Diana Cole Cherry, Appellant V. Weyerhaeuser Company, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIANA COLE CHERRY,
Appellant,
v.
MCKENNON LAW GROUP PC;
ROBERT J. MCKENNON; and
NICHOLAS A. WEST,
Defendants,
WEYERHAEUSER COMPANY,
Respondent.
No. 87028-9-I
DIVISION ONE
UNPUBLISHED OPINION
DÍAZ, J. — Diana Cole Cherry twice attempted to enforce pro se a California
subpoena against Weyerhaeuser Company (Weyerhaeuser). 	The trial court
concluded the subpoena was unenforceable and granted two requests from
Weyerhaeuser for fees and costs associated with Cherry’s attempts. 	In total, it
ordered Cherry to pay Weyerhaeuser more than $27,000. 	Still pro se, she does
not challenge the court’s finding of unenforceability, the basis upon which it
awarded fees, or the amounts, but claims only that Weyerhaeuser missed requisite
deadlines for its cost bills. 	Because the record and relevant civil rules establish
otherwise, we affirm.

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I. 	BACKGROUND
In March 2023, Cherry brought a lawsuit in California superior court against
her former attorneys. 	The California superior court dismissed that lawsuit on
October 20, 2023, although Cherry continued to file documents in that matter.
Among such documents, Cherry apparently caused the court to issue a subpoena
duces tecum to Weyerhaeuser for documents related to the annuity and life
retirement trust plan of her late husband, who was an employee of Weyerhaeuser.
Cherry then filed the present lawsuit in King County Superior Court and she
attempted to enforce that foreign subpoena, first in March 2024 and then again in
June 2024.
Specifically, she filed two motions in connection with the subpoena: to
“compel discovery” and, after that was denied in April 2024, a “notice” for a
discovery conference and sanctions, which was denied in July 2024. In the latter
order, the court provided two reasons why it concluded the subpoena was invalid
as a matter of law. 	First, the court held that Cherry had not sought permission
from the court to issue a foreign subpoena, as required by RCW 5.56.010 for pro
se litigants. 	Second, the court held that CR 45(a)(1)(B) requires any subpoena
issued in Washington to have an active underlying case, which Cherry did not
have.
In the first of two orders granting Weyerhaeuser fees and costs, the court
awarded Weyerhaeuser $13,226.00, and, in the second order, it awarded an
additional $14,544.94, finding “the first award of fees and costs has not deterred
Ms. Cherry’s filings.” The court also deemed Cherry to be a vexatious litigant and

No. 87028-9-I/3
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enjoined her from filing further papers with the court without prior approval.
II. 	ANALYSIS
A. 	The Awarded Fees
Cherry assigns several errors to the trial court’s award of fees, but prevails
on none of them.1
We first note that Cherry is a pro se litigant, and “a pro se litigant is held to
the same standard as an attorney.” Kelsey v. Kelsey, 179 Wn. App. 360, 368, 317
P.3d 1096 (2014). 	Moreover, this court “will decide a case only on the basis of
issues set forth by the parties in their briefs.” RAP 12.1(a); see also Orwick v. City
of Seattle, 103 Wn.2d 249, 256, 692 P.2d 793 (1984) (holding that a party should
1 Weyerhaeuser argues that we should reject Cherry’s appeal without reaching a
review of its merits for several reasons, which we decline to adopt. First, it argues
we should strike Cherry’s opening brief because it is incomprehensible and that
we should decide the appeal on that basis alone. We do not conclude it reaches
that level of incomprehensibility. See State v. Mode, 55 Wn.2d 706, 710, 349 P.2d
727 (1960) (describing an entire opening brief as “a mixed up confused mass of
verbi[age] . . . impossible . . . to intelligently answer.”). 	Second, Weyerhaeuser
argues Cherry’s designation of incomplete clerk’s papers is so deficient it warrants
dismissal under RAP 9.10. 	That rule requires an appellant to make a good faith
effort to provide those portions of the record necessary for presenting the issues
raised on review. 	We hold Weyerhaeuser has not established Cherry failed to
comply with this requirement. Third, Weyerhaeuser argues Cherry is time barred
by RAP 2.4 from appealing the first of the court’s two fee awards, because she did
not file her notice of appeal within the 30 days afterward. 	And, Weyerhaeuser
avers, the late notice of appeal was not tolled by a subsequent motion for revision
which she filed below because it claims it never received notice of that revision
motion. And it notes the record does not include an e-certificate of service for that
motion. But the case Weyerhaeuser relies upon did not toll a late notice of appeal
where there was actual evidence in the record that service on a motion for
reconsideration had been filed late. See Schaefco, Inc. v. Columbia River Gorge
Comm’n, 121 Wn.2d 366, 368, 849 P.2d 1225 (1993). 	No such affirmative
evidence exists here, as to whether or not service on Cherry’s revision motion was
proper. 	We therefore reach the merits of Cherry’s appeal.

No. 87028-9-I/4
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not “expect[] the court to research all possible theories of legal liability and apply
them to the hypothetical facts. 	It is not the function of trial or appellate courts to
do counsel’s thinking and briefing.”); Port Susan Chapel of the Woods v. Port
Susan Camping Club, 50 Wn. App. 176, 188, 746 P.2d 816 (1987) (“It is not the
responsibility of this court to attempt to discern what it is appellant may have
intended to assert that might somehow have merit.”).
Accordingly, we emphasize that Cherry does not assign error to the court’s
finding of the invalidity of the subpoena, the basis upon which it found the
subpoena invalid or awarded fees, or the amounts. 	Nor does she challenge the
trial court’s determination she is a vexatious litigant. 	None of these issues are
before us. 	Instead, as far as we can tell, Cherry asserts that Weyerhaeuser did
not 	follow 	the 	required 	process 	for 	the 	court 	to 	impose 	the 	fees 	after
Weyerhaeuser’s motion for fees was granted. See Br. of Appellant at i, 3. That is,
all of her assignments of error appear to rest upon the claim that Weyerhaeuser
did not timely file its fees and costs bill.
Specifically, Cherry assigns error to the court for even considering the
statement for fees because she claims Weyerhaeuser missed the filing deadline
and did not request an extension. 	And she claims the court erred by granting
them for the same reason, purporting that Weyerhaeuser’s motions were untimely
without any excuse to justify extension. 	Cherry raises another, seemingly
equivalent, claim that the court erred by determining the judgment did not “‘trigge[r]’
CR 54(d)(2),” by which she appears to mean that the court wrongly determined the
rule’s deadlines did not apply.

No. 87028-9-I/5
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CR 54(d)(2) states, “Claims for attorneys' fees and expenses . . . shall be
made by motion . . . [and] the motion must be filed no later than 10 days after entry
of judgment.” Even if we assume without deciding that the rule applies here, the
clerk’s papers show Weyerhaeuser did file its cost bills, in the form of a motion
requesting the fees, within 10 days of the court’s orders awarding fees. As to the
first order, the trial court ordered Cherry pay Weyerhaeuser fees on April 22, 2024,
and Weyerhaeuser filed its cost bill for those fees and costs on May 2, 2024, 10
days later. As to the second order, the trial court ordered that Cherry pay additional
fees on June 28, 2024, and Weyerhaeuser submitted its motion for that second
set of fees on July 8, 2024, also 10 days later.
As a result, the appeal Cherry has advanced, which is based on the
assertion 	Weyerhaeuser 	violated 	CR 	54(d)(2)’s 	timing 	requirements 	for 	its
requests, does not prevail.2
B. 	Fees on Appeal
Finally, Weyerhaeuser asks us to impose additional fees on appeal, arguing
that Cherry’s appeal is frivolous.
Under RAP 18.9(a), a court may choose to award attorney's fees to a party
2 	Cherry also 	claims the 	court erred 	by declining to 	grant her motion for
“reconsideration” to vacate the fees, and this claim also appears to be based on
the same assertion of untimely filing. 	Whether or not Cherry actually moved for
reconsideration, this final claimed error also fails because, given that the motions
did comply with the rule, she does not show the court abused its discretion in
granting them, as she must. See In re Domestic Violence Prot. Order for Timaeus,
34 Wn. App. 2d 670, 676, 574 P.3d 127 (2025) (“We review the denial of a motion
for revision for an abuse of discretion”); McCoy v. Kent Nursery, Inc., 163 Wn. App.
744, 758, 260 P.3d 967 (2011) (“[W]e review a trial court’s denial of a motion for
reconsideration for abuse of discretion.”).

No. 87028-9-I/6
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if the opposing party's appeal is frivolous. 	The threshold for deeming an appeal
frivolous is a stringent one, and it is not met here. As this court has explained,
An appeal is frivolous if there are no debatable issues on which
reasonable minds might differ and it is so totally devoid of merit that
there is no reasonable possibility of reversal. 	All doubts as to
whether the appeal is frivolous should be resolved in favor of the
appellant. An appeal that is affirmed simply because the arguments
are rejected is not frivolous.
In re Marriage of Schnurman, 178 Wn. App. 634, 644, 316 P.3d 514 (2013) (citing
Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325
(2005)).
Although the record shows that Weyerhaeuser filed its motions within the
required timeframe, we cannot conclude, resolving all doubts in Cherry’s favor, that
the appeal is not so devoid of merit as to warrant sanctions. 	Moreover, RAP
18.9(a) is discretionary, and we decline to exercise our discretion to award
additional fees.
Accordingly, Weyerhaeuser’s request for fees under RAP 18.9 is denied.
III. 	CONCLUSION
We affirm.
WE CONCUR: