IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BELLEVUE FARM OWNERS
ASSOCIATION, a Non-profit Corporation; No. 79430-2-I
LAUREN BARRETT and WILLIAM (Consolidated with No. 794329)
BARRETT, husband and wife respectively,
trustees of the Laurie Barrett Residential
Trust and of the Bill Barrett Residential Trust; DIVISION ONE
WEBSTER AUGUSTINE Ill, an individual;
HOOPOE LLC, a Washington Limited
Liability Company; GIGI BIRCHFIELD and
MARK BAUTE, husband and wife; TIMOTHY UNPUBLISHED OPINION
DOHERTY and CHRISTINE DOHERTY,
husband and wife; GLEN CORSON and KIM
KYLLO-CORSON, husband and wife;
JANTANA KUPPERMANN and BARUCH
KUPPERMANN, husband and wife;
RODNEY SMITH and MARY MARGARET
SMITH, husband and wife; MATTHEW
STRAIGHT and VERONICA STRAIGHT,
husband and wife; TOM TUCCI and DIANE
TUCCI, husband and wife; and DANA
PIGOTT, an individual,
Appellants/Cross-Respondents,
V.
CHAD STEVENS and JANE DOE
STEVENS, husband and wife; and PETE
FINDLEY and JANE DOE FINDLEY,
husband and wife,
Respondents/Cross-Appellants,
CASCADE MOUNTAIN RENTALS LLC, a
Washington Limited Liability Company;
ROBERT STEVENS, an individual, and
DOES Ito 10, Inclusive,
Defendants. FILED: February 10, 2020
No. 79430-2-112
CHUN, J. — After the trial court entered final judgment, Bellevue Farm
Owners Association (BFOA) filed a motion for discovery sanctions against Chad
Stevens, who opposed it as untimely. The trial court determined that excusable
neglect warranted reopening the final judgment under both CR 59(h) and
CR 60(b) in order to address the motion. The Discovery Master heard BFOA’s
motion and imposed sanctions on Stevens’s lawyer. Stevens asked the trial
court to review the Discovery Master’s ruling. The trial court reviewed the ruling
for an abuse of discretion and vacated two of the seven sanctions.
BFOA appeals the trial court’s decision to vacate the two sanctions.
Stevens cross-appeals, arguing that the trial court erred by reopening the final
judgment and that it applied the wrong standard when reviewing the Discovery
Master’s order.
We determine that Stevens cannot appeal the order reopening the final
judgment or awarding sanctions because he is not an aggrieved party. As such,
only the two sanctions appealed by BFOA are properly before us. With regard to
those sanctions, we conclude that the trial court did not abuse its discretion by
vacating them. We affirm.
I. BACKGROUND
In 1991, the original owners of the Friday Harbor Bellevue Farm property,
who owned the waterfront portion of the property as tenants in common,
recorded a “Grant Deed of Conservation Easement.” Bellevue Farm Owners
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Ass’n v. Stevens, 198 Wn. App. 464, 467, 394 P.3d 1018 (2017) (BFOA l).1 The
owners recorded a short plat to create four lots and a common waterfront in
1994. BFOA I, 198 Wn. App. at 467. In 1997, BFOA recorded a declaration of
protective covenants, conditions, and restrictions (CC&Rs). BFOA I, 198 Wn.
App. at 467. In 2005, Stevens purchased 10 acres of waterfront property in the
Bellevue Farm plat. BFOA I, 198 Wn. App. at 467.
In September 2012, BFOA filed a lawsuit against Stevens, alleging that he
had violated its CC&Rs. BFOA I, 198 Wn. App. at 467. Stevens, in turn,
asserted claims against BFOA, BFOA board members, and other property
owners (collectively, BFOA)—totaling 19 parties. BFOA I, 198 Wn. App. at 467-
68.
On December 20, 2013, the trial court appointed a Discovery Master
pursuant to CR 53.3. In October 2017, the Discovery Master advised the parties
to file any motions for sanctions after trial.
Stevens e-mailed BFOA on October 13, 2017, while the parties were
preparing for trial. In the e-mail, Stevens stated, “It would seem to make more
sense to address [issues regarding sanctions] shortly after the trial when the
parties will have a complete record for [the Discovery Master’s] consideration.”
The jury trial concluded on December 14, 2017. The court entered final
judgment on March 2, 2018. Stevens filed his notice of appeal on March 29,
2018. BFOA filed its notice of appeal on April 25, 2018.
In BFOA I, this court affirmed an order requiring Stevens to produce attorney
billing records to establish that he actually suffered damages for purposes of his abuse
of process claim. 198 Wn. App. at 467.
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No. 79430-2-1/4
BFOA filed its motion for discovery sanctions on April 25, 2018. Stevens
moved to strike the motion, arguing that BFOA was required to file any motion for
sanctions before the court entered final judgment, and that RAP 7.2 barred the
court from hearing the motion because the Court of Appeals had accepted
review. The Discovery Master denied Stevens’s motion to strike and the trial
court granted the Discovery Master’s motion to file its order. The trial court’s
order stated that BFOA “may file with this Court a motion under CR 59 or CR 60,
asking this matter to be re-opened for the purpose of allowing [BFOA’s] April 25,
2018 Motion for Discovery Sanctions to be heard by the Discovery Master.”
On July 9, 2018, BFOA moved under CR 59 and CR 60 to reopen the final
judgment for excusable neglect. Stevens opposed the motion. The trial court
granted BFOA’s motion under both CR 60(b) and CR 59(h). In its order, the
court directed the Discovery Master to hear and decide BFOA’s discovery
sanctions motion.
BFOA’s motion sought sanctions under CR 37(a)(4), which requires the
party whose conduct necessitated a motion to compel discovery to pay for the
prevailing party’s reasonable expenses if their position was not substantially
justified. BFOA asked the court for an award of $1 05,383 in sanctions and fees.
On September 21, 2018, the Discovery Master granted in part and denied
in part BFOA’s motion. She awarded BFOA $42,157 in sanctions and fees.
Stevens’s attorney, Jason Amala, asked the Discovery Master to make him
solely liable for the award, which she did.
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Stevens then filed a motion with the trial court asking it to review and
vacate the Discovery Master’s order awarding sanctions. The trial court
reviewed the order for an abuse of discretion and denied Stevens’s motion
except with respect to the awards under section E for $8,948 and section F for
$7,500, which awarded fees for Stevens’s “fees as damages” claims and written
discovery, respectively.2
On appeal, Stevens argues the trial court erred by reopening the final
judgment and by applying an abuse of discretion, rather than de novo, standard
of review. BFOA appeals the trial court ruling vacating the discovery sanctions
awarded under sections E and F.
II. ANALYSIS
A. Reopening the Final Judgment
Stevens argues that we should vacate the Discovery Master’s order
awarding sanctions in its entirety because the trial court erred by reopening the
final judgment. BFOA claims that Stevens lacks standing to appeal the trial
court’s order reopening the judgment because the Discovery Master ultimately
imposed sanctions against only his attorney. We agree with BFOA.
Under RAP 3.1, only aggrieved parties may seek appellate review. A
decision aggrieves a party if it adversely affects that party’s property, pecuniary,
or personal rights or imposes a burden or obligation. Randy Reynolds & Assocs.
v. Harmon, 193 Wn.2d 143, 150, 437 P.3d 677 (2019). Additionally, “[am
2 The Analysis section below discusses additional facts related to these
sanctions.
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No. 79430-2-1/6
aggrieved party must have a present substantial interest in the subject matter of
the appeal and must be aggrieved in a legal sense.” State v. Rice, 159 Wn. App.
545, 559 n.8, 246 P.3d 234 (2011) (internal quotation marks and citations
omitted).
Stevens does not have a substantial interest in this appeal because the
Discovery Master ultimately imposed the sanctions against only his attorney.
See Enqstrom v. Goodman, 166 Wn. App. 905, 917, 271 P.3d 959 (2012) (“An
attorney sanctioned by a court may appeal the sanctions on his own behalf, but
his client is not aggrieved by the sanctions and may not appeal them.”). Because
the outcome of this appeal will not affect Stevens’s property, pecuniary, or
personal rights and will not impose a burden or obligation on him, he is not an
aggrieved party.3 Accordingly, he may not seek review of the trial court’s order
reopening the final judgment.
B. Discovery Sanctions
BFOA argues the trial court erred by vacating two discovery sanctions that
the Discovery Master awarded. Stevens says that the trial court properly vacated
~ Stevens claims that he is an aggrieved party because the reopening of the final
judgment delayed us from hearing these linked appeals by seven months. Wash. Court
of Appeals oral argument, Bellevue Farms Owners Assoc. v. Stevens, No. 79430-2-I
(Jan. 10, 2020), at 15 mm., 23 sec. through 17 mm. (on file with court). Stevens claims
that this, in turn, delayed him in enforcing an injunction ordered in one of the linked
cases. But “[a]n aggrieved party is one who has a present, substantial interest, as
distinguished from a mere expectancy or. contingent interest in the subject matter.”
. .
Tinker v. Kent Gypsum Supply, Inc., 95 Wn. App. 761, 764, 977 P.2d 627 (1999)
(internal quotation marks and citation omitted). The harm of the seven-month delay in
enforcing the injunction in this case does not rise to the level of a substantial interest
supporting appellate standing.
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No. 79430-2-I/7
the two sanctions. We conclude the trial court did not abuse its discretion by
vacating the sanctions.
BFOA contends that a trial court reviews a Discovery Master’s award on
sanctions for an abuse of discretion. Stevens asserts that the trial court needed
to review the award de novo. Because we determine the trial court did not abuse
its discretion by vacating the sanctions regardless of whether it should have used
a de novo or an abuse of discretion standard, we decline to reach the issue.4
Additionally, because Stevens lacked standing to appeal the court’s order on
discovery sanctions, the fees awarded under only sections E and F are properly
before us. See Engstrom, 166 Wn. App. at 917; State v. Sims, 171 Wn.2d 436,
441-42, 256 P.3d 285 (2011) (holding the State could not challenge the criminal
defendant’s sentence as a whole when it did not cross-appeal and the defendant
appealed only a single sentencing condition). Accordingly, we review only
whether the trial court abused its discretion in vacating the fees awarded under
sections E and F.
We review a trial court’s ruling on discovery sanctions for abuse of
discretion. Maqana v. Hyundai Motor Am., 167 Wn.2d 570, 582, 220 P.3d 191
(2009). A trial court abuses its discretion if it bases its order on untenable
~ Here, the trial court reviewed the Discovery Master’s award for an abuse of
discretion, which was more deferential than de novo review. See Bunch v. Kinp County
Dept of Youth Servs., 155 Wn.2d 165, 176, 116 P.3d 381 (2005). Because the trial
court vacated the sanctions under the more deferential standard, we assume it also
would have vacated them had it exercised de novo review. See Bellamy v. Montciomery,
2012-Ohio-4304 at ¶ 15 (Ct. App.) (“Before determining whether to remand this matter
again, we will consider whether the trial court’s findings would support an award of
sanctions under the proper standard. If so, under our deferential standard of review, we
may affirm the trial court’s judgment despite the court’s use of an improper standard.”).
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No. 79430-2-1/8
grounds or is manifestly unreasonable. Maqana, 167 Wn.2d at 582-83. A trial
court bases its decision on untenable grounds if it “relies on unsupported facts or
applies the wrong legal standard.” Maqana, 167 Wn.2d at 583.
1. Section E
In June 2014, Stevens filed his fourth amended counterclaims, which
included counterclaims 12 (breach of fiduciary duty) and 13 (abuse of process).
For counterclaim 12, Stevens alleged that he had “incurred general and special
damages, including but not limited to substantial attorneys’ fees and costs.” For
counterclaim 13, Stevens alleged that abuse of process by Mark Baute (who had
represented BFOA) had needlessly increased his litigation costs.
BFOA propounded interrogatories and requests for production of
documents on June 13, 2014, to determine the bases of Stevens’s “fees as
damages” claims. In the requests for production of documents, BFOA sought
law firm invoices.
On June 18, 2014, Stevens signed a declaration stating, “The only
damages I am seeking are my attorney’s fees and costs.”
In a letter dated June 19, 2014, the Discovery Master directed the parties
to confer in accordance with CR 26(i). The Discovery Master noted that when
attorney fees and costs are asserted as damages, parties must take special care
to preserve attorney-client privilege and work product.
On August 20, 2014, BFOA moved to compel Stevens to respond to its
June 2014 second set of interrogatories and requests for production. BFOA
stated that, at that time, it was willing to forego requiring Stevens to provide time
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No. 79430-2-119
sheets or task descriptions. On August 30, 2014, the Discovery Master granted
BFOA’s motion but did not require Stevens to produce privileged time sheets.
Stevens submitted supplemental responses on February 23, 2015.
BFOA then filed a CR 37 motion for sanctions. On March 31 2015, the
Discovery Master denied BFOA’s motion. In the order, she stated that, while
BFOA needed to test the validity of the claimed fees, producing the billings would
disclose attorney work product and attorney-client communications. She
additionally noted that it would be overly burdensome for Stevens to redact the
billings and that the redactions would give an inaccurate picture of what the fees
were. The Discovery Master proposed that the parties stipulate to the fact of
damage.
BFOA refused to so stipulate and moved for reconsideration of the
March 31 ruling before the Discovery Master. On April 7, 2015, the Discovery
Master presented to the trial court a report that recommended requiring Stevens
to disclose unredacted attorney billings related to counterclaims 12 and 13. The
Discovery Master determined that Stevens had waived his attorney-client
privilege and work product protections by placing the fees at issue. On August 5,
2015, the trial court adopted the Discovery Master’s recommendation and
ordered Stevens to produce unredacted billing information.
Stevens appealed and this court granted interlocutory review. BFOA I,
198 Wn. App. at 476. Because a commissioner of this court ruled that, pending
the appeal, BFOA could seek discovery that did not invade the attorney-client
privilege or work product protection, the Discovery Master ordered Stevens to
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No. 79430-2-1/10
disclose non-protected billing information. She then reviewed the billing records
and ordered Stevens to produce redacted records. The records produced
clarified that Stevens’s attorney had not invoiced him or required him to pay
attorney fees for counterclaims 12 and 13.
On April 3, 2017, this court affirmed the trial court’s order to compel
production of Stevens’s “‘Attorney’s Fees for Abuse of Process” spreadsheet,
which contained the attorney fees and costs related to counterclaim I 3.~
BFOA I, 198 Wn. App. at 467, 480.
In 2018, the Discovery Master considered BFOA’s motion for discovery
sanctions. Under section E, the Discovery Master awarded BFOA fees for its
motion to compel and its motion for reconsideration, determining that Stevens’s
oppositions to these motions was not substantially justified.
On November 5, 2018, Stevens moved for the trial court to review the
Discovery Master’s sanctions award. On December 10, 2018, the court vacated
the fees awarded under section E. With regard to these fees, the court stated
that the issue of whether Stevens had to produce billing records “was a very
close call” and that “there wasn’t a lot of law out there to make it clear.” The
court additionally stated that it believed Stevens’s choice to “fight tooth and nail”
over producing the billing records “was a very legitimate effort.”
~ After this court accepted review, BFOA filed, and the court granted, a motion to
strike the jury demand for counterclaim 12. BFOA I, 198 Wn. App. at 476. Accordingly,
this court did not address the issue related to counterclaim 12. BFOA I, 198 Wn. App.
at 476.
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When making its oral ruling, the trial court agreed that the issue of whether
Stevens needed to produce his attorney billing records “was a very close call,”
“hotly contested,” and “very confusing.” It went further by saying that “there
wasn’t a lot of law out there to make [the issue] clear,” and that the Court of
Appeals’ opinion in BFOA I could be seen as addressing a matter of first
impression. Indeed, the Discovery Master had previously declined to order
production and ordered Stevens to produce the records only on reconsideration.
The trial court supported its decision to vacate the sanction with facts from the
record. We conclude that it did not abuse its discretion with respect to section E.
2. Section F
In September 2014, Stevens propounded 2,200 requests for admission,
500 interrogatories, and 700 requests for production. At this point in the
litigation, Stevens had already deposed each individual plaintiff and had served
other interrogatories and document requests. BFOA had produced more than
15,000 pages of documents.
BFOA believed the discovery was excessive and abusive and moved to
quash it. The Discovery Master quashed all the requests for admission and
quashed or limited 380 of the interrogatories and 560 of the document requests.
The Discovery Master awarded fees for the portion of Stevens’s propounded
discovery that it quashed.
The trial court vacated the fees that the Discovery Master awarded for
excessive discovery, It determined that when considering that there were 19
parties from whom Stevens sought information and materials, the voluminous
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No. 79430-2-1/12
amount of discovery was not excessive. As such, it looked at the substance of
the propounded discovery and stated that “the request [sic] for admission, in
particular. . . were totally appropriate and right on point.” The court additionally
noted that the requests for admissions “were extremely relevant,” and that the
Discovery Master “just didn’t understand how relevant they turned out to be in
trial because she wasn’t there.” Furthermore, the court noted that Stevens made
the additional discovery requests because, in prior responses, “every single
plaintiff cut and pasted in a boilerplate somewhat vague and rambling response
and left the defendant in a position to not really know which plaintiff was
saying what.”
While the record contains Stevens’s requests for admissions, it does not
include the interrogatories or requests for production of documents. “The party
presenting an issue for review has the burden of providing an adequate record to
establish such error.” State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942
(2012). As BFOA is the party asserting that the trial court erred by vacating the
fees awarded under section F, it had the burden to include the allegedly
excessive and abusive interrogatories and requests for production of documents
in the record. Its failure to do so precludes us from fully reviewing this issue.
Accordingly, we address the vacated fees only for excessive and abusive
requests for admissions.
Again, the trial court supported its decision to vacate the fees with facts
from the record. It determined that while Stevens propounded a large number of
requests for admissions, the requests were relevant and not excessive when
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considering that the case involved 19 plaintiffs. Indeed, each request concerned
a plaintiff in the case or the property at issue. As the trial court presided over the
two trials that occurred, it was in the best position to determine whether the
discovery requests were excessive and abusive. Washington State Physicians
Ins. Exchange & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d (1993)
(“The abuse of discretion standard again recognizes that deference is owed to
the judicial actor who is better positioned than another to decide the issue in
question.”). It concluded that the requests were not excessive or abusive and
vacated the fees awarded under section F. We determine the trial court did not
abuse its discretion in doing so.
Affirmed.
WE CONCUR:
______ ~
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