# I FILED AUGUST 18, 2015 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE ) In the Matter ofRAPID SETTLEMENTS, ) No. 31435-9-111 LTD'SAPPLICATIONFOR ) APPROVAL OF TRANSFEROF ) STRUCTURED SETTLEMENT ) PAYMENTRIGHTS ) ) PUBLISHED OPINION SIDDOWAY, C.J.

- SymetraLife Insurance Company and SymetraAssigned Benefit Services Company (Symetra) obtained an antisuittemporaryrestraining order (TRO) enjoining RSL-3B-IL, Ltd. (3B) from collaterally attacking Symetra's final Washington order against 3B in Texas courts. When 3B violated the TRO, Symetrafiled

a motion for contempt against 3B and its Texas lawyer, John Gorman. As aresult ofremoval ofthe Washington action to federal court, its remand, and a continuance, Symetra'smotion for contempt wasnotheard bythe Benton County court for four months. Bythat time, 3B'scollateral attackon Symetra's final orderhadbeen removed by Symetrato federal district court in Texas. The superior court found 3B and Mr. Gorman in contempt, orderedMr. Gormanto pay a one-time forfeiture of$I,OOO andruled that to purge themselves ofthe contempt charge, 3B and Mr. Gorman must strike allpending motions in the "Harris County,No. 31435-9-111 In re RapidSettlements Texas, action" and agree notto take further action in that case as long as they were subjectto a Benton County court injunction. Clerk's Papers (CP) at 526. The court also awarded Symetra substantial attorney fees and costs. 3B and

### Mr. Gorman appeal, arguing that the forfeiture amount and fees and costs awarded are punitive sanctions that could not be imposed in a civil contemptproceeding and, for the first time on appeal, that the purge condition was notpossible to perform and was therefore invalid. We conclude that only part ofSymetra's fees and costs were properly awarded. Butwhere 3B and Mr. Gorman committed clear acts ofcontempt and failed in the trial court to assert and support what they now contend was their inability toperformthe purge condition, the reliefordered by the court was largely proper. We reversethe award ofloss and costs, remand for further review and recalculation by the court, and otherwise affirm. FACTS AND PROCEDURAL BACKGROUND Symetra and 3B are both engaged in businesses involving structured settlements. As explained in a legislative report on what became Washington's Structured Settlement Protection Act (SSPA), chapter 19.205 RCW: In the settlement oflarge tort claims, damages are often paid by a defendantto a plaintiffin the form ofa structured settlement. In its simplest form, a structured settlementtypically involves the initial payment ofa lump sum, followed by a series ofsubsequent smallerpayments that are made at specified intervals over a period ofyears (an annuity).

2No. 31435-9-II1 In re RapidSettlements

... Structured settlements are usually paid by an insurance company (the obligor), that obtains a benefit by paying offthe obligation in installments over a long period oftime, rather than as a single lump sum. The recipient ofthe structured settlementproceeds (the payee) can benefit as well, since the annuity payments are not subjectto federal income tax and the receipt ofpayments overthe long term canprovide financial security. FINAL BILL 

### REp. ON ENGROSSED H.B. 1347, at 1, 57th Leg., Reg. Sess. (Wash. 2001). The legislature enacted the SSPA after it became common for injured persons to be offered discountedpayments in exchange for their entitlements under a structured settlement, by companies that hoped to profit from the investment. The SSPA reflected the legislature's concern thatpayees not bepermittedto sell annuity rights until a court had reviewed theproposedtransfer for adequate disclosure and determined that a transfer

was in the best interest ofthe injured person, taking into accountthe welfare and support ofhis or her dependents. See RCW 19.205.030 (requiring court or agency approval). Symetra is engaged in the business ofassumingthe obligationto pay a tort liability andthen fulfilling it through structured settlementpayments. 3B and at least one ofits affiliates, Rapid Settlements, Ltd. (RSL)I are engaged in the business ofbuying injured persons' future payment rights at a discount.

IRSL is nowknown as Liquidated Marketing, Ltd. This fact and others relating to Washingtonproceedings taking place beforeFebruary 2012 are drawn from this court's earlier decision in In re RapidSettlements, Ltd., 166 Wn. App. 683,271 P.3d 925 (2012). 3No. 31435-9-III In re RapidSettlements

In July 2004, a structured settlementpayee agreed to sell a future payment due him from Symetra to RSL. As the investor, RSL was required by the SSPA to seek approval ofthe transfer in superior court. Symetra opposed RSL's application as violating requirements ofthe SSPA. The court agreed, dismissed RSL's application, and awarded Symetra its reasonable attorney fees and costs under RCW 19.205.040(2)(b).2 RSL unsuccessfully appealed the award offees to the Court ofAppeals and unsuccessfully soughtreview by our Supreme Court. RapidSettlements, Ltd. v. Symetra LifeIns. Co., 134 Wn. App. 329, 332,139P.3d 411 (2006), review denied, 160 Wn.2d 1015, (2007)). Additional fees and costs were awarded to Symetra at both levels of appeal. In 2008, the King County Superior Court entered an amendedjudgmentof $39,287.04 against RSL reflecting the cumulative fees and costs. Symetra unsuccessfully attempted to collectthejudgment in both Washington and Texas. Efforts to collect in Washington proved unsuccessful because only RSL's affiliates, notRSL, maintain bank accounts in Washington. Symetra's efforts to collect thejudgment in Texas were met with RSL'sresponse to post-judgment discovery that it owned no property, even in its home state.

2RCW 19.205.040(2)provides in relevant partthat a transferee "shall be liable to the structured settlement obligor andthe annuity issuer

... (b) For any other liabilities or costs, including reasonable costs and attorneys' fees

... arising as a consequence ofthe transferee's failure to comply with this chapter." 4No. 31435-9-III In re RapidSettlements

In a then unrelatedproceeding, RSL had applied in Benton County in November 2004 for approval ofa transfer agreement under whichNicholas Reihs would sell a future payment from Symetra (payable in September 2012) in exchange for a discounted payment. Over Symetra's objection, the court approved the transfer. Although RSL's transfer application listed itselfas the transferee, the order approving the transfer stated that the designated beneficiary had been changed to 3B. Five years after the court order approvingtransfer ofthe Reihs payment but before it came due, Symetramoved to modify the order to allow it to apply the amount otherwisepayable to 3B to its King Countyjudgment against RSL. Overthe objection of 3B, which was allowed to intervene, the superior court found that 3B was the alter ego of RSL and modified the transfer order to recognize a right ofsetoffin Symetra. 3B appealed. We affirmed the superior court's modified order in February 2012. In re RapidSettlements, Ltd., 166 Wn. App. at 696. 3B thenrevived an action it had commenced in Texas two years earlier (shortly after Symetra asked the Benton County court to authorize setoff) in which it challenged Symetra's ability to collect itsjudgmentthrough a setofftaking place in Washington. At Symetra'srequest, the Texas court had stayed the action-"abated" it, in Texas termspending disposition of3B's appeal in Washington. Following ourdecision onthe appeal, John Craddock, one ofMr. Gorman's law partners, wrote Symetra's lawyers, stating that 3B continued to assert a right to receive 

### 5No. 31435-9-111 In re RapidSettlements
the upcoming September 2012 Reihs payment and thattwo creditors, FinServ Casualty Corporation and A.M.Y. Property & Casualty Corporation, asserted prior secured interests in the payment. On August 9, Mr. Craddocknotified Symetra's lawyers that 3B would move to vacate the abatement order in the Texas action and would seek an order requiring Symetrato depositthe SeptemberReihs payment in the Texas court. Symetra responded by moving the Benton County court on August 10 to issue an antisuit TRO in the Reihs transfer action. OnAugust 14 and 15, 3B filed an amended petition in the Texas action naming FinServ and A.M.Y. as additional plaintiffs. FinServ and A.M.Y. purported tojoinin 3B'smotion to vacate the stay and reinstate the Texas case to the active docket. Mr. Craddock, Mr. Gorman, and their law firm submitted all materials filed with the Texas court as "Counsel for Plaintiffs." CP at 1492, 1517. Both motions were eventually set for an August 24 hearing date. OnAugust 17, the Benton County court heard Symetra's motion for a TRO. Based on findings that 3B'sTexas action was "an attempt to undermine this Court's 2010 Order inthis matter," and "an attemptto undermine this Court'sjurisdiction overthe structured settlementpayment,"the court issued a TRO enjoining 3B, in relevant part, from taking further action "inHarris County District Court Case No. 2010-41653" and to strike any and all pending motions in that case. CP at 119. The order set a hearing on Symetra'srequest for a permanent injunction for the afternoon ofAugust 31. 

### 6No. 31435-9-III In re RapidSettlements

3B's chiefexecutive officer was personally served with the TRO on August 20. The following day, Symetra filed an emergency motion asking the Texas court to cancel the impendingTexas hearings based on the TRO's dictate that 3B strike pending motions andtake no further action in the Texas case. Despite 3B'shaving been served withthe TRO, it did not strike its motions; instead, Mr. Craddock filed a briefin opposition to Symetra's motion onAugust 22, onbehalfof"[a] 

### II three plaintiffs." CP at 170. While the briefargued that "[n]othing can stop FinServ and A.M.Y. from moving forward in this [Texas] Court" because the TRO did not apply to them, the order ofabatement had not been lifted and as ofAugust 22, FinServ and A.M.Y. were notpartiesto the Texas action. CP at 170-71. A hearing on Symetra's motion was held beforethe Texas court onAugust 23. Mr. Gorman appeared onbehalfof3B and argued that-contrarytothis court's decision

on appeal-the offset order had been obtained without due process and was invalid. The Texas courtresetthe hearing on 3B'smotions for August 28. In light of3B's postAugust 20 acts and failures to act, Symetra moved in the Benton County court onAugust 24 for an order finding 3B in contempt. It askedthat it be awarded its costs and attorney fees in bringingthe contempt motion and in having to participate in the Texas action after service ofthe TRO. It also asked for a one-time forfeiture of$I,OOO against Mr. Gorman. Symetra setthe contempt motion to coincide withthepermanent injunction hearing set for August 31. 7No. 31435-9-111 In re RapidSettlements

Mr. Gorman and 3B were not deterred. 3B still did not strike its motions and Mr. Gorman appeared at the August 28 hearing in the Texas court, where he argued thatthe stay should be lifted so that 3B couldpursue its challenge to the Washington court orders. The Texas courtwas persuadedto liftthe stay for the limited purpose ofadding FinServ and A.M.Y. as parties but explained that the suit would otherwise "remain abated, and let's see what happens in Washington on Friday [the August 31 hearing date in Washington], and then we will go from there." CP at 899. What happened in Washington on Friday was that a lawyer representingFinServ appeared at the time set for the hearings and presented FinServ's notice ofremoval to federal court, filed earlier in the day. The notice ofremoval represented that FinServ "is beingjoined as aparty to this lawsuit." CP at 193. While Symetra had filed a motion to add FinServ and A.M.Y. as parties, the court had not yet done so, and the removal was later determined to be defective on multiple grounds. 3 The removal nonetheless derailed

3 The federal court granted Symetra'smotion for remand to state court "based on the following:" FinServ's non-party status in the underlying litigation; the passage ofmore than one year since the original litigation which was commenced in approximately 2004 was filed; the non-joinderby other similarly affected entities in FinServ's Notice OfRemoval; the failure ofFinServ to show that $75,000.00 or more is in controversy; and the apparent ancillary nature of the action which is pending in the Superior Court ofBenton County, Washington. CP at 856-57. 

### 8No. 31435-9-III In re RapidSettlements Symetra'srequest for a permanent injunction toreplace the expiring TRO and its motion for contempt, which were necessarily stricken. In granting Symetra's motion to remand the case to state court in early November, the federal court denied Symetra'srequest for fees and costs, but observed: [T]his court takes notice that state court proceedings both in Washington and Texas will allow an ample opportunity for the prevailingparty to pursue monetary and equitablereliefagainst FinServ (andpossibly others). Underthese circumstances, attorney fees and costs are DENIED. CP at 857. Within two weeks ofthe orderremandingthe Washington case to Benton County, Symetra moved for an extension ofthe TRO and noted its previously filed motions for November 30. On November 29, 3B requested a continuance. Itemphasizedthat Symetra would notbe prejudiced becausethe insurerhad already applied the Reihs paymentto itsjudgment against RSL, and the Texas action-in which 3B, FinServ and A.M.Y. were trying to recoverthe Reihs payment-hadbeenremoved to federal courtby Symetra on September 10 and was "onhold"pending 3B's motion for remand. CP at 293. The Benton County court granted 3B'srequest in part; it entered Symetra's proposed order continuing temporary injunctive reliefbut continuedthe motions for a permanent injunction and contemptto December 28. The hearing proceeded onDecember 28, and at its conclusionthe court entered the permanent injunction requested by Symetra. Ittook the proposed contempt order under



### 9No. 31435-9-III In re RapidSettlements
advisement. While 3B filed no briefin opposition to the motion for contempt, its lawyer informedthe court during the hearing that it relied for its opposition on the declaration filed with its request for a continuance in November. Unsure that it hadreviewed the continuance materials inpreparing for the December 28 hearing, the court indicated it wantedto be "fully briefed" before ruling. Report ofProceedings (RP) (Dec. 28, 2012) at 17. Two weeks later, it granted Symetra's motion and entered an order ofcontempt. The court's order found 3B and Mr. Gorman in contempt for failing to strike 3B's motions after service ofthe TRO on August 20 and for appearing and participating in the hearings on August 23 and 28. Based on its findings, the court orderedthe following relief: 1. 3B is ordered to pay Symetra for its costs and attorneys' fees incurred in bringing this motion for contempt and all costs and attorneys' fees incurred by Symetra in the Harris County, Texas, action between August 20,2012, when the Court's Temporary Restraining Orderwas served on 3B, andthe date ofthis Order ofContempt. Symetrahas submitted a cost and fee bill showing the amount ofthese costs and fees is $47,024.50

. 2. Attorney Gorman, as attorney and agent for 3B, is ordered to pay Symetra a one-time forfeiture pursuant to RCW 7.21.030(1 )(b) ofOne Thousand Dollars ($1,000.00). 3. In orderto purgethemselves ofthis contempt charge, 3B and its attorney Gorman must strike all pendingmotions in the Harris County, Texas, action, and agree not to file any motion ortake any other action in said case while an injunction from this Court restrainingthem from doing so is in effect. CP at 526. 3B and Mr. Gorman appeal.

10No. 3 I435-9-III In re RapidSettlements

ANALYSIS 3B and Mr. Gorman assign errorto the superior court's orderholdingthem in contempt, identifying seven issues. We will first address their challenges tothe court's findings ofcontempt. (Appellant's issues A, C, D, and E). We will then tum to their partially viable challenges tothe reliefordered by the court. (Appellant's issues B, F and

I. The courthad jurisdiction overMr. Gorman and its findings of contemptare both sufficientandsupportedbysubstantialevidence Mr. Gorman argues that becausehehad not appeared in the Benton County action and was not served with an orderto show cause, the courtviolated his rightto due process by enteringreliefagainst him. He also argues thathis conductwas not sanctionable given "competing duties to his clients." Br. ofAppellant at 3. Both Mr. Gorman and 3B contend that substantial evidence does not support the court's contempt findings and that the court erred by granting relieffor contempt without finding thatthey violated the TRO "intentionally." Dueprocess as to Mr. Gorman Mr. Gorman, a Texas resident, argues that Symetranever served him withprocess

4 Symetraraises a threshold objectionthat 3B and Mr. Gorman are raising several arguments for the first time on appeal and asks that we refuse to considerthem. Apart from a new challengetothe validity ofthe purge condition, which we discuss below, we conclude that the appellants' issues were adequatelyraised in the superior court. 11No.31435-9-III In reRapidSettlements making him a party and that it never obtained an order to show cause, with the result that the court lackedjurisdictionto issue a contempt order against him. He relies on Burlingame v. ConsolidatedMines andSmelting Company, Ltd., 106 Wn.2d 328, 722 P.2d 67 (1986). TheBurlingame case does not help Mr. Gorman. He focuses onthe court's holding in that case that a trial court's orderto show cause issued under former RCW 7.20.040 (1881) was adequate notice, and then contrasts that with the contempt proceeding against him, which was initiated, instead, by motion. When Washington's contempt statutes were substantially modified in 1989, a motion procedure was substituted for proceedings on an orderto show cause. See RCW 7.21.030(1) (court initiates a contemptproceeding on its own motion or the motion ofa person aggrieved). The court in Burlingame did notholdthat an orderto show cause is required by due process; it held only that the orderto show cause that was statutorily required at the time sufficed under the "minimal notice" thattraditionally has satisfied due process requirements for a validjudgment ofcontempt. Burlingame, 106 Wn.2d at 332. The requirements ofa valid contempt order are notice and an opportunity to be heard, with the opportunity to be heard beingthe most significant. "The notice requirement is important only because it protects an individual's right to be heard." Id. (citingHovey v. Elliott, 167 U.S. 409,414-15, 17 S. Ct. 841,42 L. Ed. 215 (1897)). Burlingame requires only

12No. 31435-9-III In re RapidSettlements

thatwe considerwhetherthe motion procedure followed belowprovided notice sufficient to protectMr. Gorman's right to be heard. Symetramovedthe courtto "enter an order finding 3B and its agent, attorney Gorman, in contempt." CP at 156. There can be no question that Mr. Gorman was aware ofSymetra's motion. Duringthe hearing in Texas on August 23, Symetra's lawyer mentioned that his clientviewed 3B as being in contempt ofthe TRO, to which Mr. Gormanresponded, "Contempt, Ijustheard contempt. You know, we wantto be in Texas. We want a forum that's going to hear us." CP at 511. Duringthe August 28 hearing in Texas, Mr. Gorman told the courtthat "as forewarned the other day

... [Symetra has] now filed a motion for contempt seeking to hold me personally in contempt ofcourt up in Washington for pursuing this action in a Texas court." CP at 485. A certificate ofservice establishes service by mail ofthe motion for contempt and proposed order on Mr. Gorman at least as early as November 19,2012. In granting the continuance requested by 3B on November 30, the Benton County court created its order-whichclearly indicated the time andplace ofthe December 28 hearing-by modifying Symetra'sproposed "Order ofContempt Against RSL-3B-IL, Ltd. and Attorney Gorman." CP at 310-12. The order was signed "approved as to form" by 3B's

13No.31435-9-II1 In re RapidSettlements lawyer. The notice provided was more than sufficient to protectMr. Gorman's right to be heard. 5 Substantial evidence supports thefindings of contempt The court's contempt order included the following findings ofviolations ofthe TRO after it was served on 3B, and thereby contempt: that 3B and Mr. Gorman continued to pursue the Texas action (finding 1), that 3B failed to strike the motions in that lawsuit that were pending at the time ofthe TRO (finding 2), that 3B opposed Symetra's motion to extendthe time for hearing those motions (finding 2), and that Mr. Gormanpresented argument at the August 23 and August 28 hearings (finding 2).

5 For the first time in the reply brief, Mr. Gorman recasts his argument as one challenging a second requirement ofdue process: an alleged lack ofpersonaljurisdiction over him for lack ofminimum contacts with the State. See Mullane v. CentralHanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (due process requires that a defendantbe given notice and be subject to the personaljurisdiction ofthe court.) Under RAP 1 0.3(c), "a contention presented for the first time in the reply brief will not receive consideration on appeal." Fosbre v. State, 70 Wn.2d 578, 583, 424 P.2d 901 (1967). This rule applies even to challenges regarding personaljurisdiction. See, e.g., State ex reI. Pub. Disclosure Comm 'n v. Permanent Ojftnse, 136 Wn. App. 277, 294, 150 P.3d 568 (2006). Even so, under our long-arm statute, RCW 4.28.185, Washington courts may assertjurisdiction over nonresident individuals to the extent permitted by the due process clause ofthe United States Constitution, except as limited by the terms ofthe statute. Deutsch v. West CoastMach. Co., 80 Wn.2d 707, 711, 497 P.2d 1311 (1972). Mr. Gorman had been admittedpro hac vice by this court in 2011 and appeared in Spokane to argue the first appeal. We have no doubt that Mr. Gorman's appearance in Washington in a legal proceeding whose outcome he then collaterally attacks elsewhere, in contempt ofcourt, is a contact ofsuch character that maintenance of the contempt action does not offend traditional notions offair play and substantialjustice. Int'lShoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). 14No. 31435-9-111 In re RapidSettlements

The United States Supreme Court decided 125 years ago thatthe court ofone state may enjoin parties to a case before it from engaging in vexatious litigation in another state for thepurpose ofevadingthe rulings ofthe first court. Cole v. Cunningham, 133 U.S. 107, 111, 10 S. Ct. 269, 33 L. Ed. 538 (1890). Such injunctions may not controlthe second court's actions regarding the litigation inthat court, butthey are effective against the parties, with sanctions generally administered onlyby the court issuingthe injunction. Baker v. Gen. Motors Corp., 522 U.S. 222,236, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998) (citing, e.g., James v. Grand Trunk Western R. Co., 14 Ill. 2d 356,372, 152 N.E.2d 858 (1958); Stiller v. Hardman, 324 F.2d 626,628 (2d Cir. 1963». Inthis case, the Benton County court issued the TRO on August 17 and it was served on 3B onAugust 20. The TRO ordered 3B "to strike any and all pending motions in [Harris County District Court Case No. 2010-41653]." CP at 119. 3B hadpending motions inthe case at the time. Itdid not strikethem. The TRO enjoined 3B "fromtaking any further action" inthe Texas case. Id. Two days afterbeing served withthe TRO, on August 22, 3B filed a response inthe Texas court opposing Symetra's emergency motion. A temporary restraining order is binding upon "theparties to the action, their officers, agents, servants, employees, and attorneys, and upon thosepersons in active concert or participation with them whoreceive actual notice ofthe order by personal service or otherwise." CR 65(d). Days after service ofthe TRO on 3B, Mr. Gorman 15No. 31435-9-111 In re RapidSettlements appeared in the Texas court on August 23 and 28 to advocate on behalfof3B and in opposition to Symetra. The existence ofthe Washington TRO was a subject matter ofhis argument on both occasions. While chapter 7.21 RCW provides that a court may find a person in contempt and impose a coercive sanction only upon "[a] person [who] has failed

...to perform an act that is yetwithin theperson's powerto perform," RCW 7.21.030(2), a court may find a person in contempt whether ornot it is possible to coerce future compliance. Any "intentional

... [d]isobedience ofany lawfuljudgment, decree, order orprocess ofthe court" is a contempt ofcourt as defined by RCW 7.21.010(l)(b). RCW 7.21.030(3) allows the court to order a contemnor to pay losses suffered as a result ofthe contempt and costs incurred in the contemptproceedings for any "person found in contempt of court" without regard to whether it is possible to craft a coercive sanction. See State ex reI. Chardv. Androw, 171 Wash. 178, 17 P.2d 874 (1933) (affirmingjudgment for $3,000 loss imposed on contemnor for violating court order; no coercive sanction imposed due to contemnor's inability to perform).6 A trial court's finding ofcontempt will not be disturbed on appeal as long as it is supported by substantial evidence inthe record. In re Marriage of Farr, 87 Wn. App.

6While not an issue in this case, punitive sanctions can be imposed for apast contempt ofcourt through a criminal contemptproceedingwhether ornot it is continuing. See RCW 7.21.050. A completed intentional act ofatype identifiedby RCW 7.21.010 falls within the definition of"contempt ofcourt." 

### 16No. 31435-9-111 In re RapidSettlements 177, 184,940 P.2d 679 (1997); Ramsteadv. Hauge, 73 Wn.2d 162, 167,437 P.2d 402 (1968). Where, as in this case, "the superior court bases its contempt finding on a court order, 'the order must be strictly construed in favor ofthe contemnor,' and '[t]he facts found must constitute a plain violation ofthe order.'" Dep'tof Ecology v. Tiger Oil Corp., 166 Wn. App. 720, 768, 271 PJd 331 (2012) (emphasis omitted) (citations omitted). The record unquestionably supports the violations found by the court. Since they occurred after service on 3B ofthe TRO, they would appear to support the court's findings ofcontempt. But 3B and Mr. Gorman argue that their literal violations were not contumacious for several reasons. First, they emphasize that it was Symetra's emergency motion in Texas that precipitated the need for 3B's opposition. But if3B had stricken its motions as ordered, Symetra would have had no need to file its emergency motion. Moreover, the reliefthat Symetra was seeking through its emergency motion was entirely consistent with the Benton County court's TRO. Consistent with the TRO, 3B should not have opposed it. 3B and Mr. Gorman argue that the two hearings at which Mr. Gorman appeared while the TRO was in effect were set by the Harris County court. Again, if3B had stricken its motions as required by the TRO, the hearings would presumably have been stricken by the court. Ifthey weren't, then consistent with the TRO, 3B should have done no more than explain to the court why it could not participate. 17No. 31435-9-II1 

### In re RapidSettlements

3B and 

### Mr. Gorman argue that FinServ and A.M.Y. were interested parties and would have been free to take action in the Texasproceeding. But until FinServ and A.M.Y. werejoined-whichwas not acted upon by the courtuntil it vacated the abatement order for that limited purpose on August 28-only 3B was a party to the proceeding. And even ifFinServ and A.M.Y. could be viewed as parties tothe proceeding before the limited lifting ofthe abatement order on August 28, that does not

excuse 3B's own participation in violation ofthe TRO orMr. Gorman's appearance on 3B'sbehalf. Finally, 3B argues that it acted on its lawyer's advice and 

### Mr. Gorman argues that he was duty bound to advance the wishes ofhis client. Neitherrationale excuses them from responsibility for contempt. Acting on advice ofcounsel in refusing to obey a TRO is not a defense to a civil contemptproceeding. 

### Ramstead, 73 Wn.2d at 166; 

### Rekhi v. 

### Olason, 28 Wn. App. 751,757,626 P.2d 513 (1981). Because the TRO did not require Mr. Gorman to violate any privilege, the limited defense recognized in assertion of privilege cases does not apply. 

### CfDike v. 

### Dike, 75 Wn.2d 1, 5-9,448 P.2d 490 (1968) (where lawyer is ordered by the court to reveal privileged information and is held in contempt for refusal to do so, the properprocedure is to stay all sanctions for contempt pending appellate review). While Mr. Gorman argues that he could not take action against his client's wishes, he had the options ofencouraging his clientto comply with the TRO or, if3B could not bepersuaded to comply, then ofwithdrawing from the 18No. 31435-9-111 In re RapidSettlements representation rather than commit contempt. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.04(d) ("A lawyer shall not ... knowingly disobey, or advise the client to disobey

... a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or onthe client's willingness to accept any sanctions arising from such disobedience") and 1.I5(b)( 4) (providing that a lawyer may withdraw from representing a clientwho "insists upon pursuing an objective that the lawyer considers repugnant or imprudent orwith which the lawyer has fundamental disagreement"). Appellants cite State ex reI. Nicomen Boom Co. v. North Shore Boom 

### &Driving Co., 55 Wash. 1, 13, 103 P. 426 (1909), modifiedon reh'g, 107 P. 196 (1910) (Mount, J., dissenting) for the proposition that "[t]here is nothing in the [contempt] statuteto indicate that itwas intended to include one who in good faith advises the wrong." Butthat case dealt with a lawyer, Mr. Abel, who did not himselfviolate the court's order as Mr. Gorman did here. Id. at 14. Mr. Abel "advisedthe officers to do the things complained of," but "did not directly participate therein himself." Id. at 17. As observed by the majority opinion, "Anoffending attorney wouldbe liable

. ..for a willfuldisregardof the orders of the court, but it would require a forced construction ofthe statute to make him subjectto civil liability because ofhis advice honestly given." Id. at 14 (emphasis added). Mr. Gormanwas not found in contempt for his advice, but for his actions.

19No. 31435-9-III 

### In re RapidSettlements Appellants are correctthat the TRO expired on August 31. CR 65(b) (temporary restraining orders expire within 14 days unless extended). Butthe acts ofcontempt found by the court all occurred on orbefore August 31. The findings ofcontempt are supported by substantial evidence ofviolations ofthe court's order during the two weeks it was in effect. 

### No "finding" of intentional conductwas required The superior court's contempt order did not include an explicit finding that 3B's and Mr. Gorman's violations ofthe TRO were intentionaL Relying onthe statement in 

### Holiday v. 

### City of Moses Lake, 157 Wn. App. 347, 355, 236 P.3d 981 (2010) that "a finding that a violation ofaprevious court order was intentional is required for a finding ofcontempt," 3B and Mr. Gorman argue that absent an explicit finding ofintentional conduct, the trial court's order is insufficient. As further support, they cite

### In re Estates ofSmaldino, 151 Wn. App 356,365,212 P.3d 579 (2009), in which a lawyer was found in contempt for violating the terms ofa TRO prohibiting his client from transferring her real property, after he caused her to grant him a deed oftrust to securepayment ofhis legal fees and then recorded it. On appeal, the lawyer argued that the court's finding that he intentionally disobeyed the TROwas contradicted by its finding that hehad chosen not to read the TRO. Id. at 362. The court held that knowledge could be imputed. It also held thatbecause the lawyer's acquisition ofa security interest in the property "was an intentional act," his act in disobedience ofthe order was intentional. Id. at 365. 20No. 31435-9-111 In re RapidSettlements
Thetwo decisions hold only that an individual must act intentionally to be found in contempt ofcourt. Under RCW 7.21.01O( 1 )(b), "contempt ofcourt" is defined, in relevant part, as "intentional

. .. [d]isobedience ofany lawfuljudgment, decree, order, or process ofthe court." (Emphasis added.) But giventhat definition, the Benton County court's finding ofcontemptreflects an implicit finding that 3B's and Mr. Gorman's acts and omissions were intentional. When the Washington legislature intends to require that an explicit finding must be made for a courtto act, it says so. See, e.g., RCW 13.34.155 ("dependency court ... must make a written finding" that parenting plan is in a child's best interest); RCW 13.40.193 Uuvenile found to have been unlawfully in possession ofa firearm must receive a disposition that includes program participation "unless the court makes a written finding

... that participation

...would not be appropriate"); RCW4.84.185 (court may award expenses ofsuit "upon written findings by thejudge thatthe action

... was frivolous"). Nothing in chapter 7.21 RCWrequires thatthe court make a written finding ofintentional conduct. All of3B's and Mr. Gorman's acts and omissions identified by the contempt order

as violations were supported by evidence that established their inherently intentional character. The courtwas notrequired to explicitly find that they were intentional.

21No. 31435-9-111 

### In re RapidSettlements

II. The relieforderedfor the contemptwas largely although notentirely appropriate, given the civil character of the contemptproceeding Having determined that the trial courtproperly found 3B and Mr. Gorman in contempt, we tum to the propriety ofthe reliefawarded in what was initiated and conducted as a civil contemptproceeding. 7 The reliefawarded consisted ofattorney fees and costs incurred in the contemptproceeding; attorney fees and costs incurred in the Texas proceeding; and the $1,000 onetime sanction against Mr. Gorman. 

### Costs incurred in the contemptproceeding RCW 7.21.030(3) provides in relevantpartthat in addition to imposing remedial sanctions authorized elsewhere in the statute, "[t]he court may ... order aperson found in contempt ofcourt to pay aparty for

... any costs incurred in connection with the contemptproceeding, including reasonable attorney's fees." 3B and 

### Mr. Gorman do not contend that Symetra was not entitled to costs, including attorney fees; they argue that Symetra was awarded costs that were not incurred in the contempt proceeding. They specifically complain of

7 3B and Mr. Gorman argue that some ofthe reliefawarded was in the nature of punishment, making the proceeding below a criminal contemptproceeding; from that, they argue that because it was not conducted as a criminal contemptproceeding, all ofthe reliefordered by the court fails. The proceeding was initiated and conducted as a civil contemptproceeding. To the extent that reliefordered by the court was improper, it will be reversed. We reject the appellants' effort to have us analyze the proceeding as something it was not. 22No. 31435-9-111 In re RapidSettlements [t]he costs and fees awarded for the removal and remand filings in both the Texas and Washington federal courts, the filings related to RSL-3B's Motion for Vacate the Abatement and the Motion to Deposit, and responding to RSL-3B's Motion to Transferto [Texas federal district court] Judge Lake's Court. Br. ofAppellant at 27. Symetraresponds that fees for the Texas proceedingwere recoverable not as costs, but as losses suffered as a result ofthe contempt. .Losses are separately recoverable and

are addressed below. As to costs, Symetra submitted declarations documenting $14,890.50 in attorney fees incurred in the Washington action between August 18, the day afterthe TRO was obtained, and December 12,2012, including those incurred while the action was temporarily in federal court. The declarations did not segregate fees for services directly related to the motion for contempt from other fees incurred during that time frame. We review a trial court's award ofattorney fees for an abuse ofdiscretion. Rettkowski

### v. Dep'tof Ecology, 128 Wn.2d 508, 519, 910 P.2d 462 (1996). Iftherecord proves inadequate for us to review the fee award, we mustremand for further proceedings. Just Dirt, Inc. v. KnightExcavating, Inc., 138 Wn. App. 409, 157 P.3d431 (2007). We concludethat all ofthe fees for servicesperformed in obtaining a remand of the case from the federal court were properly awarded. Symetrawas a victim, notthe cause, ofthe improperremoval to federal court. A clear objective ofthe remand was to 23No. 31435-9-II1 In re RapidSettlements getthe proceeding back before the Benton County court so that Symetra's earlier-filed motion for contempt couldbeheard. Obtaining the remand was necessary and appropriate to that end. Other fees included in the $14,890.50 figure were not incurred in connection with the contemptproceeding, however. Just as Symetra's fees incurred in obtaining the TRO

are not recoverable under RCW 7.21.030(3), its fees incurred in obtainingthe extension ofthe TRO and the permanent injunction are not recoverable. Nor can Symetra recover its fees incurred in moving to add FinServ and A.M.Y. as partiesto the Benton County action.Because the declarations submitted are inadequate to segregate fees that were recoverable as costs, the case must be remanded for further submissions by Symetra and

a secondreview by the court. Loss suffiredas a result of the contempt As to loss, RCW 7.21.030(3) provides in relevantpartthat in addition to other reliefavailable in the contemptproceeding, "[t]he courtmay ... order a person found in contempt ofcourt to pay a party for any losses suffered by the party as a result ofthe contempt." The seminal decision in Gompers v. Buck'sStove & Range Co., 221 U.S. 418, 441,31 S. Ct. 492,55 L. Ed. 797 (1911) observedthat "[c]ontempts are neitherwholly civil nor altogether criminal," and that in eitherevent, there is "an allegation that in 24No. 31435-9-III In re RapidSettlements contempt ofcourtthe defendant has disobeyed the order, and a prayerthat he be attached and punishedtherefor." As a result, a defendant may be "punished" even in a civil contemptproceeding ifthe purpose is to compensatethe complainant: It is not the fact ofpunishment, but rather its character and purpose, that often serve to distinguish between the two classes ofcases. Ifit is for civil contempt thepunishment is remedial, and for the benefit of the complainant. But ifit is for criminal contemptthe sentence is punitive, to vindicate the authority ofthe court. Itis true thatpunishmentby imprisonment may be remedial as well as punitive, andmanycivil contempt proceedings have resultednotonly in the imposition of afine, payable to the complainant, but also in committingthe defendantto prison. Id. at 441-42 (emphasis added). In UnitedStates v. UnitedMine Workers of America, the United States Supreme Court again recognized that there are two types ofremedial sanctions imposed in civil contemptproceedings, holding that "[j]udicial sanctions in civil contemptproceedings may ...be employed for either orboth oftwo purposes; to coerce the defendant into compliance with the court's order, andto compensatethe complainant for losses sustained." 330 U.S. 258, 303-04, 67 S. Ct. 677, 91 

### L. Ed. 884 (1947) (citing Gompers, 221 U.S. at448-49). Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must ofcourse be based upon evidence of complainant's actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome ofthe basic controversy. Butwhere the purpose is to make the defendant comply, the court's discretion is otherwise exercised. Itmust then considerthe character and magnitude ofthe harm threatened by continued contumacy, 25No. 31435-9-111 In re RapidSettlements

and the probable effectiveness ofany suggested sanction in bringing about the result desired. 

### Id. (footnotes omitted). In his treatise on remedies, Professor Dobbs writes: The Supreme Court has long recognized that one appropriate kind ofsanction for civil contempt is remedial rather than coercive. That is, the sanctionprovides the plaintiffwith a substitute for the defendant's obedience without compelling that obedience itself. The most straightforward version ofthe remedial sanction is the compensatory fine, paidto the plaintiffas compensation. Ifthe fine is to bejustifiedbecause it is remedial, courts have said that it must be based on evidence, either ofthe plaintiffs loss or the defendant's gains. 1DAN B. DOBBS, DOBBS LAW OF REMEDIES 194 (2d ed. 1993) (footnotes omitted). Federal courts and a clear majority ofstate courts allow compensatory damages or fines payable to the injured party as reliefin a civil contemptproceeding. Annotation, Right of InjuredParty toAwardof CompensatoryDamages orFine in Contempt Proceedings, 85 A.L.R.30 895, § 2[a] (1978). In State ex rei. Lemon v. Coffin, 52 Wn.2d 894,896,332 P.2d 1096 (1958), the Washington Supreme Court held thatthepurpose of the provision for recovery ofloss under former RCW 7.20.100 (1880)8 was "toprovide

8Former RCW 7.20.100 (1881) provided: Ifany loss or injury to a party in an action, suit orproceedingprejudicial to his rights therein, have been caused by the contempt, the court orjudicial officer, in addition tothe punishment imposed for the contempt, may give judgmentthat the party aggrieved recover ofthe defendant a sum ofmoney sufficientto indemnify him, and to satisfy his costs and disbursements.

26No. 31435-9-111 In re RapidSettlements complete reliefin the original action and to eliminate the necessity ofa second suit to

recover the expense caused by such contempt." Compensatory fines have been imposed in Washington contempt proceedings to address many types ofloss and damage caused by a party's contumacious acts. E.g., Premium Distrib. Co., Inc. v. Int'!Bhd. o/Teamsters, 35 Wn. App. 36, 39, 664 P.2d 1306 (1983) (affirming award of$15,000 for property damage and business loss caused by violations ofan injunction); Ramstead, 73 Wn.2d at 167 (affirming award ofexpenses incurred where defendant prevented moving ofhome in violation ofTRO); McFerren v. McFerren, 55 Wn.2d 471,476,348 P.2d 222 (1960) (affirming award ofrepair expense and loss ofuse for husband's violation ofdivorce decree); Chard, 171 Wash. at 180 (affirming award ofdamages for lostproperty value for purchaser's violation of judicial order ofsale); Nicomen, 55 Wash. at 11, (plaintiffwas entitled to be awarded damages for lost profits attributable to interference with its boomingprivileges in violation of judgment). Where a party violates an antisuit injunction, the most obvious "loss suffered

... as a result ofthe contempt" is the cost ofanswering to proceedings in the foreign court that would not have occurred had the injunction been complied with. Symetra submitted declarations documenting $32,134 in attorney fees incurred in the Texas action between August 18 and December 12,2012. 3B and Mr. Gorman argue that even ifsome fees in the Texas proceeding are recoverable, they ceasedto be recoverable after the TRO 27No. 31435-9-111 In re RapidSettlements expired on August 31 or, at the latest, after Symetra removed the Texas action to federal court on September 10. They also argue that Symetra cannot claim to have suffered loss from its actions in the Texas litigation since FinServ and A.M.Y., who were not subject to injunction, were asserting their own challenge to Symetra's offset ofthe Reihs transfer payment. 3B's failure and refusal to comply with the TRO and strike all ofits motions in the Texas action produced the fees incurred by Symetra in the post August 31 and post September 10 Texas proceedings against 3B, both state and federal. Ifthe losses were incurred over a matter ofmonths, it was because Symetra's ability to obtain reliefwas delayed through no fault ofits own. In McFerrin, the complainant was awarded an amount for lost use ofa home over a number ofmonths even though the lost use was only

an indirect result ofher husband's failure to make court ordered repairs to her home. In Chard, the complainant was awarded damages for a decline in value ofits property following the date on which a purchaser failed to honor thejudicial order ofsale ofthe complainant's home. In both cases, damages were not limited according to the time frame within which the contemnor had been ordered to act. They were based on the loss that, at the time ofhearing, the complainant could demonstrate had resulted from the contempt.

28No. 31435-9-111 In re RapidSettlements Although the August 31 and September IOdates are significant for other purposes,9 they are artificial cutoffpoints for purposes ofdetermining the amount ofloss Symetra had suffered as a result ofthe contemptby the time ofits first opportunity to have its motion heard. Symetra's expenses incurred litigating with FinServ and A.M.Y. afterAugust 28

are another matter. Thepreexistingperfected security interests that FinServ and A.M.Y. claim to have in the Reihs paymentwere not addressed in the Benton County transfer action. 

### It appears that Symetrawas unaware ofthe existence ofany competing security interests. Ifand to the extentthat FinServ and A.M.Y. held viable security interests, or at least interests they believed in good faith were viable, then those two entities were entitled to assert their legal rights, and 3B'sAugust 2012 acts ofcontempt do notprovide

a reasonable basis for imposing Symetra's cost offighting that priority issue withFinServ and A.M.Y on 3B.IO

9Forexample, the superiorcourt could not find acts or omissions enjoined by the terms ofthe TRO but that tookplace after August 31 to be contempt. It did not. Under the United States Supreme Court's decision in

### Donovan v. 

### City a/Dallas, 377 U.S. 408, 84 S. ct. 1579, 12 L. Ed. 2d409 (1964), the superior court could not exercise authority over 3B's conduct in the federal case inTexas following removal. Here, we are not dealing with that limitation; we are determining the losses thatresulted from the August acts ofcontempt. \0 To be clear, to the extent 3Bwas asserting FinServ's and A.M.Y.'s priority, Symetra's legal expense in responding should be recoverable from 3B as loss. Insofar as 3B asserts an interest in having its creditors' security interests recognized, it shouldhave asserted that interest in the 2010 proceedings in Benton County. Resjudicata, orclaim 29No. 3 I435-9-III In re RapidSettlements Symetra should have segregated the attorney fees incurred in the Texas action against 3B, offensively or defensively, from the attorney fees incurred in that action, againstFinServ and A.M.Y, offensively or defensively. CfManna Funding, LLCv. Kittitas County, 173 Wn. App. 879,295 P.3d 1197, review denied, 178 Wn.2d 1007 (2013) (requiring segregation offees between claims where fees are recoverable only as to some claims); Seattle-FirstNat. Bankv. Washington Ins. Guar. Ass 'n., 94 Wn. App. 744,972 P.2d 1282 (1999) (requiring a reasonable allocation offees among multiple clients, where fees were recoverable only by some clients). To the extent that 3B, FinServ, and A.M.Y.joined in the same submissions and appeared through the same counsel, the superior court must arrive at some reasonable basis for allocating fees. In the Seattle-Firstcase, the court suggested looking to the law firm's fee agreement with its clients as a basis for allocation. Id. at 763. Another approach would be for Symetra to determine, through discovery, whatpercentage ofthe cost ofrepresentation in the Texas action was beingborne by each ofthe three entities. The allocation need not be precise, but it must be examined and be reasonable. Id.

preclusion, prohibits the relitigation not only ofclaims and issues that were litigated but also those that could have been litigated in a prior action. Pederson v. Potter, 103 Wn. App. 62, 67, II P.3d 833 (2000). 30No. 31435-9-111 In re RapidSettlements

The $1,000 onetime sanction againstMr. Gorman The final reliefawarded by the court was its $1,000 onetime forfeiture against Mr. Gorman. The provision describing the forfeiture and the clause describing action required to purge the contempt provide in their entirety: 2. Attorney Gorman, as attorney and agent for 3B, is ordered to pay Symetra a one-time forfeiture pursuantto RCW 7.21.030(1)(b) ofOne Thousand Dollars ($1,000.00).1l 3. In orderto purge themselves ofthis contempt charge, 3B and its attorney Gorman must strike all pending motions in the Harris County, Texas, action, and agree not to file any motion ortake any other action in said case while an injunction from this Court restraining them from doing so is in effect. CP at 526. "An order ofremedial civil contempt must contain apurge clause underwhich a contemnor has the ability to avoid a finding ofcontempt and/or incarceration for noncompliance." State ex reI. Shafer v. Bloomer, 94 Wn. App. 246, 253, 973 P.2d 1062 (1999). Because a sanction "loses its coercive character and becomes punitive where the contemnor cannotpurge the contempt," there "mustbe a showingthat the contemnorhas the means to comply" with the purge condition. Britannia Holdings Ltd. v. Greer, 127

II The forfeiture provision (language proposed by Symetra) would more clearly have been a remedial coercive sanction had it made clear, as provided by RCW 7.21.030(1)(b), that Mr. Gorman had a day within which to comply with the purge condition and thereby avoid any forfeiture. Becausethe order describes the forfeiture as "pursuanttoRCW 7.21.030(1 )(b)," we construe the one-day purgeperiod as incorporated by reference. 31No. 31435-9-111 In re RapidSettlements

Wn. App. 926, 933, 113 P.3d 1041 (2005) (footnote omitted). "Whether a purge condition exceeded the court's authority or violated a contemnor's due process rights

... [are] question[s] oflaw, which [are] reviewed de novo." In re MB., 101 Wn App. 425, 454,3 P.3d 780 (2000); In re Silva, 166 Wn.2d 133, 140,206P.3d 1240 (2009). Mr. Gorman first challenges the purge condition as exceeding the scope ofthe original order, somethinghe claims a civil contempt sanction can never do. He relies on the statement in State v. Buckley, 83 Wn. App. 707, 711, 924 P.2d 40 (1996) that a sanction is punitive "ifitis imposed to punish a past contempt ofcourt ... and does not afford the defendant an opportunity to purge the contempt byperformingthe acts required in the original order." (Emphasis added) (footnote omitted). He asserts that the contempt order in this case could, at most, have required him to "undo" acts or omissions occurring between August 17 and 31, while the TRO was in effect-an impossibility in this case. The argument was addressed and rejected in 

### ME., in which the court rejected

an appellant's attempt to "seize upon" the same language in Buckley to argue that a court may not impose a purge condition that was not required by the court order that was violated. MB. holds that a trial court has inherent authority to impose purge conditions beyond the four corners ofthe violated order, as long as the condition serves remedial aims and the condition is "reasonablyrelated to the cause or nature ofthe contempt." MB., 101 Wn. App. at 450 (emphasis omitted) (citingIn re Marriage of Larson, 165 Wis. 2d 679, 478 N.W.2d 18 (1992». Thepurge condition here satisfies those criteria. 32No.**31435~9-III** 

### In re RapidSettlements

38 and Mr. Gorman next contend that the trial court erred in failing to make a threshold finding that they were able to comply with the purge condition at the time the contempt order issued. They argue for the first time on appeal thatthey were 

### not able to comply because the Texas state court action had beenremoved to federal court by the time ofthe contempthearing, and after a case is removed to federal court, "the state court losesjurisdictionto proceed further, and all subsequentproceedings therein are void." 

### Iowa Cent. Ry. Co. v. 

### Bacon, 236 U.S. 305, 310, 35 S. Ct. 357, 59 L. Ed. 591 (1915). Alternatively, ifthe reference to "theHarris County, Texas, action" in thepurge condition means or includes the federal action (as Symetra contends), then 38 and Mr. Gorman reply that the court could not impose such a purge condition consistent with 

### Donovan 

### v. City o/Dallas, 377 U.S. 408,84 S. Ct. 1579, 12 L. Ed. 2d409 (1964). "In the context ofcivil contempt, the lawpresumes that one is capable of perfonning those actions required by the court." 

### In re Pers. Restrainto/King, 110 Wn.2d 793, 804, 756 P.2d 1303 (1988). "Thus, inability to comply is an affinnative defense. A contemnorhas both the burden ofproduction on ability to comply

... as well

as the burden ofpersuasion." 

### Id.; Moreman V. 

### Butcher, 126 Wn.2d 36,40, 891 P.2d 725 (1995). "Thecontemnor must offerevidence as to his inability to comply and the evidence mustbe ofakind the court finds credible." 

### King, 110 Wn.2d at 804. 38's and Mr. Gonnan's argument that they were unable to comply with the purge condition comes too late. Aspointed out by Symetra, the argument was not made in the 33No. 31435-9-111 In re RapidSettlements superior court. While 3B represents that it didmake the argument or, alternatively, that its inability to comply "only ripened into a real controversy once the trial court signed the Contempt Order," Reply Br. at 18, neither contention is supported by the record. The record reveals that Symetra'sproposed contempt order, with its proposed purge condition, was served on 3B and Mr. Gorman at least as early as November 19. Moreover, whenthe superior court granted a continuance on November 30, it adapted the proposed contempt order to grantthe continuance. As adapted, the order ofcontinuance (including the proposedpurge condition) is signed "approved as to form" by 3B's Washington lawyer. Since 3B and Mr. Gorman had ample advance notice ofthe proposedpurge condition, any inability to comply with it was an affirmative defense that they needed to raise before the contempt order was entered, not after. The record also belies 3B's and Mr. Gorman's contention that they raised the issue ofinability to comply with the purge condition during or before the hearing on the motion for contempt. The only briefingthey submitted-3B's motion for a continuance-was filed at a time when 3B had moved to remand the Texas case to state court. Accordingly, the briefing contemplated future state litigation, not federal litigation. On the merits ofthe motion for contempt, 3B's continuance briefing argued only that (1) the Benton County court issued the TRO after 3B, FinServ and A.M.Y. filed their motion to vacate the Texas stay and their first amended petition, (2) the TRO did not apply to FinServ or A.M.Y., and (3) Symetra's application for apermanent injunction 34No.3l435-9-III In re RapidSettlements

was not heard because FinServ removed the Washington action to federal court. The only reference in the briefing to the fact thatthe Texas action had been removed to federal court was in the context ofexplaining why Symetra would not be prejudicedby the requested continuance. Nor did 3B's lawyer argue inability to comply with the purge condition at oral argument ofthe motion for contempt. Instead, he argued that there was no intentional violation ofthe TRO because (1)the lawyerrepresenting 3B had also been representing FinServ and A.M.Y., (2) the abatement orderremained in place in relevant respects during the 14 days the TROwas in effect, (3) the "violations" complained ofpredated the TRO, and (4) appearing at a hearing that had already been set "on behalfofFinServ and A.M.Y." was not contumacious. RP (Dec. 28, 2012) at 6-7. The one reference to removal ofthe Texas action to federal court was not in connection with any inability to perform the purge condition but in the context, instead, ofarguing that the Benton County court no longer hadjurisdictionto deal withthe parties' disputes because Symetrahad movedthe Texas actionto federal court "because they wanted it there.,,12 Id. at 7.

12 3B and Mr. Gorman also cite to portions ofthe record that postdate the order of contempt, including a motion for new trial and reconsideration filed on January 23, 2013, in which they challenged the validity ofthepurge clause for the first time. CP at 692. The reconsideration motion was summarily denied. CP at 1753. Since they have not assigned error or presented any argument or authority regarding any mishandling oftheir post order submissions, we will not consider them. RAP 10.3(a)(4), (6). 35No. 31435-9-111 In reRapidSettlements

RAP 2.5(a) "reflects a policy ofencouraging the efficient use of judicial resources and refusingto sanction a party's failure to point out an errorthat the trial court, ifgiven the opportunity, might have been able to correct to avoid an appeal." In re Guardianship of Cornelius, 181 Wn. App. 513, 533,326 P.3d 718 (2014). We follow the general policy provided by the rule ofrefusing to entertain this issue, which is raised for the first time on appeal. Attorney fees on appeal Both parties request attorney fees on appeal. 3B and 

### Mr. Gorman seek fees and ask the courtto deny Symetra'srequest for fees on the grounds that "Symetra sought and utilized the trial courts [sic]jurisdictionto obtain the contempt order in derogation of Washington law." Br. ofAppellant at 29-30. They fail to show entitlementbased on a contract, statute, or recognized ground ofequity. Hsu Ying Liv. Tang, 87 Wn.2d 796, 797-98, 557 P.2d 342 (1976). Symetra seeks its fees on appeal under RAP 18.l(a) and RCW 7.2l.030(3). RAP 18.1 permits recovery ofreasonable attorney fees or expenses on review ifapplicable law grants that right. RCW 7.21.030(3) permits an award ofattorney fees incurred by a party in defendingthe appeal ofa contempt order. R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 505,903 P.2d 496 (1995). Symetra is awarded its fees and costs on appeal subject to compliance with RAP 18.1(d).

36

### No. 31435-9-111 In re RapidSettlements
The superior court's award ofcosts and loss is reversed and remanded for further proceedings consistent with this opinion. The order ofcontempt is otherwise affirmed.

WE CONCUR:

Brown, 1.



### 37