IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
BEATRIZ HERNANDEZ and ROSARIO
CONTRERAS, No. 71064-8-1
Respondents, ORDER DENYING MOTION
FOR RECONSIDERATION,
v. WITHDRAWING OPINION,
AND SUBSTITUTING
HELEN STENDER and JOHN DOE OPINION
STENDER, wife and husband and their
marital community,
Appellants.
The appellant, Helen Stender, has filed a motion for reconsideration of the
opinion filed on March 24, 2014. Respondents, Beatriz Hernandez and Rosario
Contreras, have filed a response. The court has determined that said motion
should be denied and that the opinion filed on March 24, 2014 shall be withdrawn
and a substitute published opinion be filed. Now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied; it is further
ORDERED that the opinion filed on March 24, 2014, is withdrawn and a
substitute published opinion shall be filed.
DATED this 02^ day of A*Y 2014.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BEATRIZ HERNANDEZ and ROSARIO
CONTRERAS, No. 71064-8-1
Respondents, DIVISION ONE
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PUBLISHED OPINION >> -^}-,...
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HELEN STENDER and JOHN DOE o
STENDER, wife and husband and their —t r-;
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marital community,
Appellants. FILED: June 23, 2014
Appelwick, J. — The trial court awarded Hernandez attorney fees pursuant to
RCW 7.06.060 when Stender failed to improve her position in a trial de novo from
arbitration of an automobile accident case. Because Hernandez improperly disclosed
an offer of compromise prior to the trial court's entry of judgment, we reverse the award
of attorney fees. We find no merit in Stender's appeal of several evidentiary rulings and
affirm the judgment. Because Stender did not improve her position on appeal, we
award Hernandez fees on appeal.
FACTS
On January 8, 2007, Helen Stender rear-ended Beatriz Hernandez and Rosario
Contreras when they were stopped at a red light. After the accident, Hernandez and
Contreras both experienced pain and sought medical care from Dr. Al Noor Bhanji, a
chiropractor.
No. 71064-8-1/2
On November 6, 2009, Hernandez and Contreras brought a personal injury suit
against Stender. The parties went to mandatory arbitration, where the arbitrator found
in favor of Hernandez and Contreras in the amount of $24,505. Stender subsequently
requested a trial de novo. Hernandez and Contreras each made an offer of
compromise of $9,500, which Stender rejected. The case proceeded to trial on June
11,2012.
The jury found in favor of Hernandez and Contreras and awarded damages.
Before the entry of judgment, Stender filed a motion for remittitur seeking to lower the
award. Hernandez's response motion argued that Stender merely sought to "lower the
award such that [Hernandez's] award does not exceed [the] offer of compromise in the
amount of $9,500." Two days later, the court entered judgment per the jury verdict,
awarding Hernandez $11,703 and Contreras $9,085.
Because Stender failed to improve her position on trial de novo against
Hernandez, the trial court also granted Hernandez attorney fees under RCW 7.06.060.
However, Stender did improve her position with respect to Contreras. Contreras was
thus was not eligible to receive attorney fees under RCW 7.06.060.
Stender appeals the fee award and the judgment.
DISCUSSION
I. Attorney Fees
RCW 7.06.050(1 )(c) provides, in pertinent part, that a "postarbitration offer of
compromise shall not be filed or communicated to the court or the trier of fact until after
judgment on the trial de novo." Stender argues that Hernandez's disclosure of her offer
of compromise precludes her from recovering attorney fees. Hernandez counters that
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the statute does not mandate a forfeiture of fees. She further maintains that no sanction
is necessary here, because the trial court entered a judgment that mirrored the jury
verdict amount.
In Hanson v. Estell. 100 Wn. App. 281, 291, 997 P.2d 426 (2000), the court
reversed an attorney fee award under RCW 4.84.280. RCW 4.84.280 shares similar
language with RCW 7.06.050, stating that "[o]ffers of settlement shall not be filed or
communicated to the trier of. . . fact until after judgment." The Hanson plaintiffs filed
their motion for attorney fees—including a copy of the offer of settlement—prior to the
entry of judgment. 100 Wn. App. at 290. The trial court acknowledged disclosure of the
offer but nonetheless awarded fees. Id. The appellate court found that the clear
language of RCW 4.84.280 prohibits the trial court from learning of settlement offers
until after the judgment is signed. ]d. Thus, the plaintiffs' violation of the statute
precluded their recovery of attorney fees. IdL at 291.
This court later addressed the relationship between Hanson and RCW 7.06.050.
See Du K. Do v. Farmer, 127 Wn. App. 180, 188, 110 P.3d 840 (2005). In Do, the
appellant argued that the respondent waived her right to attorney fees, because she did
not request them until after the judgment was filed. \_± at 187. We disagreed, id. at
188. In doing so, we discussed Hanson and acknowledged our prior enforcement of
statutes with similar provisions. jd. We further noted that RCW 7.06.050 requires
parties to wait until after the judgment to communicate an offer of compromise. Id.
Hernandez dismisses the language in Do as mere dicta. Citing to Jenbere v.
Lassek, 169 Wn. App. 318, 322, 279 P.3d 969, review denied. 175 Wn.2d 1028, 291
P.3d 254 (2012), she correctly notes that Do said communication of an offer of
No. 71064-8-1/4
compromise could result in loss of fees, not that it must. She also correctly maintains
that fee awards are a matter of trial court discretion. She argues that the trial court's
grant of fees was not an abuse of discretion.
The clear policy of RCW 7.06.050 is to prevent a trial court from considering an
offer of compromise in its entry of judgment. Our case law indicates the importance of
complying with the statute. See Do, 127 Wn. App. at 188. And, it demonstrates that fee
forfeiture is an appropriate remedy where a violation frustrates the statute's purpose.
See, e.g.. Hanson, 100 Wn. App. at 291. Here, Hernandez intentionally violated the
plain terms of the statute with the purpose of affecting the trial court's decision on
Stender's motion for remittitur. RCW 7.06.050 is designed to prohibit this behavior. It is
equally clear that the record does not establish that the premature communication of the
offer of compromise could not have affected the decision of the trial court. Forfeiture of
fees is warranted.
We hold that the award of attorney fees and costs after disclosure of the offer of
compromise in response to a motion for remittitur prior to the entry of judgment was an
abuse of discretion. Accordingly, we reverse the fee award.
II. ER 904 Evidence
Stender contends that the trial court erred in excluding documents that she
submitted pursuant to ER 904 and to which Hernandez and Contreras did not object
until trial. We review a trial court's evidentiary rulings for abuse of that discretion. Cox
v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000). An appellant bears
the burden to prove an abuse of discretion. State v. Davis, 174 Wn. App. 623, 642, 300
P.3d 465, review denied, 178 Wn.2d 1012, 311 P.3d 26 (2013).
No. 71064-8-1/5
ER 9041 is designed to expedite the admission of documentary evidence. Miller
v. Arctic Alaska Fisheries Corp.. 133 Wn.2d 250, 258, 944 P.2d 1005 (1997). It
provides that certain documents "shall be deemed admissible" if properly proposed as
an exhibit, unless objected to within 14 days. ER 904(a). In the absence of a timely
objection, there is an expectation of admission. Miller, 133 Wn.2d at 260. However, an
objection on the grounds of relevancy need not be made until trial. ER 904(c)(2).
On August 19, 2011, Stender proposed a number of exhibits under ER 904.2
Hernandez and Contreras did not object at that time. However, when Stender offered
1 ER 904 provides, in part:
(a) Certain Documents Admissible. In a civil case, any of the
following documents proposed as exhibits in accordance with section (b)
of this rule shall be deemed admissible unless objection is made under
section (c) of this rule[;]
(b) Notice. Any party intending to offer a document under this rule
must serve on all parties a notice, no less than 30 days before trial, stating
that the documents are being offered under Evidence Rule 904 and shall
be deemed authentic and admissible without testimony or further
identification, unless objection is served within 14 days of the date of
notice, pursuant to ER 904(c). .. .
(c) Objection to Authenticity or Admissibility. Within 14 days of
notice, any other party may serve on all parties a written objection to any
document offered under section (b), identifying each document to which
objection is made by number and brief description.
(2) If an objection is made to a document on the basis of
admissibility, the grounds for the objection shall be specifically set forth,
except objection on the grounds of relevancy need not be made until trial.
If the court finds that the objection was made without reasonable basis
and the document is admitted as an exhibit at trial, the court may award
the offering party any expenses incurred and reasonable attorney fees.
(Boldface omitted.)
2 Stender proposed several documents as exhibits under ER 904. Hernandez
made no pretrial objection to nine of them. Of those nine, two were not offered at trial
and four were offered without objection. This leaves the three documents discussed
here.
No. 71064-8-1/6
the exhibits at trial, Hernandez and Contreras objected to three—Allstate Insurance
Company's complaint in its lawsuit against Dr. Bhanji, the plaintiffs' chiropractor; the
confession of judgment in that suit; and Dr. Bhanji's guilty pleas to three counts of false
swearing—and the court excluded the documents. Another judge hearing a motion in
limine had previously ruled that these materials would be admissible for all purposes.
Stender did not designate for the appellate record the trial transcript pertaining to
discussion of the admissibility of these exhibits. Nor does she cite to any portion of the
record that might support her argument. Without those details, we do not know on what
basis Hernandez and Contreras objected or on what basis the trial court made its ruling.
We cannot properly review the alleged error. State v. Mannhalt, 33 Wn. App. 696, 704,
658 P.2d 15 (1983) ("The portion of the record certified to the court does not contain
any of the motions or proceedings relevant to these matters. Therefore, we cannot
consider the alleged errors."); RAP 10.3(a)(6) ("The [brief should contain] argument in
support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record.").
III. Evidence of Medical Bills
Stender argues that the trial court should have excluded Dr. Bhanji's medical
bills, because he waived them pursuant to his settlement with Allstate.3 Thus, she
contends, the jury should not have considered the bills when it awarded damages.
3 Stender also argues that the trial court compounded its error by not allowing
evidence of Dr. Bhanji's waiver. Specifically, she contends that the court should have
permitted her to cross-examine Dr. Bhanji about the waiver. However, she does not
designate that portion of the trial transcript. Nor does she cite to any portion of the
record that might support her argument. We decline to consider this allegation of error.
See LeMond v. Dep't of Licensing, 143 Wn. App. 797, 807, 180 P.3d 829 (2008) ("This
court will not consider allegations of fact without support in the record."); RAP 10.3(a)(6)
No. 71064-8-1/7
In Haves v. Wieber Enterprises, Inc., 105 Wn. App. 611, 616, 20 P.3d 496
(2001), the trial court excluded evidence that the plaintiff's doctor accepted less for his
services than he billed. Id. at 615. The Court of Appeals found no abuse of discretion,
stating that the amount billed or paid is not itself determinative. ]cL at 616. Instead, the
question was whether the sums requested were reasonable. Id. Waiver is merely a
reduction taken to its limit.4
The trial court did not abuse its discretion by admitting evidence of Dr. Bhanji's
bills.
IV. Evidence of Undisclosed Claims
Stender argues that the trial court abused its discretion in admitting evidence of
claims that Hernandez and Contreras did not properly disclose during discovery.
Specifically, she objects to evidence of essential services, wage loss, and damage to
Hernandez's vehicle. Neither respondent received essential services damages.
Hernandez did not receive wage loss damages. But, Contreras did receive a wage loss
award, which Stender requests this court to reverse. Hernandez received property
damages, and the record contains testimony from Hernandez and her boyfriend about
the vehicle.
("The [brief should contain] argument in support of the issues presented for review,
together with citations to legal authority and references to relevant parts of the record.").
4 In addition, the jury's verdict awarded Hernandez and Contreras damages for
"medical bills" without itemizing the amount that corresponded to each doctor. The
record before us is inadequate to allow a determination that the jury did or did not award
any damages based on Dr. Bhanji's bills. However, we note the award of medical
damages was less than the total of amounts claimed for services of providers other than
Dr. Bhanji.
No. 71064-8-1/8
However, Stender did not provide a record on appeal demonstrating an objection
to admission of evidence in support of these claims. RAP 10.3(a)(6) ("The [brief should
contain] argument in support of the issues presented for review, together with citations
to legal authority and references to relevant parts of the record."). An objection is
necessary to preserve an evidentiary issue for appellate review. RAP 2.5(a) ("The
appellate court may refuse to review any claim of error which was not raised in the trial
court."). We decline to review her claims.
V. Fees on Appeal
Hernandez and Contreras also request fees under RAP 18.9. RAP 18.9(a)
permits the court to impose sanctions for a frivolous appeal. An appeal is frivolous if it
raises no debatable issues on which reasonable minds might differ and it is so totally
devoid of merit that no reasonable possibility of reversal exists. Protect the Peninsula's
Future v. City of Port Angeles, 175 Wn. App. 201, 220, 304 P.3d 914, review denied,
178 Wn.2d 1022, 312 P.3d 651 (2013). Stender raises issues that create a reasonable
possibility of reversal. Her appeal is not frivolous.
However, Hernandez and Contreras also request fees on appeal under MAR 7.3.
MAR 7.3 mandates a fee award against a party who appeals an arbitration award and
fails to improve his or her position on trial de novo. A party who is entitled to fees under
MAR 7.3 at the trial court level is also entitled to fees on appeal if the appealing party
again fails to improve its position. Arment v. Kmart Corp., 79 Wn. App. 694, 700, 902
P.2d 1254(1995).
Stender improved her position with respect to Contreras below. Contreras is
thus not eligible for attorney fees under MAR 7.3 either at trial or on appeal. But,
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No. 71064-8-1/9
Stender failed to improve her position with respect to Hernandez. MAR 7.3 establishes
that Hernandez was thus eligible for fees at the trial court level. Because Hernandez
prematurely disclosed the offer of compromise, we concluded that RCW 7.06.050
precludes her from recovering those fees. However, this does not impact her eligibility
for fees on appeal under MAR 7.3.
RCW 7.06.050(1 )(c) shields the trial court from the offer of compromise when
entering judgment. The Court of Appeals, however, is always aware of the offer of
compromise by virtue of the court's role of review. Therefore, the policy behind RCW
7.06.050(1 )(c) has no impact at the appellate level. But, under RCW 7.06.050(1 )(b), the
amount of the offer of compromise shall replace the amount of the arbitrator's award for
determining whether the party appealing the arbitrator's award has failed to improve that
party's position on the trial de novo. This remains so on appeal to this court. The
premature disclosure of the offer of compromise to the trial court has no effect on the
statutory substitution.
The purpose of MAR 7.3 is to discourage meritless appeals and reduce court
congestion. Tribble v. Allstate Prop. & Cas. Ins. Co., 134 Wn. App. 163, 174, 139 P.3d
373 (2006). To achieve this end, the statute imposes risk on a party who appeals and
does not improve his or her position. We respect this policy choice.
Stender did not improve her position on appeal relative to the offer of
compromise. Hernandez is entitled to fees and costs on appeal under MAR 7.3, subject
to her compliance with RAP 18.1(d).
No. 71064-8-1/10
Stender also requests fees, but not until her reply brief. RAP 18.1(b) mandates
that a party who requests attorney fees must devote a section of its opening brief to the
request. Stender did not comply with this rule. We deny her request.
We reverse the trial court attorney fee award and affirm the judgment. We award
Hernandez fees on appeal.
WE CONCUR:
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