IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

MARK WILLIAMS and MARIAN 

NUNER, husband and wife,

Respondents,

v.

PAUL AND SUSAN DANA, husband and 

wife, DANA LIVING TRUST,

KENNETH L. WERNER AND ANDREA 

M. WERNER, husband and wife, 

ROBERT NEILSEN and JANE DOE 

NEILSEN, husband and wife, EUGENE 

L. TAYLOR and MICHELLE A. 

TAYLOR, husband and wife,

Appellants.

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No. 36852-1-III

UNPUBLISHED OPINION

KORSMO, A.C.J. — This appeal arises from a mediated agreement to settle an 

easement dispute. We affirm and grant respondent’s request for attorney fees.

FACTS

The underlying dispute is secondary to the issues in this appeal and can briefly be 

summarized. Appellant Dana and Respondent Williams1 disagreed concerning the scope 

 

1 The appellants are referred to collectively as Dana, and the respondent 

Williams/Nuner marital community is referred to as Williams.

FILED

OCTOBER 13, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36852-1-III

Williams, et ux v. Dana, et ux, et al

2

of an easement along the boundary of their properties. After Williams’ motion for 

summary judgment was denied, the case went to mediation.

By the time of mediation, Dana was proceeding pro se; Williams was represented

by counsel. At mediation, the parties reached a tentative agreement. The agreement 

provided:

1) The parties agree to a 15 foot easement on each side of the property line. 

2) [Dana] will move or remove the fence within one year onto the parties’

property outside of the easement. 

3) [Williams] will not cause the trees within the easement to be cut. 

4) Release of all claims Williams/Nuner have against Danas and the trust 

with prejudice. 

5) Mutual non-disturbance agreement-not verbally or physically harass 

each other (no harassment as defined in statutory harassment orders). 

6) If either party must enforcement [sic] of the settlement agreement, 

prevailing party gets attorney fees. 

7) [Williams] will remove the slash pile. 

8) Steve [Williams’ attorney] will prepare the legal paperwork and his 

clients will pay for the filing.2

9) Release of lis pendens.

Clerk’s Papers (CP) at 273. The agreement was signed by the attorney for Williams and 

needed their approval. They approved the agreement.

Williams’ attorney then prepared a draft settlement document containing the 

following summarized provisions:

1. An agreement to recognize the boundary line easement.

 

2 While Dana apparently had an attorney early in the process, Dana was pro se 

through the relevant parts of this case until appeal.
No. 36852-1-III

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3

2. The width of the easement shall extend 15 feet from the centerline onto 

each party’s property (30 feet total) with a fence on the Dana’s property 

moved to leave 24 feet on their side unobstructed.

3. Williams will not cut any trees on the Dana property.

4. Mutual non-disturbance.

5. Do not block the easement

6. Dismiss the lawsuit. 

CP at 356-357. The e-mail accompanying the draft document noted that it contained 

additional language and some details requested by Williams and requested that if “you 

feel you are being treated unfairly, assume it is my mistake and make a suggestion.” CP 

at 358.

In response to the draft, Dana sent an e-mail rejecting the proposal and the entire 

mediation process, claiming that it had been a ruse. He threatened to hire an attorney and 

sue Williams for a six-figure sum. The e-mail also demanded changes to the easement 

terms and presented a 10-point counter-offer containing detailed easement provisions and 

requesting $5,000 for “reimbursement.” CP at 237-238. Williams then brought a 

contempt action to enforce the mediated agreement, claiming that Dana had repudiated it. 

Dana contended it was tentative and did not bind him. Mr. Dana stated that when he 

received the draft document, “I was done.” Report of Proceedings at 77.

The trial court concluded that the agreement, although needing to be placed in 

final form, was a valid contract despite any “buyer’s remorse.” The court declined to 

find Dana in contempt and directed Williams’ counsel to prepare a final agreement that 
No. 36852-1-III

Williams, et ux v. Dana, et ux, et al

4

only reflected the terms of the mediated agreement. Williams’ counsel then sought 

attorney fees as the prevailing party seeking to enforce the mediated agreement. Dana 

argued that Williams had not prevailed and that Dana should receive compensation for 

time and mental duress. 

The court concluded that Williams had prevailed and awarded $2,770 in attorney 

fees. Dana then appealed to this court and retained counsel. This court heard the case on 

the basis of the briefing without conducting oral argument.

ANALYSIS

Dana challenges the award of attorney fees on the basis that the proposed draft 

settlement order deviated from the mediation agreement, rendering the proposal a 

counter-offer rather than a confirmation of the mediation agreement. While a clever 

argument, it was not the argument actually made to the trial judge, and thus, is not 

supported by the record.

Well-settled law governs the issue presented. Contract law principles govern 

construction of settlement agreements. Morris v. Maks, 69 Wn. App. 865, 868, 850 P.2d 

1357 (1993). The authority to enforce a settlement agreement is based in CR 2A and 

RCW 2.44.010. Morris, 69 Wn. App. 868. The general rule is that a settlement 

agreement must either be acknowledged in court or be in a signed writing. Id. at 868-

869. Even if the parties anticipate a later formalized agreement, evidence may establish a 

binding preliminary agreement based on the extent the parties agreed to the subject 
No. 36852-1-III

Williams, et ux v. Dana, et ux, et al

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matter, whether the present writing establishes the key terms, and if the parties anticipate 

the agreement be binding before the formalized contract. Loewi v. Long, 76 Wash. 480, 

484, 136 P. 673 (1913). If the party disputing the settlement agreement fails to 

demonstrate that the parties did not intend to be bound by the agreement until the 

formalized document was prepared, the court may enforce the settlement agreement. 

Morris, 69 Wn. App. at 872. 

Appellate courts review a trial court’s decision to enforce a settlement agreement 

for abuse of discretion. Id. at 868. Discretion is abuse when it is exercised on untenable 

grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 

P.2d 775 (1971). 

Recognizing these standards, Dana now, quite properly, concedes that the original 

mediated agreement was valid and challenges only the proposed final order. If he had 

confined his trial court remarks to attempting to modify the proposal in line with such 

sentiments, his argument would properly have focused on whether or not the proposed 

draft materially altered the mediation agreement. However, it did not. 

Instead, Dana repudiated the agreement when he received the draft judgment, 

saying he “was done” with it, calling it a ruse. He threatened litigation and then dictated 

the acceptable terms of the settlement of his proposed litigation. He characterized the 

mediation agreement as “tentative” in his remarks to the court, arguing that all such 

proposals were tentative and not binding. He made no argument that the court should 
No. 36852-1-III

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6

enforce the unadorned agreement, nor did he ask the court to modify or correct the draft 

proposal. Indeed, Dana fought the motion to enforce the mediated agreement. These 

simply were not the actions of a party that was honoring its agreement.

The trial court did not err. While counsel has valiantly attempted to recast his 

client’s arguments in a more favorable light, the record simply does not support the 

appeal. The court properly awarded attorney fees to Williams for his efforts to enforce 

the mediated agreement. For the same reason, we award Williams attorney fees on 

appeal. Our commissioner will consider a timely request. RAP 18.1(d).

Affirmed.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

_________________________________

Korsmo, A.C.J.

WE CONCUR:

_________________________________

Fearing, J.

_________________________________

Siddoway, J.