I 

FILED 


AUGUST 18, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

) 

In the Matter ofRAPID SETTLEMENTS, ) No. 31435-9-111 

LTD'S APPLICATION FOR ) 

APPROVAL OF TRANSFER OF ) 

STRUCTURED SETTLEMENT ) 

PAYMENT RIGHTS ) 

) PUBLISHED OPINION 

SIDDOWAY, C.J. - Symetra Life Insurance Company and Symetra Assigned 

Benefit Services Company (Symetra) obtained an antisuit temporary restraining 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, Symetra filed 

a motion for contempt against 3B and its Texas lawyer, John Gorman. 

As a result ofremoval ofthe Washington action to federal court, its remand, and a 

continuance, Symetra's motion for contempt was not heard by the Benton County court 

for four months. By that time, 3B's collateral attack on Symetra's final order had been 

removed by Symetra to federal district court in Texas. 

The superior court found 3B and Mr. Gorman in contempt, ordered Mr. Gorman to 

pay a one-time forfeiture of$I,OOO and ruled that to purge themselves ofthe contempt 

charge, 3B and Mr. Gorman must strike all pending motions in the "Harris County, 
No. 31435-9-111 

In re Rapid Settlements 

Texas, action" and agree not to take further action in that case as long as they were 

subject to 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 contempt proceeding and, for the first time on appeal, that 

the purge condition was not possible to perform and was therefore invalid. 

We conclude that only part ofSymetra's fees and costs were properly awarded. 

But where 3B and Mr. Gorman committed clear acts of contempt and failed in the trial 

court to assert and support what they now contend was their inability to perform the 

purge condition, the relief ordered by the court was largely proper. We reverse the award 

of loss 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 of large tort claims, damages are often paid by a 

defendant to a plaintiff in the form of a structured settlement. In its 

simplest form, a structured settlement typically involves the initial payment 

of a lump sum, followed by a series of subsequent smaller payments that 

are made at specified intervals over a period of years (an annuity). 

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No. 31435-9-II1 

In re Rapid Settlements 

... Structured settlements are usually paid by an insurance company 

(the obligor), that obtains a benefit by paying off the obligation in 

installments over a long period of time, rather than as a single lump sum. 

The recipient of the structured settlement proceeds (the payee) can benefit 

as well, since the annuity payments are not subject to federal income tax 

and the receipt of payments over the long term can provide financial 

security. 

FINAL BILL REp. ON ENGROSSED H.B. 1347, at 1, 57th Leg., Reg. Sess. (Wash. 2001). 

The legislature enacted the SSP A after it became common for injured persons to be 

offered discounted payments 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 that payees not be permitted to sell annuity rights until a court 

had reviewed the proposed transfer for adequate disclosure and determined that a transfer 

was in the best interest of the injured person, taking into account the welfare and support 

of his or her dependents. See RCW 19.205.030 (requiring court or agency approval). 

Symetra is engaged in the business of assuming the obligation to pay a tort 

liability and then fulfilling it through structured settlement payments. 3B and at least one 

of its affiliates, Rapid Settlements, Ltd. (RSL)I are engaged in the business of buying 

injured persons' future payment rights at a discount. 

I RSL is now known as Liquidated Marketing, Ltd. This fact and others relating 

to Washington proceedings taking place before February 2012 are drawn from this 

court's earlier decision in In re Rapid Settlements, Ltd., 166 Wn. App. 683,271 P.3d 925 

(2012). 

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No. 31435-9-III 

In re Rapid Settlements 

In July 2004, a structured settlement payee agreed to sell a future payment due 

him from Symetra to RSL. As the investor, RSL was required by the SSP A to seek 

approval ofthe transfer in superior court. Symetra opposed RSL's application as 

violating requirements of the 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 of fees to the Court of Appeals and 

unsuccessfully sought review by our Supreme Court. Rapid Settlements, Ltd. v. Symetra 

Life Ins. Co., 134 Wn. App. 329, 332,139 P.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 amended judgment of 

$39,287.04 against RSL reflecting the cumulative fees and costs. 

Symetra unsuccessfully attempted to collect the judgment in both Washington and 

Texas. Efforts to collect in Washington proved unsuccessful because only RSL's 

affiliates, not RSL, maintain bank accounts in Washington. Symetra's efforts to collect 

the judgment in Texas were met with RSL's response to post-judgment discovery that it 

owned no property, even in its home state. 

2RCW 19.205.040(2) provides in relevant part that a transferee "shall be liable to 

the structured settlement obligor and the 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." 

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In a then unrelated proceeding, RSL had applied in Benton County in November 

2004 for approval of a transfer agreement under which Nicholas 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 itself as the transferee, the order approving the transfer stated 

that the designated beneficiary had been changed to 3B. 

Five years after the court order approving transfer of the Reihs payment but before 

it came due, Symetra moved to modify the order to allow it to apply the amount 

otherwise payable to 3B to its King County judgment against RSL. Over the 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 of setoff in Symetra. 3B 

appealed. We affirmed the superior court's modified order in February 2012. In re 

Rapid Settlements, Ltd., 166 Wn. App. at 696. 

3B then revived 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 its judgment through a setoff taking place in Washington. At 

Symetra's request, the Texas court had stayed the action-"abated" it, in Texas termspending disposition of3B's appeal in Washington. 

Following our decision on the appeal, John Craddock, one of Mr. Gorman's law 

partners, wrote Symetra's lawyers, stating that 3B continued to assert a right to receive 

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No. 31435-9-111 

In re Rapid Settlements 

the upcoming September 2012 Reihs payment and that two creditors, FinServ Casualty 

Corporation and A.M.Y. Property & Casualty Corporation, asserted prior secured 

interests in the payment. On August 9, Mr. Craddock notified Symetra's lawyers that 3B 

would move to vacate the abatement order in the Texas action and would seek an order 

requiring Symetra to deposit the September Reihs payment in the Texas court. Symetra 

responded by moving the Benton County court on August 10 to issue an anti suit TRO in 

the Reihs transfer action. 

On August 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 to join in 

3B's motion 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. 

On August 17, the Benton County court heard Symetra's motion for a TRO. 

Based on findings that 3B's Texas action was "an attempt to undermine this Court's 2010 

Order in this matter," and "an attempt to undermine this Court's jurisdiction over the 

structured settlement payment," the court issued a TRO enjoining 3B, in relevant part, 

from taking further action "in Harris 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's request for a permanent injunction for the afternoon ofAugust 31. 

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No. 31435-9-III 

In re Rapid Settlements 

3B's chief executive 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 impending Texas hearings based on the TRO's dictate that 3B strike pending motions 

and take no further action in the Texas case. Despite 3B's having been served with the 

TRO, it did not strike its motions; instead, Mr. Craddock filed a brief in opposition to 

Symetra's motion on August 22, on behalf of "[a]II three plaintiffs." CP at 170. While 

the brief argued 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 of abatement had 

not been lifted and as ofAugust 22, FinServ and A.M.Y. were not parties to the Texas 

action. CP at 170-71. 

A hearing on Symetra's motion was held before the Texas court on August 23. 

Mr. Gorman appeared on behalf of 3B and argued that-contrary to this court's decision 

on appeal-the offset order had been obtained without due process and was invalid. The 

Texas court reset the hearing on 3B's motions for August 28. 

In light of3B's post August 20 acts and failures to act, Symetra moved in the 

Benton County court on August 24 for an order finding 3B in contempt. It asked that it 

be awarded its costs and attorney fees in bringing the contempt motion and in having to 

participate in the Texas action after service of the TRO. It also asked for a one-time 

forfeiture of$I,OOO against Mr. Gorman. Symetra set the contempt motion to coincide 

with the permanent injunction hearing set for August 31. 

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No. 31435-9-111 

In re Rapid Settlements 

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 that the 

stay should be lifted so that 3B could pursue its challenge to the Washington court orders. 

The Texas court was persuaded to lift the stay for the limited purpose of adding 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 representing FinServ 

appeared at the time set for the hearings and presented FinServ's notice of removal to 

federal court, filed earlier in the day. The notice ofremoval represented that FinServ "is 

being joined as a party 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's motion for remand to state court "based on 

the following:" 

FinServ's non-party status in the underlying litigation; the passage of more 

than one year since the original litigation which was commenced in 

approximately 2004 was filed; the non-joinder by other similarly affected 

entities in FinServ's Notice Of Removal; the failure of FinServ 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 of Benton County, 

Washington. 

CP at 856-57. 

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No. 31435-9-III 

In re Rapid Settlements 

Symetra's request for a permanent injunction to replace 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's request 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 prevailing party to 

pursue monetary and equitable relief against FinServ (and possibly others). 

Under these circumstances, attorney fees and costs are DENIED. 

CP at 857. 

Within two weeks ofthe order remanding the 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. It emphasized that 

Symetra would not be prejudiced because the insurer had already applied the Reihs 

payment to its judgment against RSL, and the Texas action-in which 3B, FinServ and 

A.M.Y. were trying to recover the Reihs payment-had been removed to federal court by 

Symetra on September 10 and was "on hold" pending 3B's motion for remand. CP at 

293. The Benton County court granted 3B's request in part; it entered Symetra's 

proposed order continuing temporary injunctive relief but continued the motions for a 

permanent injunction and contempt to December 28. 

The hearing proceeded on December 28, and at its conclusion the court entered the 

permanent injunction requested by Symetra. It took the proposed contempt order under 

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No. 31435-9-III 

In re Rapid Settlements 

advisement. While 3B filed no brief in opposition to the motion for contempt, its lawyer 

informed the 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 had reviewed the 

continuance materials in preparing for the December 28 hearing, the court indicated it 

wanted to be "fully briefed" before ruling. Report of Proceedings (RP) (Dec. 28, 2012) at 

17. Two weeks later, it granted Symetra's motion and entered an order of contempt. 

The court's order found 3B and Mr. Gorman in contempt for failing to strike 3B's 

motions after service of the TRO on August 20 and for appearing and participating in the 

hearings on August 23 and 28. Based on its findings, the court ordered the 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 Order was 

served on 3B, and the date ofthis Order of Contempt. Symetra has 

submitted a cost and fee bill showing the amount of these 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) of One 

Thousand Dollars ($1,000.00). 

3. In order to purge themselves of this 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 or take any other action in 

said case while an injunction from this Court restraining them from doing 

so is in effect. 

CP at 526. 3B and Mr. Gorman appeal. 

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No. 3 I 435-9-III 

In re Rapid Settlements 

ANALYSIS 

3B and Mr. Gorman assign error to the superior court's order holding them in 

contempt, identifying seven issues. We will first address their challenges to the court's 

findings of contempt. (Appellant's issues A, C, D, and E). We will then tum to their 

partially viable challenges to the relief ordered by the court. (Appellant's issues B, F and 

I. The court hadjurisdiction over Mr. Gorman and its findings of 

contempt are both sufficient and supported by substantial evidence 

Mr. Gorman argues that because he had not appeared in the Benton County action 

and was not served with an order to show cause, the court violated his right to due 

process by entering relief against him. He also argues that his conduct was not 

sanctionable given "competing duties to his clients." Br. of Appellant 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 relief for contempt without finding that they 

violated the TRO "intentionally." 

Due process as to Mr. Gorman 

Mr. Gorman, a Texas resident, argues that Symetra never served him with process 

4 Symetra raises a threshold objection that 3B and Mr. Gorman are raising several 

arguments for the first time on appeal and asks that we refuse to consider them. Apart 

from a new challenge to the validity of the purge condition, which we discuss below, we 

conclude that the appellants' issues were adequately raised in the superior court. 

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No.31435-9-III 

In re Rapid Settlements 

making him a party and that it never obtained an order to show cause, with the result that 

the court lacked jurisdiction to issue a contempt order against him. He relies on 

Burlingame v. Consolidated Mines and Smelting Company, Ltd., 106 Wn.2d 328, 722 

P.2d 67 (1986). 

The Burlingame case does not help Mr. Gorman. He focuses on the court's 

holding in that case that a trial court's order to 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 order to show cause. See RCW 7 .21.030( 1) (court 

initiates a contempt proceeding on its own motion or the motion of a person aggrieved). 

The court in Burlingame did not hold that an order to show cause is required by due 

process; it held only that the order to show cause that was statutorily required at the time 

sufficed under the "minimal notice" that traditionally has satisfied due process 

requirements for a valid judgment of contempt. Burlingame, 106 Wn.2d at 332. The 

requirements of a valid contempt order are notice and an opportunity to be heard, with the 

opportunity to be heard being the most significant. "The notice requirement is important 

only because it protects an individual's right to be heard." Id. (citing Hovey v. Elliott, 

167 U.S. 409,414-15, 17 S. Ct. 841,42 L. Ed. 215 (1897)). Burlingame requires only 

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No. 31435-9-III 

In re Rapid Settlements 

that we consider whether the motion procedure followed below provided notice sufficient 

to protect Mr. Gorman's right to be heard. 

Symetra moved the court to "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 

of Symetra's motion. During the hearing in Texas on August 23, Symetra's lawyer 

mentioned that his client viewed 3B as being in contempt of the TRO, to which Mr. 

Gorman responded, "Contempt, I just heard contempt. You know, we want to be in 

Texas. We want a forum that's going to hear us." CP at 511. During the August 28 

hearing in Texas, Mr. Gorman told the court that "as forewarned the other day ... 

[Symetra has] now filed a motion for contempt seeking to hold me personally in 

contempt of court up in Washington for pursuing this action in a Texas court." CP at 

485. A certificate of service 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-which clearly indicated the time and place ofthe December 28 hearing-by 

modifying Symetra's proposed "Order of Contempt Against RSL-3B-IL, Ltd. and 

Attorney Gorman." CP at 310-12. The order was signed "approved as to form" by 3B's 

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No.31435-9-II1 

In re Rapid Settlements 

lawyer. The notice provided was more than sufficient to protect Mr. Gorman's right to 

be heard. 5 

Substantial evidence supports the findings ofcontempt 

The court's contempt order included the following findings of violations of the 

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 of the TRO (finding 2), that 3B opposed Symetra's motion 

to extend the time for hearing those motions (finding 2), and that Mr. Gorman presented 

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 of due process: an alleged lack of personal jurisdiction 

over him for lack of minimum contacts with the State. See Mullane v. Central Hanover 

Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 ( 1950) (due process 

requires that a defendant be given notice and be subject to the personal jurisdiction of the 

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 personal jurisdiction. 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 assert jurisdiction over nonresident individuals to the extent 

permitted by the due process clause of the United States Constitution, except as limited 

by the terms of the statute. Deutsch v. West Coast Mach. Co., 80 Wn.2d 707, 711, 497 

P.2d 1311 (1972). Mr. Gorman had been admitted pro 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 of court, is a contact of such character that maintenance of 

the contempt action does not offend traditional notions of fair play and substantial justice. 

Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). 

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In re Rapid Settlements 

The United States Supreme Court decided 125 years ago that the court of one state 

may enjoin parties to a case before it from engaging in vexatious litigation in another 

state for the purpose of evading the rulings of the first court. Cole v. Cunningham, 133 

U.S. 107, 111, 10 S. Ct. 269, 33 L. Ed. 538 (1890). Such injunctions may not control the 

second court's actions regarding the litigation in that court, but they are effective against 

the parties, with sanctions generally administered only by the court issuing the 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». 

In this case, the Benton County court issued the TRO on August 17 and it was 

served on 3B on August 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 had pending 

motions in the case at the time. It did not strike them. 

The TRO enjoined 3B "from taking any further action" in the Texas case. Id. 

Two days after being served with the TRO, on August 22, 3B filed a response in the 

Texas court opposing Symetra's emergency motion. 

A temporary restraining order is binding upon "the parties to the action, their 

officers, agents, servants, employees, and attorneys, and upon those persons in active 

concert or participation with them who receive actual notice of the order by personal 

service or otherwise." CR 65(d). Days after service of the TRO on 3B, Mr. Gorman 

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No. 31435-9-111 

In re Rapid Settlements 

appeared in the Texas court on August 23 and 28 to advocate on behalf of 3B and in 

opposition to Symetra. The existence of the Washington TRO was a subject matter of his 

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 yet within the person's power to perform," RCW 7.21.030(2), a court may find a 

person in contempt whether or not it is possible to coerce future compliance. Any 

"intentional ... [d]isobedience of any lawful judgment, decree, order or process of the 

court" is a contempt of court 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 of the contempt 

and costs incurred in the contempt proceedings for any "person found in contempt of 

court" without regard to whether it is possible to craft a coercive sanction. See State ex 

reI. Chard v. Androw, 171 Wash. 178, 17 P.2d 874 (1933) (affirming judgment 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 of contempt will not be disturbed on appeal as long as it is 

supported by substantial evidence in the record. In re Marriage ofFarr, 87 Wn. App. 

6 While not an issue in this case, punitive sanctions can be imposed for a past 

contempt of court through a criminal contempt proceeding whether or not it is continuing. 

See RCW 7.21.050. A completed intentional act ofa type identified by RCW 7.21.010 

falls within the definition of "contempt of court." 

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No. 31435-9-111 

In re Rapid Settlements 

177, 184,940 P.2d 679 (1997); Ramstead v. 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 of the contemnor,' and '[t]he facts 

found must constitute a plain violation of the order.'" Dep't ofEcology 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 of the TRO, they would appear to support the court's 

findings of contempt. 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 if 3B had stricken its motions as ordered, 

Symetra would have had no need to file its emergency motion. Moreover, the relief that 

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, if 3B had 

stricken its motions as required by the TRO, the hearings would presumably have been 

stricken by the court. If they weren't, then consistent with the TRO, 3B should have 

done no more than explain to the court why it could not participate. 

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3B and Mr. Gorman argue that FinServ and A.M.Y. were interested parties and 

would have been free to take action in the Texas proceeding. But until FinServ and 

A.M.Y. were joined-which was not acted upon by the court until it vacated the 

abatement order for that limited purpose on August 28-only 3B was a party to the 

proceeding. And even if FinServ and A.M. Y. could be viewed as parties to the 

proceeding before the limited lifting ofthe abatement order on August 28, that does not 

excuse 3B's own participation in violation ofthe TRO or Mr. Gorman's appearance on 

3B's behalf. 

Finally, 3B argues that it acted on its lawyer's advice and Mr. Gorman argues that 

he was duty bound to advance the wishes of his client. Neither rationale excuses them 

from responsibility for contempt. Acting on advice of counsel in refusing to obey a TRO 

is not a defense to a civil contempt proceeding. 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. Cf Dike 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 proper procedure 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 of encouraging his client to comply with 

the TRO or, if3B could not be persuaded to comply, then of withdrawing from the 

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No. 31435-9-111 

In re Rapid Settlements 

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 on the 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 client who "insists upon pursuing an objective that the lawyer 

considers repugnant or imprudent or with 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), modified on reh'g, 107 P. 196 (1910) (Mount, J., 

dissenting) for the proposition that "[t]here is nothing in the [contempt] statute to indicate 

that it was intended to include one who in good faith advises the wrong." But that case 

dealt with a lawyer, Mr. Abel, who did not himself violate the court's order as Mr. 

Gorman did here. Id. at 14. Mr. Abel "advised the officers to do the things complained 

of," but "did not directly participate therein himself." Id. at 17. As observed by the 

majority opinion, "An offending attorney would be liable . .. for a willful disregard of 

the orders ofthe court, but it would require a forced construction of the statute to make 

him subject to civil liability because of his advice honestly given." Id. at 14 (emphasis 

added). Mr. Gorman was not found in contempt for his advice, but for his actions. 

19 

No. 31435-9-III 

In re Rapid Settlements 

Appellants are correct that the TRO expired on August 31. CR 65(b) (temporary 

restraining orders expire within 14 days unless extended). But the acts of contempt found 

by the court all occurred on or before August 31. The findings of contempt are supported 

by substantial evidence of violations of the court's order during the two weeks it was in 

effect. 

No "finding" ofintentional conduct was required 

The superior court's contempt order did not include an explicit finding that 3B's 

and Mr. Gorman's violations of the TRO were intentionaL Relying on the statement in 

Holiday v. City ofMoses Lake, 157 Wn. App. 347, 355, 236 P.3d 981 (2010) that "a 

finding that a violation of a previous court order was intentional is required for a finding 

of contempt," 3B and Mr. Gorman argue that absent an explicit finding of intentional 

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 of a TRO prohibiting his client from transferring her 

real property, after he caused her to grant him a deed oftrust to secure payment of his 

legal fees and then recorded it. On appeal, the lawyer argued that the court's finding that 

he intentionally disobeyed the TRO was contradicted by its finding that he had chosen 

not to read the TRO. Id. at 362. The court held that knowledge could be imputed. It also 

held that because the lawyer's acquisition of a security interest in the property "was an 

intentional act," his act in disobedience of the order was intentional. Id. at 365. 

20 

No. 31435-9-111 

In re Rapid Settlements 

The two decisions hold only that an individual must act intentionally to be found 

in contempt of court. Under RCW 7.21.01 O( 1 )(b), "contempt of court" is defined, in 

relevant part, as "intentional . .. [d]isobedience of any lawful judgment, decree, order, or 

process of the court." (Emphasis added.) But given that definition, the Benton County 

court's finding of contempt reflects 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 court to 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 of a firearm must 

receive a disposition that includes program participation "unless the court makes a 

written finding ... that participation ... would not be appropriate"); RCW 4.84.185 

(court may award expenses of suit "upon written findings by the judge that the action ... 

was frivolous"). Nothing in chapter 7.21 RCW requires that the court make a written 

finding of intentional 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 court was not required to explicitly find that they were intentional. 

21 

No. 31435-9-111 

In re Rapid Settlements 

II. The relieforderedfor the contempt was largely although not entirely 

appropriate, given the civil character ofthe contempt proceeding 

Having determined that the trial court properly found 3B and Mr. Gorman in 

contempt, we tum to the propriety of the relief awarded in what was initiated and 

conducted as a civil contempt proceeding. 7 The relief awarded consisted of attorney fees 

and costs incurred in the contempt proceeding; attorney fees and costs incurred in the 

Texas proceeding; and the $1,000 onetime sanction against Mr. Gorman. 

Costs incurred in the contempt proceeding 

RCW 7.21.030(3) provides in relevant part that in addition to imposing remedial 

sanctions authorized elsewhere in the statute, "[t]he court may ... order a person found in 

contempt of court to pay a party for ... any costs incurred in connection with the 

contempt proceeding, 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 of the relief awarded was in the nature of 

punishment, making the proceeding below a criminal contempt proceeding; from that, 

they argue that because it was not conducted as a criminal contempt proceeding, all of the 

relief ordered by the court fails. The proceeding was initiated and conducted as a civil 

contempt proceeding. To the extent that relief ordered 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. 

22 
No. 31435-9-111 

In re Rapid Settlements 

[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 Transfer to [Texas federal district court] 

Judge Lake's Court. 

Br. of Appellant at 27. 

Symetra responds that fees for the Texas proceeding were recoverable not as costs, 

but as losses suffered as a result of the 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 after the 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 of attorney fees for an abuse ofdiscretion. 

Rettkowski v. Dep't ofEcology, 128 Wn.2d 508, 519, 910 P.2d 462 (1996). Ifthe record 

proves inadequate for us to review the fee award, we must remand for further 

proceedings. Just Dirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 157 P.3d 431 

(2007). 

We conclude that all of the fees for services performed in obtaining a remand of 

the case from the federal court were properly awarded. Symetra was a victim, not the 

cause, of the improper removal to federal court. A clear objective ofthe remand was to 

23 

No. 31435-9-II1 

In re Rapid Settlements 

get the proceeding back before the Benton County court so that Symetra's earlier-filed 

motion for contempt could be heard. 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 contempt proceeding, however. Just as Symetra's fees incurred in obtaining the TRO 

are not recoverable under RCW 7.21.030(3), its fees incurred in obtaining the 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 parties to 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 second review by the court. 

Loss suffired as a result ofthe contempt 

As to loss, RCW 7.21.030(3) provides in relevant part that in addition to other 

relief available in the contempt proceeding, "[t]he court may ... order a person found in 

contempt of court to pay a party for any losses suffered by the party as a result ofthe 

contempt. " 

The seminal decision in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 

441,31 S. Ct. 492,55 L. Ed. 797 (1911) observed that "[c]ontempts are neither wholly 

civil nor altogether criminal," and that in either event, there is "an allegation that in 

24 

No. 31435-9-III 

In re Rapid Settlements 

contempt of court the defendant has disobeyed the order, and a prayer that he be attached 

and punished therefor." As a result, a defendant may be "punished" even in a civil 

contempt proceeding ifthe purpose is to compensate the complainant: 

It is not the fact of punishment, but rather its character and purpose, that 

often serve to distinguish between the two classes of cases. If it is for civil 

contempt the punishment is remedial, andfor the benefit ofthe 

complainant. But if it is for criminal contempt the sentence is punitive, to 

vindicate the authority ofthe court. It is true that punishment by 

imprisonment may be remedial as well as punitive, and many civil contempt 

proceedings have resulted not only in the imposition ofa fine, payable to 

the complainant, but also in committing the defendant to prison. 

Id. at 441-42 (emphasis added). 

In United States v. United Mine Workers ofAmerica, the United States Supreme 

Court again recognized that there are two types ofremedial sanctions imposed in civil 

contempt proceedings, holding that "[j]udicial sanctions in civil contempt proceedings 

may ... be employed for either or both oftwo purposes; to coerce the defendant into 

compliance with the court's order, and to compensate the complainant for losses 

sustained." 330 U.S. 258, 303-04, 67 S. Ct. 677, 91 L. Ed. 884 (1947) (citing Gompers, 

221 U.S. at 448-49). 

Where compensation is intended, a fine is imposed, payable to the 

complainant. Such fine must of course 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 of the basic controversy. 

But where the purpose is to make the defendant comply, the 

court's discretion is otherwise exercised. It must then consider the 

character and magnitude of the harm threatened by continued contumacy, 

25 

No. 31435-9-111 

In re Rapid Settlements 

and the probable effectiveness of any 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 

of sanction for civil contempt is remedial rather than coercive. That is, the 

sanction provides the plaintiff with a substitute for the defendant's 

obedience without compelling that obedience itself. The most 

straightforward version of the remedial sanction is the compensatory fine, 

paid to the plaintiff as compensation. If the fine is to be justified because it 

is remedial, courts have said that it must be based on evidence, either of the 

plaintiffs loss or the defendant's gains. 

1 DAN B. DOBBS, DOBBS LAW OF REMEDIES 194 (2d ed. 1993) (footnotes omitted). 

Federal courts and a clear majority of state courts allow compensatory damages or 

fines payable to the injured party as relief in a civil contempt proceeding. Annotation, 

Right ofInjured Party to Award ofCompensatory Damages or Fine 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 that the purpose of 

the provision for recovery of loss under former RCW 7.20.100 (1880)8 was "to provide 

8 Former RCW 7.20.100 (1881) provided: 

If any loss or injury to a party in an action, suit or proceeding prejudicial to 

his rights therein, have been caused by the contempt, the court or judicial 

officer, in addition to the punishment imposed for the contempt, may give 

judgment that the party aggrieved recover of the defendant a sum of money 

sufficient to indemnify him, and to satisfy his costs and disbursements. 

26 
No. 31435-9-111 

In re Rapid Settlements 

complete relief in the original action and to eliminate the necessity of a second suit to 

recover the expense caused by such contempt." 

Compensatory fines have been imposed in Washington contempt proceedings to 

address many types of loss 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 of an injunction); Ramstead, 73 Wn.2d at 167 (affirming award of expenses 

incurred where defendant prevented moving of home in violation ofTRO); McFerren v. 

McFerren, 55 Wn.2d 471,476,348 P.2d 222 (1960) (affirming award of repair expense 

and loss of use for husband's violation of divorce decree); Chard, 171 Wash. at 180 

(affirming award of damages for lost property value for purchaser's violation ofjudicial 

order of sale); Nicomen, 55 Wash. at 11, (plaintiff was entitled to be awarded damages 

for lost profits attributable to interference with its booming privileges in violation of 

judgment). 

Where a party violates an anti suit injunction, the most obvious "loss suffered ... 

as a result of the contempt" is the cost of answering 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 if some fees in 

the Texas proceeding are recoverable, they ceased to be recoverable after the TRO 

27 

No. 31435-9-111 

In re Rapid Settlements 

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 of the Reihs transfer 

payment. 

3B's failure and refusal to comply with the TRO and strike all of its 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 of months, it was because Symetra's ability to obtain relief was 

delayed through no fault of its own. In McFerrin, the complainant was awarded an 

amount for lost use of a home over a number of months even though the lost use was only 

an indirect result of her husband's failure to make court ordered repairs to her home. In 

Chard, the complainant was awarded damages for a decline in value of its property 

following the date on which a purchaser failed to honor the judicial order of sale of the 

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 of hearing, the complainant could demonstrate had resulted from the 

contempt. 

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No. 31435-9-111 

In re Rapid Settlements 

Although the August 31 and September IOdates are significant for other 

purposes,9 they are artificial cutoff points for purposes of determining the amount of loss 

Symetra had suffered as a result of the contempt by the time of its first opportunity to 

have its motion heard. 

Symetra's expenses incurred litigating with FinServ and A.M.Y. after August 28 

are another matter. The preexisting perfected security interests that FinServ and A.M.Y. 

claim to have in the Reihs payment were not addressed in the Benton County transfer 

action. It appears that Symetra was unaware of the existence of any competing security 

interests. If and to the extent that 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's August 2012 acts of contempt do not provide 

a reasonable basis for imposing Symetra's cost of fighting that priority issue with FinServ 

and A.M.Y on 3B.IO 

9 For example, the superior court could not find acts or omissions enjoined by the 

terms of the TRO but that took place 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. 2d 409 (1964), the superior court could not exercise authority 

over 3B's conduct in the federal case in Texas following removal. Here, we are not 

dealing with that limitation; we are determining the losses that resulted from the August 

acts of contempt. 

\0 To be clear, to the extent 3B was 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 should have 

asserted that interest in the 2010 proceedings in Benton County. Res judicata, or claim 

29 

No. 3 I 435-9-III 

In re Rapid Settlements 

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, 

against FinServ and A.M.Y, offensively or defensively. Cf Manna Funding, LLC v. 

Kittitas County, 173 Wn. App. 879,295 P.3d 1197, review denied, 178 Wn.2d 1007 

(2013) (requiring segregation of fees between claims where fees are recoverable only as 

to some claims); Seattle-First Nat. Bank v. Washington Ins. Guar. Ass 'n., 94 Wn. App. 

744,972 P.2d 1282 (1999) (requiring a reasonable allocation of fees 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-First case, 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, what percentage of the cost of representation in the Texas 

action was being borne by each of the three entities. The allocation need not be precise, 

but it must be examined and be reasonable. Id. 

preclusion, prohibits the relitigation not only of claims 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). 

30 
No. 31435-9-111 

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The $1,000 onetime sanction against Mr. Gorman 

The final relief awarded 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 pursuant to RCW 7.21.030(1)(b) of One 

Thousand Dollars ($1,000.00).1l 

3. In order to 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 or take 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 of remedial civil contempt must contain a purge clause under which a 

contemnor has the ability to avoid a finding of contempt 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 cannot purge the contempt," there "must be a showing that the contemnor has 

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. Because the order describes the forfeiture as 

"pursuant to RCW 7 .21.030( 1 )(b )," we construe the one-day purge period as incorporated 

by reference. 

31 
No. 31435-9-111 

In re Rapid Settlements 

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] of law, 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, 140,206 P.3d 1240 (2009). 

Mr. Gorman first challenges the purge condition as exceeding the scope of the 

original order, something he 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 "if it is imposed to punish a past contempt of court ... and does not 

afford the defendant an opportunity to purge the contempt by performing the 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 of the violated order, as long as the condition serves remedial 

aims and the condition is "reasonably related to the cause or nature of the contempt." 

MB., 101 Wn. App. at 450 (emphasis omitted) (citing In re Marriage ofLarson, 165 

Wis. 2d 679, 478 N.W.2d 18 (1992». The purge condition here satisfies those criteria. 

32 

No. 31435~9-III 

In re Rapid Settlements 

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 that they were not able to 

comply because the Texas state court action had been removed to federal court by the 

time of the contempt hearing, and after a case is removed to federal court, "the state court 

loses jurisdiction to proceed further, and all subsequent proceedings therein are void." 

Iowa Cent. Ry. Co. v. Bacon, 236 U.S. 305, 310, 35 S. Ct. 357, 59 L. Ed. 591 (1915). 

Alternatively, if the reference to "the Harris County, Texas, action" in the purge 

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. 2d 409 (1964). 

"In the context of civil contempt, the law presumes that one is capable of 

perfonning those actions required by the court." In re Pers. Restraint o/King, 110 

Wn.2d 793, 804, 756 P .2d 1303 (1988). "Thus, inability to comply is an affinnative 

defense. A contemnor has both the burden of production on ability to comply ... as well 

as the burden of persuasion." Id.; Moreman V. Butcher, 126 Wn.2d 36,40, 891 P.2d 725 

(1995). "The contemnor must offer evidence as to his inability to comply and the 

evidence must be ofa kind 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. As pointed out by Symetra, the argument was not made in the 

33 

No. 31435-9-111 

In re Rapid Settlements 

superior court. While 3B represents that it did make 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's proposed contempt order, with its proposed 

purge condition, was served on 3B and Mr. Gorman at least as early as November 19. 

Moreover, when the superior court granted a continuance on November 30, it adapted the 

proposed contempt order to grant the continuance. As adapted, the order of continuance 

(including the proposed purge condition) is signed "approved as to form" by 3B's 

Washington lawyer. Since 3B and Mr. Gorman had ample advance notice of the 

proposed purge 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 

of inability to comply with the purge condition during or before the hearing on the 

motion for contempt. The only briefing they 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 of the 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 a permanent injunction 

34 

No.3l435-9-III 

In re Rapid Settlements 

was not heard because FinServ removed the Washington action to federal court. The 

only reference in the briefing to the fact that the Texas action had been removed to 

federal court was in the context of explaining why Symetra would not be prejudiced by 

the requested continuance. 

Nor did 3B's lawyer argue inability to comply with the purge condition at oral 

argument of the motion for contempt. Instead, he argued that there was no intentional 

violation of the TRO because (1) the lawyer representing 3B had also been representing 

FinServ and A.M.Y., (2) the abatement order remained in place in relevant respects 

during the 14 days the TRO was in effect, (3) the "violations" complained of predated the 

TRO, and (4) appearing at a hearing that had already been set "on behalf of FinServ and 

A.M.Y." was not contumacious. RP (Dec. 28, 2012) at 6-7. The one reference to 

removal of the Texas action to federal court was not in connection with any inability to 

perform the purge condition but in the context, instead, of arguing that the Benton County 

court no longer had jurisdiction to deal with the parties' disputes because Symetra had 

moved the Texas action to federal court "because they wanted it there.,,12 Id. at 7. 

12 3B and Mr. Gorman also cite to portions of the 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 of the purge 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 of their 

post order submissions, we will not consider them. RAP 10.3(a)(4), (6). 

35 
No. 31435-9-111 

In re Rapid Settlements 

RAP 2.5(a) "reflects a policy of encouraging the efficient use ofjudicial resources 

and refusing to sanction a party's failure to point out an error that the trial court, if given 

the opportunity, might have been able to correct to avoid an appeal." In re Guardianship 

ofCornelius, 181 Wn. App. 513, 533,326 P.3d 718 (2014). We follow the general 

policy provided by the rule of refusing 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 court to deny Symetra's request for fees on the grounds that "Symetra sought and 

utilized the trial courts [sic] jurisdiction to obtain the contempt order in derogation of 

Washington law." Br. of Appellant at 29-30. They fail to show entitlement based on a 

contract, statute, or recognized ground of equity. Hsu Ying Li v. 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 if applicable law 

grants that right. RCW 7.21.030(3) permits an award of attorney fees incurred by a party 

in defending the appeal of a 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 Rapid Settlements 

The superior court's award of costs and loss is reversed and remanded for further 

proceedings consistent with this opinion. The order of contempt is otherwise affirmed. 

WE CONCUR: 


Brown, 1. 

37