenia’s
opposition acknowledged that on October 26, 2018, the trial court “deemed [Laguna] the
prevailing party in this lawsuit.” On January 17, 2019, Brenia filed an opposition to
Laguna’s proposed findings of fact related to the fee award. In doing so, Brenia
asserted for the first time that “all claims have not been adjudicated, [and] no party
should be declared the prevailing party.”
In March 8, 2019, the trial court entered findings of fact and conclusions of law on
Laguna’s motion for fees and costs, awarding $802,406.03. In doing so, the court noted
that it granted Laguna’s request for an award of fees in its dispositive rulings and that
the “March 30, October 26, and December 12 [2018] orders together resolve and
dispose entirely of all claims in this matter.” The trial court also addressed Brenia’s
assertion that the court had not adjudicated all of Brenia’s claims by stating:
In an odd but inventive procedural move, instead of moving to reconsider
the Court’s [October 26, 2018] Summary Judgment Order docket no 467,
[Brenia] assert, by opposition to an attorneys’ fees motion, that [Brenia
has] eleven causes of actions left to pursue.
The Order docket no. 467 clearly states, on pages 7/19, and all of
[Brenia’s] remaining claims are dismissed with prejudice. If there was

No. 79808-1-I/14
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some question about the meaning of the very clear language, Defendants
should have raised it. It has now been four months and obviously, the
deadline under the rules has long passed. To the extent this legal position
is a Motion to Reconsider, the Motion is Denied.
On March 26, 2019, the trial court entered a judgment for attorney fees and
costs. On March 29, 2019, Brenia filed this appeal.4 Laguna cross appealed.
On April 22, 2019, Laguna filed a motion to dismiss for an untimely filing of
appeal. Brenia subsequently filed a motion to extend time to file. On June 14, 2019, a
court commissioner referred these motions to the panel for resolution.
II. ANALYSIS
A. Timeliness of Appeal
We first consider Laguna’s motion to dismiss and Brenia’s alternative motion to
extend time to file. We grant Laguna’s motion to dismiss and deny Brenia’s motion to
extend time to file.
“[A] notice of appeal must be filed within . . . 30 days after entry of the decision of
the trial court that the party filing the notice wants reviewed” or within 30 days of the
entry of an order deciding a “timely . . . motion for reconsideration or new trial under CR
59.” RAP 5.2(a), (e). An untimely motion for reconsideration is ineffective to challenge
a judgment on the merits. Schaefco v. Columbia River Gorge Comm’n, 121 Wn.2d 366,
4 Brenia filed its notice appealing orders spanning nearly two years including: (1) the March 26,
2019 Judgment Against Defendants for Attorneys’ Fees and Costs; (2) the March 8, 2019 Findings of
Fact and Conclusions of Law on Plaintiffs’ Motion for Fees and Costs and Defendants’ Motion for Fees
and Costs; (3) December 12, 2018 Order Granting Plaintiffs’ and Third-Party Defendants’ CR 41(a)(1)(b)
Motion for Mandatory Dismissal of Remaining Claims Without Prejudice; (4) the October 26, 2018 Order
Denying Defendants’ CR 56(f) Motion and Granting Plaintiffs’ Second Summary Judgment Motion; (5) the
March 30, 2018 Omnibus Order Concerning Plaintiffs’ Motion for Partial Summary Judgment, Defendants’
Motion for Stay Pursuant to CR 56(f), and Related Motions; (6) June 23, 2017 Order Granting Plaintiffs’
Motion for Preliminary Injunction; and (7) “all orders and decisions that prejudicially affect the listed
orders.”

No. 79808-1-I/15
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367-68, 849 P.2d 1225 (1993); FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp.
Holdings, Inc., 190 Wn.2d 281, 291, 413 P.3d 1 (2018).
Read together, RAP 2.2(a)(1) and RAP 2.4(b) require an appeal of a final
judgment on the merits, even where the judgment allows for a subsequent award of
attorney fees. 	As this court explained in Carrara, LLC v. Ron & E Enters., 137 Wn.
App. 822, 825-26, 155 P.3d 161 (2007):
RAP 2.2(a)(1) allows a party to appeal a final judgment of any
proceedings, regardless of whether the judgment reserves for future
determination an award of attorney fees or costs. This notice must be filed
within 30 days after the entry of the decision of the trial court. RAP 5.2(a).
RAP 2.4(b) allows a timely appeal of a trial court's attorneys' fees
decision, but makes clear that such an appeal does not allow a decision
entered before the award of attorney fees to be reviewed (i.e. it does not
bring up for review the judgment on the merits) unless timely notice of
appeal was filed on that decision. RAP 2.4(b); 2A Karl B.
Tegland, Washington Practice: Rules Practice RAP 2.4 at 183 (6th ed.
2004). . . . “The practical lesson is clear—counsel should appeal from the
judgment on the merits, even if the issue of attorney fees is still pending.”
2A Tegland, supra, at 181.
See also Bushong v. Wilsbach, 151 Wn. App. 373, 375, 213 P.3d 42 (2009).
The final judgment for purposes of RAP 2.2(a)(1) is the trial court’s “‘last action
that settles the rights of the parties and disposes of all issues in controversy, except for
the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment.’”
State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003) (quoting BLACK ’S L AW
DICTIONARY 857 (7th ed. 1999)).
“The appellate court will only in extraordinary circumstances and to prevent a
gross miscarriage of justice extend the time within which a party must file a notice of
appeal. . . . The appellate court will ordinarily hold that the desirability of finality of
decisions outweighs the privilege of a litigant to obtain an extension of time under [RAP

No. 79808-1-I/16
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18.8].” RAP 18.8(b). The rigorous test for extension under 18.8(b) has rarely been
satisfied since the effective date of the Rules of Appellate Procedure on July 1, 1976.
See Reichelt v. Raymark Industries, Inc., 52 Wn. App. 763, 765, 764 P.2d 653 (1988).
Here, appeals of all Brenia’s claims save the trial court’s award of attorney fees
are untimely. The bulk of Brenia’s claim—claims of which they seek this court’s
review—were disposed of in the October 26, 2018, order granting summary judgment.
The order explicitly stated “because there is no genuine issue of fact regarding any of
Defendants’ claims, Plaintiffs are entitled to judgment as a matter of law on all
Defendants’ claims, and all of Defendants’ claims are dismissed with prejudice.” The
final claims, belonging to Laguna, were disposed of in the December 12, 2018 order
granting mandatory dismissal of remaining claims without prejudice. Therefore, the
mandatory dismissal of remaining claims was the final judgment for purposes of RAP
2.2(a)(1). Brenia did not timely appeal this order. See Carrara, 137 Wn. App. at 826
(order granting summary judgment and dismissing defendant’s claims with prejudice is
a final appealable order).
Further, even if the trial court’s order granting attorney fees was characterized as
a motion to reconsider, the motion was neither granted nor timely. Except for the
judgment awarding attorney fees, none of Brenia’s claims have been timely-appealed.
This judgment does not give Brenia an opportunity to revive their prior claims. Per RAP
2.4(b), an appeal of a decision awarding attorney fees cannot be used to review
previously-entered decisions. See Carrara, 137 Wn. App at 825-26; Bushong, 151 Wn.
App. at 175.

No. 79808-1-I/17
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Brenia relies on Denney v. City of Richland, 195 Wn.2d 649, 462 P.2d 842
(2020), to argue that the trial court’s orders created confusion, and as a result we
should use our RAP 18.8(b) discretion to extend time to file. In Denney, a summary
judgment order directed the prevailing party to present a judgment pursuant to CR 54.
Denney, 195 Wn.2d at 652. Denney incorrectly believed the proposed judgment
pursuant to CR 54, rather than the order for summary judgment, to be the final
appealable order. Denney, 195 Wn.2d at 652. As a result, he missed the deadline for
appeal. Denney, 195 Wn.2d at 652. The Washington Supreme Court reversed, holding
that Denney reasonably misunderstood the judgment pursuant to CR 54 as being the
final order, justifying an extension under RAP 18.8(b). Denney, 195 Wn.2d at 659.
Brenia does not benefit from the same confusion found in Denney. To the
contrary, the trial court’s October summary judgment order in plain language dismissed
all of Brenia’s claims with prejudice, and trial court’s December order in plain language
dismissed all of Laguna’s remaining claims with prejudice. Nothing in either order
directed entry of a separate final judgment. Indeed, Brenia conceded in its opposition to
Laguna’s motion for attorney fees and costs that Laguna had prevailed. It was not until
the trial court’s judgment awarding attorney fees that Brenia changed course and
asserted there were unsettled claims. This assertion came months too late.
Brenia’s motion to extend time to file does not consist of “extraordinary
circumstances,” nor would granting the motion prevent a “gross miscarriage of justice”
justifying an extension of time under 18.8(b). Brenia simply appealed the lower court’s
dispositions too late.

No. 79808-1-I/18
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An appeal must be filed within 30 days of the decision a party wants the
appellate court to review. Brenia failed to appeal multiple orders, including the order
explicitly incorporating their amended pleadings. Brenia again tries to bring claims that
were either dismissed or have since become untimely. They do not demonstrate
conditions to overcome the rigorous test of extension put forth by RAP 18.8(b).
B. Attorney Fees
Brenia did timely appeal the trial court’s award of attorney fees. Brenia argues
that the trial court erred in its determination of attorney fees. Laguna cross appeals and
argues that the trial court erred by awarding fees only against the Investor LLCs, and
not the investors in their individual capacities as well. We disagree that the trial court
erred in its determination of the fee award, but remand to the trial court for further
explanation of why fees were not also awarded against the investors in their individual
capacities.
1. 	Reasonableness of Award
Appellate courts apply a two-part standard of review to a trial court’s award or
denial of attorney fees: (1) they review de novo whether there is a legal basis for
awarding attorney fees by statute, under contract, or in equity and (2) they review a
discretionary decision to award or deny attorney fees and the reasonableness of any
attorney fees award for an abuse of discretion. Gander v. Yeager, 167 Wn. App. 638,
647, 282 P.3d 1100 (2012).
Courts may award attorney fees only when authorized by a contract provision, a
statute, or a recognized ground in equity. King County v. Vinci Constr. Grands
Projects/Parsons RCI/Frontier-Kemper, JV, 188 Wn.2d 618, 625, 398 P.3d 1093 (2017).

No. 79808-1-I/19
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Here, the trial court recognized the legal basis for awarding Laguna its attorney fees
was in the Project Documents. In its findings of fact and conclusions of law, the trial
court directly quotes the relevant attorney fees provisions in the Subscription
Agreement, the individual LLC operating agreements, the Buyer Acknowledgment
agreement, and the Master LLC Agreement post-TIC to LLC conversion. These are
appropriate bases to award attorney fees.
Trial courts have broad discretion when determining the amount of attorney fees
awarded. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). In calculating
these fees, the trial court must supply findings of fact and conclusions of law sufficient to
permit this court to determine why the trial court awarded the amount in question.
SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 144, 311 P.3d 40 (2014).
The trial court properly exercised its discretion in determining the amount of
attorney fees to award. In addition to identifying relevant clauses in the Project
Documents justifying a fee award, the trial court properly examined the rates charged by
each attorney and the hours billed. The court determined that the rates billed to Laguna
were at or even sometimes below the market standard. In addition, the court
recognized the complexity of the case, and the difficulty Brenia imposed with their
multiple motions and abusive discovery tactics. As a result, the court’s determination of
fees was not an abuse of discretion.
2. 	Liability of Individual Investors
Laguna argues that the trial court should have awarded fees against not only the
Investor LLCs, but the individual investors as well. It is unclear why the trial court did
not award fees against the individual investors, meriting clarification.

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Laguna asserts that the trial court found that the individual investors breached
their subscription agreements, and that their claims lacked merit, thereby warranting an
award of fees against the individual investors as well as the Investor LLCs. Oddly
enough, both Laguna and Brenia appear to have at one point agreed on this issue. In
Laguna’s motion for fees, they requested fees against investors for the same reasons
they argue on appeal. In Brenia’s response, they did not contend that fees should not
be awarded against the investors. Rather, Brenia’s response conceded that fees
should be awarded against both the investors and the Investor LLCs, but argues for a
particular apportionment of the fees between the two. Laguna identified this concession
in their reply.
In the trial court’s findings of fact and conclusions of law on Laguna’s petition for
fees and costs, it stated:
The award of attorneys’ fees and costs is governed by a series of
contracts arising from Defendants’ and Third-Party Plaintiffs’ investment in
[the Project] . . . Several of those documents require an award of
attorneys’ fees and costs to the substantially prevailing party in this
litigation. Because the Plaintiffs are the substantially prevailing parties, an
award of attorneys’ fees and costs is required under the relevant contracts
against both the Third Party Plaintiffs—that is, the individuals who
invested in the [Project]—and the Defendants—that is, the [Investor LLCs]
formed by each of the individual investors in the Project as the vehicle for
their investments.
In sum, both the investors and Investor LLCs are liable for attorney fees under the
Project Documents.
The court further elaborated on the topic, stating:
More specifically, before they were permitted to invest in the
Project, all Third-Party Plaintiffs voluntarily executed a Subscription
Agreement in which they made a number of specific representations and
warranties.

No. 79808-1-I/21
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. . . .
[T]o the extent the Third-Party Plaintiffs made any misrepresentation or
untrue statement in the Subscription Agreement, they are obligated to pay
Plaintiffs’ attorneys’ fees and costs under Section 4(c) of the Subscription
Agreement. It is uncontested that Plaintiffs would not have agreed to
enter into this investment with Third-Party Plaintiffs if Plaintiffs knew that
Third-Party Plaintiffs’ representation and warranties contained in the
Subscription Agreement were untrue.
The trial court bolstered the case against individual investor’s liability for attorney fees.
Following these findings of fact, the court stated that “after long consideration, [it
concluded] that it ruled solely on the statute of limitations arguments and made no
findings on the Third-Party Plaintiffs thus the fees are awarded only against the
Defendants.” This statement was in direct contradiction to the court’s earlier findings,
and merits further explanation.
Because the trial court found that the Project Documents were the legal grounds
for awarding attorney fees, and that fees should be awarded against both the investors
and Investor LLCs, it subsequently abused its discretion by failing to properly explain
why it contradicted its earlier findings. We remand for determination of fees consistent
with its opinion.
C. Attorney Fees on Appeal
Laguna requests attorney fees on appeal under RAP 18.1. Under RAP 18.1, a
party may request reasonable attorney fees on appeal if an applicable law grants the
party the right to recover. Laguna requests attorney fees based on the provisions in the
Project Documents that awarded fees at trial. We generally recognize a provision in a
contract allowing attorney fees to include fees on appeal as well as at trial. Edmundson

No. 79808-1-I/22
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v. Bank of America, 194 Wn. App. 920, 932-33, 378 P.3d 272 (2016). Because Laguna
substantially prevailed, we award attorney fees on appeal subject to compliance with
RAP 18.1.
Dismissed in part, affirmed in part, and remanded for determination of attorney
fees consistent with this opinion.
WE CONCUR: