In Re The Estate Of: Denny Douglas Titus

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of
No. 79760-3-I
DENNY DOUGLAS TITUS, (consolidated with 79660-7-I)

Deceased. DIVISION ONE

EMILY R. HANSEN, UNPUBLISHED OPINION

Respondent,

v.

FRED V. CHRISTIANSON,

Appellant.

SMITH, J. — The court appointed Emily Hansen as guardian ad litem

(GAL) for Denny Douglas Titus in two actions where the State sought to protect

Titus from financial exploitation by Robert Crawford. In this Trust and Estate

Dispute Resolution Act (TEDRA), ch. 11.96A RCW, petition, the trial court

granted summary judgment in favor of Hansen, finding Fred Christianson, a

former personal representative of Titus’s estate, liable for Hansen’s creditor’s

claims flowing from her appointment as GAL and awarding her fees incurred as a

result of the TEDRA petition. The court also imposed sanctions against

Christianson and his attorney.

Because Christianson breached his fiduciary duty by failing to act as a

reasonably prudent person in the management of the estate and because

Hansen was unable to collect her claims from the estate due to Christianson’s

Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79760-3-I/2

actions, Hansen was entitled to judgment against Christianson personally.

Additionally, pursuant to RCW 11.96A.150, Hansen was entitled to the fees she

incurred as a result of the TEDRA petition. We therefore affirm the trial court’s

order on summary judgment. However, because Christianson did not receive

adequate notice that Hansen sought sanctions against him personally, we

reverse the award of sanctions.

FACTS

In 2015, Titus twice signed powers of attorney to Crawford. Additionally,

in August 2015, Titus executed a quitclaim deed transferring “all right, title, and

interest” in his home (property) located in Seattle, Washington, to Crawford’s

company, Marathon Legal Services Inc. Titus and Crawford also signed a “Letter

of Agreement Re Employment Agreement” (agreement). Therein, Marathon

agreed to pay Titus $75,000 within 30 to 90 days of the agreement and a $3,000

monthly salary “as a Marathon contractor.” Marathon also agreed to assume rent

and utilities for Titus’s office space, and title to the property was to revert back to

Titus in 2017, after Titus’s “two year tenancy at $1.00 per year.”1 The Real

Estate Excise Tax Supplemental Statement noted that the property was a “gift”

without consideration and that Titus would “continue to make 100% of the

payments on [the] total debt of $165,000.02.”

Shortly after Crawford and Titus executed the agreement, Titus’s pastor,

Sharon Bush, filed a complaint with the State alleging that Crawford was

Title should have reverted to Titus’s estate on August 4, 2017. In fact,
1

Marathon retained title until the property was foreclosed upon in 2018.

2
No. 79760-3-I/3

exploiting Titus. On this basis, the State brought a guardianship petition alleging

that Titus was incapacitated (guardianship petition). The State also brought an

action under the abuse of vulnerable adults act (AVAA), ch. 74.34 RCW, to have

Titus declared a vulnerable adult (AVAA petition). The court issued a temporary

order of protection—or Vulnerable Adult Protection Order (VAPO)—against

Crawford, restraining the sale of the property and ordering an account of every

dollar that “came into or out of Mr. Titus’ estate since [Crawford] became

attorney-in-fact.”2 Pursuant to these petitions, the court appointed Hansen as

GAL and Kameron Kirkevold as Titus’s attorney.

In her role as GAL, Hansen spoke with Titus. During their conversation,

Titus stated that he received neither the $75,000 owed to him pursuant to the

agreement nor a monthly payment from Crawford. Specifically, Titus “insisted

that Mr. Crawford had no obligation to pay him until the sale of his house.” Titus

“threatened to end his life” and said that “[h]e only need[ed] Mr. Crawford to take

care of him and his tremendous debt.”

In her GAL report, Hansen determined that Titus was a vulnerable adult in

need of protection from Crawford’s financial exploitation. She concluded that

Titus was “unable to handle any of his financial affairs” and could not adequately

care for his medical needs. Hansen found that “Crawford persuaded [Titus] to

transfer title to five (5) vehicles to him,” including titles to four classic vehicles,

“estimated at $20-25,000 in the aggregate.” Crawford sold the vehicles, but Titus

neither knew of the amount received as payment nor received any payment.

2 The record does not contain the protection orders.

3
No. 79760-3-I/4

Furthermore, Titus had “no idea whatsoever the extent of his assets and income

expended by Mr. Crawford,” and did not “have any interest in an accounting.”

Hansen concluded that because of “cognitive impairment resulting from serious

medical conditions, [Titus’s] decision-making was significantly impaired,” and he

was unable “to comprehend [Crawford’s] egregious self-dealing.”

On July 2, 2016, Titus died intestate. Thereafter, the court struck the trial

for the guardianship petition and dismissed the petition. In August 2016, the

probate court appointed Christianson as personal representative of Titus’s

estate. Christianson served under court supervision. The court did not require

Christianson to post a bond for the estate. However, the court ordered him to

“advise the court on the known assets and liabilities of the estate” within 60 days

in order to determine whether a bond was necessary to protect the estate.

Christianson did not comply and never secured a bond for the estate’s protection.

In May 2017, Christianson and Crawford entered into an agreement for

payment of $65,000 to the estate “upon the sale of Marathon’s property”

(settlement). The settlement agreement “release[d] and discharge[d] Marathon

and all principals, officers, agents, attorneys, employees . . . of Marathon, from

any and all claims, demands, causes of action known or unknown which the

Estate may now have or may hereafter have in relation to any matter between

the Parties.” The estate never received the promised payment.

In August 2017, after the court had approved two previous creditor’s

claims for $17,147.45 and $9,961.84, Hansen filed a second amended creditor’s

claim requesting a principal judgment amount of $15,837.22 against the estate.

4
No. 79760-3-I/5

The court approved her claim and added it to the two prior awards, including an

“interest at the rate of 12% per annum . . . until paid in full.” At the same time,

Christianson secured the rescission of the VAPO and dismissal of the AVAA

petition without prejudice.3 In the order dismissing the AVAA petition and the

VAPO, the court awarded fees to Hansen.

In April 2018, the mortgagee foreclosed on Titus’s property because the

mortgage had not been paid since June 1, 2016. The mortgagee’s complaint

showed that despite the VAPO enjoining Crawford from the sale or encumbrance

of Titus’s residence, in September 2016, Crawford had recorded two deeds of

trust: (1) $350,000 to his business associate, Anita Frick, and (2) $250,000 to

Louis J. Berg.

On September 7, 2018, the court issued an order to show cause to revoke

Christianson’s letters of administration. During the hearing, Hansen again

requested the approved GAL fees. The court noted that there was no objection

to Hansen’s creditor’s claims and that, therefore, the estate must pay the fees

within 30 days. The court ordered judgment of Hansen’s fees for $50,009.38 and

awarded her an additional $2,400.00 to “be paid by the Estate of Denny Douglas

Titus.” Additionally, pursuant to RCW 11.28.250, the court removed Christianson

as personal representative for mismanagement, waste, and neglect.4

3 Kirkevold originally requested, on behalf of Titus, dismissal of the VAPA
petition in April 2016. However, the court did not dismiss the petition until
Christianson took over as personal representative.
4 RCW 11.28.250 provides the trial court authority to revoke letters from a

personal representative when the court “has reason to believe that [they have]
wasted, embezzled, or mismanaged, . . . or ha[ve] wrongfully neglected the
estate.”

5
No. 79760-3-I/6

When the estate did not pay her claims within 30 days, Hansen filed a

TEDRA petition against Christianson, alleging that he breached his fiduciary duty

by, among other things, entering into the settlement with Crawford and seeking

rescission of the VAPO. Hansen alleged that Christianson never provided her

with his filed response to the TEDRA petition.5 But in his response, Christianson

alleged that the State’s agents perpetuate “a massive guardianship and probate

fraud (“GPF”) scheme.” Christianson also asserted that, among other things,

Hansen attempted to extort Crawford, has “criminal history,” and committed

manslaughter in the second degree. Christianson “assert[ed] [his] right under 18

U.S. Code § 4 to demand” that “the Court notify the United States Attorney for

the Western District” of Hansen’s “federal criminal activity.” He argued that the

court’s failure to notify the U.S. attorney “would constitute the Court having

committed the federal crime of Misprision of Felony.” Christianson also argued

that Hansen and the trial court “failed to cite valid evidence supported by the

court record of the alleged waste, mismanagement or neglect.”

In December 2018, Hansen moved for CR 11 sanctions against

Christianson’s attorney, Jonathan Grindell. In her motion, Hansen contended

that Grindell filed irrelevant pleadings and exhibits not well grounded in fact and

not warranted by existing law, and concealed and refused to serve pleadings on

Hansen. In granting Hansen’s CR 11 motion, the court made 29 findings of

Christianson and Grindell’s “bad faith litigation conduct[,] . . . result[ing] in

5 During a later hearing, Hansen admitted that she “had forgotten to sign
up for e-service.”

6
No. 79760-3-I/7

[Hansen’s] increased litigation time and expense.” The court imposed $10,000 in

sanctions against Christianson and Grindell, jointly and severally.

In January 2019, Hansen moved for summary judgment, and in February

2019, the court heard Hansen’s motion. There, Christianson asserted “[t]here

are numerous, numerous genuine material facts.” He was unable to cite the

record for even one genuine issue of material fact. That day, the trial court

granted Hansen’s motion for summary judgment against Christianson, awarding

her $55,072.68 and pursuant to RCW 11.40.080, RCW 11.96.150,6 or

RCW 4.84.185, reasonable attorney fees and costs.

Later, Hansen sought to reduce to judgment the CR 11 sanctions imposed

on Christianson and Grindell. In reply, Christianson asked the court to remove

joint and several liability on Christianson, arguing that the order violated his right

to due process. The court disagreed and in its order noted that Hansen’s initial

CR 11 motion only sought sanctions against Grindell, but that it was entitled to

impose sanctions against Christianson or Grindell. The court granted Hansen’s

motion and found it had authority to impose sanctions against Christianson and

Grindell jointly and severally.

Hansen later submitted her presentation of proposed judgment on her

motion for summary judgment. Therein, she sought supplemental judgment for

the fees she incurred following the court’s original decision on summary

judgment. Christianson replied, arguing that the trial court did not have authority

The trial court committed an obvious scrivener’s error when it said it
6

awarded fees under RCW 11.94A.150 because no such statute exists.

7
No. 79760-3-I/8

under RCW 11.40.080(2), RCW 11.94A.150, or RCW 4.84.185 to impose a

supplemental judgment in favor of Hansen. He also challenged many of the fees

that Hansen requested.

In June 2019, the court issued a judgment nunc pro tunc, ordering

judgment in favor of Hansen in the principal amount of $55,072.68, “including

prejudgment interest through February 15, 2019.” Pursuant to RCW 11.40.080,

RCW 11.96A.150, and RCW 4.84.185, the court also awarded Hansen attorney

fees and costs of $41,989 and “post-judgment interest at the rate of 12% per

annum on this judgment from February 15, 2019,” until paid in full. Christianson

appeals.

ANALYSIS

Summary Judgment

Christianson contends that the trial court erred when it granted Hansen’s

motion for summary judgment and found him liable for Hansen’s creditor’s

claims. We disagree.

“We review summary judgment orders de novo, considering the evidence

and all reasonable inferences from the evidence in the light most favorable to the

nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

“Summary judgment is properly granted when the pleadings, affidavits,

depositions, and admissions on file demonstrate that there is no genuine issue of

material fact and that the moving party is entitled to summary judgment as a

matter of law.” Green v. Normandy Park, 137 Wn. App. 665, 681, 151 P.3d 1038

(2007). The moving party bears the initial burden of showing that there is no

8
No. 79760-3-I/9

genuine issue of material fact. Hash by Hash v. Children’s Orthopedic Hosp. &

Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).

Hansen argued below that she was entitled to summary judgment

because (1) Crawford breached his fiduciary duty as attorney-in-fact for Titus by

engaging in self-dealing and (2) as a result, Christianson breached his fiduciary

duty as the estate’s personal representative by securing the dismissal of the

AVAA petition and entering into the settlement with Crawford. She further

argued that but for Christianson’s breach of his fiduciary duty, the estate would

have been solvent and capable of paying her creditor’s claims. In all respects,

we conclude that Hansen met her burden to show that there were no genuine

issues of material fact.

First, as attorney-in-fact, Crawford owed Titus a fiduciary duty. In

particular, Crawford had a duty to act in good faith and “[a]ct so as not to create a

conflict of interest that impairs the agent’s ability to act impartially in the

principal’s[—in this case, Titus’s—]best interest.” RCW 11.125.140(1)(b), (2)(b).

Crawford created a conflict of interest by receiving title to the property and

entering into the agreement, which benefited his company. And Crawford and

Marathon failed to fulfill their contractual obligations. Specifically, Titus received

none of the promised payments, and the property’s title never reverted back to

the estate as required by the agreement. Crawford also never paid rent on

Titus’s office space, and he executed two deeds of trust on the property, one of

which was for a business associate, despite a VAPO enjoining such actions.

Finally, Crawford sold Titus’s cars and did not pay Titus or the estate any of the

9
No. 79760-3-I/10

proceeds, and Hansen presented evidence that he withdrew funds from Titus’s

account. While we must take all reasonable inferences in the light most

favorable to the nonmoving party, Christianson provided no evidence from which

we may infer anything contrary to these facts. In short, Hansen presented

sufficient evidence that Crawford did not act in good faith or in Titus’s best

interest. Therefore, Hansen satisfied her burden to show that no genuine issue

of material fact existed and that Crawford breached his duty as attorney-in-fact.

Next, with regard to Christianson’s duty, an estate’s “personal

representative stands in a fiduciary relationship to those beneficially interested in

the estate.” In re Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985).

The personal representative “is obligated to exercise the utmost good faith and

diligence in administering the estate in the best interests of the heirs.” Larson,

103 Wn.2d at 521. To this end, a personal representative must “utilize the skill,

judgment, and diligence which would be employed by the ordinarily cautious and

prudent person in the management of [their] own trust affairs.” Hesthagen v.

Harby, 78 Wn.2d 934, 942, 481 P.2d 438 (1971). And it is the personal

representative’s duty “to settle the estate[ ] . . . as rapidly and as quickly as

possible, without sacrifice to the probate or nonprobate estate” and to “collect all

debts due the deceased and pay all debts.” RCW 11.48.010.

Because Crawford had breached his fiduciary duty and owed the estate

considerable debts, a prudent personal representative would not have entered

into the settlement. Hansen presented evidence that the settlement sacrificed

the validity of the estate. In particular, the settlement failed to account for over

10
No. 79760-3-I/11

$100,000 Crawford owed to the estate pursuant to the agreement and did not

consider the payments that Crawford transferred to himself from Titus’s bank

account or the sale of Titus’s vehicles. In addition, Christianson failed to

(1) secure the settlement’s payment, (2) receive the court’s approval of the

settlement, as required, (3) provide an accounting of the estate’s assets, as

required, and (4) secure a bond for the estate’s protection. In short, Hansen

presented evidence, even taken in the light most favorable to Christianson, that

when he entered into the settlement and secured the rescission of the VAPO,

Christianson did not utilize the skill, judgment, and diligence that an ordinarily

cautious and prudent person would employ in the management of their own trust

affairs.

Hansen also presented evidence that Christianson’s actions resulted in

her inability to collect her creditor’s claims from the estate. Under

RCW 11.48.080, “[n]o personal representative shall be accountable for any debts

due the estate, if it shall appear that they remain uncollected without his or her

fault.” Here, the settlement agreement allowed Crawford to retain title to the

property until he sold it and thereafter pay the estate only $65,000 of the sale

proceeds; at the same time, Crawford planned to receive $200,000 from the sale.

And rescission of the VAPO meant that Crawford could sell the property. Without

the estate’s sale of the property, Hansen alleged in her declaration—and

Christianson failed to rebut—the estate was unable to pay its creditors.7

7In April 2018, the due and unpaid principal balance on the property’s
mortgage was $160,414.63, plus interest. The total of the creditors’ claims in
April 2018 was around $127,000.00. As of December 20, 2018, Realtor.com

11
No. 79760-3-I/12

Accordingly, Christianson was responsible for Hansen’s inability to collect her

debts from the estate, and he was personally liable for Hansen’s creditor’s claims

against the estate. For the above reasons, the trial court did not err in concluding

that Christianson breached his fiduciary duty and finding him liable for Hansen’s

creditor’s claims.

Christianson disagrees and contends that “Hash is directly applicable to

this case.” In Hash, six-year-old Joanne Marie Hash sued Children’s Orthopedic

Hospital (COH) after she fractured her femur while undergoing physical therapy.

10 Wn.2d at 913. COH moved for summary judgment and submitted two

affidavits, one of which stated that “[i]t is possible for a child to suffer a fractured

bone during physical therapy when the therapist is not negligent.” Hash, 110

Wn.2d at 913-14 (alteration in original). Hash did not submit affidavits in

response to COH’s motion but contended that COH failed to submit sufficient

evidence to establish that there were no genuine issues of material fact. Hash,

110 Wn.2d at 914. Our Supreme Court concluded that COH had not met its

burden to show that there was no genuine issue of material fact. Hash, 110

Wn.2d at 916. The court reasoned that the submitted affidavits included no

account of the material facts and that a reasonable inference from the above

statement, when resolved in Hash’s favor, is that negligence could have caused

Hash’s injury. Hash, 110 Wn.2d at 916.

Hash is distinguishable because, here, Hansen did not present evidence

listed the property’s value as $652,200.00. Given the mortgage and federal and
state tax liens, the property’s sale was more than sufficient to cover all creditors’
claims with residual to Titus’s son.

12
No. 79760-3-I/13

that, when taken in the light most favorable to Christianson, provides an

inference that there is a genuine issue of material fact. Instead, as discussed

above, Hansen met her burden to prove that Christianson breached his fiduciary

duty by failing to collect on the debts Crawford owed to the estate, by entering

into the settlement and thereby sacrificing the estate’s solvency, and by utilizing

poor judgment when he dismissed the AVAA petition. Moreover, Hansen

provided evidence of the facts in her declaration and the numerous exhibits

attached thereto. Accordingly, Hash is not applicable to this case.

Christianson makes a number of additional arguments that are

unpersuasive. He contends that Hansen provided no authority to support the

proposition that Christianson was required to maintain the AVAA petition or

VAPO against Crawford. While it is true that Christianson was not statutorily

obligated to maintain the AVAA petition,8 as discussed above, Hansen

established that no genuine issue of material fact exists as to whether a

reasonably prudent personal representative would have sought dismissal of the

AVAA petition or the VAPO in this case.

Additionally, Christianson contends that Hansen—to prevail on her motion

for summary judgment—was required to show that (1) an action by the estate

against Marathon would not have been successful, (2) had Christianson

8 Rather, RCW 74.34.210 leaves the decision to the discretion of the
estate’s personal representative. It provides that in the death of a vulnerable
adult, “the right to . . . maintain the action shall be transferred to . . . the
administrator of the deceased, for recovery of all damages for the benefit of the
deceased person’s beneficiaries . . . or . . . for recovery of all economic losses
sustained by the deceased person’s estate.”

13
No. 79760-3-I/14

remained the estate’s personal representative, he would not have pursued an

action against Crawford, (3) the estate can no longer pursue a claim against

Crawford, and (4) the AVAA petition against Crawford would have been

successful. Contrary to Christianson’s assertion at oral argument, the settlement

explicitly released Crawford and Marathon from all liability to the estate. As such,

these contentions are unpersuasive as no action against either could have

ensued. Furthermore, with regard to the AVAA petition, while its guaranteed

success would have further supported Hansen’s argument, it is not required—

and therefore immaterial—to prove that Christianson breached his fiduciary duty.

Accordingly, we are not persuaded.

Attorney Fees and Costs

Christianson also challenges the court’s award of Hansen’s attorney fees

and costs for the TEDRA petition. We conclude that the trial court had the

authority to grant fees under RCW 11.96A.150 and that the fee award was

reasonable.

“Whether a party is entitled to an award of attorney’s fees is a question of

law and is reviewed on appeal de novo.” Durland v. San Juan County, 182

Wn.2d 55, 76, 340 P.3d 191 (2014). Generally, an award of attorney fees must

be “authorized by contract, statute, or recognized ground of equity.” Durland,

182 Wn.2d at 76. To this end, the trial court awarded Hansen fees based on

RCW 11.40.080(2) and RCW 11.96A.150.9

9 On appeal, Hansen does not contend that the trial court had authority
under RCW 4.48.185. Accordingly, we do not address RCW 4.48.185 or the trial
court’s reliance thereon.

14
No. 79760-3-I/15

Under RCW 11.40.080(2), an estate’s creditor is entitled to recover fees

from the estate. Accordingly, under its plain language, the statute did not provide

authority for the court to grant fees to Hansen from Christianson. Thus, the trial

court lacked the statutory authority under RCW 11.40.080(2) to award Hansen’s

TEDRA fees from Christianson, and it therefore erred in that respect.

Under RCW 11.96A.150, in a TEDRA petition, “[e]ither the superior court

or any court on an appeal may, in its discretion, order costs, including reasonable

attorneys’ fees, to be awarded to any party . . . [f]rom any party to the

proceedings.” And the court may grant fees and costs “in such amount and in

such manner as the court determines to be equitable.” RCW 11.96A.150(1). “In

exercising its discretion, . . . the court may consider any and all factors that it

deems to be relevant and appropriate, which factors may but need not include

whether the litigation benefits the estate or trust involved.” RCW 11.96A.150(1).

In short, RCW 11.96A.150 authorizes the court broad discretion to grant attorney

fees and costs in a TEDRA action. See, e.g., In re Guardianship of Lamb, 173

Wn.2d 173, 198, 265 P.3d 876 (2011) (“The express language of

RCW 11.96A.150 leaves attorney fee awards in cases resolving guardianship

disputes to the court’s discretion.”). Thus, the trial court had authority to award

Hansen fees.

Christianson disagrees and contends that the trial court should have

considered the novelty of the case and whether Hansen’s TEDRA petition

benefited the estate.10 The court’s failure to consider these facts is not an abuse

10 In support of his contention, Christianson cites a number of cases that

15
No. 79760-3-I/16

of discretion because the court “may consider any and all factors that it deems to

be relevant and appropriate.” RCW 11.96A.150(1). Moreover, the statute

specifically provides that a court need not consider whether the petition benefited

the estate. RCW 11.96A.150(1). Accordingly, Christianson’s contention fails.

Because the court had authority to award fees, we next review whether

the award was reasonable. To this end, “[w]e review for abuse of discretion

whether the amount of an attorney fee award is proper.” Bright v. Frank Russell

Invs., 191 Wn. App. 73, 78, 361 P.3d 245 (2015).

Christianson asserts that the fees were “grossly excessive.” In particular,

Christianson asserts that Hansen received fees for research completed before

she began drafting her TEDRA petition. He points to, among other things,

Hansen’s inclusion of services for her research into Marathon, for the removal of

Christianson as personal representative, and for the preparation of her motion for

sanctions. But the trial court had discretion to impose the fee award that it

involved the appellate court either exercising its own discretion to determine
whether to award fees on appeal or affirming the trial court’s decision by finding
no abuse of discretion. See In re Estate of Collister, 195 Wn. App. 371, 382 P.3d
37 (2016) (awarding neither party attorney fees on appeal because the court
accepted the losing party’s argument in part); In re Washington Builders Ben.
Trust, 173 Wn. App. 34, 85-86, 293 P.3d 1206 (2013) (declining to award fees to
one party where the litigation raised “unique issues” but awarding fees to another
party for those issues on which it prevailed on appeal); In re Estate of Lowe, 191
Wn. App. 216, 239-40, 361 P.3d 789 (2015) (affirming the trial court’s decision to
grant the appellant fees, but exercising its discretion and denying fees on appeal
because the prevailing party kept silver “treasure” that “ably allows him to afford
the expense of this appeal”); In re Estate of Jones, 170 Wn. App. 594, 287 P.3d
610 (2012) (affirming the trial court’s decision to deny attorney fees to the
prevailing party in a TEDRA action). These cases only reaffirm that we should
not disturb a fee award under RCW 11.96A.150 absent a showing that the trial
court acted unreasonably.

16
No. 79760-3-I/17

deemed equitable. And Christianson failed to show that the award was

manifestly unreasonable or based on untenable grounds. See Bright, 191 Wn.

App. at 78 (“‘A trial court abuses its discretion if a decision is manifestly

unreasonable or based on untenable grounds or untenable reasons.’” (quoting

Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp. Dist. No. 1,

177 Wn.2d 718, 730, 305 P.3d 1079 (2013)).

Next, Christianson claims that Hansen received duplicative costs because

“[a]t least part of the services for which [she] was awarded $41,989 were also

awarded to her in the CR 11 motion.” Christianson makes the conclusory

assertion that “she was double compensated by $5,655” because of the CR 11

award. But Christianson does not point to evidence in the record that Hansen

was awarded double recovery for the same services. See In re Estate of Palmer,

145 Wn. App. 249, 265, 187 P.3d 758 (2008) (The appellant is “obligated to

demonstrate why specific findings of the trial court are not supported by the

evidence and to cite to the record in support of that argument.” (emphasis

added)). Therefore, we are not persuaded that the trial court’s award was

unreasonable. See Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 147, 859 P.2d

1210 (1993) (When attorney fees are authorized, in order to reverse the award

based on unreasonableness, the opponent must show “that the trial court

manifestly abused its discretion.” (emphasis added)).

Christianson also contends that in its nunc pro tunc order, the court

entered prejudgment interest on Hansen’s fees incurred as a result of the

17
No. 79760-3-I/18

TEDRA petition.11 A nunc pro tunc order records a prior act of the court that was

“actually performed but not entered into the record at that time.” State v.

Rosenbaum, 56 Wn. App. 407, 410-11, 784 P.2d 166 (1989); see also State v.

Hendrickson, 165 Wn.2d 474, 478, 198 P.3d 1029 (2009).

Here, the court’s June nunc pro tunc order recorded an action already

performed by the court in the February order, i.e., the award of fees and

postjudgment interest thereon. Because the original judgment included Hansen’s

fees and the original judgment was entered in February, the court’s order

granting interest beginning in February recorded an event that occurred at that

time. In the June order, the court adjusted the fees to include the additional work

Hansen did replying to Christianson’s responses to her entry of judgment motion,

considered additional documents from both parties, and again awarded

postjudgment interest dating back to February 15, 2019. Accordingly, the court

did not award prejudgment interest, the nunc pro tunc order was not improper,

and the trial court did not err.

As a final matter, Christianson contends that the trial court’s order granting

fees should be reversed because the trial court offered only five days for his

response to Hansen’s motion and failed to exclude holidays. CR 6(d) and King

County Superior Court Local Civil Rule 7(b)(4)(A) require a moving party to

provide notice of written motions at least five and six days in advance of the

hearing thereon, respectively. But “‘CR 6(d) is not jurisdictional, and . . . reversal

11 In its nunc pro tunc order, the court only addresses “prejudgment
interest” with respect to Hansen’s creditor’s claims. That interest, the court
notes, is included in the judgment’s principal amount.

18
No. 79760-3-I/19

for failure to comply requires a showing of prejudice.’” Goucher v. J.R. Simplot

Co., 104 Wn.2d 662, 665, 709 P.2d 774 (1985) (quoting Brown v. Safeway

Stores, Inc., 94 Wn.2d 359, 364, 617 P.2d 704 (1980)). Christianson has not

shown prejudice. In fact, Christianson did respond to Hansen’s motion for fees

months later, and the court took into account Christianson’s response when it

entered the nunc pro tunc order for fees and costs on June 17, 2019. Therefore,

the error does not require reversal. See, e.g., King County Water Dist. No. 90 v.

City of Renton, 88 Wn. App. 214, 231, 944 P.2d 1067 (1997) (holding that the

court’s order issued two days after a party’s motion was submitted was not

reversible error and that the nonmoving party, which failed to reply to the motion,

“was given sufficient notice and opportunity to be heard on the issue of

sanctions”).

Sanctions

Christianson also asserts that the court did not provide adequate notice

that he would be sanctioned and that therefore the trial court erred when it

imposed sanctions against him. We agree.

“CR 11 procedures ‘obviously must comport with’ the due process

requirements of notice and an opportunity to be heard.” King County Water Dist.

No. 90, 88 Wn. App. at 231 (quoting Bryant v. Joseph Tree, Inc., 119 Wn.2d 210,

224, 829 P.2d 1099 (1992)). And “‘[a]n elementary and fundamental requirement

of due process in any proceeding which is to be accorded finality is notice

reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an opportunity to present their

19
No. 79760-3-I/20

objections.’” Young v. Thomas, 193 Wn. App. 427, 440, 378 P.3d 183 (2016)

(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.

Ct. 652, 94 L. Ed. 865 (1950)). Accordingly, whether Christianson received

adequate notice of personal sanctions is an issue of constitutional magnitude and

may be raised for the first time on appeal. See RAP 2.5(a)(3) (A party may raise,

“for the first time in the appellate court,” a “manifest error affecting a

constitutional right.”).

Here, the trial court sanctioned Grindell and Christianson jointly and

severally. But the record did not indicate that Hansen sought sanctions against

Christianson. Specifically, Hansen’s motion stated that she sought “entry of an

order of sanctions against . . . Christianson’s attorney, Jonathan Grindell.” She

cited “Mr. Grindell’s conduct” in support of her motion and concluded that she

was seeking sanctions “against Mr. Grindell personally.” At the sanctions

hearing, the court and Hansen’s comments did not indicate an intent to impose

sanctions against Christianson. In particular, the court challenged Grindell’s

conduct specifically, stating that he “misrepresented” the court’s orders in his

motions to the court. And Hansen alleged that Grindell continuously partook in

ex parte communication and failed to serve Hansen pleadings. In short,

Hansen’s motion was not reasonably calculated to apprise Christianson that she

sought sanctions against him personally. Thus, the court’s imposition of

sanctions against Christianson violated his due process rights of notice and

opportunity to state his objections and therefore must be reversed.

20
No. 79760-3-I/21

Fees on Appeal

Hanson requests fees on appeal pursuant to RCW 11.96A.150. It is within

this court’s discretion to award fees and costs to Hansen as the substantially

prevailing party on appeal. RCW 11.96A.150. We may order an amount of fees

deemed “equitable” and “may consider any and all factors that [we] deem[ ] to be

relevant and appropriate.” RCW 11.96A.150. And contrary to Christianson’s

contention, this appeal does not involve a unique issue; it is merely a common

breach of fiduciary duty claim. Cf., Bale v. Allison, 173 Wn. App. 435, 461, 294

P.3d 789 (2013) (holding that the issue of whether a quitclaim deed “must recite

consideration” was a unique issue and “an award of fees to either party [was]

unwarranted”); In re Estate of D’Agosto, 134 Wn. App. 390, 402, 139 P.3d 1125

(2006) (holding that in “novel issues of statutory construction[, a]n award of fees

to either party is unwarranted”). And here, Christianson’s bad faith litigation

practices throughout the proceedings below, including alleging that Hansen

committed manslaughter and other conduct the trial court considered

sanctionable, entitles Hansen to her fees and costs on appeal subject to her

compliance with RAP 18.1.

For the foregoing reasons, we affirm in part and reverse in part.

WE CONCUR:

21