Mark Olla, Appellant V. Robert H. Wagner, Et Al., Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARK OLLA, an individual, No. 48784-5-II
(Consolidated with No. 48910-4-II)
Appellant,
UNPUBLISHED OPINION
v.
ROBERT H. WAGNER, as an individual and as
Trustee of THE ROBERT H. WAGNER
MONEY PURCHASE PENSION PLAN (a/k/a
“THE ROBERT H. WAGNER PENSION
PLAN”), and DOES 3 through 50, Inclusive,
Respondents.
BJORGEN, J. — In this consolidated appeal, Mark Olla appeals the superior court
decisions (1) dismissing his consolidated 2015 complaint against Robert H. Wagner under CR
12(b)(6), (2) granting summary judgment to Wagner on Wagner’s counterclaims, and (3)
denying Olla’s motions to vacate the 2010 and 2011 orders and judgments in prior, related
litigation. We hold that Olla’s arguments fail and affirm the superior court.
FACTS
A. First Litigation
From 2007 to 2008, Wagner, acting on behalf of The Robert H. Wagner Money Purchase
Pension Plan (Pension Plan), made three loans to Olla so that Olla could purchase and move to a
home in Washington while he waited to sell his home in California. The first loan was for
$1,700,000, the second loan was for $150,000, and the third loan was for $160,000. The first
Filed
Washington State
Court of Appeals
Division Two
July 10, 2018

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loan was secured by a deed of trust on Olla’s California residence and his Washington residence,
although the deed of trust on the California residence was secondary to a prior deed of trust held
by Washington Mutual. The second loan was secured by a third deed of trust on the California
residence. The third loan was secured by a fourth deed of trust on the California residence. All
three loans became collectable in September 2008.
By September 2008, Olla was experiencing financial difficulties and Wagner became
concerned that Olla would not be able to pay off the loans as Olla had made no interest payments
on any of the loans. Wagner and Olla disagreed about how best to resolve the loan obligations
and the two began negotiating a settlement of their obligations through third parties. On October
18, Olla and Wagner completed a settlement agreement under which Olla would transfer the
deeds for his California and Washington properties to Wagner in exchange for $165,000 and
Wagner would extinguish the loans and agree to not sue Olla for any liability that may have
arisen as a consequence of the three loans. The settlement also contained release language
pertaining to possible claims by Olla against Wagner:
[I]n consideration for the terms of the settlement agreement, Olla “hereby releases
and forever discharges Buyer [i.e., Wagner], Buyer’s agents, attorneys, successors
and assigns from all damage, loss, claims, demands, liabilities, obligations, actions
and causes of actions whatsoever which Seller [i.e., Olla] might now have or claim
to have against Buyer, whether presently known or unknown, and of every nature
and extent whatsoever on account of or in any way concerning, arising out of or
founded on the [Wagner] Loan Documents or the [Wagner] Loans.
Clerk’s Papers (CP) at 1259-60.1
On February 4, 2009, Olla recorded a lis pendens against the Washington property that he
had deeded to Wagner. On June 25, Olla filed a complaint against Wagner and the Pension Plan
1 This is the settlement agreement that is disputed by the parties and referred to in the facts and
analysis below.

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alleging numerous causes of action, including violations of the federal Truth in Lending Act
(TLA), chapter 19.86 RCW, and the Washington’s Mortgage Broker Practices Act (MBPA),
chapter 19.146 RCW, fraud and intentional deceit, breach of implied covenant of good faith and
fair dealing, breach of oral contract, undue influence, economic duress, unjust enrichment,
intentional infliction of emotional distress, and intentional interference with prospective
economic gain. In part, Olla argued that because the loans violated the TLA and MBPA, the
court should rescind the three loan transactions. The complaint listed Wagner as a defendant
both individually and in his capacity as trustee of the Pension Plan and was assigned cause
number 09-2-01654-4. On June 29, Olla recorded a second lis pendens against the Washington
property, and on July 16, Wagner expunged the first lis pendens. On November 17, Olla’s
complaint went to a bench trial.
On January 15, 2010, the superior court dismissed all of Olla’s claims with prejudice and
entered findings of fact and conclusions of law. The superior court determined that Olla had
failed to prove fraud, misrepresentation or intentional deceit, undue influence, duress or
coercion, as well as “all of his remaining claims and causes of action seeking the rescission of
the settlement agreement.” CP at 1261-65. The superior court further concluded that “[t]he
settlement agreement is . . . valid and fully enforceable in its entirety.” CP at 1264. Finally, the
superior court held that “Olla is [equitably] estopped from advancing any and all of his claims
against Wagner,” because “it was Olla’s plan to initiate litigation against Wagner when he
entered into the settlement agreement despite his knowledge that the settlement agreement
contained full mutual releases.” CP at 1264. The superior court also expunged Olla’s second lis
pendens on the Washington property. On February 10, Olla filed a notice of appeal with our
court.

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On March 30, Olla recorded a third lis pendens against the Washington property. On
April 2, Wagner expunged the third lis pendens. On March 28, 2011, a second trial under the
same cause number was held to resolve Wagner’s counterclaims against Olla for breach of
contract and violation of RCW 4.28.328(3).2 On May 23, the superior court ruled in Wagner’s
favor, entered findings of fact and conclusions of law, and awarded Wagner $107,683.64 in
damages, attorney fees, and costs.
On September 13, our court filed an unpublished opinion resolving Olla’s appeal. Olla v.
Wagner, noted at 163 Wn. App. 1028 (2011). We rejected Olla’s argument that the superior
court lacked subject matter jurisdiction over the case and held that the superior court properly
determined that dismissal of Olla’s causes of actions was warranted based on equitable estoppel.
Olla, noted at 163 Wn. App. 1028, 2011 WL 4062244, at *6-7.
B. Second Litigation
1. Complaint and Counterclaims (Cause Nos. 15-2-01441-1 and 15-2-01985-8)
On July 21, 2015, Olla filed another complaint in superior court based on the 2007-2008
loans and property transfer. The complaint was assigned cause number 15-2-01441-4. Olla
requested a declaratory judgment that the three Wagner loans and subsequent acquisition of the
California and Washington properties were illegal, along with restitution, compensatory and
punitive damages, and vacation of the January 15, 2010 and May 23, 2011 orders and judgments
2 RCW 4.28.328(3) states,
Unless the claimant [in a lis pendens action] establishes a substantial justification
for filing the lis pendens, a claimant is liable to an aggrieved party who prevails in
defense of the action in which the lis pendens was filed for actual damages caused
by filing the lis pendens, and in the court’s discretion, reasonable attorneys’ fees
and costs incurred in defending the action.

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under CR 60(c).3 Olla claimed that Wagner had committed 21 violations of the MBPA related to
the three loan transactions. On October 5, Olla filed an amended complaint under this cause
number.
On September 28, Olla filed an additional complaint under cause number 15-2-01985-8
based on the 2007-2008 loans, settlement, and property transfer. In this complaint, Olla alleged
that the 2008 settlement agreement violated the TLA and was therefore illegal and against public
policy. Olla requested vacation of the January 15, 2010 and May 23, 2011 orders and judgments
under CR 60(c), a declaratory judgment that the 2008 property transfer was fraudulent and
against public policy, rescission of the three Wagner loans, and damages as equitable relief. On
December 4, the superior court consolidated Olla’s complaints (15-2-01441-4 and 15-2-01985-8)
under cause number 15-2-01985-8.
On January 29, 2016, Wagner filed a motion to dismiss Olla’s complaint under CR
12(b)(6), for failure to state a claim upon which relief can be granted. On February 4, Wagner
filed an answer, affirmative defenses, and counterclaims against Olla under consolidated cause
number 15-2-01985-8. Wagner raised release, waiver, estoppel, payment, collateral estoppel, res
judicata, and accord and satisfaction as affirmative defenses, and alleged that Olla’s complaint
violated the settlement agreement between Olla and Wagner. On February 5, the superior court
granted Wagner’s CR 12(b)(6) motion and dismissed Olla’s consolidated complaints. At the
hearing, the superior court explained that it granted the CR 12(b)(6) motion on the basis of res
judicata and collateral estoppel. On February 16, Olla filed a motion for reconsideration of the
superior court’s order dismissing his complaint under CR 12(b)(6). On February 17, the superior
3 CR 60(c) states, “This rule does not limit the power of a court to entertain an independent
action to relieve a party from a judgment, order, or proceeding.”

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court denied reconsideration. On March 18, Olla filed his first notice of appeal with our court,
appealing the superior court’s February 5 dismissal of his consolidated complaint. On February
18, 2016, Wagner filed a motion for summary judgment with regard to his counterclaims under
cause number 15-2-01985-8. On March 24, the superior court granted Wagner summary
judgment and entered findings of fact and conclusions of law. The record indicates that Olla did
not file a response to Wagner’s motion for summary judgment and did not attend the hearing on
summary judgment. The same day, Olla filed his second notice of appeal with our court,
appealing the superior court’s grant of summary judgment to Wagner.
2. Motion to Vacate Under CR 60(b)(5), (11) (Cause No. 09-2-01654-4)
On December 22, 2015, Olla filed a separate motion to vacate the January 15, 2010 and
May 23, 2011 orders and judgments pursuant to CR 60(b)(5) and (11) under cause number 09-2-
01654-4. On March 7, 2016, the superior court denied Olla’s motion to vacate the January 15,
2010 and May 23, 2011 orders and judgments and imposed sanctions on Olla for engaging in
frivolous litigation under CR 11.4 On March 24, Olla filed his third notice of appeal with our
court, appealing the superior court’s denial of his motion to vacate.
4 CR 11(a) states, in part:
The signature of a party . . . constitutes a certificate by the party . . . that the party .
. . has read the pleading, motion, or legal memorandum, and that to the best of the
party’s . . . knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances: (1) it is well grounded in fact; (2) it is warranted by
existing law or a good faith argument for the extension, modification, or reversal
of existing law or the establishment of new law; (3) it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.

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Olla appeals the dismissal of his consolidated 2015 complaint under CR 12(b)(6), the
grant of summary judgment to Wagner on Wagner’s 2016 counterclaims, and the superior
court’s denial of Olla’s motions to vacate the 2010 and 2011 orders and judgments.
ANALYSIS
I. SCOPE AND STANDARDS OF REVIEW
A. Scope of Review
This consolidated appeal raises two primary issues: (1) whether the superior court
properly denied Olla’s motion under CR 60(b)(5) and (11) to vacate the superior court’s January
15, 2010 and May 23, 2011 orders and judgments, and (2) whether the superior court properly
dismissed Olla’s consolidated 2015 complaint pursuant to CR 12(b)(6) under the doctrines of res
judicata and collateral estoppel. Although Olla also appealed the superior court’s grant of
summary judgment to Wagner, he addresses Wagner’s counterclaims for the first time in his
reply brief. We have previously held that issues and arguments raised for the first time in a reply
brief are untimely and waived. Ives v. Ramsden, 142 Wn. App. 369, 396, 174 P.3d 1231 (2008).
Therefore, Olla has waived any arguments regarding Wagner’s counterclaims.
B. Standards of Review
1. CR 60(b)
We review a trial court’s ruling under CR 60(b) for an abuse of discretion. Morris v.
Palouse River & Coulee City R.R., Inc., 149 Wn. App. 366, 370, 203 P.3d 1069 (2009). A trial
court abuses its discretion if its decision is manifestly unreasonable or is exercised on untenable
grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A
decision is based on untenable grounds or made for untenable reasons if it rests on facts
unsupported by the record or was reached by applying the wrong legal standard. Id. A decision

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is manifestly unreasonable if the court, despite applying the correct legal standard to the
supported facts, reaches an outcome that is outside the range of acceptable choices, such that no
reasonable person could arrive at that outcome. Id.
2. CR 12(b)(6)
We review a dismissal under CR 12(b)(6) de novo. FutureSelect Portfolio Mgmt., Inc. v.
Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014), aff’d, 413 P.3d 1 (2018).
Our Supreme Court has explained that “‘[d]ismissal is warranted only if the court concludes,
beyond a reasonable doubt, the plaintiff cannot prove any set of facts which would justify
recovery.’” FutureSelect, 180 Wn.2d at 962 (internal quotation marks omitted) (quoting Kinney
v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007)). On review of a CR 12(b)(6) motion, we
consider all of the alleged facts in a complaint as true and will deny the motion if it appears that
any set of facts could exist that would justify recovery. FutureSelect, 180 Wn.2d at 962-63.
However, “‘[i]f a plaintiff’s claim remains legally insufficient even under his or her proffered
hypothetical facts, dismissal pursuant to CR 12(b)(6) is appropriate.’” FutureSelect, 180 Wn.2d
at 963 (alteration in original) (quoting Gorman v. Garlock, Inc., 155 Wn.2d 198, 215, 118 P.3d
311 (2005)).
II. MOTION TO VACATE UNDER CR 60(b)
A. CR 60(b)(5)—Voidness
Olla argues that because the three Wagner loans and the settlement agreement were
illegal and contrary to public policy, the superior court should have determined that its January
15, 2010 and May 23, 2011 orders and judgments were also void. We disagree.
Under CR 60(b)(5), a party may obtain relief from a judgment and order if “[t]he
judgment is void.” Division One of our court has held that a judgment is void “[w]here a court

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lacks jurisdiction over the parties or the subject matter, or lacks the inherent power to make or
enter the particular order.” Chai v. Kong, 122 Wn. App. 247, 254, 93 P.3d 936 (2004). Olla
does not argue that the superior court in 2010 or 2011 lacked jurisdiction over the parties or
subject matter or lacked the inherent power to issue the judgments and orders that he seeks to
vacate. Therefore, Olla’s argument fails.
B. CR 60(b)(11)—Manifest Injustice
Olla contends that the superior court erred by not vacating the January 15, 2010 and May
23, 2011 orders and judgments on the grounds of manifest injustice. We disagree.
Under CR 60(b)(11), a party may obtain relief from a judgment and order for “[a]ny other
reason justifying relief from the operation of the judgment.” Division One has explained that
“the use of CR 60(b)(11) should be reserved for situations involving extraordinary circumstances
not covered by any other section of CR 60(b).” In re Marriage of Furrow, 115 Wn. App. 661,
673, 63 P.3d 821 (2003). Additionally, “those circumstances must relate to ‘irregularities
extraneous to the action of the courts or questions concerning the regularity of the court’s
proceedings.’” In re Furrow, 115 Wn. App. at 673-74 (quoting In re Marriage of Yearout, 41
Wn. App. 897, 902, 707 P.2d 1367 (1985)). Finally,
“irregularities justify vacation [under CR 60(b)(11)] whereas errors of law do not.
For the latter the only remedy is by appeal from the judgment. The power to vacate
for irregularity is not to be used by a court as a means to review or revise its
judgments or to correct mere errors of law into which it may have fallen.”
In re Furrow, 115 Wn. App. at 674 (emphasis added) (quoting Philip A. Trautman, Vacation and
Correction of Judgments in Washington, 35 WASH. L. REV. 505, 515 (1960)).
Olla maintains that his argument that the loans and settlement are illegal and against
public policy are factual and therefore appropriate under CR 60(b)(11). However, whether a

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contract is legal presents a question of law. Fallahzadeh v. Ghorbanian, 119 Wn. App. 596, 601,
82 P.3d 684 (2004). Similarly, “whether a contractual provision contravenes public policy [is a]
question[] of law.” Hanks v. Grace, 167 Wn. App. 542, 548, 273 P.3d 1029 (2012). Therefore,
we hold that the superior court properly determined that Olla was not entitled to relief under CR
60(b)(11) because his motion was predicated on alleged errors of law and not on irregularities
extraneous to the court’s actions or on questions concerning the regularity of court proceedings.
III. CR 12(b)(6)
Olla argues that the superior court improperly applied the doctrine of res judicata in
dismissing his consolidated 2015 complaint under CR 12(b)(6). We disagree.
A. Res Judicata
Res judicata is a doctrine of claim preclusion that bars relitigation of a claim that has
been determined by a final judgment. Emeson v. Dep’t of Corrs., 194 Wn. App. 617, 626, 376
P.3d 430 (2016). We review whether the doctrine of res judicata applies de novo as a question of
law. Berschauer Phillips Constr. Co. v. Mutual of Enumclaw Ins. Co., 175 Wn. App. 222, 227,
308 P.3d 681 (2013). We have previously held that “[f]iling two separate lawsuits based on the
same event is precluded under Washington law.” Emeson, 194 Wn. App. at 626. Res judicata
applies to matters that were actually litigated and those that could and should have been raised in
the previous proceeding through the exercise of reasonable diligence. Emeson, 194 Wn. App. at
626.
As a threshold matter, the party seeking to assert res judicata must show that it obtained a
final judgment on the merits in a prior suit. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,
865, 93 P.3d 108 (2004). A dismissal with prejudice is considered a final judgment on the merits
for the purpose of res judicata. Krikava v. Webber, 43 Wn. App. 217, 219, 716 P.2d 916 (1986).

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In addition, our Supreme Court has identified four requirements for res judicata to apply:
identity of (1) subject matter, (2) cause of action, (3) persons and parties, and (4) quality of the
persons for or against whom the claim is made. Williams v. Leone & Keeble, Inc., 171 Wn.2d
726, 730, 254 P.3d 818 (2011).
1. Final Judgment
On January 15, 2010, the superior court entered an order and judgment dismissing Olla’s
2009 claims with prejudice. This is a final judgment on the merits in a prior litigation that may
serve as the basis for res judicata.
2. Subject Matter
Olla’s 2009 action claimed in part that the superior court should rescind the three Wagner
loan agreements and the settlement agreement because of violations of the TLA and MBPA.
Olla also argued in his 2009 action that he was entitled to statutory, actual, and punitive damages
arising out of the loan and settlement transaction. Olla’s 2015 consolidated complaint similarly
maintained that the superior court should rescind the loan agreements and settlement because
they violate the TLA and MBPA. Olla’s consolidated complaint also requested compensatory
and punitive damages arising out of the loan and settlement transaction. Therefore, identity of
subject matter is met.
3. Cause of Action
We use a four-factor test to determine whether there is identity of cause of action under
res judicata. Emeson, 194 Wn. App. at 628. The factors are:
“(1) whether the rights or interests established in the prior judgment would be
destroyed or impaired by prosecution of the second action; (2) whether substantially
the same evidence is presented in the two actions; (3) whether the two suits involve
infringement of the same right; and (4) whether the two suits arise out of the same
transactional nucleus of facts.”

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Emeson, 194 Wn. App. at 628 (quoting DeYoung v. Cenex Ltd., 100 Wn. App. 885, 892, 1 P.3d
587 (2000)).
i. Rights or Interests Destroyed or Impaired
In Olla’s 2009 case, the superior court determined that “[t]he settlement agreement
[between Olla and Wagner] is . . . valid and fully enforceable in its entirety.” CP at 1264. The
superior court also held that “Olla is estopped from advancing any and all of his claims [arising
out of or founded on the Wagner Loan Documents or the Wagner Loans] against Wagner.” CP
at 1259-60, 1264. Olla’s attempt to relitigate the legality of the three loans and the effect of the
settlement agreement in his 2015 consolidated complaint would destroy or impair Wagner’s right
to rely on the superior court’s earlier judgment upholding the enforceability of the settlement
agreement. As such, this factor favors Wagner.
ii. Substantially Similar Evidence
Olla argues that the evidence in the 2015 case is not substantially similar to the evidence
in his 2009 case because he intends to show that Wagner did not have a Washington mortgage
broker license at the time he made the three loans. Although Wagner’s lack of a license was not
an issue in the 2009 litigation, both the 2009 and 2015 litigation would call for examination of
the circumstances surrounding the formation of the three loans and settlement agreement and
interpretation of those documents. Furthermore, to the extent that Olla argues that the superior
court erred in its adjudication of his 2009 complaint and that the 2010 and 2011 judgments and
orders should be vacated, his 2015 claim necessarily presented substantially the same evidence

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as his 2009 claim. Therefore, although the 2015 case may involve some evidence that was not
presented in the 2009 case, this factor favors Wagner.
iii. Infringement of the Same Right
Olla argues that his 2009 litigation concerned different rights because it sought to rescind
the three loan agreements based on violations of the TLA and the MBPA. He argues that
different rights are implicated by his 2015 action alleging that the three loans and settlement are
illegal and against public policy.
Although Olla attempts to distinguish the right at issue in this case, the 2009 and 2015
litigation involved violations of the same statutory schemes. In his 2009 case, Olla argued that
the three loan agreements should be rescinded because of violations of the TLA and MBPA. In
his 2015 case, Olla argued that the three loans were illegal because of various violations of the
MBPA. Olla also maintained that the settlement agreement was illegal and against public policy
because it attempted to waive a violation of the same provisions of the TLA that Olla argued the
three loans violated in his 2009 case. Although Olla focused his TLA argument on the
settlement agreement in the 2015 case, his argument arises out of the same error he raised in his
2009 case, that the loans violated the TLA, which in turn, cannot be waived by a settlement
agreement, thereby making the settlement illegal and against public policy. Because Olla’s 2009
and 2015 litigation concerned violations of the same statutory schemes and rights, this factor
favors Wagner.
iv. Same Transactional Nucleus of Fact
Olla’s 2009 and 2015 litigation concerned the negotiation and execution of the three
Wagner loans and the settlement agreement. Therefore, this factor favors Wagner.

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Based on the above analysis, the identity of the cause of action element of res judicata is
satisfied because all four factors favor Wagner.
4. Persons and Parties
Olla’s 2009 case listed Olla as the plaintiff and Wagner as an individual and trustee of the
Pension Plan and Does 3-50 as defendants. In the 2015 case, Olla was the plaintiff and Wagner
was named as an individual, trustee, and member of the Pension Plan. Dianne Wagner and Does
3-50 were also named as defendants. Our Supreme Court has explained that for the purpose of
res judicata, parties will be considered identical if the parties are “qualitatively” the same. Rains
v. State, 100 Wn.2d 660, 664, 674 P.2d 165 (1983). Olla does not appear to make any arguments
specifically regarding Dianne Wagner or the Does that are not related to actions by Wagner.
Therefore, the identity of party element is met because the 2009 and 2015 litigation involved the
same qualitative parties: Olla as plaintiff and Wagner as an individual, a trustee, and a member
of the Pension Plan.
5. Quality of the Persons
As explained above, the identity of persons element is satisfied because the parties in this
case are qualitatively the same. Therefore, the quality of the persons element is satisfied.
6. Claims Raised or Could Have Been Raised
Olla maintains that res judicata does not apply because his 2015 claims are sufficiently
distinct from the claims he raised in his 2009 complaint. However, the doctrine of res judicata
applies to matters that were actually litigated and those that could and should have been raised in
the previous proceeding through the exercise of reasonable diligence. Emeson, 194 Wn. App. at

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626. Therefore, even if Olla’s 2015 claims regarding the TLA were different from those raised
in the 2009 complaint, the similarity of the claims suggests that Olla could have raised his 2015
claims in his 2009 complaint through the exercise of reasonable diligence. Furthermore, Olla
acknowledged at oral argument that he knew at the time he filed his 2009 complaint that Wagner
did not have a Washington mortgage brokers license. Wash. Court of Appeals, Olla v. Wagner,
et. al, No. 48784-5-II (Consolidated with No. 48910-4-II), oral argument (Jan. 12, 2018), at 8
min., 24 sec. (on file with the court). Because Olla raised claims under the MBPA in his 2009
complaint and knew at that time that Wagner did not have a Washington mortgage brokers
license, Olla could have brought his 2015 MBPA claims in 2009 through the exercise of
reasonable diligence.
We hold that Olla’s claims are precluded under the doctrine of res judicata. As such, we
hold that the superior court properly dismissed Olla’s 2015 case under CR 12(b)(6) because his
claims were barred under that doctrine.5
III. FRAUD ON THE COURT
Olla argues that Wagner and the superior court have committed a “fraud upon the court.”
Br. of Appellant at 34, 41. Olla does not cite to any authority for this claim and does not offer
any explanation or analysis. We do not consider conclusory arguments unsupported by citation
to authority or rational argument. State v. Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012).
Therefore, we decline to consider this argument.
5 Because we hold that res judicata precludes Olla’s claims, we do not reach the issue of whether
collateral estoppel bars relitigation of the claims raised by Olla.

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IV. ATTORNEY FEES AND COSTS
Wagner argues that he is entitled to attorney fees and costs on appeal based on the
settlement agreement between him and Olla and RCW 4.84.185. We agree that Wagner is
entitled to attorney fees and costs on appeal based on the settlement agreement.
Where a statute or contract allows an award of attorney fees at trial, an appellate court
has authority to award fees on appeal. Bloor v. Fritz, 143 Wn. App. 718, 753, 180 P.3d 805
(2008). RCW 4.84.185 authorizes a court to award attorney fees and costs on appeal to a party
that has defended a lawsuit that was “frivolous and . . . without reasonable cause.” Wagner does
not offer any explanation as to why Olla’s complaint is frivolous. We do not consider
conclusory arguments unsupported by citation to authority or rational argument. Mason, 170
Wn. App. at 384. Therefore, we decline to award attorney fees and costs to Wagner on this
basis.
However, the settlement agreement between Wagner and Olla stated, in part, “If legal
action is required to enforce the provisions of this agreement, the prevailing party shall be
entitled to recover its [attorney fees] and costs from the nonprevailing party.” CP at 768. Our
Supreme Court has explained that “[a] ‘prevailing party’ is any party that receives some
judgment in its favor.” Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010)
(quoting Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997)). The court further reasoned
that “[i]f neither party completely prevails, the court must decide which, if either, substantially
prevailed,” based on “‘the extent of the relief afforded [to] the parties’” Id. (quoting Riss, 131
Wn.2d at 633-34). Wagner is the prevailing party in this appeal because he prevailed on the
motion to vacate and motion to dismiss issues. Therefore, we award attorney fees and costs on
appeal to Wagner based on the settlement agreement.

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CONCLUSION
We affirm the superior court.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Bjorgen, J.
We concur:
Johanson, P.J.
Sutton, J.