IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HOLLY ANDREN,

Respondent,

v.

WAYNE DAKE and Jane or John “Doe” 

Dake, spouses, and the marital 

community composed thereof,

Appellants.

DIVISION ONE

No. 79423-0-I (consol. with 

 No. 79585-6-I)

UNPUBLISHED OPINION

DWYER, J. — After the jury returned a defense verdict in this negligence 

action, in which the defendant admitted liability for the motor vehicle collision at 

issue, the trial court granted the plaintiff’s motion for a new trial, declaring that it 

was “in a position in which it cannot definitively state that the trial in this matter 

was a fair one.” This appeal concerns whether the trial court’s findings, which 

detail Dake’s trial counsel1 engaging in rampant misconduct, adequately support 

the order granting Andren’s motion for a new trial. We affirm the new trial order 

because the order sets forth extensive findings regarding Dake’s trial counsel’s 

misconduct and those findings more than adequately support the order. We also 

affirm the trial court’s award of attorney fees to Andren and award Andren 

attorney fees on appeal.

 

1 Dake’s trial counsel was Alan Singer, from the Law Offices of Todd A. Bowers & 

Associates. Different attorneys represent Dake on appeal.
No. 79423-0-I/2

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I

On May 11, 2016, Wayne Dake accidentally backed his truck into Holly 

Andren’s car. After approximately a year of receiving treatment for the resulting 

injuries, Andren filed a lawsuit against Dake, alleging severe personal injuries 

due to Dake’s negligence while operating his vehicle. In response, Dake 

admitted that he was responsible for the collision, but disputed whether the 

collision caused Andren’s claimed injuries. 

From its early stages, the litigation was highly contentious, so much so 

that the trial court felt it necessary to attach the Washington State Bar 

Association Creed of Professionalism to one order resolving a discovery dispute. 

Later, during a hearing in which the court considered the parties’ many motions 

in limine, Dake’s trial counsel commented that he was seeking to defend his 

client “from greedy personal injury lawyers,” prompting the court to explicitly warn 

counsel that “gratuitous comments like that” would not be tolerated in front of the 

jury and must “stop[] right now.” 

Dake’s trial counsel’s behavior, however, did not improve at trial. On 

multiple occasions he violated evidence rules and the trial court’s prior rulings on 

motions in limine, made improper and gratuitous comments, and attempted to 

persuade the jury to reach a verdict based on improper considerations. After 

repeated violations of its previous orders, the trial court actually pleaded with 

Dake’s trial counsel to stop, saying “Please, I do not—I don’t want to impose 

sanctions and I’ve heard all sorts of apologies as we’ve gone through this, but 

please listen to the Court’s orders.” 
No. 79423-0-I/3

3

At the conclusion of trial, the jury returned a verdict for Dake. The trial 

court entered judgment against Andren in the amount of $600.16 for costs. 

Andren then successfully moved for a new trial, asserting that Dake’s counsel’s 

misconduct had prevented her from obtaining a fair trial. The trial court agreed 

and entered an order granting a new trial. In support of this order, the trial court 

made the following findings:

During the course of the trial, defense counsel repeatedly 

violated Evidence Rules and the Court’s rulings on Motions in 

Limine, including rulings on Motions in Limine presented by the 

defense. At least, three times, the Court admonished defense 

counsel because of his behavior during the trial. Warnings included 

references to how hard all in the courtroom had worked to get the 

case to trial and the possibility of a mistrial. Despite these 

admonitions, defense counsel persisted in improper behavior into 

closing arguments on October 25, 2018. In fact, the Court 

admonished defense counsel a final time during his closing 

argument because of improper arguments made when a break was 

taken and the jury was out of the courtroom.

Examples of misconduct in the record include, but are not 

limited to, the following:

Cross Examination of Dr. Frank Marinkovich

[Finding #12](1) During cross examination of Plaintiff’s expert, Dr. 

Frank Marinkovich on October 18, 2018, at 10:19:39 AM, defense 

counsel asked “so, if the plaintiff’s actual treating physician, like a 

treating doctor like Dr. Betteridge doesn’t or isn’t willing to offer an 

opinion, that’s where you get involved, right?” This was in violation 

of an in limine ruling regarding the circumstances of attorney 

retention of expert witnesses.

[Finding #2](2) During cross examination of Plaintiff’s expert Dr. 

Frank Marinkovich on October 18, 2018 at 10:21:11, defense 

counsel referred stipulated defense medical examinations as 

examinations “pursuant to court rules” in direct violation of a motion 

in limine ruling addressing how these examinations were to be 

 

2 Dake only presents argument concerning the 14 listed specific examples of misconduct. 

For ease of reference, and because the trial court did not consecutively number all 14 of them, 

we have added such numbers.
No. 79423-0-I/4

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referenced.

[Finding #3](3) During cross examination of Plaintiff’s expert Dr. 

Frank Marinkovich on October 18, 2018 at 10:21:50, defense 

counsel improperly asked if the witness had “negative opinions” of 

defense doctors Klein and Jackson.

[Finding #4](4) During cross examination of Plaintiff’s expert Dr. 

Frank Marinkovich on October 18, 2018 at 10:25:55, defense 

counsel improperly asked the witness if he had tried to talk with his 

two retained doctors, Dr. Klein and Dr. Jackson about their differing 

opinions about the plaintiff when he knew or, should have known, 

that opposing expert witnesses do not have such contact.

[Finding #5](5) During cross examination of Plaintiff’s expert Dr. 

Frank Marinkovich on October 18, 2018, in response to a sustained 

objection and the Court’s direction to ask another question, defense 

counsel responded saying something to the effect of its okay, I 

made my point.

[Finding #6](6) During cross examination of Plaintiff’s expert Dr. 

Frank Marinkovich on October 18, 2018 at 11:57:31AM in 

responding to the witness’s stating that he would be happy to 

review medical records defense counsel was asking about, defense 

counsel inappropriately and gratuitously stated, “You’ll have to ask 

Holly Andren for that.” This was an improper inference that Plaintiff 

Holly Andren did not provide Dr. Marinkovich with all relevant 

records.

Cross Examination of Plaintiff Holly Andren

[Finding #7](1) During cross examination of Plaintiff Holly Andren 

on October 23, 2018 at 9:23:29 AM, defense counsel inquired of 

Ms. Andren about a collision in 2001 or 2002 in direct violation of 

the Court’s ruling prohibiting such an inquiry.

[Finding #8](2) During cross examination of Plaintiff Holly Andren 

on October 23, 2018 at 10:14:55 to 10:15 AM, defense counsel 

attempted to introduce into evidence a photograph of a car part 

from an EBay advertisement that had not been provided to 

plaintiff’s counsel for review and without proper foundation to 

establish that the part shown in the photograph was actually a part 

that was damaged in the collision at issue. This inquiry led to 

Plaintiff’s need to refer to car repair documentation that the Court 

previously ruled was not to be referenced.
No. 79423-0-I/5

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[Finding #9](3) During cross examination of Plaintiff Holly Andren 

on October 23, 2018 at 11:43:10 AM, defense counsel inquired of 

Ms. Andren about medical history. In this exchange, he 

inappropriately and gratuitously stated, “You have a photographic 

memory too.”

[Finding #10](4) During cross examination of Plaintiff Holly Andren 

on October 23, 2018 at 11:53:34 AM, defense counsel continued in 

inquiring of Plaintiff about whether a damaged part was steel or 

aluminum. She repeatedly stated that she did not even know what 

the part was that he was referring to. Defense counsel then 

improperly interjected, “You want the jury to think it is steel, right?”

Direct Examination of Dr. Steven L. Klein

[Finding #11](1) During direct examination of Defendant’s expert 

Dr. Steven Klein on October 23, 2018 at 2:55:44 PM, defense 

counsel sought to inquire about mood disorder medications that 

had specifically been ruled as inadmissible in pretrial rulings.

[Finding #12](2) During direct examination of Defendant’s expert 

Dr. Steven Klein on October 23, 2018 at 3:38:36 PM, defense 

counsel inquired about his opinions that Plaintiff did not sustain a 

facet joint injury in the collision at issue. In responding, Dr. Klein 

referenced several white papers including the Quebec Whiplash 

Study and a Lithuanian study which referenced “people in Lithuania 

where there is no concept of injury or secondary gain/whiplash.” 

This response led to the Court’s having the jury leave the 

courtroom to address what was a clear violation of the Court’s 

rulings on Motions in Limine with regard to what defendant's 

experts could reference. In discussing this outside the presence of 

the jury, defense counsel agreed at 3:44:25 PM that Dr. Klein went 

over something that he should not have, but indicated that he did 

not expect the response. Defense counsel had an obligation to 

apprise his witnesses of the Court’s pre-trial rulings. Ultimately, the 

Court opted to continue with trial. When the jury returned, the 

Court instructed them at 3:52:45 PM as follows:

Members of the jury, there has been no evidence presented 

that claims were brought in this case for any improper 

purpose as referenced by Dr. Klein’s speaking of a 

Lithuanian study in his recent testimony.

Defense Counsel’s Closing Argument

[Finding #13](1) At 10:15:19 AM on October 25, 2018, defense 

counsel in closing argument stated at certain points that his client 
No. 79423-0-I/6

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Mr. Dake, “wishes he could undo this for sure” and “that he [Mr. 

Dake] felt terrible.” Less than a minute later, at 10:15:56 AM, 

defense counsel referenced his client, Mr. Dake and said “He is 

sorry. He is very sorry. He has been sitting in trial for two weeks.” 

These references appeared designed to appeal to the sympathy 

and prejudice of jurors and were in violation of the Court’s ruling on 

Plaintiff's Motion in Limine # 16.

[Finding #14](2) At 11:03:45 AM on October 25, 2018, defense 

counsel argued that his client Mr. Dake was “staring at Five 

Hundred Thousand” referencing plaintiff’s counsel’s argument in 

which he suggested to the jury that they should consider between 

two hundred and fifty thousand to five hundred thousand dollars. 

This was in violation of the Court’s ruling on Plaintiff’s Motion in 

Limine # 6 through which defense counsel was prohibited from 

arguing or inferring that damages would be coming from Mr. Dake’s 

pocket or wallet.

Based on the above referenced violations of the Court’s 

rulings on Motions in Limine, defense counsel’s behavior 

throughout the trial as set forth in the record and defense counsel’s 

repeated violations of ER 103(c) which obligates counsel to prevent 

inadmissible evidence from being suggested to the jury by any 

means, the Court finds that defense counsel’s behavior constitutes 

misconduct which forced plaintiff’s counsel to repeatedly object to 

improper questions and unfairly and improperly exposed the jury to 

inadmissible evidence. . . . 

The Court further finds that: (1) the conduct complained of in 

Plaintiff’s motion and/or referenced in this order is misconduct; (2) 

the misconduct referenced was prejudicial; (3) Plaintiff objected to 

this misconduct at trial; and (4) the misconduct was not cured by 

the Court’s instructions[]. Furthermore, the cumulative effect of 

defense counsel’s misconduct throughout the trial proceedings . . . 

casts doubt on whether a fair trial occurred and left the Court in a 

position in which it cannot definitively state that the trial in this 

matter was a fair one.

Thereafter, Andren filed a motion seeking an award of attorney fees as a 

sanction for Dake’s counsel’s misconduct. The trial court granted this motion, 

imposing $35,800 in sanctions. 

Dake appeals.
No. 79423-0-I/7

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II

Dake first contends that the order granting a new trial must be reversed 

because the trial court abused its discretion by concluding that Andren did not 

receive a fair trial and ordering a new trial based on attorney misconduct. We 

disagree.

A

“The trial court is in the best position ‘to most effectively determine if 

counsel’s misconduct prejudiced a party’s right to a fair trial.’” Spencer v. 

Badgley Mullins Turner, PLLC, 6 Wn. App. 2d 762, 790, 432 P.3d 821 (2018) 

(quoting Miller v. Kenny, 180 Wn. App. 772, 815, 325 P.3d 278 (2014)), review 

denied, 193 Wn.2d 1006 (2019). We review a trial court’s grant of a new trial 

premised on attorney misconduct for abuse of discretion. See Teter v. Deck, 174 

Wn.2d 207, 215, 274 P.3d 336 (2012) (citing Detrick v. Garretson Packing Co., 

73 Wn.2d 804, 812, 440 P.2d 834 (1968)). We require “a much stronger showing 

of abuse of discretion to set aside an order granting a new trial than one denying 

a new trial.” Teter, 174 Wn.2d at 215. “A trial court abuses its discretion if its 

decision is manifestly unreasonable or based on untenable grounds or untenable 

reasons.” Teter, 174 Wn.2d at 215 (citing In re Marriage of Littlefield, 133 Wn.2d 

39, 46-47, 940 P.2d 1362 (1997)). Thus, we will only overturn the trial court’s 

order granting a new trial if Dake establishes that “it was not supported in the 

record or was made under an incorrect standard.” Teter, 174 Wn.2d at 222.

We review a trial court’s challenged findings of fact for substantial 

evidence. McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227 (2012) (citing 
No. 79423-0-I/8

8

Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). 

“There is a presumption in favor of the trial court’s findings, and the party 

claiming error has the burden of showing that a finding of fact is not supported by 

substantial evidence.” State v. Merrill, 183 Wn. App. 749, 755, 335 P.3d 444 

(2014). Substantial evidence is “defined as a quantum of evidence sufficient to 

persuade a rational fair-minded person the premise is true.” Sunnyside, 149 

Wn.2d at 879 (citing Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 

169, 176, 4 P.3d 123 (2000)).

“CR 59(a)(2) provides that a verdict may be vacated and a new trial 

granted if misconduct of the prevailing party materially affects the substantial 

rights of the other party.” Spencer, 6 Wn. App. 2d at 790. Counsel misconduct 

that results in the unfair exposure to the jury of inadmissible evidence and 

prejudices the opposing party qualifies as a material effect on that party’s right to 

a fair trial. Teter, 174 Wn.2d at 225 (citing CR 59(a)). When evaluating whether 

a party’s misconduct warrants a new trial, courts consider the cumulative effect of 

all instances of misconduct. See Teter, 174 Wn.2d at 223-25 (summarizing 

repeated violations of evidentiary rules and court orders and concluding that “the 

cumulative effect of the misconduct warranted a new trial”). Any party requesting 

a new trial as a result of opposing counsel’s conduct generally must establish 

that (1) the conduct constitutes misconduct, (2) the misconduct was prejudicial, 

(3) the misconduct was objected to during trial,3 and (4) the misconduct was not 

cured by the court’s instructions to the jury. Teter, 174 Wn.2d at 226.

 

3 An objection is not always required, particularly in instances in which the trial court 

interjects to warn counsel that the behavior engaged in is improper and must cease. See, e.g., 
No. 79423-0-I/9

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B

Before even reaching the merits, Dake asserts that we cannot consider 

any of the trial court’s misconduct findings other than those setting forth 14 

specifically enumerated examples of Dake’s trial counsel’s misconduct (Findings 

#1 through #14). This is so, Dake asserts, because the remaining findings do not 

comply with CR 59(f), which requires the trial court to set out definite reasons of 

law and fact for its new trial order to enable appellate review. According to Dake, 

this rule limits our review to only the 14 specific findings of misconduct he

challenges because the trial court’s other findings are not sufficiently definite to 

enable Dake to assign error to them or address them on appeal.4 We disagree.

While CR 59(f) does require a trial court to set forth definite reasons of law 

and fact to support an order granting a new trial, the rule does not bar an 

appellate court from considering anything beyond those reasons when reviewing 

the order on appeal. Accord Sargent v. Safeway Stores, Inc., 67 Wn.2d 941, 

944-45, 410 P.2d 918 (1966) (“[W]here a new trial is granted on specific grounds, 

this court may consider any grounds or reasons properly presented to the trial 

court by the party seeking to sustain the new trial, and the court of review should 

 

Teter, 174 Wn.2d at 224-25 (explaining that the trial court’s repeated admonitions to counsel that 

she was violating his standing order against speaking objections was supportive of the trial 

judge’s order granting a new trial due to counsel’s misconduct).

4 This argument rings particularly hollow when presented, as it is here, in a brief that fails 

to assign error to any specific findings of fact as required under our rules. RAP 10.3(g) (requiring 

a “separate assignment of error for each finding of fact a party contends was improperly made”). 

While Dake’s briefing on appeal does not assign error to any specific findings of fact, we 

nevertheless consider his assertions regarding the trial court’s 14 specific findings of misconduct 

because the argument section of his brief sufficiently apprises us of the challenged findings to 

enable review. See, e.g., Yakima County v. E. Wash. Growth Mgmt. Hr’gs Bd., 168 Wn. App. 

680, 687 n.1, 279 P.3d 434 (2012) (concluding that review of challenges to factual findings not 

presented as separate assignments of error was permitted because the argument section of the 

appellant’s brief sufficiently apprised the court of the challenged findings (citing Daughtry v. Jet 

Aeration Co., 91 Wn.2d 704, 709-10, 592 P.2d 631 (1979))).
No. 79423-0-I/10

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affirm the new trial on any tenable grounds so presented to the trial court, 

regardless of whether such ground was cited by the trial court as the reason for 

granting the new trial.” (citing Worthington v. Caldwell, 65 Wn.2d 269, 396 P.2d 

797 (1964))). CR 59(f) is intended to enable meaningful appellate review without 

resort to speculation as to the reasons for the trial court’s order, Olpinski v. 

Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968), not to force trial courts to 

write lengthy orders detailing every specific instance in the record supporting an 

order granting a new trial. Even assuming that the remaining findings would not, 

on their own, satisfy the requirements of CR 59(f),5the fact that the trial court 

believed Dake’s counsel committed misconduct in excess of 14 times will not be 

disregarded merely because the trial court declined to specifically enumerate 

every single instance of attorney misbehavior.

C

Dake asserts that the trial court abused its discretion by granting Andren’s 

motion for a new trial because none of the 14 findings setting forth specific 

examples of Dake’s trial counsel’s misconduct support the trial court’s order 

granting a new trial. According to Dake, 5 of the trial court’s 14 findings setting 

forth specific examples of misconduct are not supported by the record and the 

others involved instances of misconduct to which Andren did not object, or from 

which no prejudice could be found because Andren did object and the objection 

 

5 A point which Dake does not establish given that his argument addresses only two of 

the trial court’s many other findings, specifically the findings that “[d]uring the course of the trial, 

[Dake’s] counsel repeatedly violated Evidence Rules and the Court’s rulings on Motions in 

Limine” and that Dake’s counsel engaged in “repeated violations of ER 103(c).” Dake’s briefing is 

completely silent as to how any of the trial court’s other findings are insufficiently definite.
No. 79423-0-I/11

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was sustained or a curative instruction was given. These arguments are not 

compelling.

1

Dake avers that Findings #2, #8, #9, #10, and #11 are not adequately 

supported by the record. Dake is only partially correct. While Finding #2 is not 

supported by substantial evidence in the record, Findings #8 through #11 are all 

supported by substantial evidence in the record.

Dake first asserts that Finding #2—noting that defense counsel, in 

violation of a motion in limine ruling, referred to a stipulated defense medical 

examination as an examination pursuant to court rules—is not supported by the 

record because the trial court never barred the parties from referring to stipulated 

defense medical examinations as examinations pursuant to court rule. This is 

so, Dake asserts, because the trial court’s order in limine regarding the proper 

way to refer to such examinations barred his counsel from referring to such 

examinations as “an Independent or Court ordered medical examination or 

review,” but not from referring to it as an examination pursuant to court rules. 

Dake is correct. During consideration of the pertinent motion in limine, the trial 

court explicitly instructed the parties that they could refer to such an examination 

as an “agreed-upon exam per court rule,” or in any other fashion so long as it did 

not convey that the examination was independent or directly ordered by the 

court. Therefore, Finding #2 is not supported by substantial evidence in the 

record.

Dake next asserts that Finding #8—which states that Dake’s counsel 
No. 79423-0-I/12

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attempted to introduce a photograph into evidence without proper foundation and 

that his questioning required Andren to testify to information the court had 

previously ruled could not be referenced—is not supported by the record and that 

Andren did not object at trial to this alleged misconduct. The record establishes 

that Dake is wrong. The offending exchange, during Andren’s testimony on 

cross-examination, proceeded as follows:

[Dake’s counsel:] Ms. Andren, about this steel bar. This bar you’re 

talking about is called an “impact bar”?

[Andren:] Yes, that’s correct.

[Dake’s counsel:] Now, you’re not an expert in cars?

[Andren:] No, I’m not an expert.

[Dake’s counsel:] You don’t know whether it’s steel or aluminum, do 

you?

[Andren:] I only know what was on the paperwork[6] as well as what 

was told to me by the mechanic.

. . . .

[Dake’s counsel:] . . . You do not know if it was steel or aluminum?

[Andren:] No, I don’t, other than the paperwork that I had.

[Dake’s counsel:] Okay. And, in fact, you know that you can 

purchase these parts on eBay, right?

[Andren:] No. The parts were ordered from Mercedes and they 

were certified Mercedes parts.

[Dake’s counsel:] Okay. I’m going to move to mark an exhibit, Your 

Honor. There’s two copies.

THE CLERK: Defendant’s Exhibit 163 marked for identification. . . .

[Dake’s counsel:] Ms. Andren, I’m going to show you what’s marked 

as –

THE COURT: Wait. You need to show –

[Dake’s counsel:] – Exhibit 163.

THE COURT: - [Andren’s counsel], make sure he has a copy of 

this.

[Dake’s counsel:] Yes, Your Honor.

. . . .

THE COURT: Okay. Is there an objection, [Andren’s counsel]?

[Andren’s counsel]: Yes, Your Honor. I – there’s –

THE COURT: Okay.

[Andren’s counsel]: -- an authenticity problem. . . . I’ve just seen 

this.

 

6 The trial court had previously ruled that the car repair paper work Andren received from 

the mechanics who fixed her car could not be referenced and was inadmissible. 
No. 79423-0-I/13

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At this point, the jury was removed from the courtroom and Andren’s 

counsel clarified that he had never before seen the picture sought to be admitted 

and was objecting because Dake’s counsel had not laid any foundation to 

establish what the picture showed. Thus, plainly, the record substantiates the 

trial court’s finding that Dake’s counsel attempted to present a photograph that 

he had not previously shown to Andren’s counsel and had not laid any foundation 

for—presumably to support his assertion during questioning that the subject car 

parts could be purchased on Ebay—and that Andren’s counsel objected. 

Substantial evidence supports Finding #8, and the record establishes that 

Andren’s counsel objected to the conduct described therein.

Dake next asserts that the record does not support Finding #9—which 

notes that during an examination about Andren’s medical history, Dake’s counsel 

gratuitously stated, “You have a photographic memory too.” Dake is again 

wrong. The record plainly supports this finding, Dake’s counsel at trial did so 

state, and the statement had no bearing on the subject of his examination of 

Andren’s medical records about her neck pain.7 

Dake nevertheless asserts that this behavior could not possibly be found 

 

7 Dake’s briefing also asserts that the statement about Andren having a photographic 

memory was within the context of a line of questioning trying to question her explanation for why 

there were inconsistencies between her testimony and the dates her medical records listed for 

when she started having neck pain. The record, however, shows that the photographic memory 

comment was completely unnecessary for that purpose given that Andren had already testified 

that she (1) could have tried to clarify the correct dates in her medical records with her doctors 

but claimed not to have bothered and yet also testified (2) that she was usually a very detailoriented person. For the purposes of testing her credibility regarding her statements that she had 

not bothered to correct her medical records, the statement that she was usually very detailoriented was sufficient to cast doubt on her statement that she had not bothered to ensure that 

the details of her medical records were accurate. Thus, the comment about having a 

photographic memory was plainly gratuitous.
No. 79423-0-I/14

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to be misconduct because Andren’s counsel did not object to the comment at 

trial. While Dake is correct that Andren’s counsel did not object, that is simply 

not a requirement for the trial court to conclude that the comment constituted 

misconduct.8 See Teter, 174 Wn.2d at 224-25 (identifying examples of counsel’s 

repeated failure to comply with the court’s standing order barring speaking 

objections as misconduct where no objection was noted in the record). Thus, 

Finding #9 is supported by substantial evidence in the record.

Dake next asserts that the record does not support Finding #10—which 

states that Dake’s counsel repeatedly inquired during cross-examination of 

Andren about whether a particular car part was steel or aluminum, that Andren 

responded that she did not know, and that counsel then said something to the 

effect of “You want the jury to think it is steel, right?” Once again, Dake is wrong. 

The record plainly establishes that Dake’s counsel asked Andren multiple times 

to identify a car part in a picture he was showing her as being made of either 

steel or aluminum. In response, Andren repeatedly answered that she had not 

seen the picture counsel was showing her before, that she did not know if the 

picture was of her vehicle, and that she could not identify the parts shown in the 

picture as either steel or aluminum. At that point, the following exchange 

occurred:

[Dake’s counsel:] You want the jury to think it’s steel to make it 

seem like it’s –

[Andren’s counsel:] Objection, Your Honor.

THE COURT: I’ll sustain the—I’ll sustain the objection as to the

 

8 An objection is not always required to establish that misconduct findings support a new 

trial order. See, e.g., Teter, 174 Wn.2d at 225 (noting that counsel’s repeated, though not 

objected to, violations of the judge’s order barring speaking objections constituted misconduct 

supporting a new trial order).
No. 79423-0-I/15

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question. You can ask a question but . . .

[Dake’s counsel:] You have no foundation for offering any testimony 

whatsoever—

[Andren’s counsel:] Objection. Argumentative.

THE COURT: Again, I’ll sustain—

[Dake’s counsel:] –about the metallic composition of these items—

THE COURT: [Dake’s counsel], there’s an objection. I’ll sustain the 

objection.

Plainly, the record supports the trial court’s finding.

Dake also asserts that the statement that the trial court found to be

misconduct was, in fact, not misconduct because his counsel was simply 

restating Andren’s testimony. Dake is wrong. Andren never testified that the 

picture Dake’s counsel was attempting to have her testify about showed steel or 

aluminum parts, and his statement that she wanted the jury to believe that the 

picture showed a steel part is not based on any of her prior testimony. Dake’s 

counsel may have been attempting to address Andren’s testimony regarding her 

belief that a part of her car that she believed was made of steel was damaged in 

the collision,9 but showing her a picture she could not identify and then simply 

testifying for her that she wanted the jury to believe certain things about that 

picture when she did not say what counsel wanted to hear was not simply 

restating her prior testimony about her own vehicle. Finding #10 is supported by 

substantial evidence in the record.

Dake next asserts that the record does not support Finding #11—which 

states that Dake’s counsel sought to inquire about mood disorder medications 

 

9

Indeed, Dake’s counsel’s goal of challenging Andren’s credibility is apparent from his 

follow up statement, which he did not even bother to present in the form of a question, that 

Andren had no foundation for offering any testimony at all about the composition of her car parts. 

His willingness to completely disregard the rules of evidence to argue his point during Andren’s 

cross-examination further supports the trial court’s finding of misconduct. 
No. 79423-0-I/16

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during direct examination of the defense’s medical expert that had been 

specifically ruled inadmissible prior to trial. Dake asserts that this finding is not 

supported by the record because (1) the record shows only that the expert 

offered testimony on this issue, not that Dake’s counsel inquired about it, and (2) 

the record shows that there were no pretrial orders barring him from inquiring 

about mood disorder medications. Dake is, again, wrong.

The record shows that Dake’s counsel sought to inquire about mood 

disorder medications. During his questioning of the defense expert witness, Dr. 

Klein, Dake’s counsel asked him about pain medications that Andren’s records 

showed that she had taken, leading to the following exchange:

[Dr. Klein:] Well, there’s Voltaren, which is a nonsteroidal antiinflammatory agent; Lunesta, which is a medication for sleep; 

Topamax, which is a headache—for migraines; and Fioricet, which 

is also for headaches.

[Dake’s counsel:] Okay.

[Dr. Klein:] And then there’s a question of mood disorder.

[Dake’s counsel:] Okay.

[Andren’s counsel:] Your Honor, I’d move to strike.

[Dake’s counsel:] Your Honor, I want to ask the witness if there’s 

any pertinence to an opinion that he’s given in his report on this 

issue.

(Emphasis added.) Thus, Dake’s counsel plainly sought to introduce testimony 

regarding mood disorder medications.10

Second, Dake is also incorrect that the trial court did not bar the admission 

of such testimony in its pretrial orders on motions in limine. While no order on a 

 

10 Additionally, even if Dake’s counsel had not explicitly sought to introduce testimony 

regarding this issue, he nevertheless had a duty to inform his witness that the subject could not 

be discussed during testimony. See ER 103(c) (“In jury cases, proceedings shall be conducted, 

to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury 

by any means.”).
No. 79423-0-I/17

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motion in limine explicitly barred the admission of testimony regarding mood 

disorder medications, multiple pretrial orders pertained to the admission of 

evidence regarding Andren’s prior usage of anxiety medications and the potential 

that some of her pain was related to depression or anxiety, and the entire area of 

inquiry was barred by the trial court’s rulings. Therefore, we conclude that 

substantial evidence in the record supports Finding #11.

In summary, while Finding #2 is not supported by substantial evidence in 

the record, Findings #8 through #11 are supported by substantial evidence in the 

record.

2

Instead of contending that Findings #1, #3 through #7, and #12 through 

#14 are not supported by substantial evidence in the record, Dake contends that 

the trial court abused its discretion by relying on the misconduct set forth in those 

findings to support its new trial order. This is so, Dake asserts, because the 

misconduct found therein either (1) was not objected to at trial, (2) was objected 

to at trial and any resulting prejudice was cured when the objection was 

sustained, or (3) was objected to at trial and any resulting prejudice was cured by 

the court’s instructions to the jury.

Dake asserts that Findings #5 and #6 do not support the trial court’s order 

granting a new trial because Andren’s counsel never objected to the conduct 

referenced in those findings. In Finding #5, the trial court identifies a point during 

the cross-examination of Dr. Marinkovich when Dake’s counsel stated, “I think 

I’ve made my point already,” in response to a sustained objection and a ruling 
No. 79423-0-I/18

18

from the court that he could ask his question, but only with a different framing. 

Essentially, by declining to reframe the question and instead stating that he had 

already made his point, Dake’s counsel admitted that the improper framing was 

the point of the question. In other words, the misconduct set forth in Finding #5 

is that Dake’s counsel deliberately asked an objectionable question for an 

improper purpose. Both the trial court’s finding and the record establish that 

Andren’s counsel objected to that misconduct. It did not cease to be misconduct 

to which Andren’s counsel had objected simply because Dake’s counsel then 

admitted that he had asked the question for an improper purpose and the trial 

court’s finding refers to the admission.

In contrast, Dake is correct that the record indicates that the misconduct 

noted in Finding #6—that Dake’s counsel made a gratuitous comment during the 

cross-examination of Andren’s expert medical witness implying that Andren had 

failed to provide that expert with all of her medical records—was not specifically 

objected to by Andren’s counsel.11 However, Dake is wrong to assert that it 

necessarily follows that the misconduct therefore cannot support the trial court’s 

new trial order. While an objection is generally required to establish that 

misconduct supports a new trial order, in instances wherein the trial court itself 

interjects to disapprove of counsel’s behavior, particularly in instances wherein

the court has previously warned counsel to avoid such behavior, an objection is 

 

11 Dake also presents a partial argument that the comment was an attempt to discredit 

the expert witness’s credibility, rather than to collaterally attack Andren, and that it was therefore 

not misconduct. We disagree. The comment was plainly about Andren and all but directly stated

that she was hiding parts of her medical history from her expert witness and, by extension, the 

jury. 
No. 79423-0-I/19

19

not always necessary. See, e.g., Teter, 174 Wn.2d at 224-25 (concluding that a 

trial court’s repeated warnings to counsel to cease violating the trial court’s ban 

on speaking objections, to which opposing counsel did not object, supported a 

new trial order). Such are the circumstances herein. The trial court itself 

admonished Dake’s counsel after observing the gratuitous comment. 

Furthermore, the court’s admonishment referred counsel back to a previous 

warning the court had given to the effect that such gratuitous comments would 

not be tolerated.12 Thus, the trial court did not abuse its discretion by relying on 

Finding #6 to support its new trial order.

Dake next asserts that the examples of misconduct set forth in Findings 

#12 through #14 do not support the new trial order because (1) the trial court 

issued curative instructions to the jury that must have cured any potential 

prejudice regarding each instance of misconduct, and (2) the record does not 

contain any indication that Andren was prejudiced by the misconduct. The trial 

court, however, explicitly found that its instructions regarding these findings did 

not cure the prejudice caused by Dake’s counsel’s misconduct, and Dake does 

not challenge this finding on appeal or present any argument that the trial court’s 

finding is not supported by the record. Thus, we reject Dake’s assertion that 

Findings #12 through #14 do not support the trial court’s order. Furthermore, 

Dake’s assertion that the record contains no evidence of prejudice is plainly 

 

12 Indeed, the record establishes that the trial court started issuing warnings to Dake’s 

counsel regarding his gratuitous comments before trial even began. Given the early and 

repeated admonitions from the trial court to cease making gratuitous comments, there can be no 

doubt that Dake’s trial counsel was fully aware that his comments were improper, but

nevertheless persisted in making them.
No. 79423-0-I/20

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rebutted by the jury’s verdict. Dake admitted liability for the collision at issue but

the jury nevertheless returned a defense verdict. This supports the trial court’s 

conclusion that the prejudicial effect of Dake’s counsel’s misconduct was not 

cured by the court’s instructions to the jury. Accord Adkins v. Alum. Co. of Am., 

110 Wn.2d 128, 143, 750 P.2d 1257, 756 P.2d 142 (1988) (presuming prejudice 

affected outcome when jury in retrial reached a verdict for the defense when the 

jury in the original trial had found defendant 80 percent negligent).

Dake next asserts that Findings #1, #3, #4, and #7 do not support the trial 

court’s new trial order, even though supported by the record, because the 

misconduct set forth therein was objected to at trial and any resulting prejudice 

was cured when the objection was sustained. Thus, Dake concedes that those 

findings set forth instances of misconduct, but nevertheless asserts that (1) in 

each instance, the trial court sustained an objection to the improper behavior, 

thereby eliminating the possibility of prejudice, and (2) in the context of a five day 

trial the instances of misconduct noted in Findings #1, #3, #4, and #7 could not 

have been prejudicial in any way because of the length of trial. Dake is entirely

wrong. First, repeatedly asking knowingly objectionable questions is misconduct 

and “[e]ven where objections are sustained, the misconduct is prejudicial 

because it places opposing counsel in the position of having to make constant 

objections. These repeated objections, even if sustained, leave the jury with the 

impression that the objecting party is hiding something important.”13 Teter, 174 

 

13 There can be no question that Dake’s counsel knew, as the trial court found in Finding 

#4, that he was asking improper questions because by so asking, he violated multiple trial court 

rulings on motions in limine, including a ruling granting his own motion in limine. Stunningly, 

Dake asserts that his own motions in limine only applied to Andren’s counsel, and that therefore 
No. 79423-0-I/21

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Wn.2d at 223 (citation omitted) (citing 14A KARL B. TEGLAND, WASHINGTON 

PRACTICE: CIVIL PRACTICE § 30:33, 30:41 (2d ed. 2009)). Second, Dake offers no 

legal, nor logical, support for his argument that the prejudicial effect of 

misconduct is negated in any way by how long it takes to complete a trial.

14

 

Furthermore, the trial court explicitly found that the misconduct identified in these 

findings was prejudicial and Dake does not assign error to that finding or present 

any argument that the finding is not supported by the record in his opening 

briefing.15

 

his counsel cannot be considered to have known that it was improper for him to ask questions 

violating the trial court’s rulings on his motions. Regardless of whether the trial court’s rulings 

stated that it applied to specific counsel, the very fact that Dake’s counsel attempted to bar 

Andren from seeking to admit certain evidence or engage in certain other behaviors means that 

he knew that such behavior was improper. Therefore, Dake cannot now credibly assert that his 

counsel made an innocent mistake when he sought to admit inadmissible evidence or engaged in 

other improper behavior in violation of the court’s rulings granting those motions in limine.

Furthermore, if Dake was correct that sustaining an objection always cured all prejudice 

caused by objectionable conduct, there would be no need for motions in limine. Indeed, the 

entire purpose of motions in limine is “to dispose of legal matters so counsel will not be forced to 

make comments in the presence of the jury which might prejudice his presentation.” State v. 

Evans, 96 Wn.2d 119, 123, 634 P.2d 845, 649 P.2d 633 (1981).

14 Essentially, Dake’s argument appears to be that his trial counsel should be permitted to 

engage in some prejudicial misconduct so long as the majority of the time his counsel behaves 

properly. He cites to no authority in support of this novel assertion.

15 In his reply brief, Dake raises several new arguments not raised in his opening brief, 

including arguments challenging whether the record supports these findings. Because Dake 

failed to present such arguments in his opening brief, they have been waived and we decline to 

consider them. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 

549 (1992) (declining to consider argument raised for the first time in a reply brief).

We further note that Dake fails to cite to even a single case wherein an appellate court 

reversed a new trial order premised on the bad behavior of a lawyer during trial, as opposed to 

violations of evidentiary rules, by concluding that, although the record established that the bad 

behavior of trial counsel identified in a new trial order actually occurred and constituted 

misconduct, it was not prejudicial. This is unsurprising. We say this because the trial court, being 

able to observe the effect of any bad attorney behavior on the jury first hand, is in a far better 

position to determine the impact of a lawyer’s bad behavior on the jury than is an appellate court,

which is limited to reviewing only a transcript of the record from trial. See Spencer, 6 Wn. App. 

2d at 790. While we are often able to determine from the “cold” record whether purportedly bad 

behavior occurred and whether it was, in fact, “bad,” we are at a significant disadvantage, when 

compared to the trial court, in determining how the jurors may have reacted to such behavior.

Indeed, the record will rarely, if ever, include all of the information on which a trial judge would 

rely in making such a determination of prejudice.
No. 79423-0-I/22

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We conclude that Findings #1, #3 through #7, and #12 through #14 

support the trial court’s new trial order.

3

Dake contends that the trial court abused its discretion when ordering a 

new trial because its findings are either unsupported by the record or do not 

support its order. While Finding #2 is not supported by substantial evidence in 

the record, and therefore does not support the new trial order, the trial court’s 

other 13 specific examples of misconduct and the trial court’s other unchallenged 

findings plainly support the trial court’s order. The trial court set forth over a 

dozen specific examples of misconduct16 and found not only that Dake’s counsel 

engaged in misconduct, that the misconduct was objected to, that it was 

prejudicial, and that it was not cured by the court’s instructions, but also found 

that the cumulative effect of the misconduct left it unable to conclude that Andren 

received a fair trial. This is more than sufficient to support its new trial order. 

See Teter, 174 Wn.2d at 223-25. Furthermore, Dake does not present any 

argument that the trial court abused its discretion by granting a new trial when all 

of its findings support the order other than Finding #2.17 Therefore, we conclude 

that Dake has failed to establish that the trial court abused its discretion by

granting the motion for a new trial.

 

16 In addition to these examples, the trial court’s order is further supported by the 

numerous examples of Dake’s counsel’s violation of the trial court’s prohibition against speaking 

objections referenced in Andren’s briefing. As in Teter, repeated violations of the trial court’s 

order barring speaking objections herein constitutes misconduct supporting the order granting a 

new trial. See 174 Wn.2d at 224-25. 

17 The only argument Dake presents in his briefing is that it would constitute an abuse of 

discretion for the trial court to have granted a new trial based solely on the findings set forth in 

Findings #1, #3, #4, and #7. 
No. 79423-0-I/23

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III

Dake next contends that the trial court’s order awarding Andren attorney 

fees as a sanction for his trial counsel’s misconduct should be reversed because 

it was premised on the trial court’s order granting a new trial. We reject this 

contention because the order granting a new trial is well supported by 

unchallenged findings of misconduct and such misconduct supports the trial 

court’s order awarding fees as a sanction for Dake’s counsel’s improper 

behavior.

We review a trial court’s decision granting or denying sanctions for abuse 

of discretion. Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 

Wn.2d 299, 338, 858 P.2d 1054 (1993). A trial court has inherent equitable 

power to authorize the award of attorney fees in cases of bad faith litigation. In 

re Matter of Recall of Pearsall-Stipek, 136 Wn.2d 255, 266-267, 961 P.2d 343 

(1998). “[A] trial court’s inherent authority to sanction litigation conduct is 

properly invoked upon a finding of bad faith.” State v. S.H., 102 Wn. App. 468, 

475, 8 P.3d 1058 (2000). A finding of “inappropriate and improper” conduct “is 

tantamount to a finding of bad faith.” S.H., 102 Wn. App. at 475 (citing Wilson v. 

Henkle, 45 Wn. App. 162, 175, 724 P.2d 1069 (1986)).

“The court’s inherent power to sanction is ‘governed not by rule or statute 

but by the control necessarily vested in courts to manage their own affairs so as 

to achieve the orderly and expeditious disposition of cases.’ Sanctions may be 

appropriate if an act affects ‘the integrity of the court and, [if] left unchecked, 

would encourage future abuses.’” S.H., 102 Wn. App. at 475 (alteration in 
No. 79423-0-I/24

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original) (citation omitted) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 

111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); Gonzales v. Surgidev Corp., 120 N.M. 

151, 899 P.2d 594, 600 (1995)). Thus, a party whose misconduct results in an 

order granting a new trial “may properly be required to pay counsel fees to the 

opposing party as the price of another trial.” State ex rel. Macri v. City of 

Bremerton, 8 Wn.2d 93, 105, 111 P.2d 612 (1941) (citing Moses v. Craig, 77 

N.H. 586, 95 A. 148 (1915)).

Dake asserts that the trial court’s order awarding sanctions in response to

his trial counsel’s misconduct was premised solely on the misbehavior set forth in 

the trial court’s order granting a new trial and must be reversed if the new trial 

order is reversed. Because we decline to reverse the new trial order and the trial 

court herein determined that Dake engaged in inappropriate and improper 

conduct, Dake has failed to establish that the trial court’s order awarding Andren 

attorney fees constitutes an abuse of discretion.

IV

Finally, Andren requests an award of attorney fees on appeal. We agree 

that Andren is entitled to an award of her reasonable attorney fees and costs on 

appeal.

Washington courts will only award fees as part of the costs of litigation if 

provision for an award of fees can be found in a contract, statute, or recognized 

ground in equity. Tradewell Grp., Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 

1053 (1993). Fees awarded as sanctions “should insure that the wrongdoer 
No. 79423-0-I/25

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does not profit from the wrong.” Fisons Corp., 122 Wn.2d at 356 (citing Gammon 

v. Clark Equip. Co., 38 Wn. App. 274, 282, 686 P.2d 1102 (1984)).

Andren received an award of attorney fees from the trial court as an 

equitable sanction against Dake. We grant Andren an award of attorney fees on 

appeal on the same ground. This is proper because one of the purposes of the 

trial court’s award of fees was to compensate Andren for having to undergo a trial 

that must now be repeated because of Dake’s counsel’s misconduct. It would 

defeat the purpose of that award, and let Dake profit from the misconduct of his 

counsel, if Andren was forced to pay additional litigation expenses to defend the 

trial court’s order on appeal. To avoid incentivizing sanctioned parties from 

appealing in order to exhaust the benefit of any sanctions award granted by the 

trial court to their aggrieved opponent, we hold that Dake must compensate 

Andren for all of the costs of successfully remedying the harm resulting from the 

misconduct of his counsel at trial, including the cost of attorney fees incurred 

while defending the new trial order on appeal. Upon Andren’s compliance with 

RAP 18.1, a commissioner of our court will enter an appropriate order.
No. 79423-0-I/26

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Affirmed.

WE CONCUR: