Christopher L. Matson, Respondent V. Dolores R. Van Hoof, Appellant

iui3 JUn 10 	j" I i0- 12
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER L. MATSON,
a single man,
Respondent,
v.
BRENT T. OKITA and JULIE L OKITA,
husband and wife; CHARLES E.
VAN HOOF, SR.; MICHAEL L.
SCHONBACHLER, a single man,
Defendants,
DOLORES R. VAN HOOF,
Appellant.
No. 68256-3-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 10, 2013
Leach, 	C.J. 	— 	Courts 	have 	inherent 	authority 	to 	impose 	sanctions
whenever a party engages in bad faith delay or disruption of litigation. 	Because
the record in this case reflects nonresponsive and dilatory conduct by Dolores
Van Hoofs counsel, the court did not abuse its discretion in imposing sanctions
against her. 	Van Hoofs remaining claims either lack merit, are not supported by
argument or authority, or are not properly before us. We affirm.
FACTS
Christopher 	Matson 	filed 	this 	action 	to 	resolve 	a 	boundary 	dispute
between several neighbors, including Dolores Van Hoof.

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On April 26, 2011, following a mediation, the parties executed a "CR 2A
Settlement Agreement." The agreement provided in part that Van Hoofs counsel
would 	"make 	an 	initial 	draft 	of 	pleadings 	and 	orders 	consistent 	with 	this
settlement." 	It also provided that "[n]either of the parties to 	this Settlement
Agreement shall be awarded Court Costs or Attorney's Fees."
After waiting several 	months for the draft pleadings, 	Matson's counsel
contacted Van Hoofs counsel. 	Van Hoofs counsel indicated he was now able to
draft the documents.
Several weeks later, on July 19, 2011, Matson's counsel took matters into
her own hands and drafted a stipulated judgment, which she mailed and e-mailed
to Van Hoof's counsel.
On July 29, she wrote Van Hoof's counsel, stating in part, "If you would
please provide me with the pleadings for settlement I would appreciate it, or at
least contact me about revising the ones that I provided. 	If not, you leave me no
choice but to file a Motion to Enforce the Settlement Agreement, with attorney's
fees."
On August 10, 2011, Matson moved to enforce the settlement agreement.
The motion recounted counsel's efforts to obtain the draft documents, alleged
that the case could soon be dismissed under local rules for failure to file an order
within 45 days of notice of settlement, and requested $525 in attorney fees and a
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No. 68256-3-1 / 3
$500 daily penalty for each day Van Hoof failed to comply with the settlement
agreement after August 19, 2011.
On August 19, 2011, the superior court entered an order enforcing the
settlement agreement. 	The order required Van Hoof's counsel to provide Matson
with the draft documents by August 24, 	2011. 	It ordered Van 	Hoof and her
counsel to jointly pay $525 in attorney fees to Matson and stated that Van Hoof
would pay $500 for each day past August 19 that her counsel failed to comply
with his duties under the settlement agreement.
That same day, Van Hoofs counsel filed an untimely reply to Van Hoofs
motion to enforce. 	He alleged that his failure to draft the documents was related
to 	the 	absence 	and 	eventual 	death 	of 	his 	paralegal 	and 	his 	receptionist's
hospitalizations for leukemia during 2011. 	He also alleged that he had been out
of town with his family "for most of August." 	He 	requested an extension to
September 30 to prepare the settlement documents.
On August 24, 2011, Van Hoofs counsel provided draft documents to
Matson's counsel.
On August 30, 2011, the court entered an "Order on Motion to Enforce"
which 	set 	a 	hearing 	for 	September 	14, 	2011, 	to 	consider 	"those 	issues,
allegations and request contained in [the parties'] pleadings on this matter."
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On September 23, 2011, the superior court held a hearing, at which Van
Hoof requested relief from the court's August 19 order of enforcement. 	Following
argument, the court denied the requested relief, stating,
It's not the first case where 	I've had to 	issue a 	sanction
where parties have just let things sit too long, and better it be a
monetary penalty than one from the bar association, is what I would
think.
... I'm going to deny the motions for reconsideration or any
diminution of attorneys' fees to be paid. 	I'm loath, really, in general,
to have the client bear the burden, and the underlying order that I
signed essentially assigns a portion to the client and a portion to
the attorney. 	It seems to me that same proportionality ought to
persist.
Once we learn that the parties have a settlement, we take it
off our trial calendar so that we 	make room for other litigants to
have their matters heard ....
... If the lawyers are dilatory, then shame on them. 	And if
the lawyers are not responsive, then a monetary fine is the midway
point that the Court takes to try to move this through.
The court ordered Van 	Hoofs counsel and his firm to 	pay Matson's counsel
$1,225 in attorney fees.
On November 20 and 21, 2011, Matson's counsel e-mailed and mailed
notice of her motion for presentation of findings and conclusions and her motion
for presentation of judgment to Van Hoofs counsel. 	The hearing on the motions
was set for December 16, 2011. 	Matson's counsel did not file her declaration of
mailing until December 14, 2011.
On December 14, 2011, two days before the motion hearing, Van Hoofs
counsel faxed opposing counsel an "objection to hearing date," stating that "no
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No. 68256-3-1 / 5
copy was received by this office." 	The objection further stated that Van Hoofs
counsel was "not available for any hearing on December 16, 2011 because he is
scheduled to appear at a Federal District Court hearing that day." 	The objection
stated that counsel "committed himself to appear at an important hearing in the
U.S. 	District Court in Tacoma this Friday." 	Matson's counsel later alleged that
the federal court matter was without oral argument.
On December 15, 2011, Van Hoofs counsel faxed opposing counsel a
declaration, 	stating 	that 	he 	would 	be 	in 	Pierce 	County 	Superior 	Court 	on
December 16, 2011, for four separate matters.
At the 	December 	16, 	2011, 	heanng, 	substitute 	counsel 	appeared 	on
behalf of Van Hoof and requested a continuance. 	Matson's counsel objected,
arguing there was no legitimate reason for Van Hoofs counsel's absence.1 	The
court denied a continuance, stating that it was 	"not satisfied that [counsel's]
failure to appear is anything but willful" and that it would proceed "forward as
though he's . . . forfeited any objection."
On December 28, 2011, the court entered findings of fact and conclusion
of law. 	The court found 	that Van 	Hoof and 	her counsel "had no 	legitimate
excuse" for failing to respond to Matson or provide the documents required by
the settlement agreement. 	The court concluded that "[sanctions are appropriate
1 Counsel explained why each of Van Hoof's counsel's alleged conflicts
was avoidable or not legitimate.
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No. 68256-3-1/6
where the attorney has let things sit too long, as in this case." 	In its conclusions
of law, the court stated that Van Hoofs "unreasonable and repeated delay ... is
tantamount to bad faith under CR 11" and that her motion for reconsideration
"was baseless."
The court then entered two judgments. 	The first imposed $2,000 in daily
penalties against Van 	Hoof 	under the August 	19, 	2011, 	order and 	$525 	in
attorney fees jointly against Van Hoof and her counsel. 	The second imposed
$1,225 against Van 	Hoofs counsel and 	his law firm for bringing a 	baseless
motion for reconsideration.
Van Hoof appealed but did not include her counsel or his firm as parties in
the notice of appeal. 	After filing her opening brief, she moved to join her counsel
and his law firm as parties. 	A panel of this court denied the motion. 	Accordingly,
any rulings and judgments against Van 	Hoofs counsel and 	his firm are not
properly before us.
DECISION
Van Hoof contends the court abused its discretion in ordering her to pay
Matson $2,525 in attorney fees and daily sanctions. We disagree.
Courts have inherent authority to 	impose sanctions, 	including attorney
fees, in the management of proceedings and parties.2 	This authority arises from
"'the control necessarily vested in courts to manage their own affairs so as to
State v.Gassman, 175 Wn.2d 208, 210-11, 283 P.3d 1113 (2012).
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No. 68256-3-1 / 7
achieve the orderly and expeditious disposition of cases.'"3 	Such authority "is
properly invoked upon a finding of bad faith."4 	Bad faith may be demonstrated by
"delaying or disrupting litigation."5 	We review sanction decisions for abuse of
discretion.6
Here, the trial court found that Van Hoof's counsel's nonresponsive and
dilatory conduct regarding his obligations under the settlement agreement was
"tantamount to bad faith." 	Van Hoof contends this finding does not support the
sanctions imposed because the court relied on CR 11, not its inherent power.
But even assuming CR 11 did not authorize sanctions on these facts, a judgment
may be upheld on any basis supported by the record.7 	Counsel's conduct comes
within the ambit of a court's inherent power to manage its proceedings. 	While
reasonable judges 	might 	disagree 	on 	whether 	sanctions 	should 	have 	been
imposed on these facts, we cannot say the court abused its discretion.
3 Chambers v. NASCO. Inc.. 501 U.S. 32,43, 111 S. Ct. 2123, 115 L Ed.
2d 27 (1991) (quoting Link v. Wabash R.R.. 370 U.S. 626, 630-31, 82 S. Ct.
1386, 8L Ed. 2d 734 (1962)).
4 State v. S.H., 102 Wn. App. 468, 475, 8 P.3d 1058(2000).
5S.H„ 102 Wn. App. at 475.
6 Gassman. 175 Wn.2d at 210. 	A trial court abuses its discretion only
when its decision is manifestly unreasonable, or exercised on untenable grounds,
or for untenable reasons. 	In re Estate of Black. 153 Wn.2d 152, 172, 102 P.3d
796 (2004).
7 Clipse v. State. 61 Wn. App. 94, 98-99, 808 P.2d 777 (1991) (although
trial court erroneously relied on CR 11, appellate court upheld sanctions under
CR 26 because a judgment may be affirmed on any basis supported by record).
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No. 68256-3-1 / 8
Van Hoof next contends the court's finding that counsel's conduct was
"tantamount to bad faith" is insufficient to support sanctions under its inherent
authority. 	According to Van Hoof, sanctions must be supported by an express
finding of bad faith. 	She is mistaken. 	An express finding, though preferred, is
not required; it is sufficient if the court finds conduct equivalent or tantamount to
bad faith.8
Van Hoof also contends the court's findings ignore the undisputed fact that
her counsel "was absent from his office while on vacation until mid-August and
earlier in 2011 	had 	lost both 	members of his staff, 	leaving 	only a 	part-time
receptionist 	to 	assist 	him." 	But counsel's 	staff 	problems 	had 	existed, 	and
remained unremedied, since early in 2011. 	And counsel's August vacation did
not 	excuse the 	dilatory 	conduct that 	had 	persisted 	since early 	in the year.
Unchallenged findings establish that Van Hoofs counsel did nothing regarding
the draft documents for nearly four months, told opposing counsel on July 1,
2011, 	he would 	begin 	drafting 	them 	but failed to do so, 	did not respond to
Matson's counsel's letters or e-mail concerning the drafts, and did not provide
notice of his unavailability due to a vacation in August 2011.
Van Hoof claims the record shows that he in fact complied with the court's
August 19, 2011, order by delivering draft documents to opposing counsel on
August 24, 2011. While that is true, the court's order also clearly stated that the
Gassman. 175 Wn.2d at211-13.
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No. 68256-3-1 / 9
documents were due "by or before August 24th" and that there would be a daily
penalty after August 19, 2011. 	Thus, Van Hoofs compliance with the August 24
deadline does not affect the penalties or the court's award of fees for Matson
having to bring the motion to enforce.
Van Hoof contends the court abused its discretion in denying his motion to
continue the December 16, 2011, hearing on the presentation of findings and
conclusions. 	This contention fails because it is unsupported by authority9 or a
showing of resulting prejudice.10
Last, Van Hoof contends the superior court was biased and violated the
appearance of fairness doctrine. 	These claims are raised for the first time on
appeal and therefore need not be considered.11 In any case, we presume that a
judge acts without bias or prejudice,12 and a party asserting otherwise bears the
9 Cookv. Brateng. 158 Wn. App. 777, 794, 262 P.3d 1228(2010).
10 The denial of a continuance is reversible error only upon a showing of
both an abuse of discretion and resulting prejudice. 	State v. Herzoq, 69 Wn.
App. 521, 524, 849 P.2d 1235 (1993). 	We note that while the hearing was held
on 	December 16, 	2011, the findings 	and conclusions were not entered 	until
December 28, 2011. 	Van Hoof thus had opportunities to submit objections or
clarifications to the proposed findings 	after the hearing 	and 	could 	also have
moved for reconsideration under CR 59. 	See 224 Westlake. LLC v. Enqstrom
Props.. LLC. 169 Wn. App. 700, 728, 281 P.3d 693 (2012). 	Even now, Van Hoof
is able to challenge the court's findings and conclusions on appeal. 	There is no
prejudice. 	224 Westlake. 169 Wn. App. at 728.
11 	In re Guardianship of Cobb. 172 Wn. App. 393, 404, 292 P.3d 772
(2012), petition for review filed. No. 88488-9 (Wash. Feb. 27, 2013).
12 See State v. Chamberlin. 	161 Wn.2d 	30, 38, 	162 P.3d 389 (2007);
Wolfkill Feed & Fertilizer Corp. v. Martin. 103 Wn. App. 836, 841, 14 P.3d 877
(2000).
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No. 68256-3-1/10
burden of presenting evidence of actual or potential 	bias.13 	Van 	Hoofs
allegations fail to demonstrate any actual or potential bias.
We decline to address several of Van Hoofs claims on appeal. 	In the
"Summary of Argument" section of her opening 	brief, 	Van 	Hoof stated that
attorney fees and sanctions were contrary to a provision in the CR 2A agreement
that said "[n]either of the parties to this Settlement Agreement shall be awarded
Court 	Costs 	or Attorney 	Fees." 	She 	also 	stated 	that the 	court's 	order 	of
enforcement "contained ambiguous and conflicting provisions." 	But neither of
these claims was subsequently addressed with supporting analysis and authority
in her opening brief. 	In addition, for the first time in her reply brief, Van Hoof
argued that sanctions should not have been awarded against her because the
sanctions were based on her counsel's conduct. 	As these arguments are not
properly presented, we do not address them.14
Van 	Hoofs 	request for 	attorney fees 	and 	costs 	on 	appeal 	is denied.
Matson's request for attorney fees is also denied, but as the prevailing party, he
13 State v.Duqan. 96 Wn. App. 346, 354, 979 P.2d 885 (1999).
14 Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828
P.2d 549 (1992) (issue raised and argued for the first time in reply brief is too late
to warrant consideration); Howell v. Spokane & Inland Empire Blood Bank. 117
Wn.2d 	619, 	624, 	818 	P.2d 	1056 	(1991) 	(alleged 	errors 	not 	supported 	by
argument and authority need not be considered).
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No. 68256-3-1/11
is awarded costs on appeal upon his compliance with applicable court rules. 	The
costs shall be assessed against counsel for Van Hoof.
Affirmed.
A^/, 	e.y
WE CONCUR:
..._\ 	V 	\L 	aVtOO. 	'	^VA
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