IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KAMALJIT SINGH and HARMINDER KAUR, husband and wife; KENT VALLEY APT., LLC, a Washington Limited Liability Company, Respondents,

v. HARJIT KAUR GILL, and JOHN DOE GILL, wife and husband; and HARBANS GREWAL and JASBIR KAUR GREWAL, husband and wife; SATWINDER SHARMA and JANE DOE SHARMA, husband and wife; CHICAGO TITLE INSURANCE COMPANY OF WASHINGTON, as trustee under that certain deed of trust recorded under Recording No. 20110218001102, Appellants. r-o NO. 72817-2-1

iX>
DIVISION ONE

UNPUBLISHED OPINION

FILED: January 19, 2016

LAU, J.

- Harbans Grewal, Jasbir Kaur Grewal, and Harjit Kaur Gill (collectively the Grewals) appeal from the judgment entered in favor of Kamaljit Singh and Harminder Kaur (collectively the Singhs).1 Because the Grewals fail to demonstrate any error or abuse ofdiscretion in the trial court's evidentiary rulings,
use ofthe interpreter, and determination of reasonable attorney fees, we affirm.

Where necessary for clarity, we use the parties' first names.No. 72817-2-1/2

FACTS 

### Thetrial court'sdetailed findings offact, enteredfollowing a seven-day bench trial, support the following summary of events. For purposes of appeal, appellants do 

### notchallenge the sufficiency ofthe evidence to support thetrial court'sfindings of
fact.2 

### Respondents (plaintiffs below) Kamaljit Singh and Harminder Kaur are 

### husband and wife. In 2006, Kamaljit and a business partner purchased real estate in 

### Kent for future development. They later transferredtitle to the property to Harminder. In February 2009, Harminder conveyed the property to KentValley Apartments, LLC (Kent Valley LLC). Appellants Harbans and Jasbir Grewal are husband and wife and reside in British Columbia. Harjit Kaur Gill is Harbans' sister. Both Harbans and Jasbir are experienced business owners. 

### In July 2009, Harbans contacted Kamaljit to discuss opening a business in Washington. InSeptember 2009, Harminder agreed to sell a 50 percent interest in 

### KentValley LLC to Harjit. Harbans, under the authority of a power of attorney, negotiated the transaction on Harjit's behalf as her attorney-in-fact. Harjit paid Harminder the agreed-upon price of$235,000. Harminder and Harjit executed an operating agreement reflecting that each owned 50 percent of Kent ValleyLLC.

2In their reply brief, appellants contend that the evidence was insufficientto support several findings of fact. Because they raise these arguments for the first time in the reply brief, we decline to consider them. See Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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### Kamaljit and Harbans also engaged in several smallerfinancial transactions during the remainder of 2009. 

### In December2010, Harjit (through Harbans) enteredinto an agreement to purchase Harminder's remaining 50 percent interestin Kent Valley LLC for a cash 

### payment of$235,000. On December20, 2010, Harbans told Kamaljit that he had Harjit's check in theamount of$235,000 for thepurchase. On the same day, Harbans and Kamaljit wentto the Secretary of State's Office in Olympia andfiled an Amended Annual Report for Kent Valley LLC. The Report listed Harjit as the sole member ofKent Valley LLC and Harbans as the registered agent. After leaving the Secretary ofState's Office, Kamaljit asked Harbans for the 

### check. Harbans said he would give Kamaljit the check as soon as the parties completed the transactional documents. Kamaljit and Harbans then went to the home of Sabir Khan and asked Khan to prepare documents memorializing the transaction. Several ofthe documents listed 

### Harjit as the sole owner ofKent Valley LLC. One document, entitled "Agreement between Harjit Kaur and HarminderKaur," provided for the payment of $235,000 cash for the remaining 50 percent interest in KentValley LLC. 

### After leaving Khan's house, Kamaljit and Harbans took the agreements to a bank for signature and notarization. Kamaljit again asked forthe check. Harbans informed him that the agreements were defective and that he would deliver the check 

### after his attorney reviewed and approved the sale documents. During the following weeks, Harbans contacted Kamaljit several times and asked for additional information so that the transaction could close.

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### On December 21, 2010, Harbans retained John Meenk, a Bellingham attorney, to review the sale documents. Based on his conversations with Harbans, Meenk believed that Harjithad paid Harminder $235,000 cash for the additional 50 

### percent interest in Kent ValleyLLC on or before December 20. In drafting the terms 

### of an addendum to the purchase and sale agreement, Meenkassumed that Harjit had already paid $235,000 incash. AtHarbans' request, Meenk also drafted a 

### $675,000 promissory note forHarjit's signature, payable to Harbans' wife Jasbir, and a related Deed of Trust against Kent Valley LLC to secure the promissory note. On January 8, 2011, one day after Kamaljit left for a trip to India, Harbans went to Harminder's home and gave her Harjit's $235,000 check. Harminder showed the check to Manmohan Grewal, a business associate, who was present at the meeting. Harminder and Harbans then went to a UPS store to sign the addendum in front of a notary public. AtHarbans' request, Harminder agreed not to deposit the check until Harbans transferred sufficient funds to Harjit's account. On January 25, 2011, Harjit signed the $675,000 promissory note, payable to 

### Harbans' wife"Jasbir, and the Deed of Trust securing the note. The trial courtfound that the Grewals failed to present any "credible evidence
... to support the Defendants' contention that Jasbir advanced a reasonably equivalent value to Harjit inexchange forthe $675,000.00 note." Clerk's Papers (CP) at 1803. On February 18, 2011, Harbans' attorney recorded the Deed ofTrust, without notice to the Singhs and without Harminder's authorization. Kamaljit returned from India in late February 2011 and unsuccessfully attempted to contact Harbans for authorization to deposit the check. Kamaljit and

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### Harminder eventually presented the checkfor payment at a Bank ofAmerica branch. The bank refused to honor the check because it was written on a "Seafirst Bank"
account that was closed in 2007. CP at 1803. InMarch or April 2011, Harminder and Manmohan travelled to Harbans' home 

### in Abbottsford, British Columbia. At the meeting, Harbans and Jasbir informed 

### Harminderthat Harjit no longerwished topurchase Harminder's remaining interest in Kent Valley LLC and recommended that Harmindersell theproperty and splitthe proceeds according to the terms ofthe 2009 operating agreement. 

### On April 19, 2011, theSinghs filed a complaintfor breach ofcontract against Kent Valley LLC, Harjit, and Harbans. Among otherthings, thecomplaint alleged that Harbans had drawn up and recorded the Deed of Trust for $675,000 without 

### Harminder's knowledge. Thecomplaint soughtmonetary damages and a declaration that the Deed ofTrust was null and void. The court dismissed the action in October 2012 for lack ofpersonal jurisdiction. 

### OnApril 19, 2013, Jasbir executed an "Assignment ofBeneficiary's Interest in Deed of Trust," purporting to assign her interest in the Deed of Trust to Satwinder Sharma as security for a loan. Jasbir did not endorse the $675,000 note to Sharma. 

### OnMay 6, 2013, Kamaljit and Harminderfiled thecurrent action against Harbans, Harjit, Jasbir, Sharma, and others, raising claims for breach offiduciary duty and fraudulent transfer. Harjit asserted counterclaims for breach of contract, fraudulent transfer and to quiet title. 

### At trial, Harbansflatly deniedgiving the Singhs a $235,000 check orpromising to give them a checkfor the transfer ofHarminder's remaining interest in Kent ValleyNo. 72817-2-1/6


### LLC. Harjit testified that she believed the Singhs hadtaken theblankcheckfrom her belongings that she had stored at their home. 

## Harbans claimed that in May2010, while the parties were visiting India, Harjit loaned Kamaljit atotal of$235,000. The Grewals delivered the loan proceeds to 

## Kamaljit-1.1 million rupees in cash-in a"gym bag." Report ofProceedings (RP) (Sept. 17, 2014) at932. Harbans asserted the parties had an oral agreementthat if Kamaljit was unable torepay theloan, theGrewals would forgive theloan in 

### exchangefor Harminder's remaining interest in Kent Valley LLC. When Kamaljit failed to repaythe loan, the Grewals forgave the loan in exchangefor Harjit's sole ownership of Kent Valley LLC. 

### Harjit testified that the moneyshe loaned Kamaljit came from real estate 

### transactions in India and a loan from a real estate broker. Harjit asserted that the 

### proceeds were all in cash and therewere nodocuments evidencing thetransactions. Harbans acknowledged that there were no written documents inthe record 

### evidencing the loan to Kamaljit or the loan forgiveness provisions. 

### Jasbirtestified thatHarjit owed her$675,000, but that she could no longerfind therecords thatsupported thatamount. Harjit testified she nolonger knew the date 

### oramounts oftheloans from Jasbirthattotaled $675,000 andthat she signed the promissory note and deed oftrust because Jasbir told her to. 

### At the conclusion of the evidence, the trial court rejected the Grewals' account as not credible and dismissed Harjit's counterclaims with prejudice. The courtfound 

### byclear, cogent, and convincing evidence that by his misrepresentations in presenting the $235,000 check, Harbansintended to cause a delaythatallowed him

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### to record the $675,000 deed oftrust, and that he fraudulently induced Harminderto transfer her interestin Kent Valley LLC to Harjit without receiving any considerationin return. The court further concluded that Harjit had breached her fiduciary duties to
Harminder. 

### Based on the Grewals'fraud, the court enjoined the Grewalsfrom taking any action to enforce the deed of trust, rescinded the purchase agreement for 

### Harminder's remaining interest in KentValley LLC, and declared KentValley LLC's conveyance ofthe deed oftrust void as a fraudulent transfer. The court directed that 

### Kent Valley LLC be dissolved and a receiver appointed to wind up the company's affairs. The court awarded the Singhs attorney fees and costs of$343,291.02. The Grewals appeal. ANALYSIS Interpreter During Trial The Grewals contend that the trial court committed reversible error when it failed to use an interpreter consistently during the testimony of Kamaljitand Harbans. They argue that the trial court's resulting confusion and inability to understand portions ofthese key witnesses' testimony undermined and distorted the court's credibility determinations and the accuracy of its findings of fact. But the Grewals raise the alleged error for the first time on appeal. Moreover, the trial court followed the procedure for using the interpreter that counsel for both parties proposed and agreed to. Finally, the record provides no support for the claim that the lack of an interpreter during portions ofthe witnesses' testimony prejudicially affected the court's credibility determinations and findings of fact.

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### At the beginning ofthe benchtrial, the courtappointed a Punjabi interpreter, 

### who wasavailable throughoutthetrial. When thecourt askedwhetherthe interpreter would be used for the entire trial, counselfor the Singhsexplained that the parties had agreed to use the same procedure they used for depositions. Some of the 

### plaintiffs' witnesses would require the interpreterto translate everything. Other witnesses would use the interpreteronly when necessary: 

### [Wjhen [Kamaljit] testifies, [theinterpreterwill] primarily be acting as backup. If [Kamaljit] can't articulate a phrase orfind the right word, he may ask [the interpreter] forassistance. That's the way we handled it in the depositions, as well. RP(Sept. 3, 2014) at 11. Counsel forthe Grewals agreed: 

### Ithinkthat's basically the way we did handle it. Some of the parties need help with certain words and idioms they just don't understand in 

### the English language, but they generally grasp the language. RP(Sept. 3, 2014) at 11. The trial court then summarized: So if Iunderstand itcorrectly, only when a witness is on the stand who may need an interpreter will we use the services of the interpreter. Butif the witness understands English sufficiently and doesn't want an interpreter, we will conduct the interrogation ofthe witness without an interpreter. Is that what you're suggesting, both counsel? RP(Sept. 3, 2014) at 12. After consulting with his clients, counsel for the Grewals agreed with the court's understanding. Generally, an appellate court will not consider a nonconstitutional issue or argument that is raised for the first time on appeal. See State v. Kirkman. 159 Wn.2d

-8-No. 72817-2-1/9 

### 918, 926, 155P.3d 125(2007). During thetrial, thetrial court occasionally requested the assistance ofthe interpreter. Kamaljit and Harbans used the interpreterfor some of their answers, but otherwise testified in English. Counsel for the Grewals did not 

### raise any objections to the trial court's use ofthe interpreter. Nor did they ask the court to use an interpreter at any point during the trial. On appeal, the Grewals concede that they "did not officially object" to the trial court's failure to use an 

### interpreterconsistently during eitherKamaljit's or Harbans'testimony. Br. of Appellant at 23. Underthe circumstances, the Grewals have not preserved the alleged error for review. 

### In addition, at the beginning of the trial, the court asked whether the interpreter should be used forthe entiretrial. Counselfor both parties expresslyacknowledged that they had agreed the use of an interpreter was not necessary for the entire trial and that the witnesses would use the interpreter only when necessary. Because the trial courtfollowed the procedure that the parties requested and agreed to, the error, if any, in not using the interpreter throughout the trial was invited. See Inre Marriage 

### ofMorris, 176 Wn. App. 893, 900, 309 P.3d 767 (2013) (the doctrine ofinvited error 

### prohibits a partyfrom setting up an error below and then complaining ofit on appeal). Finally, the record fails to demonstrate any error or abuse ofdiscretion inthe trialcourt's use of the interpreter. RCW 2.43.010 declares the policy of this state to
secure the rights "ofpersons who, because of a non-English-speaking cultural background, are unable to readily understand or communicate in the English language, and who consequently cannot be fully protected in legal proceedingsNo. 72817-2-1/10

unless qualified interpreters are available to assist them." We review the trial court's decision to appoint or use an interpreter for an abuse ofdiscretion. See State v. Trevino. 10 Wn. App. 89, 94-95, 516 P.2d 779 (1973). Insupport ofthe claim that the trial court erred in permitting Kamaljitand Harbans to present portions of their testimony in English, the Grewals point to a number of the court's comments, including statements that it was "lost," "hanging on for dear life," having "difficulty]follow[ing]," and "miss[ing] things." RP (Sept. 4, 2014) at 202; RP (Sept. 8, 2014) at 367; RP (Sept. 4, 2014) at 339; RP (Sept. 17, 2014) at 869. But the Grewals' arguments fail to identify or address the full context of
the court's comments. The record demonstrates that in each case ofthe trial court's alleged expressed confusion or misunderstanding, the court either asked for and received clarification or the testimony was repeated to provide any necessary explanations. At
one point after Harbans had already testified at length, Harbans' counsel asked the court whether ithad been able to understand the testimony or wanted a "stand-by" interpreter. RP (Sept. 17, 2014) at 897. The court replied: THE COURT: No. I --1 was able to understand Mr. Grewal. I did have to interrupt him every once in a while and ask him to repeat something, but Ididn't have any trouble when he, you know, clarified things. So if you don't mind me interrupting] him to ask him to repeat things from time to time, Idon't think we need an interpreter. But ifhe wishes to have an interpreter, then we should have one. MR. GREWAL: Well, ifthere's any problem, then we can have. Otherwise, I'm okay. RP(Sept. 14, 2014) at 898.

•10-No. 72817-2-1/11

Counsel for the Grewals never asked for the interpreter at any point during Harbans'
or Kamaljit's testimony. The Grewals also rely on the verbatim report ofproceedings, which designates short portions of Kamaljit's and Harbans' testimony as partially unintelligible or inaudible. Butthey do identify any specific, material deficiencies inthe transcript. Nor does the court reporter's inability to transcribe portions ofthe testimony constitute evidence that the parties, counsel, or the trial court did not understand material portions ofthe testimony. In summary, the Grewals have not identified any trial court confusion or misunderstanding that was not clarified. The mere fact that the court rejected Harbans' account ofthe disputed transaction does not constitute evidence of confusion. The Grewals fail to demonstrate any error or abuse of discretion in the court's use of the interpreter. Exclusion of Telephone Records The Grewals contend the trial court erred in excluding late-disclosed telephone records. They argue that the trial court based its ruling on a misunderstanding of the parties' discovery stipulation and applied an erroneous legal standard. Generally, we review the trial court's evidentiary rulings for an abuse of discretion. Sintra, Inc. v. City of Seattle. 131 Wn.2d 640, 662-23, 935 P.2d 555 (1997) Prior to trial, the Grewals sought to admit three exhibits oftelephone records for Harbans and Harjit. In his offer of proof, counsel explained: I'm asking the Court to allow me to offer an additional three exhibits on the defendants' side, which are phone records of the defendants Harjit Gilland Harbans Grewal for the period of basically 2009, May through

•11-No. 72817-2-1/12 

### September. There's a period when there was a formation of an agreement, and Ihadn't submitted these before because Ididn't have them until just recently. Ijust received them. RP(Sept. 3, 2014) at 23. 

### The Singhs objected thatthe late disclosure violated the parties' discovery stipulation. The trial court observed thattheSinghs had "afair point," but deferred a final decision on thetelephone records until theGrewals sought tointroduce them at trial. RP(Sept. 3, 2014) at 23. 

### During Harbans' direct testimony about theevents occurring in September 2009, counsel again sought toadmit thetelephone records "forthis period oftime we 

### just discussed." RP (Sept. 10, 2014) at858. Counsel explained thatthe telephone records were relevanttotheparties' discussions that Harbans had been describing. The trial court responded: 

### THE COURT: Are these just records showing a call made from a phone number to a phone number? [COUNSEL]: Yes. 

### THE COURT: Well, my concern is that once we start letting things in that haven't been disclosed ahead oftime without some - two 

### reasons. Imean, without some really good reason, I'm afraid I'm going to have to let everybody let everything in. And that sort ofeviscerates 

### the local rules, which I've been instructed by others not to do. And second, I'veheard testimony that there were numerous 

### phone calls made and I'm willing to accept that. Ihaven't heard any contradiction of that, so - and I'm not quite sure how seeing some records of phone calls from one number to another would deepen my understanding or reallyincrease my knowledge. 

### Imean, I- unless Iheartestimony contradictingit, I'm - it's undisputed that the parties negotiated between when they first met in 

### July and then more urgently in September - August and September.

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And they inked the deal, they signed a deal on November 14th. So all your points are made. Idon't know if adding the exhibit is going to really help your record. [COUNSEL]: Okay. Thank you, Your Honor. RP(Sept. 10, 2014) at 859. On appeal, the Grewals claim that they offered the telephone records to refute the Singhs' claims that they repeatedly ignored telephone calls requesting payment forthe Kent Valley LLC "throughout the spring of2011." Br. of Appellant at 12. But the offer of proof at trial described the exhibits as involving only the period through September 2009, when the parties became acquainted and negotiated the initial agreement to purchase 50 percent of Kent Valley LLC. Counsel for the Grewals confirmed this period oftime when he offered the exhibits during Harbans' testimony describing the same period. As the trial court noted, there was no dispute that the parties had frequent contact during this period oftime. Although the trial court referred to the late submission ofthe exhibits and a possible local rule violation, the court excluded the proposed exhibits primarily because they were cumulative, not as a sanction for a discovery violation. See Jones v. City of Seattle. 179 Wn.2d 322, 343, 314 P.3d 380 (2013) (late-disclosed testimony will be admitted "absent a willful violation, substantial prejudice to the nonviolating party, and the insufficiency of sanctions less drastic than exclusion"). Viewed in light of their offer of proof, the Grewals fail to demonstrate any abuse of discretion.

•13-No. 72817-2-1/14

Motion to Reopen Case 

### TheGrewals contend thetrial court erredin refusing to reopen the case to permit a BankofAmerica bank manager totestify that the bankdid not mark checks 

### drawn on a closed account with an "account closed" stamp. They claim theevidence 

### would have undermined Kamaljit's credibility and supported theirtrial testimony that Kamaljit had stolen and forged the check. "A motion to reopen a case foradditional 

### testimony is addressed to thesound discretion ofthetrial court, and thecourt's ruling will not be disturbed except for manifest abuse." Rogers Walla Walla, Inc. v. Ballard. 

### 16 Wn. App. 81, 90, 553 P.2d 1372 (1976). 

### After considering the proposed testimony, the trial court denied the motion, concluding that the evidence would not have affected its decision. The Grewals 

### suggest the courtmight have misunderstood the evidence as an attempt to establish that the bank account was not closed. We disagree. 

### Thetrial court was clearly aware that the Grewals were notattempting to prove the account was not closed. Moreover, anydispute about the validity ofthe "account closed" stamp was, at best, a minor collateral issue that would have had no 

### effect on the court's ultimate assessment ofthe Grewals' credibility. As the court's extensive findings document, the credibility assessment rested on the Grewals' 

### lengthycourse of conduct in the transactions with the Singhs, evidence that constituted clear, cogent, and convincing evidence of fraud. The court did not abuse its discretion in refusing to reopen the case.

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Attorney Fees 

### The Grewals contend that thetrial court erred in awarding attorney fees totaling $324,056. They argue thatthetrial courtfailed togive dueconsideration to 

### duplicative and unproductive work, excessive hours, and the attorneys' high hourly rate when determining the reasonableness ofthe fees. We review the 

### reasonableness of an award for attorney fees for an abuse of discretion. Cook v. 

### Brateng,180 Wn. App. 368, 375, 321 P.3d 1255 (2014). 

### Adetermination ofreasonable attorney fees generally beginswith a 

### calculation ofthe "lodestar," which isthenumber ofhours reasonably expended on the litigation multiplied by a reasonable hourly rate. See Mahler v. Szucs. 135Wn.2d 398, 433-34, 957 P.2d 632, 966 P.2d 305 (1998). "The court should discount hours 

### spent on unsuccessfulclaims, duplicated or wasted effort, orotherwise unproductive time." Chuong VanPham v. Seattle City Light. 159Wn.2d 527, 538, 151 P.3d 976 (2007).

### In support of the attorneyfee award, counselfor the Singhs submitted a 

### detailed motion and affidavit documenting the fees incurred during the one and one

### halfyears oflitigation and seven-day trial. Counsel noted thedifficult and highly contentious progress ofthe case, including difficulty of service of process, extensive discovery, pre-trial motions, work with experts, mediation, trial preparation, and 

### motion for a receiver. The lead attorney'ssupporting affidavit set forth the attorneys' experience, hourly billing rates, and stated that the hourly rates, including the lead attorney's hourly rate of $395, were the standard rates charged other clients for 

### similar matters and appropriate for the market. The motion included nearly 60 pages

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### oftime records documenting thedate, time billed, hourly rate, total amount, and detailed description of the work performed. 

### In opposing themotion for attorney fees, theGrewals did not dispute the reasonableness ofthehourly ratesfortheSinghs' attorneys. Rather, they relied 

### primarily on conclusory allegations thatthe hours expended were excessive given the relatively "straightforward" issues. CP at 1766. The Grewals' counsel claimed that 

### he needed only one-third ofthetime that theSinghs' attorney spent on the case and that his hourly rate was $250. In its ruling, the trial court noted that ithad reviewed the extensive materials 

### and the relevant factors in RPC 1.5(a). Thecourt specifically identified as relevant 

### factors thenovelty and difficulty ofsome oftheissues, including the"extraordinary amount of discovery and difficulties obtaining discovery," the amount at issue in the case, the need for interpreters, the higher burden of proof for certain claims, and the 

### fact thatHarbans' strategy was "to put theplaintiffs to strict proofonevery factual issue and every legal issue." RP (Nov. 14, 2014) at 13, 12. The court also determined that the lead attorney's hourly rate was not "out of linewith firms in the 

### Downtown Seattle area" and that the rates were "customary" forthe type ofservices. 

### RP (Nov. 14, 2014) at 14. Finally, thetrial court discounted the requested attorney 

### fees by 5 percent, or$17,055, to address theGrewals' objections about possibly duplicative efforts. The discount was roughly comparable to the amount that the 

### Singhs incurred for theirunsuccessful summary judgment motion. In summary, the record establishes that the trial court exercised its discretion 

### on articulable grounds. See Eugster v. Citv ofSpokane. 121 Wn. App. 799, 816, 91

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### P.3d 117 (2004). Afterconsidering the parties' arguments and the relevant factors in detail, the court concluded that the billed services "were reasonable or essential to the successful outcome." Mahler v. Szucs. 135 Wn.2d at 435. The court did not 

### abuse its discretion in granting the Singhs' motion for attorney fees and costs.3
Affirmed.

WE CONCUR: 

# SfW/vy^.^ y^O>

3 On appeal, the Grewals challenges several specific entries on the billing records. Because these arguments are raised for the first time on appeal, we decline to consider them.

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