IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON CONCRETE SERVICES, INC., a Washington corporation, Plaintiff,

ROBERT KANANY, a single man, Appellant, OVIDIO ESCAMILLA, a single man, Respondent, FRONTIER BANK, a Washington Bank, MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., a Delaware Corporation, and PRIMELENDING, A PLAINSCAPITAL COMPANY, a Texas Corporation,
Defendants. DIVISION ONE

No. 68578-3- UNPUBLISHED OPINION

FILED: May 20, 2013 c/>o

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### Dwyer, J. — Robert Kanany appeals from a trial court order denying his 

### request for relieffrom a default judgment entered against him. Kanany asserts 

### that the default judgment was satisfied by a $10,000 payment made by a title insurance company on behalf ofOvidio Escamilla in order to obtain dismissal ofNo. 68578-3-1/2
claims asserted by Concrete Services, Inc. against Escamilla and to assign the defaultjudgment in favor ofConcrete Services against Kanany to Escamilla. We determine that substantial evidence supports the trial court's finding that the 

### $10,000 payment constituted consideration fordismissal of the claims against Escamilla and assignment of the defaultjudgment against Kanany—not 

### satisfaction of that judgment. Accordingly, we affirm the trial court's denial of Kanany's request for relief. We additionallyaffirm the trialcourt's grant to 

### Escamilla of an award of attorney fees incurred in defending against vacation of 

### the default judgment. Finally, because we determine that Kanany's appeal is 

### frivolous, we grant to Escamilla an award ofattorney fees on appeal againstboth 

### Kanany and his counsel.1
I 

### On February 18, 2009, Concrete Servicesfiled an amended complaint 

### seeking to collect amounts owed and toforeclose upon a lien encumbering six 

### parcels ofproperty owned by Kanany, who had failed to pay for theinstallation of concreteimprovements to those properties. Without disclosing the existence of 

### the lien, Kanany had subsequently conveyed one ofthe six parcels to Escamilla. Accordingly, the complaintfiled by Concrete Services named both Kanany and Escamilla as defendants.2 Concrete Services soughtjudgment against Kanany
1As explained below, theaward ofattorney fees onappeal against Kanany iswarranted 

### pursuanttoCivil Rule (CR) 11 and RCW 60.04.181—the basesfor the fee award in the trial court—in addition to Rule ofAppellate Procedure (RAP) 18.9(a). The appellatefee award against Kanany's counsel is warranted based solelyupon RAP 18.9(a). 2Concrete Services also named as defendants Frontier Bank, Mortgage Electronic 

### Registration System, Inc., and Primelending, a Plainscapital Company, each ofwhich claimed an interest in thesubject real property. Thus, Concrete Services soughtjudgmentthattheliens of
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in the amount of $7,688.83 with interest at a rate of 12 percent per annum, coupled with an award of reasonable attorney fees and costs. Concrete Services additionally sought foreclosure ofthe lien and application ofthe proceeds toward payment of the amount owed. In March 2009, Escamilla contacted Ticor Title Insurance Company, which had issued a title insurance policy insuring the parcel conveyed to Escamilla by 

### Kanany. Escamilla requested that Ticor Title resolve the Concrete Services lawsuit on his behalfpursuant to the insurance policy. Escamilla thereafter answered Concrete Services' complaint and asserted cross-claims against 

### Kanany for breach ofwarranties in the statutory warranty deed pursuant to which 

### the parcel was conveyed, intentional and negligent misrepresentation, breach of contract, and unjust enrichment. 

### Kanany, however, failed to answer Concrete Services' complaint. 

### Accordingly, Concrete Services moved for entry of an order ofdefault anddefault judgment againstKanany. On September4, 2009, thetrial court granted Concrete Services' motion, entering a default judgment against Kanany in the
amount of $11,306.26. 

### In May 2010,TicorTitle, on behalfofits insured, Escamilla, negotiated withConcrete Services a resolution of the claims against Escamilla. Ticor Title issued a check in the amount of$10,000 payable to Concrete Services "forthe 

### purpose ofsettling" the insurance claim asserted by Escamilla. Escamilla's these defendants against the subjectproperty wereinferior and subordinate to the lien upon which Concrete Services sought to foreclose.
-3-No. 68578-3-1/4 

### attorney thereafter mailed the settlement check to Concrete Services, enclosing three documents, entitled (1) "Stipulation and Order of Dismissal ofAll Claims Between Concrete Services, Inc., as Plaintiff, and Ovidio Escamilla, as 

### DefendantOnly"; (2) "Assignment ofDefault Judgment by PlaintiffConcrete Services, Inc. to Defendant Ovidio Escamilla"; and (3) "Partial Release ofLien". Concrete Services was authorized to cash the settlement check only upon 

### signing and returning the stipulation anddismissal ofclaims againstEscamilla, the assignment ofthe defaultjudgment againstKanany to Escamilla, and the release ofthe lien against Escamilla's property. 

### The assignment of the defaultjudgment by Concrete Services to Escamilla was filed inthe trial court on June 18, 2010. Three days later, 

### pursuantto the stipulation and dismissal signed by the parties, the trial court ordered that all claims between Concrete Services "and 

### Defendant/Crossclaimant, Ovidio Escamilla only" be dismissed with prejudice. 

### Following assignment ofthedefaultjudgment and dismissal ofConcrete Services' claims against Escamilla, Kanany moved, onMay 25, 2011, to vacate 

### thedefault order andjudgment entered against him more than 21 months earlier. He asserted that the order andjudgmentwerevoid as a matter oflaw due to 

### insufficient service of process and, thus, a lack ofpersonaljurisdiction overhim. 

### Contrary to Kanany's contention, the proofofservice indicated that, on March 1, 2009, the summons andcomplaint had beenpersonally served upon Kanany at 

### his Bonney Lake residence by leaving them with a co-resident named "Cameron 

## Kanany." Kanany alleged, however, that his step-brother, Kamran Kanany, had

-4-No. 68578-3-1/5

never resided at the Bonney Lake home. Kanany testified at a subsequent deposition that he did not receive the summons and complaint in March 2009; he further testified that he did not become aware of the lawsuit until after the default judgment was entered in September 2009. In order to disprove Kanany's assertions, Escamilla submitted to the trial court evidence that Kanany had been aware ofthe Concrete Services litigation prior to entry ofthe defaultjudgment. He provided a declaration of Greg Colbo, a senior title officer and underwriter at Ticor Title, who stated that he had received


### a telephone call from Kanany on March 11, 2009. During this call, Colbo 

### asserted, Kanany stated that he had received the summons and complaint and discussed resolution ofthe lawsuit. Escamilla also submitted a handwritten note 

### faxed by Kanany to the title officer inquiring as to whetherTicor Title would resolve the matter; the summons and complaint were faxed along withthe note. 

### Moreover, Escamilla's attorney stated in a declaration that Kanany had contacted him numerous times during July and September of 2009 regarding the Concrete Services litigation. 

### On September 26, 2011, the trial court held an evidentiary hearing on 3The handwritten note identifies the sender as "Robert Kanany" and states: "This is the paperwork you askedfor. Are you going to answerthisor do Ineed tomove forward with an attorney todeal with them. Please getback tome." Kanany admitted during his deposition that the handwriting was his own and that he had sent the fax. A letter from Colbo to Escamilla, dated March 16, 2009, further corroborates Colbo's recollection of the events. The letter informs Escamilla that Ticor Title had received his claim relating to the Concrete Services litigation. Itfurther states: We have been in contact with your seller [Kanany] as well as the attorney representing the lien claimant. It is my understanding that Mr. Kanany is in the process ofobtaining a release ofthe mechanic's lien and dismissal ofthe lien foreclosure action. We are currently working with him to help expedite resolution of this matter.No. 68578-3-1/6 Kanany's motion to vacate the default order and judgment due to improper service. Kanany testified that Kamran had never resided at the Bonney Lake home. In addition, he again testified that he had no recollection of being served with the summons and complaint in the Concrete Services litigation. However, evidence presented at the hearing indicated otherwise. Recent photographs of 

### Kanany and Kamran, the testimony of the process server who had been asked to
serve the summons and complaint on Kanany, and notes that had been made by 

### the process server at the time of service established that Kanany had, in fact, been personally served with the summons and complaint. The evidence further 

### suggested that Kanany, upon service, had erroneously identified himselfas "Kamran Kanany" and stated that he resided at the Bonney Lake home. 

### Two days later, on September 28, 2011, Kanany filed a motion to amend 

### his motion to vacate the defaultjudgment "to add CR 60(b)(6)[4] as the basis for relieffrom default judgment." Kanany asserted that he had received "new 

### evidence" that the $10,000 payment to Concrete Services had been made by TicorTitle, rather than by Escamilla. Although Kanany admitted that only Escamilla was an insured pursuant to the Ticor Titleinsurance policy, he 

### nevertheless alleged that the defaultjudgment against him had been satisfied by the $10,000 payment to Concrete Services. 

### At an October 6, 2011 hearing, Kanany conceded that service had been
4CR60(b)(6) provides: "On motion and upon such terms as are just, the court may relieve a party or hislegal representative from a finaljudgment, order, orproceeding" where "[t]he judgment hasbeen satisfied, released, ordischarged, ora priorjudgment upon which it isbased has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application."No. 68578-3-1/7
proper. Rather, he contended that the defaultjudgment had been satisfied when the $10,000 check was delivered to Concrete Services and, accordingly, that the assignment ofthe defaultjudgment to Escamilla was improper. Conversely, Escamilla asserted that the $10,000 payment, rather than being intended to 

### satisfy the default judgment, instead constituted consideration for dismissal of Concrete Services' claims against Escamilla and assignment ofthe default judgment from Concrete Services to Escamilla. On March 7, 2012, the trial court entered findings of fact, conclusions of 

### law, and an order on Kanany's amended motion to vacate the defaultjudgment and order. The court determined that Kanany's testimony regarding whether he 

### had seen the summons and complaint in March 2009 "was not credible." Rather, the court explained: Itwas clear to the court that Robert Kanany had been personally 

### handed the summons and complaint at his home on March 1, 2009, and that he had told the process server that he was Kamran 

### Kanany, in order to mislead the process server, and in preparation for misleading this court. 

### The trial courtadditionally rejected Kanany's argument that the $10,000 payment to Concrete Services constituted satisfaction of the defaultjudgment. Instead, 

### the courtfound that "[t]he evidence clearly establishes that the $10,000was not 

### paid to satisfy theDefaultJudgment, butwas consideration for the assignment of the Default Judgment against Defendant Robert Kanany to Defendant Escamilla and the dismissal ofConcrete Services, Inc.'s, claims against Defendant Ovidio
Escamilla." 

### The court concluded that (1) Kanany had been properlyserved with the

-7-No. 68578-3-1/8

summons and complaint; (2) the $10,000 payment to Concrete Services did not result in satisfaction of the defaultjudgment; (3) "[wjhether the check was paid by Defendant Escamilla or Ticor Title Company is of no consequence to the issue of whether or not the Default Judgment should be vacated"; and (4) the default judgment was properly assigned to Escamilla. Thus, the court ruled that Kanany had failed to demonstrate that he was entitled to the relief he requested pursuant to CR 60(b)(6). Finally, the trial court awarded to Escamilla attorney fees and costs incurred in defending the defaultjudgment. The court determined that, because 

### the default judgment included an award ofattorney fees, such an award was 

### authorized, pursuant to the same statute, forexpenses incurred in defending that 

### judgment. Moreover, the court concluded that an award of attorney fees was 

### justified pursuant to Civil Rule (CR) 11,given that "Robert Kanany lied to this court" and that his motion to vacate "was a frivolous motion without legal or factual basis" that "served to waste resources ofthe parties, attorneys, and the court." On March 28, 2012, the trial court entered a supplementaljudgment 

### regarding the defaultjudgment, awarding to Escamilla $22,825 in attorney fees and $556.20 in costs incurred in defending the defaultjudgment against Kanany's motion to vacate. Kanany appeals.
II 

### Kanany first contends that the trial courtabused itsdiscretion by denying his requestfor relieffrom the default order and judgment pursuant to CR
-8-No. 68578-3-1/9 60(b)(6). This is so, he asserts, because the $10,000 payment made by Ticor Title on behalf of Escamilla to Concrete Services constituted satisfaction of the defaultjudgment against him. However, the trial court's finding of fact that the $10,000 payment constituted consideration for dismissal of Concrete Services' claims against Escamilla and assignment ofthe defaultjudgment—not satisfaction ofthatjudgment—is supported by substantial evidence. Accordingly, the trial court did not err by declining to award the requested relief. "We review a trial court's decision on a motion to set aside a default 

### judgment forabuse ofdiscretion." Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007). "A trial court abuses its discretion when its decision is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Tribble v. Allstate Prop. &Cas. Ins. Co.. 134 Wn. App. 163, 170, 139 P.3d 373 

### (2006) (quoting State ex rel. Carroll v. Junker, 79Wn.2d 12, 26, 482 P.2d 775 (1971)). "In reviewing a trial court'sfindings and conclusions, we determine whether substantial evidence supports challenged findings of fact and, in turn, 

### whether the findings support the conclusions oflaw." State v. McEnrv, 124Wn. 

### App. 918, 924, 103 P.3d 857 (2004). "Substantial evidence isevidence sufficient to persuade a fair-minded, rational person ofthe truth ofthe finding." McEnrv, 124 Wn. App. at 924. 

### "Ajudgmentcreditor can assign his rights in the judgmentto a third party. However, ifthe judgment debtor satisfies the judgment beforeit is assigned by 

### thejudgment creditor, the satisfaction would bar the assignee from enforcing the 

### judgment." 47Am. Jur. 2dJudgments § 811 (2013). Pursuanttothis "one
-9-No. 68578-3-1/10 

### satisfaction" rule, ajudgment creditor can receive only one satisfaction of a debt; 

### accordingly, once the judgment has been satisfied, the judgment creditor no 

### longer has an interest to assign. 47 Am. Jur. 2d Judgments § 811 (2013). "Satisfaction" is "[tjhe giving of something with the intention, express or implied, 

### that it is to extinguish some existing legal or moral obligation." Black's Law 

### Dictionary 1460 (9th ed. 2009). Thus, ajudgment is notsatisfied where a third 

### party's payment to the creditor isintended to purchase the debtratherthan to extinguish it: 

### Athird person's payment ofa debtor's obligation differs from the third person's purchase ofthe debt in that payment discharges the debt while purchase does not discharge the debt, which is 

### enforceable bythe third person. Ordinarily, the intention ofthe 

### parties determines whether a transfer ofmoney by a third person to a creditor constitutes a discharge or purchase of an underlying debt. 60 Am. Jur. 2d Payment § 5 (2013). 

### Here, thetrial courtfound that the evidence clearly established that the 

### $10,000 paymenttoConcrete Services wasintended as consideration for the 

### assignment ofthe defaultjudgment against Kanany to Escamilla and the dismissal of Concrete Services' claims against Escamilla. The courtfound that 

### the$10,000 paymentwas not intended to satisfy the defaultjudgment against Kanany. Accordingly, thecourt concluded that, contrary toKanany's assertion, the$10,000 payment did not result in thesatisfaction ofthedefaultjudgment against him. 

### Substantial evidence supports the trial court'sfindings. The record shows 

### thatTicorTitle issued a title insurance policy to Escamilla insuring the title ofthe
-10-No. 68578-3-1/11 parcel conveyed to Escamilla by Kanany. Itwas pursuant to this policy that Escamilla requested that Ticor Title resolve the Concrete Services litigation on his behalf. Ticor Title thereafter issued a $10,000 check, payable to Concrete Services, indicating that the check was "for the purpose of settling" the insurance 

### claim asserted byEscamilla.5 Ticor Title and Concrete Services agreed that, in exchange for the $10,000 payment, Concrete Services would dismiss its claims against Escamilla, release the lien against Escamilla's property, and assign the defaultjudgment in its favor against Kanany to Escamilla. The letter to Concrete Services accompanying the $10,000 check explicitly states that Concrete Services was authorized to cash the check only upon signing and returning the 

### stipulation and dismissal, assignment of the default judgment, and partial release of the lien. In stark contrast to the abundance of evidence indicating that the 

### $10,000 payment constituted consideration for dismissal of the claims against 

### Escamilla and assignment of the default judgment is the complete absence of evidence suggesting that the payment was intended to satisfy the default judgment entered against Kanany. Moreover, the amount of the defaultjudgment was $11,306.26. Thus, the 

### $10,000 payment would not constitute full payment of the judgment, further supporting the trial court's finding that the payment was not intended to satisfy 5In contending that the $10,000 payment satisfied the defaultjudgment againsthim, Kanany asserts that the paymentconstituted settlement of Concrete Services' claims. However, the record clearly demonstrates that the $10,000paymentwas intended to settle only those claims by Concrete Services asserted againstEscamilla, thereby settling Escamilla's insurance claim against TicorTitle. Nowhere does the record indicatethat the $10,000 payment was intended as settlement ofConcrete Services' claims against Kanany. Indeed, Concrete Services had already obtained a defaultjudgmentagainst Kanany; thus, there were no pending claims against Kanany to be settled.
-11

-No. 68578-3-1/12 

### thatjudgment. Finally, because, as he admits, Kanany is not an insured 

### pursuant to the TicorTitle policy, TicorTitle had no incentive to satisfy the 

### judgment on Kanany's behalf. Rather, TicorTitle, having paid $10,000 to settle the claims against Escamilla, its insured, had incentive to purchase the judgment 

### and proceed against Kanany in orderto recoverthat expense.6 Thus, the record clearly demonstrates that the parties intended the $10,000payment to constitute consideration for assignment of the defaultjudgment, not the satisfaction ofthat 

### judgment.7 Substantial evidence supports the trial court's finding that the $10,000 

### paymentwas intended as consideration for dismissal ofthe claims against Escamilla andassignment ofthedefaultjudgmentto Escamilla—nottosatisfy a 

### judgment against a non-party to that contract. This finding supports the trial court's conclusion that the $10,000 paymentdid not resultin satisfaction ofthe 

### defaultjudgment against Kanany. Notwithstanding repeated requests atoral

6As the trial courtfound, and as Kanany now admits, the title insurance policy states that TicorTitle shall besubrogated and entitled totherights ofEscamilla where Ticor Title settles a 

### claim pursuantto the policy. Thus, contrary to Kanany's contention, the fact thatTicorTitle issued the$10,000 check toConcrete Services, and yetthedefaultjudgmentwasassigned to Escamilla himself, is of no moment. 

### 7Kanany argues atgreatlength regarding the timing ofthe delivery ofthe $10,000 check to Concrete Services, asserting that, because the check was delivered priorto the assignment of the defaultjudgment, the defaultjudgment had been satisfied and could notthereafter be 

### assigned. Because, however, the evidence supports the trial court's determination thatthe 

### $10,000 paymentwas not intended to satisfy the defaultjudgment, the timing ofthe delivery of thecheck isofno consequence. Consideration for assignment ofajudgmentdoesnot satisfy 

### thatjudgmentsimply becausethe consideration was delivered priorto the assignment. Kanany's argument is wholly without merit. Moreover, the cases cited by Kanany in support of hisargument are inapposite. See Charles P Young Co. v. Anava. 119 N.M. 449, 891 P.2d 1203 (1995); Strong Mem'l Hosp. v. AlmacBldc. Maint.. Inc.. 122Misc.2d 246, 470 N.Y.S.2d 542 (1983). Nojudgmentwas obtained 

### against Escamilla. Accordingly, judicial authority regarding the obligations ofjointdebtors is irrelevant. -12-No. 68578-3-1/13 argument that he do so, Kanany points to no evidence in the record indicating that the $10,000 payment was intended to satisfy the judgment against him. Accordingly, we reject Kanany's specious argument and hold that the trial court 

### properly denied his CR 60(b)(6) requestfor relieffrom thedefaultjudgment.8
Ill Kanany additionally asserts that the trial court erred by granting an award ofattorney fees and costs to Escamilla. However, both RCW 60.04.181(3), 

### pursuant to which fees were awarded as part of the default judgment, and CR 11 provided applicable, independent bases for the trial court's grant of the fee award. Accordingly, the court did not abuse its discretion by granting that award. We will not disturb a trial court's decision to grant or deny an award of 

### attorney fees absent an abuse ofdiscretion. Roats v. Blakelv Island Maint. Comm'n, Inc., 169 Wn. App. 263, 283-84, 279 P.3d 943 (2012). Similarly, we review for abuse ofdiscretion an award of sanctions pursuant to CR 11. Marina Condo. Homeowner's Ass'n v. Stratford at Marina. LLC, 161 Wn. App. 249, 263, 

### 254 P.3d 827 (2011). As explained above, "[a] trial courtabuses its discretion if its order is manifestly unreasonable or is based on untenable grounds." Marina Condo. Homeowner's Ass'n, 161 Wn. App. at 263. 

### Here, fees were awarded as an element of the defaultjudgment against 

### Kanany pursuant to RCW 60.04.181(3), which provides authority for a courtto 8Kanany challenges numerous other findings offact and conclusions oflaw made by the trial court. After a complete review ofthe record, weconclude, with regard to the challenged findings and conclusions, that either (1) the findings and conclusions are ofno momenttothe resolution ofthiscase or(2) substantial evidencesupports the challenged findings, which themselves support the court's conclusions.
-13-No. 68578-3-1/14
allow the prevailing party in a priority of liens action to recover, among other expenses, "attorneys' fees and necessary expenses incurred
... in the superior court, court of appeals, supreme court, or arbitration, as the court or arbitrator deems reasonable." Accordingly, the trial court determined that, because the defaultjudgment included an award of attorney fees and costs against Kanany, Escamilla was entitled to an award of fees incurred in defending the default judgment. The court additionally determined that Escamilla is entitled to an award of costs and attorneys' fees under 

### CR 11 .[9] Robert Kanany lied to thiscourt. His motion to vacate the default and defaultjudgment was a frivolous motion without legal or factual basis. It served to waste resources of the parties, attorneys, and the court. 

### In its supplemental judgment, the court explained that itfound "this sanction, in light of the particulars of this particularcase, to be the least severe necessary to deter baseless filings and to curb abuses of the judicial system." 

### In challenging the fee award, Kanany baldly asserts that the trial court 

### granted the award "without a fair and impartial assessment ofall the circumstances comprising this matter." Br. ofAppellant at 46-47. He additionally asserts that the fee award was unwarranted because, according to Kanany, the 

### entire matter was caused by Concrete Services' and Escamilla's "fail[ure] to

9CR 11 provides that the signature of a party orattorney on a pleading, motion, orlegal memorandum constitutes a certificate by that party or attorney that the pleading, motion, or legal memorandum iswell groundedin fact, warranted byexisting law or a goodfaith argument fora changein existing law, is notinterposed for an improper purpose, andcontains only factual contentions or denials warranted by the evidence. CR 11(a). Where a pleading, motion, or legal memorandum is signed in violation ofthe rule, "thecourt, upon motion orupon itsown initiative, may impose upon the person who signed it, a represented party, orboth, an appropriate sanction, which may include an orderto payto the otherparty orparties the amount ofthereasonable expenses incurred
. .. , including a reasonable attorney fee." CR 11(a).
-14-No. 68578-3-1/15 

### acknowledgefull payment and satisfaction" of the default judgment. Br. of Appellant at 47. The record belies Kanany's assertions. Instead, the trial court correctly determined that, because the default 

### judgment included an award ofattorney fees againstKanany, such an award was authorized for those expenses incurred in defending that judgment. See RCW 

### 60.04.181(3) (providing for a fee award to the prevailing party in a lien action where the fees are incurred "in the superior court, court ofappeals, supreme 

### court, nrarbitration"^: see also Aecon Bldas. Inc. v. Vandermolen Constr. Co., 

### Inc., 155 Wn. App. 733, 743, 230 P.3d 594 (2009) (granting a fee award to the 

### prevailing party for expenses incurred in defending against an appeal ofa default 

### judgmentwhere the underlying contract provided for such an award in the event oflitigation between the parties). In addition, CR 11 provided a sufficient and independent basis for the award ofattorney fees granted by the trial court. The trial court's determination that Kananylied to the court is notreviewable on 

## appeal. See Frank Coluccio Constr. Co.. Inc. v. King County, 136Wn. App. 751, 770, 150 P.3d 1147 (2007) ("The trial court's credibility determination and its resolution ofthetruth from conflicting evidence will not be disturbed onappeal."). Moreover, the record supports thetrial court's determination that the motion to vacate thedefault order andjudgmentwasfrivolous andwithout legal orfactual
basis. 

### Wehold that an award ofattorney fees in the trial courtwas warranted

15No. 68578-3-1/16 

### pursuant to both RCW 60.04.181 (3) and CR 11.10 Accordingly, weaffirm thetrial court's grant of a fee award in the instant litigation.
IV Escamilla requests an award of attorney fees on appeal. Such an award is warranted against Kanany pursuant to both CR 11 and RCW 60.04.181, the bases for the fee award in the trial court. In addition, because we conclude that Kanany's appeal is frivolous, an appellate fee award is warranted against both Kanany and his counsel pursuant to Rule ofAppellate Procedure (RAP) 18.9(a). An appellate fee award in favor of Escamilla and against Kanany is 

### authorized by the same grounds justifying the trial court's award ofattorney fees—CR 11 and RCW 60.04.181. An award of attorney fees on appeal is 

### authorized by CR 11 where sanctions have been imposed in the trial court 

### pursuant to that rule, as responding to the appeal "could reasonably be viewed
as a cost of collecting the judgment" entered by the trial court. Skilcraft Fiberglass. Inc. v. Boeing Co.. 72 Wn. App. 40, 48, 863 P.2d 573 (1993), abrogated on other grounds by Morin v. Burris. 160 Wn.2d 745, 161 P.3d 956 

### (2007). Moreover, an appellate fee award is available to the prevailing party on 

### appeal pursuant to RCW60.04.181(3). Woodstream Constr. Corp. v. Van Wolvelaere. 143 Wn. App. 400, 409-10, 177 P.3d 750 (2008). Moreover, because we determine that Kanany's appeal is frivolous, we 

### grant to Escamilla an award of attorneyfees on appeal, pursuant to RAP 18.9(a), 10 On appeal, Kanany asserts that the fees awarded pursuant to CR 11 mustnecessarily be in a lesser amount than the fees awarded pursuant to the statute. Because we affirm the award on both bases, we need not further address this contention.
-16-No. 68578-3-1/17 

### againstboth Kanany and his counsel. RAP 18.9(a)11 provides for the imposition of sanctions where a party brings a frivolous appeal. Here, the record clearly supports the trial court's finding that the $10,000 payment from Ticor Title to Concrete Services was intended by the parties to constitute consideration for dismissal of Concrete Services' claims against Escamilla and assignment of the defaultjudgment to Escamilla. To prevail on appeal, Kanany must demonstrate that this finding is not supported by substantial evidence. This he does not even attempt to do. Moreover, Kanany fails to point to any evidence in the record indicating that the $10,000 payment was intended to satisfy the defaultjudgment 

### against him; indeed, no such evidence exists. Accordingly, because Kanany's 

### appeal "presents no debatable issues upon whichreasonable minds coulddiffer and there is no possibility of reversal," his appeal is frivolous. Wellman&Zuck. Inc. v. Hartford Fire Ins. Co.. 170 Wn. App. 666, 681, 285 P.3d 892 (2012), 

### review denied, 176 Wn.2d 1019 (2013). RAP 18.9(a) sanctions against both Kanany and his counsel are thus warranted. 

### Upon proper application, the commissioner of this courtwill enter an order awarding to Escamilla attorney fees and costs on appeal consistent with this opinion.

11 "The appellate courton itsown initiative or on motion ofa party may ordera party or counsel. . . who . . . files a frivolous appeal... to pay terms or compensatory damages to any other party who has beenharmed by thedelay or thefailure tocomply or to paysanctions to the court." RAP 18.9(a). -17-No. 68578-3-1/18

Affirmed. 

# ^ \y^U~^A

We concur:



# J/l^^y^^-j H.Cj. tt18