IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE BEATRIZ HERNANDEZ and ROSARIO CONTRERAS, Respondents,

v. HELEN STENDER and JOHN DOE STENDER, wife and husband and their marital community, Appellants. No. 71064-8-1 ORDER DENYING MOTION FOR RECONSIDERATION, WITHDRAWING OPINION, AND SUBSTITUTING OPINION

The appellant, Helen Stender, has filed a motion for reconsideration ofthe opinion filed on March 24, 2014. Respondents, Beatriz Hernandez and Rosario Contreras, have filed a response. The court has determined that said motion should be denied and that the opinion filed on March 24, 2014 shall be withdrawn and a substitute published opinion befiled. Now, therefore, it is hereby ORDERED thatthe motion for reconsideration is denied; it is further ORDERED that the opinion filed on March 24, 2014, is withdrawn and a substitute publishedopinion shall befiled. 

# DATEDthis 02^ dayof A*Y 2014.

,*^-~3~*l

o f\3 CO Ot/5

o
— secIN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
BEATRIZ HERNANDEZ and ROSARIO CONTRERAS, Respondents,

HELEN STENDER and JOHN DOE STENDER, wife and husband and their marital community, Appellants. No. 71064-8-1 DIVISION ONE PUBLISHED OPINION

FILED: June 23, 2014 CO
Is. —K o
CO >>-^}-,...

—tr-;

Appelwick, J. — The trial court awarded Hernandez attorney fees pursuant to RCW 7.06.060 when Stender failed to improve her position in a trial de novo from arbitration of an automobile accident case. Because Hernandez improperly disclosed
an offer ofcompromise prior to the trial court's entry ofjudgment, we reverse the award 

### ofattorneyfees. Wefind no merit inStender's appeal ofseveral evidentiary rulings and affirm the judgment. Because Stender did not improve her position on appeal, we award Hernandezfees on appeal. FACTS On January 8, 2007, Helen Stender rear-ended Beatriz Hernandez and Rosario 

### Contreras when they were stopped at a red light. After the accident, Hernandez and Contreras both experienced pain and sought medical care from Dr. Al Noor Bhanji, a chiropractor.No. 71064-8-1/2


### On November 6, 2009, Hernandez and Contreras brought a personal injury suit against Stender. The parties went to mandatory arbitration, where the arbitratorfound 

### in favor ofHernandez and Contreras in the amount of $24,505. Stender subsequently requested a trial de novo. Hernandez and Contreras each made an offer of 

### compromise of $9,500, which Stender rejected. The case proceeded to trial on June 11,2012. 

### The jury found in favor of Hernandez and Contreras and awarded damages. Before the entry ofjudgment, Stenderfiled a motion for remittiturseeking to lower the award. Hernandez's response motion argued that Stender merely soughtto "lower the award such that [Hernandez's] award does not exceed [the] offer ofcompromise inthe 

### amount of $9,500." Two days later, the court entered judgment per the jury verdict, awarding Hernandez $11,703 and Contreras $9,085. 

### Because Stender failed to improve her position on trial de novo against Hernandez, the trial court also granted Hernandez attorney fees under RCW 7.06.060. However, Stender did improve her position with respect to Contreras. Contreras was thus was not eligibleto receive attorneyfees under RCW7.06.060. Stenderappeals the fee award and thejudgment. DISCUSSION I. Attorney Fees RCW 7.06.050(1)(c) provides, in pertinent part, that a "postarbitration offer of compromise shall not be filed or communicated to the court orthe trier offact until after judgmenton the trial de novo." Stenderargues that Hernandez's disclosure ofheroffer of compromise precludes her from recovering attorney fees. Hernandez counters thatNo. 71064-8-1/3

the statute does not mandate a forfeiture offees. She further maintains that no sanction is necessary here, because the trial court entered a judgment that mirrored the jury verdict amount. In Hanson v. Estell. 100 Wn. App. 281, 291, 997 P.2d 426 (2000), the court reversed an attorney fee award under RCW 4.84.280. RCW 4.84.280 shares similar 

### language with RCW 7.06.050, stating that "[o]ffers of settlement shall not be filed or communicated to the trier of. . . fact until afterjudgment." The Hanson plaintiffs filed their motion for attorney fees—including a copy of the offer of settlement—prior to the 

### entry ofjudgment. 100Wn. App. at 290. The trial court acknowledged disclosure of the offer but nonetheless awarded fees. Id. The appellate court found that the clear 

### language of RCW 4.84.280 prohibits the trial court from learning of settlement offers until after the judgment is signed. ]d. Thus, the plaintiffs' violation of the statute precluded theirrecovery ofattorneyfees. IdL at291. This court later addressed the relationship between Hanson and RCW 7.06.050. See Du K. Do v. Farmer, 127 Wn. App. 180, 188, 110 P.3d 840 (2005). In Do, the 

### appellantargued thatthe respondentwaived her right to attorneyfees, because she did 

### not request them until after the judgment was filed. \_± at 187. We disagreed, id. at 188. In doing so, we discussed Hanson and acknowledged our priorenforcement of statutes with similar provisions. jd. We further noted that RCW 7.06.050 requires partiesto waituntil afterthejudgmentto communicate an offer ofcompromise. Id. Hernandez dismisses the language in Do as mere dicta. Citing to Jenbere v. 

### Lassek, 169 Wn. App. 318, 322, 279 P.3d 969, review denied. 175 Wn.2d 1028, 291 

### P.3d 254 (2012), she correctly notes that Do said communication of an offer ofNo. 71064-8-1/4 compromise could result in loss offees, not that itmust. She also correctly maintains that fee awards are a matter of trial court discretion. She argues that the trial court's grantoffees was not an abuse ofdiscretion. The clear policy of RCW 7.06.050 is to prevent a trial courtfrom considering an offer ofcompromise in its entry ofjudgment. Our case law indicates the importance of complying with the statute. See Do, 127Wn. App. at 188. And, itdemonstrates thatfee 

### forfeiture is an appropriate remedy where a violation frustrates the statute's purpose. See, e.g.. Hanson, 100 Wn. App. at 291. Here, Hernandez intentionally violated the plain terms of the statute with the purpose of affecting the trial court's decision on Stender's motion for remittitur. RCW7.06.050 is designed to prohibitthis behavior. It is equallyclearthatthe record does notestablish thatthe premature communication ofthe offer of compromise could not have affected the decision ofthe trial court. Forfeiture of fees is warranted. We hold thatthe award of attorney fees and costs after disclosure ofthe offer of compromise in response to a motion for remittitur priorto the entry ofjudgmentwas an abuse ofdiscretion. Accordingly, we reverse the fee award.
II. ER 904 Evidence Stender contends that the trial court erred in excluding documents that she submitted pursuant to ER 904 and to which Hernandez and Contreras did not object until trial. We review a trial court's evidentiary rulings for abuse ofthat discretion. Cox
v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000). An appellant bears the burden to prove an abuse ofdiscretion. State v. Davis, 174Wn. App. 623, 642, 300 P.3d 465, review denied, 178Wn.2d 1012, 311 P.3d 26 (2013).No. 71064-8-1/5


### ER9041 isdesigned to expedite the admission ofdocumentary evidence. Miller v. Arctic Alaska Fisheries Corp.. 133 Wn.2d 250, 258, 944 P.2d 1005 (1997). It 

### provides that certain documents "shall be deemed admissible" ifproperly proposed as an exhibit, unless objected to within 14 days. ER 904(a). Inthe absence of a timely objection, there is an expectation ofadmission. Miller, 133 Wn.2d at 260. However, an 

### objection on the grounds ofrelevancy need not be made until trial. ER 904(c)(2). On August 19, 2011, Stender proposed a number of exhibits under ER 904.2 

### Hernandez and Contreras did not object at that time. However, when Stender offered

1ER 904 provides, inpart: (a) Certain Documents Admissible. In a civil case, any of the following documents proposed as exhibits in accordance with section (b) 

### of this rule shall be deemed admissible unless objection is made under section (c) ofthis rule[;] (b) Notice. Any party intending to offer a document underthis rule must serve on all parties a notice, no less than 30 days beforetrial, stating that the documents are being offered under Evidence Rule 904 and shall be deemed authentic and admissible without testimony or further identification, unless objection is served within 14 days of the date of notice, pursuantto ER 904(c).
.. . (c) Objection to Authenticity or Admissibility. Within 14 days of notice, any other party may serve on all parties a written objection to any document offered under section (b), identifying each document to which objection is made by numberand briefdescription. (2) If an objection is made to a document on the basis of admissibility, the grounds for the objection shall be specifically set forth, except objection on the grounds of relevancy need not be made until trial. Ifthe court finds that the objection was made without reasonable basis and the document is admitted as an exhibit at trial, the court may award the offering party any expenses incurred and reasonable attorneyfees. (Boldface omitted.) 2Stender proposed several documents as exhibits under ER 904. Hernandez made no pretrial objection to nine ofthem. Ofthose nine, two were not offered at trial and four were offered without objection. This leaves the three documents discussed here.No. 71064-8-1/6
the exhibits at trial, Hernandez and Contreras objected to three—Allstate Insurance Company's complaint in its lawsuit against Dr. Bhanji, the plaintiffs' chiropractor; the confession ofjudgment inthat suit; and Dr. Bhanji's guilty pleas to three counts offalse swearing—and the court excluded the documents. Anotherjudge hearing a motion in limine had previously ruled thatthese materials would be admissiblefor allpurposes. Stenderdid not designate for the appellate record the trial transcriptpertaining to discussion ofthe admissibility ofthese exhibits. Nor does she cite to any portion ofthe record that might support her argument. Withoutthose details, we do not know on what basis Hernandez and Contreras objected or on what basis the trial court made its ruling. We cannot properly review the alleged error. State v. Mannhalt, 33 Wn. App. 696, 704, 658 P.2d 15 (1983) ("The portion of the record certified to the court does not contain 

### any of the motions or proceedings relevant to these matters. Therefore, we cannot consider the alleged errors."); RAP 10.3(a)(6) ("The [brief should contain] argument in support ofthe issues presented for review, togetherwith citations to legal authority and references to relevantparts ofthe record.").
III. Evidence ofMedical Bills 

### Stender argues that the trial court should have excluded Dr. Bhanji's medical 

### bills, because he waived them pursuant to his settlement with Allstate.3 Thus, she contends, thejury should not have consideredthe billswhen itawarded damages. 3 Stender also argues that the trial court compounded its error by not allowing 

### evidence of Dr. Bhanji's waiver. Specifically, she contends that the court should have permitted her to cross-examine Dr. Bhanji about the waiver. However, she does not 

### designate that portion of the trial transcript. Nor does she cite to any portion of the record that might support her argument. We decline to considerthis allegation of error. See LeMond v. Dep't of Licensing, 143 Wn. App. 797, 807, 180 P.3d 829 (2008) ("This 

### courtwill not considerallegations of fact without supportinthe record."); RAP 10.3(a)(6)No. 71064-8-1/7

In Haves v. Wieber Enterprises, Inc., 105 Wn. App. 611, 616, 20 P.3d 496 (2001), the trial court excluded evidence that the plaintiff's doctor accepted less for his services than he billed. Id. at 615. The Court ofAppeals found no abuse ofdiscretion, stating thatthe amount billed or paid is not itselfdeterminative. ]cL at 616. Instead, the question was whether the sums requested were reasonable. Id. Waiver is merely a reduction taken to its limit.4 The trial court did not abuse its discretion by admitting evidence of Dr. Bhanji's bills. IV. Evidence of Undisclosed Claims Stender argues that the trial court abused its discretion in admitting evidence of claims that Hernandez and Contreras did not properly disclose during discovery. Specifically, she objects to evidence of essential services, wage loss, and damage to Hernandez's vehicle. Neither respondent received essential services damages. Hernandez did not receive wage loss damages. But, Contreras did receive a wage loss award, which Stender requests this court to reverse. Hernandez received property 

### damages, and the record contains testimony from Hernandez and her boyfriend about
the vehicle.



### ("The [brief should contain] argument in support of the issues presented for review, 

### togetherwith citations to legal authorityand referencesto relevantparts of the record."). 4In addition, the jury's verdict awarded Hernandez and Contreras damages for "medical bills" without itemizing the amount that corresponded to each doctor. The 

### record before us is inadequateto allow a determinationthatthejury did or did not award 

### any damages based on Dr. Bhanji's bills. However, we note the award of medical 

### damageswas lessthan the total ofamounts claimed forservices of providers other than Dr. Bhanji.No. 71064-8-1/8
However, Stenderdid not provide a record on appeal demonstrating an objection to admission ofevidence in support ofthese claims. RAP 10.3(a)(6) ("The [briefshould contain] argument in support ofthe issues presented for review, togetherwith citations 

### to legal authority and references to relevant parts of the record."). An objection is necessary to preserve an evidentiary issue for appellate review. RAP 2.5(a) ("The 

### appellate court may refuse to review any claim oferrorwhich was not raised in the trial court."). We decline to review herclaims. V. Fees on Appeal 

### Hernandez and Contreras also request fees under RAP 18.9. RAP 18.9(a) 

### permits the court to impose sanctions for a frivolous appeal. An appeal isfrivolous ifit raises no debatable issues on which reasonable minds might differ and it is so totally 

### devoid of meritthat no reasonable possibility ofreversal exists. Protectthe Peninsula's Future v. City of Port Angeles, 175 Wn. App. 201, 220, 304 P.3d 914, review denied, 178 Wn.2d 1022, 312 P.3d 651 (2013). Stender raises issues that create a reasonable possibility ofreversal. Herappeal is not frivolous. However, Hernandez and Contreras also requestfees on appeal underMAR 7.3. 

### MAR 7.3 mandates a fee award against a party who appeals an arbitration award and 

### fails toimprove his or herposition ontrial de novo. A party who isentitledto fees under MAR7.3 at the trial court level is also entitled to fees on appeal ifthe appealing party 

### again fails to improve its position. Armentv. Kmart Corp., 79 Wn. App. 694, 700, 902 P.2d 1254(1995). 

### Stender improved her position with respect to Contreras below. Contreras is 

### thus not eligible for attorney fees under MAR 7.3 either at trial or on appeal. But,

8No. 71064-8-1/9
Stenderfailed to improve her position with respectto Hernandez. MAR 7.3 establishes that Hernandez was thus eligible for fees at the trial court level. Because Hernandez prematurely disclosed the offer of compromise, we concluded that RCW 7.06.050 

### precludes herfrom recovering those fees. However, this does not impact hereligibility forfees on appeal underMAR7.3. RCW 7.06.050(1)(c) shields the trial court from the offer of compromise when entering judgment. The Court of Appeals, however, is always aware of the offer of compromise by virtue ofthe court's role of review. Therefore, the policy behind RCW 7.06.050(1)(c) has no impact atthe appellate level. But, under RCW7.06.050(1)(b), the amountofthe offerofcompromise shall replace the amount ofthe arbitrator's award for determining whetherthe party appealing the arbitrator's award has failed to improvethat party's position on the trial de novo. This remains so on appeal to this court. The 

### premature disclosure ofthe offer ofcompromise to the trial court has no effect on the statutory substitution. The purpose of MAR 7.3 is to discourage meritless appeals and reduce court 

### congestion. Tribble v. Allstate Prop. &Cas. Ins. Co., 134 Wn. App. 163, 174, 139 P.3d 373 (2006). To achieve this end, the statute imposes risk on a party who appeals and does not improve his or herposition. We respectthis policy choice. 

### Stender did not improve her position on appeal relative to the offer of compromise. Hernandez is entitled to fees and costs on appeal underMAR7.3, subject to hercompliance with RAP 18.1(d).No. 71064-8-1/10


### Stender also requests fees, but not until her reply brief. RAP 18.1(b) mandates that a party who requests attorneyfees mustdevote a section of its opening brief to the request. Stenderdid not complywith this rule. Wedeny herrequest. 

### We reverse the trial court attorneyfee award and affirmthejudgment. We award Hernandezfees on appeal.

WE CONCUR:

-^<^is*f

10