IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ELIZABETH B. HALL, an individual,
                                                No. 76077-7-1
                    Respondent,
                                                DIVISION ONE
             V.
                                                                             r•-.3

THOMAS F. BANGASSER, an                                                      co
                                                                             C—
individual; BANGASSER &
ASSOCIATES, INC., a Washington
corporation,

                    Appellants,                 UNPUBLISHED OPINION
                                                                                 9?
             and                               FILED: January 16, 2018

VISION VASHON, ostensibly a
Washington non-profit corporation,

                    Defendant.

      BECKER, J. — After the statute of limitations expired on a promissory note

between Thomas Bangasser and Elizabeth Hall, Bangasser sent Hall an e-mail

acknowledging his debt under the note and implicitly promising to pay it. Hall

sued to recover the debt and moved for summary judgment. The superior court

granted the motion based on unrebutted evidence establishing Bangasser's

acknowledgment of, and promise to pay, the debt. We affirm.

      The following facts were either undisputed or unrebutted below. In

October 2003, Elizabeth Hall loaned $75,000 to her brother, Thomas Bangasser.

In return, Bangasser signed a promissory note as secretary/treasurer of Vision
No. 76077-7-1/2


Vashon, a now-defunct nonprofit corporation. He guaranteed the note both

personally and on behalf of Bangasser & Associates, Inc.

       The note became due in October 2004, but Bangasser never paid any

principal or interest on the note.

       In December 2015, Bangasser sent the following e-mail to Hall and two

other siblings:

       Margaret, Hugh and Elizabeth:

       As good fortune would have it, we were finally able to refinance/sell
       our Vashon Island real estate and would like to now address the
       outstanding Promissory Notes payable to you. As you might recall,
       back in 2003 those funds were used to finance the
       purchase/renovation of the J.T. Sheffield Building for Vashon
       College. With the ups and downs of the financial markets, the
       depressed Vashon Island commercial real estate market and the
       nonavailability of bank commercial lending, it proved very difficult to
       retire or even address those loans (except Margaret).

       Please review the following calculations as carried forward through
       to December 31 2015:(10% interest for the first year and 12%
       thereafter).

      $183,645.21 Balance - Elizabeth Hall
      $75,000.00 Principal (10/8/2003), $7,500.00(365 days @ 10%)
      and $101,145.21 (4,102 days @ 12%).

      $170,964.93 Balance — Hugh Bangasser
      $70,000.00 Principal (10/27/2003), $7,000.00(365 days @ 10%)
      and $193,964.93(4,083 days @ 12%).

       $---.-- Balance — Margaret Delaney

      Margaret, please provide a copy of your schedule. According to my
      calculations, this account has been either paid in full or close to a
      zero balance.




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No. 76077-7-1/3


      Lauren, Melissa and I have much to be thankful for and especially
      appreciate your patience over the years. Your expeditious
      response to this email would be appreciated. Thank you.

      Thomas F. Bangasser

Clerk's Papers at 33-34.

       In July 2016, Hall filed this action for payment of the note with interest and

attorney fees. Bangasser appeared pro se and filed an answer asserting various

affirmative defenses, including laches and the statute of liMitations.

       On September 9, 2016, Hall moved for summary judgment. She argued

that Bangasser's e-mail "acknowledged, confirmed and quantified his obligation"

under the note, but he never made any payments on the obligation. Bangasser

filed nothing in response.

       Bangasser appeared at the summary judgment hearing, arguing in

part that Hall's counsel had a conflict of interest and that her action was

barred by the statute of limitations. He filed no declarations, affidavits, or

other sworn testimony in support of his position. After hearing argument,

the court ruled from the bench:

             [THE COURT:]So let me just clarify that the moving party in
      this case is Ms. Hall, who properly filed a motion for summary
      judgment. Your opportunity to respond to that motion has come
      and gone by a number of days. You are now raising issues that are
      not properly before the court. . . .

               MR. BANGASSER: Your Honor, I did file an answer. In the
       answer I contradict exactly what Mr. Sirianni said.
               THE COURT: I understand that. But just let me clarify for
       you, because I understand these rules can get very technical. The
       -- the answer to the complaint does not constitute a response to a
       motion for summary judgment. So your -- it really just constitutes

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No. 76077-7-1/4


      notice to Ms. Hall of the issues that you would like to litigate down
     the line. But go ahead, you can have a couple more minutes if
     you'd like.
             MR. BANGASSER: Okay. So what Ms. -- what Mr. Sirianni
     filed on behalf of Elizabeth was the note. All the parties have
     agreed that there had been no payment on the note for about 13
     years. What he attached to the note was -- to allegedly support his
     argument is an E-mail, and that E-mail was a settlement offer and it
     was incomplete. And what I have now is a copy of the complete E-
      mail, which says it is -- that offer and that amount from December
     of last year is contingent... .
             . .. And I will give to the court a copy of the full E-mail. ...
     So what we have got, really, is only a promissory note that's 13
     years old, and that's it.
             THE COURT: All right. ...
             Before the court is evidence that there was a contractual
     obligation and a breach of that obligation, as well as quantify
     damages. On a summary judgment motion the court does need to
     construe the evidence in the light most favorable to the nonmoving
     party, but it is up to you, Mr. Bangasser, to respond timely and with
     sworn or otherwise admissible evidence in opposition to the
     elements that Ms. Hall has proven to show ... that there's a
     genuine issue of material fact that the court needs to allow either a
     judge orjuty ultimately at trial to decide. That has not happened
     here today. .. .
             I am going to grant summary judgment in favor of the moving
      party ....

             MR. BAN GASSER: There's an update as to when this
      promissory note existed. And I'd like to go a step further, Your
      Honor.
            ....
            THE COURT: -- sir, no. This is not the appropriate time for
      argument or for introducing evidence. As a courtesy, I'm giving you
      an opportunity to review that order, because everybody has an
      opportunity to see every paper that's handed up to the judge. . ..
            ... But at this point, I do find that this is not only the
      appropriate ruling, but one that I am compelled to enter given the
      Rules of Civil Procedure.
             So I have signed that order.

Report of Proceedings at 13-17(emphasis added).



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No. 76077-7-1/5


        After the court signed the order granting summary judgment, Bangasser

sought to file a number of documents:

                MR. BANGASSER:. . . I would like to submit this to the
        court, just so that it is part of the record of this transaction.
                THE COURT: You're welcome to submit to the clerk
        whatever pleadings you think should be made part of the record,
        as long as the record is clear that they were not timely submitted
        and that the court has not relied on them and is not required to rely
        on them in making a ruling. I have already granted summary
        judgment. This case is now resolved. But if you would like to
        supplement the record with documents filed after I granted
        summaryjudgment, I certainly can't and won't stop you from doing
        that.

Report of Proceedings at 19-20(emphasis added).

        In its subsequent order granting summary judgment, the court stated in

part:

               This Court considered plaintiff's motion for summary
        judgment, the declaration of plaintiff in support of motion for
        summary judgment and plaintiffs reply in support of motion for
        summary judgment. Defendants filed no opposition. This Court
        also considered the pleadings and record herein, together with
        applicable law.

Clerk's Papers at 196 (emphasis added).

        Bangasser moved for reconsideration and filed a declaration and second

e-mail regarding the Note. The court denied the motion, stating

        defendant did not respond to Plaintiff's Motion for Summary
        Judgment. He did appear at oral argument and raise two issues.
        He argued that Plaintiffs claim was barred by the statute of
        limitations, and he argued that Plaintiff's counsel had a conflict of
        interest barring him from representing Plaintiff. Although these
        arguments were not briefed, and although no sworn or otherwise
        admissible evidence was admitted in support of these arguments,
        the Court permitted oral argument. After considering the argument
        of the parties, the Court found that Defendant Bangasser's

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No. 76077-7-1/6


       objections were without merit, and the Court granted Plaintiffs
       Motion for Summary Judgment. Defendant Bangasser now re-
       raises in his Motion to Reconsider his objections based on the
       statute of limitations as well as the purported conflict of interest.

      With respect to the statute of limitations, Defendant bears the
      burden of proof. Rivas v. Overlake Hosp. Medical Center, 164
      Wn.2d 261, 267[, 189 P.3d 7531 (2008). Defendant submitted no
      proofin support of his objection to the Statute of limitations. The
      record as submitted by Plaintiff is sufficient to establish compliance
      with RCW 4.16.040 and RCW 4.16.280.

Clerk's Papers at 206(emphasis added). Bangasser, Bangasser &

Associates Inc., and Vision Vashon appeal.

       We review a summary judgment order de novo, engaging in the same

inquiry as the trial court. Lvbbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d

1124(2000). We view the facts and all reasonable inferences therefrom in the

light most favorable to the nonmoving party. Lvbbert, 141 Wn.2d at 34.

Summary judgment is proper if there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. Lybbert, 141 Wn.2d

at 34. Mere allegations or conclusory statements of fact unsupported by

evidence are not sufficient to establish a genuine issue of fact. Baldwin v. Sisters

of Providence in Wash.. Inc., 112 Wn.2d 127, 132, 769 P.2d 298(1989).

       Bangasser first contends summary judgment was improper because Hall's

action was time barred. We disagree.

       Under RCW 4.16.040(1), an action on a note or other written contract

must be commenced within six years. But RCW 4.16.280 provides:

              No acknowledgment or promise shall be sufficient evidence
       of a new or continuing contract whereby to take the case out of the

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No. 76077-7-1/7


      operation of this chapter, unless it is contained in some writing
      signed by the party to be charged thereby; but this section shall not
      alter the effect of any payment of principal or interest.

(Emphasis added.) Under RCW 4.16.280, an untimely action may be maintained

if "a written acknowledgement or promise signed by the debtor. .. recognizes

the debt's existence, is communicated to the creditor, and does not indicate an

intent not to pay." In re Receivership of Traqopan Props., LLC, 164 Wn. App.

268, 273, 263 P.3d 613(2011), citing Fetty v. Wenger, 110 Wn. App. 598, 602,

36 P.3d 1123(2001), review denied, 147 Wn.2d 1011(2002); Addison v.

Stafford 183 Wash. 313, 314-15,48 P.2d 202(1935). An acknowledgment

made after expiration of the limitations period will be strictly construed.

Tragopan, 164 Wn. App. at 273. "The debt being barred, it is possible that one

may acknowledge it without intending to pay it." Beckman v. Alaska Dredging

Co., 180 Wash. 321, 328,40 P.2d 117(1935)(internal quotation marks omitted),

quoting Tucker v. Guerrier, 170 Wash. 165, 169, 15 P.2d 936(1932).

Accordingly, an acknowledgment after the limitations period must be unequivocal

and "so clear that a promise to pay must necessarily be implied." Thisler v.

Stephenson, 54 Wash. 605, 607, 103 P. 987(1909), quoting Bank of Montreal v.

Guse 51 Wash. 365, 371, 98 P. 1127(1909).

       Bangasser's December 2015 e-mail recognized the debt, communicated

that fact to Hall, and unequivocally indicated an intent to pay. The e-mail opened

with Bangasser announcing that he recently sold some real estate and wanted to

"now address" his outstanding debts. It explained why the debts had not been


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No. 76077-7-1/8


paid sooner, asked Hall and others to review his debt calculations, including

interest to date, and made no mention of an offset. A promise to pay is thus

necessarily implied in the e-mail. Bangassers arguments to the contrary are

raised for the first time on appeal and based on evidence that was not before the

court when it granted summary judgment.

      Citing federal cases, Bangasser argues that the e-mail was an insufficient

acknowledgment because RCW 4.16.280 requires a signed writing and the law

regarding e-mails as signed writings "remains unsettled." Appellants' Br. at 17.

This argument fails for several reasons.

       First, it is apparently raised for the first time on appeal. RAP 2.5(a).

Second, Bangasser offers no statutory analysis and the federal cases he cites

are distinguishable. McMuniqal v. Bloch, No. C10-02765S1, 2010 WL 5399219

(N.D. Cal. Dec. 23, 2010)(court order)(an e-mail sent to the defendant was not a

writing signed by the defendant for purposes of the Copyright Act, and series of

e-mails showing negotiations was insufficient to show a full and complete

agreement); Jackson & Perkins Wholesale, Inc. v. Smith Rose Nursery, Inc., No.

03-3091-PA, 2007 WL 756749, at *4(D. Or. Mar. 7, 2007)(court order)(e-mail

negotiations did not show an agreement to settle, nor was there a signed writing

satisfying contract requirement for "'a written instrument signed by the parties to

be bound" to that effect).

       Third, Washington courts have held in other contexts that an e-mail is a

"writing." Mechlinq v. City of Monroe, 152 Wn. App. 830, 843, 222 P.3d 808


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No. 76077-7-1/9


(2009), review denied, 169 Wn.2d 1007 (2010), O'Neill v. City of Shoreline, 145

Wn. App. 913, 923, 187 P.3d 822(2008), aff'd in part and rev'd in part, 170

Wn.2d 138, 240 P.3d 1149(2010). And fourth, ER 1001(a) defines "Writings and

Recordings" as including words "set down by . . . electronic recording, or other

form of data compilation." 5C KARL B. TEGLAND, WASHINGTON PRACTICE:

EVIDENCE LAW AND PRACTICE,§ 1001.2, at 358 (6th ed. 2016)("An image viewed

on an electronic monitor (e-mail, text message, posting on social media, or the

like) is included within the definition of a writing.").

       Bangasser also argues for the first time on appeal that even if an

acknowledgment or promise occurred, it occurred outside of the statute of

limitations requiring the plaintiff to sue on the acknowledged agreement and not

the promissory note. Appellants' Br. at 18. He contends the failure to sue on the

acknowledged agreement was fatal because "the statute of limitations [has]

elapsed" for that claim. Appellants' Br. at 20. We need not consider this

contention. RAP 2.5(a). We note, however, that Hall's complaint expressly

based her right to recovery on the allegation that "Mr. Bangasser reaffirmed and

confirmed his obligation to Ms. Hall" in the December 2015 e-mail, and that he

reaffirmed the original terms of the agreement. Thus, even assuming Hall was

required to sue on the terms of the acknowledged agreement and not the note,

her complaint encompassed that claim.

       In his reply brief, Bangasser contends the trial court and this court must

consider the evidence he filed after the court granted summary judgment but


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No. 76077-7-1/10


before it denied reconsideration. Trial courts, however, have discretion to

consider new or additional evidence on reconsideration. See Chen v. State, 86

Wn. App. 183, 191-92, 937 P.2d 612, review denied, 133 Wn.2d 1020 (1997);

Martini v. Post, 178 Wn. App. 153, 161, 313 P.3d 473(2013). Bangasser fails to

address that discretionary authority. In any case, the result would be the same

even if we considered the second e-mail submitted on reconsideration. In that e-

mail, Bangasser stated, "I anticipate paying" the debts to Hall and the others

"from the proceeds of my 5% MidTown compensation when I receive the funds."

Clerk's Papers at 46. Even when viewed in a light most favorable to Bangasser,

this e-mail did not assert an offset against Hall personally. Nor did it make his

promise to pay the debt conditional. At most, the e-mail asserts a preference to

pay off the debts with funds from a third party—Midtown.

       For the first time in his reply brief, Bangasser claims his failure to timely

file his evidence below was excusable neglect under CR 60(b)(1). We need not

consider claims raised for the first time on appeal or for the first time in a reply

brief. RAP 2.5(a); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P.2d 549 (1992). Furthermore, Bangasser's argument runs counter to

the well settled rule that pro se litigants are held to the same standards as

attorneys. Kelsey v. Kelsey, 179 Wn. App. 360, 368, 317 P.3d 1096, review

denied, 180 Wn.2d 1017, cert. denied, 135 S. Ct. 451 (2014).

       Last, Bangasser contends the superior court's attorney fee award must be

remanded because the court entered insufficient findings and conclusions. Hall


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No. 76077-7-1/11


counters that findings and conclusions are required only when fees were

disputed below.

      Ordinarily, we enforce the requirement for the trial court to enter findings

of fact and conclusions of law establishing an adequate record to review the fee

award. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305

(1998). The absence of adequate findings will usually necessitate a remand for

entry of findings and conclusions supporting the fee award. Mahler, 135 Wn.2d

at 435. To be adequate, findings should address whether the hourly rates were

reasonable and whether the attorney services were essential, duplicative, or

unnecessary. Mahler, 135 Wn.2d at 435.

       Here, the order granting summary judgment awards "reasonable

attorney's fees in the amount of $3,510.00." The order was based on counsel's

declaration at the time of filing the motion for summary judgment:

      My regular hourly rate is $595. I spent a total of 4.4 hours
      preparing the complaint, the motion for summary judgment, two
      declarations in support of that motion, and a proposed order. Total
      fees to date are $2,618. I expect to spend another 1.5 hours
      preparing the reply brief and arguing the motion. Thus, total fees in
      this matter will be not less than $3,510.50.

Clerk's Papers at 25.

       Appellant did not object below to the hourly rate or to the amount of time

spent by counsel. And even on appeal, his objection is pro forma. The amount

of the award is reasonable on its face in light of counsel's declaration, and

appellant has not shown any reason to suppose the amount of the award would

be changed if it were remanded. Therefore, the error in failing to enter specific
No. 76077-7-1/12


findings as required by Mahler is harmless. A remand would waste time and

merely cause the parties to incur additional fees. Accordingly, we decline to

remand for entry of formal findings.

       Hall requests attorney fees on appeal under the attorney fee provision in

the note and RAP 18.1. The note provides, "If suit should be brought to collect

any of the principal or interest of this Note, the prevailing party shall be entitled to

reasonable attorney's fees and costs." We award Hall reasonable attorney fees

and costs on appeal subject to compliance with RAP 18.1.

       Affirmed.

                                                     (.3eacr2,e,




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