IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON TONI R. YOUNG, Respondent,

v. BENJAMIN A. COSGROVE, III, Appellant. No. 67720-9-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: June 10, 2013 

### Schindler, J. — Toni R. Young filed an action forequitable distribution of 

### property acquired during the meretricious relationship and business partnership with 

### Benjamin A. Cosgrove, III. Following mediation, Young and Cosgrove entered intcBa ~:c 

## Civil Rule 2A agreement (CR 2AAgreement). The parties agreedthe CR2A § Agreementwas "enforceable in court" and any disputes regarding "unresolved issues -:;^ shall be submitted to binding arbitration." Cosgrove appeals the order compelling^ ^ • arbitration of disputes related to the CR 2AAgreement, the order to enforce the CR 2A 

### Agreement, the orderconfirming the arbitrator's award ofattorneyfees, andentry ofthe judgmentfor attorney fees. Cosgrove argues the courterred byreferring issues related to enforcement of the CR 2AAgreement and outside the scope of the arbitrationclause

to the arbitrator. We affirm. CDNo. 67720-9-1/2

FACTS Young and Cosgrove began dating in2000 and started living together in2004. In2004, Young used her savings to start operating a catering business, TRYVentures. Young owned TRYVentures as a sole proprietorship. All ofthe assets ofthe business

were in her name. Cosgrove assumed responsibility for managing the finances, billing, and payroll of TRY Ventures. 

### In 2009, Young and Cosgrove ended their personal relationship, butcontinued to 

### live together in Young's condominium and worktogether at TRYVentures. By mid2009, TRY Ventures had accumulated more debt than income. According to Young, 

### Cosgrove encouraged her to file for bankruptcy. Young was reluctant to file for bankruptcy because she "was worried about [her] credit and financialfuture." In March, Young and Cosgrove entered into an agreementthat for the nextfive 

### years, "any company owned, operated orexisting byBenjamin A. Cosgrove III orToni R. Young is a 50/50 ownership." In May, Cosgrove formed a new catering business called BACC LLC. Young said that she and Cosgrove operated BACC using the same employees, equipment, and clients of TRYVentures. 

### On June 28, 2009, Youngfiled a chapter 7 bankruptcy petition requesting a 

### discharge from her debts. On "Schedule B," Young lists all of her personal property, including a number ofTRY Ventures assets. As part of the "Statement ofFinancial Affairs" requesting identification of the "[njature, location and name ofbusiness," Young listed TRYVentures. The bankruptcy court granted the chapter 7 petition. 

### On January 15, 2010, Cosgrove obtained an ex parte temporary domestic violence no-contact order that prohibited Youngfrom having contactwith him at BACCNo. 67720-9-1/3

or her condominium. Atthe show cause hearing on January 29, the court dismissed the request for a no-contact order. Young said that when she returned to the condominium,

her various fixtures, a safe containing cash, appliances, the shower head, the water heater, and various photographs of a personal nature [had been removed from the condominium]. [Cosgrove] ripped up the floors and took 

### out the heating elements and cut or damaged the wiring within the condo. Inthe center ofthe floor was a small pile of my clothes. When Iwent downstairs to the storage unit, Ifound that italso had been emptied. On February 9, Young filed a "Complaintfor Equitable Distribution and/or 

### Dissolution of Meretricious Relationship and Business Partnership." Young alleged that 

### she and Cosgrove were in a meretricious relationship for sixyears andjointly owned BACC. Young also alleged that Cosgrove "loot[ed] and destroy[ed]" her possessions and changed the locks on the business storage units. 

### Cosgrove filed a motion forpartial summary judgment on the grounds that the doctrine ofjudicial estoppel precludedYoung from claiming BACC assets that were not listed on the bankruptcyschedules. The court denied the motion. The order states, in pertinent part:Plaintiffdid not fail to disclose assets in BACC because it had no 

### value at the time of the bankruptcy filing. In any event, even ifplaintiff 

### failed to disclose, judicial estoppel does not apply under the three-prong test of New Hampshire v. Maine. 532 U.S. 742[, 121 S. Ct. 1808, 149 L. Ed. 2d 968] (2001). 

### The parties agreed to mediation and selected Matthew Jolly as the mediator. 

### Young and Cosgrove disputed the division of personalproperty as well as the location and existence of property, including posters and entertainment memorabilia. Young and Cosgrove entered into a CR 2AAgreement as "afull and complete settlement 

### stipulation and agreementof the parties pursuant to CR2A." Cosgrove agreed to payNo. 67720-9-1/4 Young $65,000 in installment payments. The first payment of$5,000 was due on December 31, with annual payments of $10,000 beginning in September 2011. The CR 2A Agreement provides, in pertinent part: 1.1 Defendant shall pay Plaintiff$65,000 in settlement of all claims identified in her complaint subject to the terms ofthis agreement. 

### Defendant shall pay $5,000 by 12/31/10 and shall pay the remainder in installments of $10,000 per annum on September 11 of each year commencing 9/11/11. This obligation shall be secured by a security interest in the assets, equipment and receivables of BACC, LLC. Young and Cosgrove owned a wine collection that was stored at Eastside Wine Storage worth over $30,000. The parties agreed to divide the wine equally, and Cosgrove agreed to provide Young with a copy ofthe wine inventory. 1.5 The parties shall divide the wine collection equally except that Defendant shall retain any bottles purchased prior to 2004 as well as any large formats (3 liters or larger) and one-offs. For the portion ofthe wine collection being divided, itshall be divided based on alternate picks by each party with Plaintiff picking first. Defendant shall provide Plaintiff with copy ofwine inventory previously completed by Eastside Wine Storage. The wine collection must be divided and removed from storage no laterthan December 31, 2010 or else the wine storage fee willbe paid 50% by each party provided that both parties have operated ingood faith. The CR 2A Agreement contains very specific provisions as to the personal property. "AttachmentA" to the CR 2A Agreement lists the personal property Cosgrove claimed was inYoung's possession. Next to each item, Young states whether she had the item, was unsure, or did not have the item. Young agreed Cosgrove could complete a "walkthrough" ofthe condominium, her storage unit, and her parent's home, and she would return property identified inAttachmentA. Cosgrove agreed Young could "walk through" his storage units to locate personal property. 1.3 Plaintiffwillreturn personal property to Defendant as reflected inAttachmentA as well as any other asset listed inAttachmentA that is discovered during the walk throughs discussed in this agreement.No. 67720-9-1/5

1.8 Defendant shall be granted an opportunity to complete a walk through ofthe Plaintiffs condo, her storage room, storage unit (if any) and her parent[s'] home, withinthe next 2 days. Plaintiff shall be granted an opportunity to complete a walk through ofthe Defendant's storage units as well. The purpose ofthe walk through is to locate personal property, in particular, the posters awarded to Defendant as well as items on Attachment A that are identified as not in Plaintiffs possession. If said items are located, they shall be awarded to Defendant. The CR 2AAgreement states that it is enforceable in court but any disputes 

### regarding "any unresolved issues" would be submitted to binding arbitration. 3.1 Each party agrees and stipulates that this is a full and complete agreement between the parties and is enforceable in court. Each party understands that even though final documents yet need to be prepared this stipulation and agreement is binding upon execution and is enforceable in court. . . . 3.2 The final documents for this matter shall be prepared by Counsel for Plaintiff. 

### 3.3 Any disputes regarding the drafting of finaldocuments or any unresolved issues shall be submitted to binding arbitration with Matthew 

### Jolly. The costs ofsuch arbitration shall be paid 50% by the plaintiffand 50% by the defendant. 

### The day after the parties entered into the CR 2AAgreement, Cosgrove did a walkthrough of Young's condominium, storage unit, and her parents' house, and retrieved several van loads ofpersonal property. But the parties disagreed about some 

### of the property Cosgrove claimed he was entitled to and other property that could not be

located. 

### In January 2011, Youngdemanded Cosgrove pay the pastdue installment 

### payment of $5,000. In response, Cosgrove demanded Young return personal property he claimed she retained in violation of the settlement agreement. 

### On January 28, Young filed a motion in superior court to enforce the CR 2A Agreement. Young asserted Cosgrove breached the Agreement byrefusing to pay theNo. 67720-9-1/6 $5,000 installment due December 31, 2010. Cosgrove argued Young breached the settlement agreement by refusing to return certain property. The court entered an order denying the motion to enforce the CR 2AAgreement, finding that "[i]ssues of fact exist regarding interpretation ofthe CR 2A." 

### Young requested the arbitrator schedule an arbitration. The arbitrator concluded the court order was ambiguous because the court did not directthe parties to resolve the issue through arbitration, which [it] certainly could have done. Iam left to conclude that [the court] expects such factual disputes to be resolved at a hearing or trial with livetestimony but Iencourage the parties to seek clarification of [the court]'s intent. 

### Young filed a motion to clarify the order denying the motion to enforce the CR 2A Agreement. Young asked the court to "refer the matterto arbitration, set an evidentiary hearing, or reset the case fortrial." In the "Order on Motion for Clarification," the court ordered that the "entire matter is referred to . . . Arbitration." Jolly scheduled the arbitration to begin on September 13. 

### Cosgrove filed a motion for discretionary review of the court order referring the CR 2AAgreement disputes to arbitration and a motion to stay arbitration. Cosgrove argued the issues related to enforcement were not subjectto binding arbitration under the Agreement. Acommissioner of this court denied the motion for discretionary

review.

### On July 26, Young notified Cosgrove that she intended to inspect the Eastside Wine Storage unit at 11:30 a.m. on August 3. Cosgrove did not respond. On August 2, 

### Young contacted Cosgrove to reiterate that she planned to inspect the storage unit the next day at 11:30 a.m. When Young and her attorney went to the wine storage unit the next day, all of the wine was gone. Young demanded Cosgrove return the wine. YoungNo. 67720-9-1/7 also demanded Cosgrove allow herto inspect the other storage units that he "previously refused" to allow her to inspect. Young served the owner ofEastside Wine Storage, David Mullan, with a subpoena to testify at the arbitration and a subpoena duces tecum to produce all records related to Cosgrove, TRYVentures, and BACC. Young served Cosgrove with a copy ofthe subpoena but not the subpoena duces tecum. 

### On September 2, Cosgrove filed a motion in superior court to stay the arbitration scheduled for September 13. Cosgrove argued issues related to whether he breached 

### the CR 2AAgreement were not subjectto arbitration. The trial court denied the motion to stay. Cosgrove filed a motion fordiscretionary review ofthe court order and an 

### emergency motion to stay. A commissioner of this court denied the motion for discretionary review and emergency motion to stay. 

### The arbitration took place on September26. Cosgrove objected to consideration of the written report that Mullan prepared inresponse to the subpoena duces tecum. 

### The report shows that Cosgrove accessed the winestorage facility two days before Young came to inspect the storage unit. Because Cosgrove had insufficient notice of the written reportfrom Eastside Wine Storage, the arbitrator did not admit the report into 

### evidence. Cosgrove, Young, Young's parents, and Mullan testified at the arbitration. The arbitrator issued an 18-page written decision. The arbitrator states that while 

### he does not have the authority to "provide any directenforcement or relieffor breach of 

### the agreement," or "order specific performance of the agreement once interpreted," he had the authority to resolve all factual disputes related to "the material terms" of the CR 2A Agreement.No. 67720-9-1/8 The arbitratorfound that Young complied withthe obligation to allow Cosgrove to conduct a walk through and return his property. The arbitratorfound that Cosgrove violated the CR 2AAgreement and that he acted inbad faith by removing the wine. The arbitrator awarded Young $4,000 inattorney fees under RCW 7.04A.210 and RCW 4.84.185 because "a significant portion ofCosgrove's claims and defenses were frivolous or advanced without reasonable cause." The arbitrator denied Cosgrove's request to reconsiderthe arbitration decision. Young filed a motion to confirm the 

### arbitrator's award of$4,000 in attorney fees. The court granted the motion to confirm the award of attorney fees. 

### Young then filed amotion to enforce theCR 2AAgreement.1 On November 18, 2011, the court entered an order granting the motion to enforce the CR 2AAgreement. 

### The court ordered Cosgrove to pay Young the past-due installment payments of $15,000 and comply withthe terms ofthe Agreement. The court awarded Young $2,070 in attorney fees. 

### [Cosgrove] will pay $15,000.00 and the amount ofattorney fees awarded, sign alldocuments he is required to sign, allowinspection of his storage area, produce the wine for division and otherwise bring himselfinto 

### compliance withthe CR2Awithin two weeks of the date of this order or judgment. Ifthe defendant fails to bring himself intocompliance with the agreement in this time then the Court will impose sanctions and any more attorney fees and costs incurred by plaintiffin enforcing this Order. On December 7, the court entered an "Amended Orderto Enforce CR2A 

### Agreement" to correct a scrivener's error. The court entered ajudgment against 

### Cosgrove for $6,070 in attorney fees that included the previous award of attorney fees of $4,000 and the award of $2,070.

1The CR2A Agreement required Cosgrove to pay$5,000 by December31, 2010, and$10,000 by September 11, 2011.No. 67720-9-1/9

ANALYSIS Scope of Review 

### OnJanuary 5, 2012, Cosgrove filed a notice ofappeal of the Amended Order to Enforce CR2A Agreement. On March 16, Cosgrove filed an amended notice of appeal. 

### Young argues the amended notice of appeal does not meet the requirements ofRAP 2.4(b). RAP 2.4(b) provides, in pertinent part: 

### The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if(1) the order or ruling 

### prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review. The amended notice ofappeal seeks review ofthe following: 

### (1) Order Denying Defendant's Motion for Partial Summary Judgment entered May 7, 2010 . . . ; 

### (2) Order Denying Plaintiffs Motion to Enforce Settlement Agreement entered February 11, 2011 . . . ; 

### (3) Order on Motion forClarification entered March 28, 2011 (4) Order Denying Defendant's Motion to Stay Arbitration entered September 13, 2011

... ; (5) Arbitration Decision dated October 6, 2011 . . . ; 

### (6) Arbitrator's Ruling denying reconsideration dated October 12,2011 . . . ; 

### (7) Orderto Enforce CR2AAgreement entered November 17, 2011

. . .; 

### (8) Order Confirming Arbitration Award and Ordering . . . Entry ofJudgment, [entered November 28, 2011]. . . ; 

### (9) Amended Order to Enforce CR2A Agreement, entered December 6, 2011. 

### With the exception of the order denying the motion for partial summary judgment, the amended notice ofappeal complies with RAP 2.4(b). The order denying partial 

### summary judgment was decided before Cosgrove agreed to mediation and entered into the CR 2A Agreement.No. 67720-9-1/10

CR2A Agreement 

### Cosgrove challenges the court orders compelling arbitration, confirming the 

## arbitrator's award ofattorneyfees, and enforcing the CR 2AAgreement.2 Cosgrove argues the court erred byreferring issues related to enforcement of the CR 2A 

### Agreement to the arbitrator. Young asserts that under the terms of the CR 2A 

### Agreement, the arbitrator had the authority to resolve the unresolved disputes related to the Agreement, including personal property and the missing wine. Normal contract principles apply to the interpretation of a CR 2Asettlement 

### agreement. Morris v. Maks. 69Wn. App. 865, 868-69, 850 P.2d 1357(1993). We review de novo a trial court's interpretation of the language of a contract. Knipschield v. C-J Recreation. Inc..74 Wn. App. 212, 215, 872 P.2d 1102 (1994). Atrial court's 

### determination regarding the arbitrability ofa dispute is alsoreviewed de novo. Heights at Issaquah Ridge Owners Ass'n v. Burton Landscape Grp., Inc., 148 Wn. App. 400, 404. 200 P.3d 254 (2009): Stein v. Geonerco, Inc., 105 Wn. App. 41, 45, 17 P.3d 1266 (2001).

### Under the Uniform Arbitration Act, chapter7.04A RCW, courts have the power to 

### determine whether a controversy is subject to an agreementto arbitrate. RCW 

### 7.04A.060(2); Saleemiv. Doctor's Assocs.. Inc., 176Wn.2d 368, 376, 292 P.3d 108 (2013). The arbitrability of a dispute isdetermined byexamining the arbitration

2On appeal, Cosgrove did notassign errororotherwise challenge theArbitration Decision or the Arbitrator's Ruling denying reconsideration. See RAP 10.3(a)(4) (briefing shouldcontain a "separate concise statementof each error a party contends was made"); RAP 10.3(a)(6)(requiring argumentin supportofissuespresented by review togetherwith citations tolegal authority and therecord); McKee v. Am. Home Prods. Corp., 113 Wn.2d701, 705, 782 P.2d 1045 (1989) ("We will not consider issues on appeal that are . . . notsupported by argument andcitation ofauthority.").

10No. 67720-9-1/11 

### agreement between the parties. Heights, 148 Wn. App. at 403 (the court resolves "the threshold legal question of arbitrability"). Ifthe reviewing court "can fairlysay that the parties' arbitration agreement covers the dispute, the inquiry ends because Washington strongly favors arbitration." Davis v. Gen. Dynamics Land Svs.. 152 Wn. App. 715, 718, 217 P.3d 1191 (2009): Mendez v. Palm Harbor Homes, Inc.. 111 Wn. App. 446, 454, 45 P.3d 594 (2002). Any doubts 

### regarding the applicability of an arbitrationagreement "should be resolved in favor of coverage." Heights, 148 Wn. App. at 405. It is wellestablished that "[i]fthe dispute can 

### fairly be said to involve an interpretation of the agreement, the inquiry is at an end and the proper interpretation is for the arbitrator." Meat Cutters LocalNo. 494 v. Rosauer's Super Markets. Inc., 29 Wn. App. 150, 154.627P.2d 1330(1981). 

### Here, the CR 2AAgreement clearly states that "[a]nydisputes regarding

... any unresolved issues shall be submitted to binding arbitration." Cosgrove and Young 

### disagreed about the personal property Cosgrove claimed he was entitled to after the walk through. The parties also disputed the payments due under the Agreement, as wellas removal of the wine collection from storage. The court did not err in compelling arbitration ofthese unresolved disputes. 

### The case Cosgrove relies on, Satomi Owners Ass'n v. Satomi, LLC, 167Wn.2d 781, 225 P.3d 213 (2009), is inapposite. In Satomi, the court identified "certainlimited exceptions" to the general rulethat" 'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute that he has not agreed so to submit.'" Satomi, 167 Wn.2d at 810-11 (Quoting Howsam v. Dean Witter Reynolds, Inc.. 537 U.S. 79, 83, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002)).

11No. 67720-9-1/12 Cosgrove also argues the court erred in confirming the arbitrator's award of attorney fees because the arbitrator improperly relied on the information Mullan provided in response to the subpoena duces tecum. The record does not support Cosgrove's argument. The Arbitration Decision states, in pertinent part: RCW 7.04A.210 authorizes an arbitrator to award attorney's fees ifsuch 

### an award is authorized by law in a civil action involving the same claim. RCW 4.84.185 authorizes an award ofattorney's fees to the prevailing 

### party in a civil action ifit is found that the other party's claim ordefense [was] advanced without reasonable cause. The arbitratorfinds that a significant portion ofCosgrove's claims and defenses were frivolous or advanced without reasonable cause. In particular, Cosgrove's effort to recover a television he had admitted was a Christmas giftand to assert 

### that his inability to locate some of the items he desired should void the 

### settlement agreementwere frivolous claims. The level oflitigation of several other claims, including two appellate actions, was vastly 

### disproportionate to the issues involved, particularly given the nominal value of many ofthese items (T-shirts, empty wooden boxes, pillows). Finally and most dramatically, his decision to empty out the winestorage unit without notice to Plaintiffand subsequent refusal to honestly address 

### the question of the missing winecollection was notin goodfaith. His actions have needlessly increased the costs of this proceeding and warrant an award of attorney's fees. 

### In denying the requestfor reconsideration, the arbitrator expressly addressed Cosgrove's argument that the arbitrator had relied upon excluded evidence. The decision denying reconsideration states, in pertinent part: "None of the materials produced in response to the Subpoena Duces Tecum were admittedinto evidence or considered as part ofthe arbitration decision." 

### Cosgrove nextargues the court erred in granting Young's motion to clarify the orderdenying hermotion to enforce the CR 2AAgreement. Cosgrove contends Young's motion was an untimely motion for reconsideration. The court denied the motion to enforce the CR 2AAgreement on the grounds that "[i]ssues of fact exist

12No. 67720-9-1/13 regarding interpretation ofthe CR 2A." Afterthe arbitrator asked the parties to seek clarification, Young filed a motion asking the court to either referthe matter to arbitration, set an evidentiary hearing, or reset the matter for trial. A court may consider a motion to clarify a prior ruling at any time. Kemmerv. Kieski. 116 Wn. App. 924, 933, 68 P.3d 1138 (2003). "[A]n order 'clarifying' ajudgment explains or refines rights already given. Itneither grants new rights nor extends old ones." Kemmer. 116 Wn. App. at 933 (citing Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969)). The court's order granting the motion and referring "[t]heentire 

### matter" to arbitration clarified any ambiguity and expressly compels arbitration.3 We affirm.4 

# /iWflkS

WE CONCUR:

3Cosgrove argues hedid not receive sufficient notice ofthemotion toenforce theCR2A Agreement. Brinkerhoffv. Campbell, 99 Wn.App. 692, 994 P.2d 911 (2000), does nothold that a motion to enforce requires 28 days notice. Brinkerhoff. 99 Wn. App. at 696. Cosgrove also argues the judgment for $6,070 violates RAP 7.2. Because thejudgment merelyconsolidates previously ordered attorney fee awards of$4,000 and $2,070, the argument is without merit. 4Wedeny Young's requestforfees under RAP 18.1 and 18.9.

13