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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAVID N. BROWN, INC., a Washington No. 72658-7-1
corporation, d/b/a Fox Plumbing &
treating, DIVISION ONE
Respondent,
UNPUBLISHED OPINION
ACT NOW PLUMBING, LLC, a
Washington limited liability company,
c/b/a Gary Fox Plumbing & Heating;
IPOR IVANCHUCK,
Appellant. FILED: August 10, 2015
Schindler, J. — David N. Brown Inc. doing business as Fox Plumbing & Heating
(Fox Plumbing) and Act Now Plumbing LLC (Act Now) entered into a CR 2A settlement
agreement. On June 11, 2014, the court entered an order interpreting the CR 2A
agreement. Thereafter, the parties stipulated to dismiss the lawsuit and on July 2, the
court entered an order of dismissal with prejudice. After granting the motion to enforce
the CR 2A settlement agreement on August 21, 2014, the court awarded Fox Plumbing
Attorney fees and costs.
On October 31, 2014, Act Now filed a notice of appeal of the June 11, 2014 order
granting the motion for judicial interpretation of the CR 2A settlement agreement, the
August 21, 2014 order granting the motion to enforce the settlement agreement, and the
No. 72658-7-1/2
October 3, 2014 order awarding attorney fees and costs. Fox Plumbing filed a motion
to dismiss. Fox Plumbing asserted the appeal of the June 11, 2014 order and the
August 21, 2014 order was untimely under RAP 5.2. We conclude that the August 21,
2014 order is a final appealable order under RAP 2.2, and even if the June 11, 2014
order is an interlocutory order, the appeal is untimely. We dismiss the appeal of the
August 21, 2014 and June 11, 2014 orders, and affirm the October 3, 2014 order
awarding attorney fees.
CR 2A Settlement Agreement
Fox Plumbing & Heating (Fox Plumbing) is a Seattle-based plumbing and heating
company. In the early 1980s, David N. Brown Inc. purchased the company and
registered a trademark under the name of "Fox Plumbing &Heating."
Gary Fox owned and operated Gary Fox Plumbing. In 2008, Gary Fox sold the
cbmpany to Igor Ivanchuck. Ivanchuck formed Act Now Plumbing LLC (Act Now) and
fcfegan doing business under the trade name "Gary Fox Plumbing &Heating."
In 2012, Fox Plumbing filed a complaint for declaratory judgment and injunctive
rblief against Act Now to prevent use of the "Gary Fox Plumbing" trade name and
trademark. The complaint alleged that in 2011, Fox Plumbing purchased the "Gary Fox
fflumbing" trade name and trademark from Gary Fox.
Before trial, the parties entered into to a "CR 2A Settlement Agreement" to
dismiss the lawsuit with prejudice. The agreement states, in pertinent part:
1. For payment in the amount of $45,000 from Plaintiff, Defendants (and
successors and assigns) agree to cease using the name "Gary Fox
Plumbing & Heating" in perpetuity.
2. Defendants may retain their logo and use the name "Gary's Fix-It
Plumbing & Heating" or "Gary's Plumbing & Heating." Defendants will
No. 72658-7-1/3
not use a Fox in their logo or trademark. Plaintiff is entitled to review
Defendants' proposed new logo before it is put into commerce.
3. Defendants shall have six months to transition their name.
4. Both parties agree that neither shall use the name "Gary Fox
Plumbing & Heating" commercially in perpetuity. However, Plaintiff
shall have the right to register it with the State of Washington for the
sole purpose of taking it out of the public domain.
5. A mutual release will be signed by the parties as part of a to-be
drafted comprehensive Settlement Agreement.
6. This case will be dismissed with prejudice and without costs or
attorneys' fees.
On April 1, 2014, the parties filed a notice of settlement.
Interpretation of CR 2A Settlement Agreement
On May 30, 2014, Fox Plumbing filed a motion for judicial interpretation of the CR
2A Settlement Agreement. Fox Plumbing states there is no dispute the agreement is
enforceable, but the agreement is "missing a term regarding the timing of [Fox
F'lumbingj's payment." Fox Plumbing argued, "[Bjased on the facts and circumstances
pf this case," a reasonable term "should be that the settlement amount is held in trust
ntil Defendants' satisfactory completion of the transition of the name." Fox Plumbing
also states it is willing to pay Act Now $10,000 immediately to cover the costs of the
transition with the remaining $35,000 "to be held in trust or escrow and paid upon
defendants' complete performance."
Act Now opposed the motion for judicial interpretation and filed a cross-motion to
Enforce the settlement agreement. Act Now argued the court should enforce the clear
a nd unambiguous provisions of the CR 2A Settlement Agreement and find Fox
Fflumbing breached the agreement by refusing to pay the $45,000.
The court ruled Fox Plumbing did not breach the agreement and granted the
rhotion for judicial interpretation. The court ruled the CR 2A agreement was "ambiguous
No. 72658-7-1/4
concerning when payment of the agreed upon $45,000 was due." The court ordered
Fox Plumbing to pay $10,000 immediately; deposit the remaining $35,000 into the court
registry; and, "[ujpon completion of performance, Defendants' counsel may apply for
disbursement of funds, supported by a declaration of counsel and supporting evidence
c-f full performance." The June 11, 2014 order states, in pertinent part:
The CR 2A agreement was ambiguous concerning when payment
of the agreed-upon $45,000 was due.
Based on the foregoing, the Court hereby ORDERS as follows:
1. Plaintiff's Motion for Judicial Interpretation of CR 2A
Settlement Agreement is GRANTED.
2. The CR 2A Settlement Agreement... is missing a term
regarding timing of payment.
3. The Court supplies the following term to the CR 2A
Settlement Agreement with respect to the timing of payment:
[Fox Plumbing] shall pay the Defendants the total sum of
forty-five thousand dollars ($45,000). Payment shall be
made as follows: ten thousand dollars ($10,000) is to be
paid immediately. . . . The remaining thirty-five thousand
dollars ($35,000) shall be deposited into the Court registry,
pending further order of the Court. Upon completion of
performance, Defendants' counsel may apply for
disbursement of funds, supported by a declaration of
counsel and supporting evidence of full performance. Such
application shall be submitted in accordance with KCLR 7.
4. Plaintiff is not in breach of the CR 2A Settlement Agreement.
5. The parties shall prepare and execute a written Settlement &
Release Agreement consistent with their CR 2A and with this Order.
After entry of the June 11, 2014 order, the parties entered into a "Settlement and
Release Agreement" and filed a "Stipulation and Order of Dismissal with Prejudice." On
uly 2, 2014, the court ordered the case dismissed "with prejudice," but the order states
that the court "shall retain jurisdiction in accordance with the Court's order granting
plaintiff's motion for judicial interpretation of CR2A Settlement Agreement."
No. 72658-7-1/5
[Enforcement of CR 2A Settlement Agreement
In August, Fox Plumbing filed a motion to enforce the settlement agreement and
c-rder Act Now to cease using the name "Gary Fix" as part of its website address. Act
Now opposed the motion, arguing the settlement agreement did not address the use of
domain names. Act Now also argued it was not required to comply with the terms of the
settlement agreement for six months and "has until December 23, 2014 to transition to
s new trade name."
On August 21, 2014, the court entered an order enforcing the CR 2A Settlement
Agreement. The court rejected the argument that the settlement agreement allowed Act
Now to use "Gary Fix" as an internet domain name. The court ruled it was "clear that
the parties agreed that [Act Now] would not use the name 'Gary Fix.'" The court also
rejected the argument that Act Now was permitted to use the "garyfix.com" domain
name until December. The court ruled that "[t]he six month period referenced in the
Settlement Agreement was to permit the defendants to transition discontinuation of the
Gary Fox' trade name, not to permit the defendants [to] set up a new internet domain
name that is contrary to the parties' agreement." The court enforced the settlement
agreement, ordered Act Now to cease using "garyfix.com," and ruled Fox Plumbing was
entitled to attorney fees.
The August 21 order states, in pertinent part:
Based on the foregoing, the Court hereby ORDERS as follows:
1. Plaintiff's Motion to Enforce the Settlement Agreement is
GRANTED.
2. Defendants shall take down and cease their use of the
"garyfix.com" website/domain name within five business days of this
Order.
3. Pursuant to the parties' Settlement Agreement, Plaintiff is
awarded attorneys' fees and costs in bringing its motion, including filing its
No. 72658-7-1/6
reply, in an amount to be determined pursuant to a motion to be filed by
Plaintiff within ten days of this Order.
Attorney Fee Award
Fox Plumbing filed a motion for an award of attorney fees and costs. Act Now
f led a "Response to Plaintiffs Motion for Attorney's Fees and Costs" opposing Fox
Plumbing's request for attorney fees and costs. Act Now argued the court erred in
granting the motion to enforce the settlement agreement. Act Now also argued Fox
Plumbing was not entitled to entry of judgment for attorney fees and costs because "the
court has retained authority to rule on whether the Defendants are entitled to the
remaining settlement payment of $35,000[.00]" and, therefore, there was no "final
judgment." The court disagreed, and on October 3, 2014, entered an order awarding
Fox Plumbing $6,560.49 in attorney fees and costs.
Timeliness of Appeal of June 11. 2014 and August 21, 2014 Orders
On October 31, 2014, Act Now filed a notice of appeal of the June 11, 2014 order
ranting the motion for judicial interpretation of the CR 2A Settlement Agreement, the
August 21, 2014 order granting the motion to enforce the settlement agreement, and the
October 3, 2014 order awarding Fox Plumbing attorney fees and costs.1 Fox Plumbing
filed a motion to dismiss the appeal of the June 11, 2014 order and the August 21, 2014
qrder as untimely.
There is no dispute Act Now timely appealed the October 3, 2014 order awarding
attorney fees. But as Act Now concedes, the timely appeal of the October 3, 2014 fee
1Act Now filed a motion in the trial court to stay enforcement of the October 3, 2014 judgment for
Attorney fees and costs under RAP 8.1. The trial court granted the motion to stay enforcement ofthe
October 3 order for attorney fees and costs. RAP 8.1(b) allows "[a]ny party to a review proceeding" to
istay enforcement of a money judgment, or a decision affecting real, personal or intellectual property,
pending review."
No. 72658-7-1/7
aiward "does not bring up for review" the merits of the June 11, 2014 order or the August
21, 2014 order. RAP 2.4(b); Bushong v. Wilsbach. 151 Wn. App. 373, 377, 213 P.3d 42
(£009).
Fox Plumbing argues the appeal of the June 11, 2014 order and the August 21,
2^014 order is untimely under RAP 2.2 and RAP 5.2.
RAP 2.2(a) lists the superior court decisions from which a party may appeal as of
r|ght. RAP 2.2 provides, in pertinent part:
(a) Generally. Unless otherwise prohibited by statute or court rule
and except as provided in sections (b) and (c), a party may appeal from
only the following superior court decisions:
(1) Final Judgment. The final judgment entered in any action or
proceeding, regardless of whether the judgment reserves for future
determination an award of attorney fees or costs.
(3) Decision Determining Action. Any written decision affecting a
substantial right in a civil case that in effect determines the action and
prevents a final judgment or discontinues the action.
(13) Final Order After Judgment. Any final order made after
judgment that affects a substantial right.
As a general rule, a party seeking appellate review of a superior court decision
rhust file a notice of appeal within 30 days after entry of the decision that the party filing
the notice wants reviewed. RAP 5.2(a) states:
Notice of Appeal. Except as provided in rules 3.2(e) and 5.2(d) and (f), a
notice of appeal must be filed in the trial court within the longer of (1) 30
days after the entry of the decision of the trial court that the party filing the
notice wants reviewed, or (2) the time provided in section (e).
A party must file a notice for discretionary review within 30 days after "the act of
tjhe trial court that the party filing the notice wants reviewed." RAP 5.2(b). "[OJnly in
extraordinary circumstances and to prevent a gross miscarriage of justice" will an
No. 72658-7-1/8
appellate court extend the time to file a notice of appeal or notice for discretionary
review. RAP 18.8(b).2
Act Now argues the August 21, 2014 order and the June 11, 2014 order are
interlocutory and not appealable as of right under RAP 2.2. Act Now asserts the court
erred in entering the order awarding fees because neither the June 11, 2014 order nor
tpe August 21, 2014 order was a final order. We disagree.
The August 21 order to enforce the settlement agreement is appealable as either
4 final judgment under RAP 2.2(a)(1) or as a final order made after judgment under
f^AP2.2(a)(13).
A final judgment is one 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 enforcementof the judgment.'" State v. Tavlor, 150 Wn.2d 599, 602, 80 P.3d 605
(2003) (quoting Black's Law Dictionary 847 (7th ed.1999)). "This is true even if it
directs performance of certain subsidiary acts in carrying out the judgment, the right to
the benefit of which is adjudicated in that judgment." Wlasiuk v. Whirlpool Corp., 76
Wn. App. 250, 255, 884 P.2d 13 (1994); see also Nestegard v. Inv. Exch. Corp., 5 Wn.
|pp. 618, 623-24, 489 P.2d 1142 (1971).
A final order entered after judgment is appealable under RAP 2.2(a)(13) only if it
Effects a right" 'other than those adjudicated by the earlier final judgment.'" State v.
Richardson, 177 Wn.2d 351, 364, 302 P.3d 156 (2013) (Quoting State v. Campbell, 112
Wn.2d 186, 190, 770 P.2d 620 (1989)).
2Act Now does not present any argument that an enlargement of time to file a notice of appeal or
Notice for discretionary review under RAP 18.8(b) isappropriate.
8
No. 72658-7-1/9
Act Now asserts there can be no final judgment where a trial court "has or retains
continuing jurisdiction to adjudicate a particular dispute." Before entry of the August 21
order enforcing the settlement agreement, the court entered the July 2, 2014 order
dismissing the case with prejudice but retaining jurisdiction "in accordance with the
[June 11, 2014] order granting plaintiff's motion for judicial interpretation of CR2A
Settlement Agreement." While the court retained jurisdiction in the July 2, 2014 order,
the August 21 order enforcing the settlement agreement clearly resolved all issues in
controversy except for the amount of attorney fees.
The cases Act Now relies on are distinguishable. See, e.g.. In re Pet, of Turav,
39 Wn.2d 379, 392-93, 986 P.2d 790 (1999) (a postcommitment order is not a " 'final
judgment'" because it could be modified by the court and therefore did not constitute a
final determination of defendant's rights or settle all of the issues in the case); State v.
Sponburgh, 84 Wn.2d 203, 206, 525 P.2d 238 (1974) (protective order sealing grand
jury evidence " 'pending further order of this court'" was not a final judgment because it
did not constitute a final determination of the rights of the parties in the action in regard
to the release of evidence); In re Estate of Moore, 36 Wn.2d 854, 856-58, 220 P.2d
1079 (1950) (order decreeing son was disqualified from taking under the terms of his
rjiother's will but continuing hearing on petition for distribution was not an appealable
cfder because it was not a final determination of son's right to his mother's estate and
did not determine the ultimate question of who was entitled to the estate); State v.
Srnjts, 152 Wn. App. 514, 523-24, 216 P.3d 1097 (2009) (order to pay legal financial
obligations (LFOs) cannot be "final" under RAP 2.2(a)(1) because it is conditional and
the court can modify the LFOs at any time).
No. 72658-7-1/10
In sum, we conclude the August 21, 2014 order is a final judgment and order,
^ind whether we treat the June 11, 2014 order as appealable under RAP 2.2 or as an
interlocutory order subject to discretionary review, Act Now did not timely file either a
rfiotice of appeal or a notice for discretionary review within 30 days of entry of the order
^s required under RAP 5.2.3
We dismiss the appeal of the August 21, 2014 order and the June 11, 2014 order
a^s untimely, and affirm the October 3, 2014 order awarding attorney fees. Under the
terms of the CR 2A Settlement Agreement4 and upon compliance with RAP 18.1, Fox
Plumbing is entitled to an award of attorney fees and costs on appeal.
^5iQx*NirpflQ«
WE CONCUR:
s^J,^,^^-^^', h
0
3 Act Now does not present any argument or cite any authority challenging the reasonableness of
the October 3 fee award. See Ana v. Martin. 154 Wn.2d 477, 487, 114 P.3d 637 (2005) (appellate court
will not consider the merits of an issue when appellant fails to present any argument or cite any authority
9n that issue).
4 Paragraph 14 of the CR 2A Settlement Agreement states:
Attorneys' Fees. In the event of any controversy or dispute between the Parties
pertaining to this Agreement, including enforcement of its terms or interpretation thereof,
the prevailing Party shall be entitled to recover from the losing party its reasonable
attorneys' fees, expenses and costs.
10