                                                                                                  FILED
                                                                                         COURT OF APPEALS.
                                                                                       2015 APR 28
                                                                                                   AM 8: 36
                                                                                        STU     OF V
                                                                                                       SHINGTON
                                                                                       By
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

 THE ESTATE OF WILLIAM BREMER,                                     No. 45480 -7 -I1


                               Respondent,


        v.

                                                           PART PUBLISHED OPINION
 GLEN L. WALKER, an individual,

                               Appellant.




       MAXA, P. J. —   This appeal arises from supplemental proceedings to enforce a judgment

the estate of William Bremer obtained against Glen Walker. Walker appeals the trial court' s


denial of two motions to revise orders entered by the trial court commissioner as part of the

supplementary proceedings, and also appeals several attorney fee awards made by the trial court

commissioner and the trial court. We hold that the trial court commissioner had authority under

RCW 6. 32. 190 to compel Walker to appear in Pierce County for supplemental proceedings

examinations even though he resided in King County because Walker did not produce evidence

that he did not do business in Pierce County. However, we further hold that the orders relating to

the initial supplemental proceedings examination are invalid because Walker was not served with

a court order directing him to appear at a new time that opposing counsel selected for the

examination. We, address Walker' s remaining arguments in the unpublished portion of this

opinion.
45480 -7 -1I




         We affirm in part, reverse in part, and remand for entry of findings of fact and

conclusions of law regarding three attorney fee awards.

                                                     FACTS


         In 2009, Bremer contracted with Walker to sell commercial property in Pierce County at

which Walker operated an auto repair business. Walker defaulted on the contract and forfeited

his interest, but he refused to vacate the property. In 2012, Bremer' s estate ( hereinafter Bremer)

initiated an unlawful detainer action against Walker in Pierce County Superior Court. The trial

court ordered a writ of restitution, and entered a judgment against Walker in favor of Bremer in

the amount of Bremer' s attorney fees and costs.

April M
      / ay 2013 Supplemental Proceedings

          On April 11, 2013, Bremer moved the trial court for an order directing Walker to appear

for an examination supplemental to execution of the judgment for fees and costs. The trial court

commissioner issued an order for supplemental proceedings, directing Walker to appear to be

examined at Pierce County Superior Court on April 30 at 1: 30 PM. Bremer also filed a note for

the commissioner' s calendar stating that there would be a hearing at that place and date. Bremer

served Walker' s attorney with copies of the motion, order, and the calendar note showing the

April 30 hearing date.

          A memorandum ofjournal entry dated April 30 states that Bremer' s attorney appeared in

court   but that nobody   appeared    for Walker. The     memorandum states, "         Counsel to renote the


matter.   No   service upon   the   respondent [   Walker]."   Clerk'   s   Papers ( CP)   at   10. On that same


date, Bremer filed a note for commissioner' s calendar stating that a hearing would take place on




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May 17. However, the commissioner did not enter an order requiring Walker to appear on May

17.


         Later that evening, a process server successfully served.Walker with the supplemental

proceedings documents at his residence in King County. Bremer alleges that the note for

commissioner' s calendar stating the May 17 date was one of the documents served.

         On May 17, Bremer' s attorney appeared in court, but again neither Walker nor his

attorney appeared. At Bremer' s request, the commissioner ordered issuance of a bench warrant

for Walker' s arrest to bring him before the court to " show cause why he should not be convicted

of Contempt of Court" and awarded Bremer attorney fees and costs in the amount of $3, 116.50

for Walker' s failure to appear. CP at 13.


         Walker was arrested and subsequently released on bail. The commissioner later quashed

the warrant and ordered that Walker appear to show cause why he should not appear for

supplemental proceedings. At the show cause hearing on August 12, Walker apparently argued

that the May 17 show cause order and attorney fees judgment was invalid on various grounds.

The commissioner " reinstated" the May 17 order, and directed Walker to appear for

supplemental proceedings. CP at 104.


         Walker filed a motion for revision of the commissioner' s August 12 order. The trial

court   denied the   motion   to   revise   following   a   hearing   on   September 13. The trial court reserved


ruling   on an award of   attorney fees. Walker         appealed      this September 13   order.
45480 -7 -II




January 2014 Supplemental Proceedings

        On December 3, 2013, Bremer moved the trial court for a new order directing Walker to

appear for a supplemental proceeding examination. On that date, the trial court commissioner

issued the order directing Walker to appear for examination on January 2, 2014. Bremer also

filed a note for the commissioner' s calendar stating that a hearing would take place on that date.

Bremer successfully served Walker with this order, the underlying affidavit, and the calendar

note listing the January 2 hearing date.

        Walker appeared at the January 2 hearing without his attorney. But he refused to be

sworn, stating that he couldn' t testify because he was medicated. The commissioner ordered

Walker to appear in two weeks to show cause why a bench warrant should not be issued against

him for refusal to comply with the order for a supplemental proceedings examination. The

commissioner also awarded Bremer $315 for reasonable attorney fees.

        Walker moved for revision of the December 3 supplemental proceedings examination


order and the January 2 show cause order. The trial court denied this motion on January 24. The

trial court also awarded Bremer $500 for reasonable attorney fees.

        Walker could not appear at the January 14 hearing because he was hospitalized, and the

commissioner continued    the   hearing   until   January   23.   On January 23, Bremer' s attorney

appeared in court but neither Walker nor his attorney appeared. The commissioner ordered the

issuance of a bench warrant for Walker' s arrest to bring him before the court to again show cause

why he should not be convicted of contempt, and also awarded Bremer attorney fees and costs in

the amount of $3, 475. 50 for Walker' s failure to appear.




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        Walker appealed both the January 23 bench warrant order and attorney fees award and

the January 24 denial of his motion to revise the December 3 and January 2 orders.

Additional Motions


        On February 27, 2014, Walker filed a motion for an order determining procedures for

proceedings supplemental to judgment. The trial court denied the motion and reserved the issue

of an award of attorney fees to Bremer. Bremer moved for presentation of findings of fact and

conclusions of   law relating to his   request   for attorney fees. On April 11, the trial court entered


findings of fact and conclusions of law on Bremer' s request for attorney fees relating to Walker' s

February 27 motion, and approved Bremer' s request for $903 in attorney fees. The trial court

then entered an order awarding attorney fees in the amount of $1, 403, which included an

additional $ 500 in attorney fees incurred at the attorney fee hearing.

        Later that same day, the parties appeared before the commissioner for a hearing on

Walker' s motion to vacate the outstanding January 23 bench warrant. The commissioner vacated

the warrant, but awarded Bremer attorney fees in the amount of $420.

        Walker appealed both the trial court' s April 11 attorney fee award and the

commissioner' s April 11 attorney fee award.

                                                  ANALYSIS


A.      VENUE OF SUPPLEMENTAL PROCEEDINGS EXAMINATION


         Walker argues that all of the orders in this case are invalid because the trial court lacked

the jurisdictional authority to compel him to appear at a supplemental proceedings examination

in Pierce County. We hold that the trial court had jurisdiction over Walker, but that under RCW

6. 32. 190 it could not exercise that jurisdiction to compel Walker to appear in Pierce County if


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Walker showed that he did not reside or do business in Pierce County. However, we further hold

that the trial court did not err in compelling Walker' s attendance in Pierce County for a

supplemental proceedings examination because he did not produce any evidence that he did not

do business in Pierce County.

        RCW 6. 32. 190 states that a judgment debtor can be compelled to attend a supplemental


proceedings examination only in the county in which he resides or does business. But this

statute does not affect the trial court' s jurisdiction. Supplemental proceedings generally are

ancillary to the underlying action, and the trial court retains personal jurisdiction over the parties

to that action for purposes of those supplemental proceedings. Allen v. Am. Land Research, 95

Wn.2d 841, 850, 631 P. 2d 930 ( 1981) ( Allen II);   State ex rel. McDowell v. Super. Ct. for King

County,   152 Wash. 323, 326 -27, 277 P. 850 ( 1929). Therefore, a judgment creditor is not .


required to allege or prove the debtor' s residence or place of business in order to compel the


debtor to attend a supplemental proceeding examination in the jurisdiction where the underlying

action was litigated. McDowell, 152 Wash. at 326.


        However, even though the trial court may have jurisdiction, RCW 6. 32. 190 acts as a

statutory restriction on supplemental proceedings examinations that prevents the trial court from

ordering them to occur outside the county where the debtor resides or does business. Allen v.

Am. Land Research, 25 Wn.      App.   914, 924, 611 P. 2d 420 ( 1980) ( Allen I), rev' d on other


grounds,   95 Wn.2d 841, 631 P. 2d 930 ( 1981).    Therefore, if a debtor shows that he does not


reside or do business in a county where a supplemental proceedings examination has been

ordered, he cannot be compelled to appear in that county. See McDowell, 152 Wash. at 326;

Allen I, 25 Wn. App. at 924.


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45480 -7 -II



               Bremer argues that Allen II overruled Allen I. We disagree. The Supreme Court in Allen

II did     reverse our   decision in Allen I. 95 Wn.2d               at   852 -53. But the court based its decision on a


provision        in the Consumer Protection Act (CPA), ch. 19. 86 RCW. RCW 19. 86. 080 permits a


trial judge to make any necessary orders to enforce an order of restitution under the CPA. Allen

II   at   850 -51.   The court expressly stated that it was not addressing the type of supplemental

proceedings governed             by       chapter   6. 32 RCW: "    The ancillary proceedings in the subject case

were not the ` normal supplemental proceedings [ wherein] the prevailing party only seeks to

discover the         other   party'   s   property in   order   to satisfy   a   judgment.' "   Id. at 850 ( quoting State v.

Ralph Williams' Nw. Chrysler Plymouth, Inc., 87 Wn.2d 327, 334, 553 P. 2d 442 ( 1. 976)).                              The


court in Allen II did not address RCW 6. 32. 190.

               Under McDowell, it is the judgment debtor' s burden to show that he does not reside or do

business in the county in which he is ordered to appear for supplemental proceedings in order to

rely      on   RCW 6. 32. 190.        152 Wash. at 326 -27. Here, Walker could have avoided any orders

requiring him to appear in Pierce County for a supplemental proceedings examination if he had
submitted evidence to the trial court that he did not reside or do business in Pierce County. We

assume from the record that Walker resided in King County, because he was served at his

residence in Kent. Walker also claims in his appellate briefing that he no longer operates a

business in Pierce County. However, the record does not show that Walker submitted any

evidence in the trial court that he did not do business in Pierce County, and nothing in the record

shows that he did not do business in Pierce County.




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          Walker did not meet his burden under McDowell of showing that he did not do business

in Pierce County. Therefore, we hold that the orders requiring Walker to appear in Pierce

County for supplemental proceedings examinations were not invalid under RCW 6. 32. 190.

B.        ORDER DIRECTING A JUDGMENT DEBTOR TO APPEAR


          Walker argues that we must vacate the September 13, 2013 order denying his motion to

revise the commissioner' s order relating to the May 17, 2013 supplemental proceedings

examination because he was not served with an enforceable court order to appear on that date.

We agree.


          RCW 6. 32. 010 provides:


           U] pon application by the judgment creditor such court or judge may, by ann order,
          require the judgment debtor to appear at a specified time and place before the judge
          granting the order ... to answer concerning [ a judgment].


 Emphasis      added).   Under the plain statutory language, a judgment debtor must appear at a

particular time and place only if required by a court order. Further, RCW 6. 32. 130 provides that

copies of such an order and the affidavit on which the order was made must be served on the

judgment debtor.


          Here, the commissioner entered an order that complied with RCW 6. 23. 010 directing

Walker to appear on April 30, 2013 at 1: 30 PM. However, Walker was not served with the order

before that date and time. As a result, when he was served with that order later that evening, the

order no longer was enforceable. A person cannot be required to appear at a time in the past.

          Bremer argues that Walker was properly served with the commissioner' s order and note

for the   commissioner' s calendar    showing   a   hearing date   of   May   17, 2013.   However, even if this


is true, the note for the commissioner' s calendar was not a court order directing Walker to appear


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on May 17 as required under RCW 6. 32. 010. The note is addressed to Walker' s attorney and

asks only that he " take notice that an issue of law in this case will be heard on the date and time

shown   below."   CP at 9. Accordingly, Walker was not required to appear on May 17 for a

supplemental proceedings examination. 1

         We hold that the commissioner erred by entering the May 17, 2013 order issuing a bench

warrant and awarding attorney fees against Walker, and therefore that the trial court erred in

denying Walker' s motion to revise that order. Accordingly, we reverse and vacate the

September 13, 2013 order denying the motion for revision and remand with instructions to

vacate the May 17 order and the August 12 order relating to the May 17 order.

         We affirm in part, reverse in part, and remand for entry of findings of fact and

conclusions of law regarding three attorney fee awards as discussed in the unpublished portion of

this decision.


         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.


         Walker argues that the trial court commissioner erred by issuing an ex parte order that

adjudicated Walker in contempt when he failed to appear for the January 23, 2014 supplemental

proceedings examination, and by entering attorney fee awards on January 2, January 23, and

April 11, 2014. He further argues that the trial court erred by entering an attorney fee award on




1 Our holding does not apply to the situation where both parties agree to continue a supplemental
proceedings examination to a future date or where the trial court continues the examination with
both   parties present.
45480 -7 -II




April 11, 2014 that was not fully supported by findings of fact and conclusions of law. We hold

that the trial court commissioner did not err in entering the January 23 order ex parte or in

making the January 2 attorney fee award. However, we hold that the trial court commissioner

erred in entering attorney fee awards on January 23 and April 11 in amounts that were not

supported by findings of fact and conclusions of law, and that the trial court erred in entering

    500 of the April 11 attorney fee award because the trial court did not make a record to support

that portion of the award.


A.        ORDER RELATING TO WALKER' S FAILURE TO APPEAR


          1.     Entering Order Ex Parte

          Walker argues that the commissioner erred by issuing an ex parte order when he failed to

appear on January 23, 2014.2 Walker appears to claim that the commissioner could grant such

relief only if Bremer provided proper notice to Walker. We disagree.

          We review the issuance of ex parte orders for an abuse of discretion. See State v.

Hotrum, 120 Wn.        App.     681, 683, 87 P. 3d 766 ( 2004). A trial court abuses its discretion when its


decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons.

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

          Walker argues that the commissioner made an adjudication of contempt ex parte on

January 23. But as discussed below, the commissioner did not find Walker guilty of contempt.

Instead, the commissioner ordered the issuance of a bench warrant for Walker' s arrest to bring



2
    Walker     also argues   that "[   t]he three fee awards, two bench warrant orders and two
adjudications of contempt on May 17, 2013 and January 2 and January 23, 2014 were all entered
         Br. of Appellant at 12 -13. But we have vacated the May 17 order on other grounds
ex parte."

and Walker was present at the hearing on January 2.

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him before the court to show cause why he should not be found in contempt. Walker provides

no authority suggesting that an order for issuance of a bench warrant cannot be issued ex parte

when a judgment debtor fails to appear for a supplemental proceedings. examination.


        Walker also argues that the commissioner could not award attorney fees ex parte.

However, RCW 6. 32. 010 authorizes a court to award attorney fees if a judgment debtor fails to

appear for a supplemental proceedings examination. And a court generally may hold remedial

proceedings ex parte when the defendant has failed to appear. See Shepard Ambulance, Inc. v.

Helsell, Fetterman, Martin, Todd &            Hokanson, 95 Wn. App. 231, 240, 974 P. 2d. 1275 ( 1999)

 noting that a defaulting defendant need not be given notice of a damages hearing); RCW

4.28. 210 ( "[ W] hen   a defendant has not appeared, service of notice or papers in the ordinary

proceedings    in   an action need not   be   made upon   him   or   her. "). Walker provides no authority


suggesting that a commissioner cannot award attorney fees ex parte when a judgment debtor fails

to appear for a supplemental proceedings examination.


        We hold that the commissioner did not err by ordering issuance of a bench warrant and

awarding attorney fees ex parte when Walker failed to appear for his supplemental proceedings

examination on January 23.

        2.     Contempt Order


        Walker argues that the commissioner' s January 23, 2014 order requesting the issuance of

a bench warrant and awarding attorney fees violated the law of contempt because the

commissioner summarily adjudicated his contempt charges. We disagree because the

commissioner never entered a finding of contempt against Walker.




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        RCW 6. 32. 180 provides that a court presiding over supplemental proceedings has the

authority to hold parties in contempt for failure to comply with examination orders or attend

examination hearings. However, at supplementary proceedings, a court may not summarily

judge a party guilty of contempt for acts occurring outside its presence. Dimmick v. Hume, 62

Wn.2d 407, 409, 382 P. 2d 642 ( 1963).                A failure to appear is considered an act outside the


presence of    the   court.   See State   v.   Winthrop,    148 Wash. 526, 532, 269 P. 793 ( 1928); State v.


Jordan, 146 Wn.       App.    395, 403, 190 P. 3d 516 ( 2008). " One aspect of the contempt, the fact of


absence, is, of course, obvious to the court, but the explanation of the absence is not known and

the facts may be      such as   to   excuse    the   apparent contempt."   State v. Hatten, 70 Wn.2d 618, 621,


425 P. 2d 7 ( 1967).     Due process requires that a party who fails to appear be given notice and an

opportunity to respond before the court finds him in contempt. See id.; Jordan, 146 Wn. App. at

404.


        Walker argues that the commissioner summarily adjudicated him guilty of contempt for

failing to appear on January 23 without giving him an opportunity to contest the contempt

charge. However, the commissioner did not adjudicate the contempt charge before issuing the

order or find Walker guilty of contempt in the order. Instead, it issued an order for a bench

warrant for Walker' s arrest and ordered him brought before the court for a hearing to answer the

contempt charge. In fact, Walker was never found guilty of contempt.

        In the January 23 order, the commissioner also granted Bremer attorney fees, an

appearance fee, and a service fee pursuant to the fee provisions of RCW 6. 32. 010. But those




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fees were not imposed as sanctions for contempt, and the orders did not find Walker guilty of

contempt of court.3

          We hold that the commissioner' s January 23 order did not violate the law of contempt.

B.        ATTORNEY FEE AWARDS


          Walker challenges the amount of attorney fees awarded by the trial court commissioner

on   January    2, 2014 ($ 315),     January     23, 2014 ($ 3, 360),   and   April 11, 2014 ($ 420),     and by the

trial   court on   April 11, 2014 ($      1403). 4 We affirm the commissioner' s award of attorney fees on

January    2   and a portion of      the trial   court' s award of   attorney fees    on   April 11.   We hold that the


commissioner abused its discretion on January 23 and April 11 and the trial court abused its

discretion on April 11 by awarding attorney fees without providing findings of fact and

conclusions of law that supported the amount of attorney fees awarded.5

          Trial courts must actively assess the reasonableness of all attorney fee awards and may

not simply accept the amounts stated in fee affidavits. Berryman v. Metcalf, 177 Wn. App. 644,

657, 312 P. 3d 745 ( 2013),          review   denied sub   nom.,     Berryman    v.   Farmers Ins. Co., 179 Wn.2d


1026 ( 2014).      The trial court generally considers the number of hours reasonably expended on

the litigation     multiplied   by   a reasonable     hourly rate.    Id. at 660. We review the reasonableness of




3 Walker also argues that the January 23 order improperly imposed remedial sanctions for
contempt without including a purge clause. However, because the order did not find Walker
guilty of contempt, no purge clause was necessary.


4 The trial court also awarded attorney fees of $500 in its January 24, 2014 order denying
Walker' s motion for revision. However, Walker does not challenge this award.


5 Walker does not challenge the authority of the commissioner and the trial court to award
attorney fees, so we do not address .that issue.

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45480 -7 -1I



the attorney fees   award   for   an abuse of   discretion. Cook, 180 Wn.   App.   at   375. A trial court


abuses its discretion regarding the amount of attorney fees when its decision is manifestly

unreasonable, based on untenable grounds, or made for untenable reasons. Id.


        Trial courts must exercise their discretion on articulable grounds, making a record

sufficient to permit meaningful review. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P. 2d 632

 1998); Just Dirt, Inc.   v.   Knight   Excavating, Inc., 138 Wn. App. 409, 415, 157 P. 3d 431 ( 2007).

This generally means that the trial court " must supply findings of fact and conclusions of law

sufficient to permit a reviewing court to determine why the trial court awarded the amount in

question."     SentinalC3, Inc.   v.   Hunt, 181 Wn.2d 127, 144, 331 P. 3d 40 ( 2014); see also Mahler,


135 Wn.2d at 435. If the trial court does not make findings of fact and conclusions of law


supporting the attorney fees award, the preferred remedy is to remand to the trial court for entry

of proper findings and conclusions. Berryman, 177 Wn. App. at 659. However, we do not read

the cases as requiring written findings as long as the trial court has made an adequate record to

support the amount of the attorney fee award. See Mahler, 135 Wn.2d at 435.

        1.      Oral Findings


        On January 2, the commissioner did not enter formal findings of fact or conclusions of

law supporting its award of $315 in reasonable attorney fees. However, the commissioner did

establish that Bremer' s attorney' s hourly rate was $ 210 and that his office was in Puyallup. The

award of $315 reflects an hour and a half of the attorney' s time. Although the commissioner did

not make written findings and conclusions regarding attorney fees, the record shows that the

commissioner made an effort to calculate the award based on that amount of time spent.




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        We believe that the record is sufficient to show that the commissioner found that the


attorney' s hourly rate was reasonable and that an hour and a half was a reasonable time to spend

on the hearing. Accordingly, we hold that the commissioner did not abuse its discretion in

awarding this amount.

        2.     Written Findings


        On April 11, 2014, the trial   court   issued   an order   awarding Bremer $ 1403   in attorney fees

relating to his unsuccessful February 27 motion. The trial court entered findings of fact and

conclusions of law supporting the award of $903 in attorney fees. We hold that the trial court

did not abuse its discretion in awarding this amount.

        However, the trial   court also awarded    Bremer    an additional $   500 in attorney fees based

on his attorney' s prehearing estimate of the time that would be spent preparing for the hearing.

In general, courts should not accept a party' s estimate of fees that it might incur in the future

because such estimates are inherently.uncertain. N Coast Elec. Co. v. Selig, 136 Wn. App. 636,

646, 151 P. 3d 211 ( 2007). The trial court' s findings and conclusions here do not address the


amount of fees the attorney actually incurred and do not indicate that the trial court assessed

whether the estimated amount was reasonable. Therefore, we hold that the trial court abused its


discretion in awarding the additional $ 500 in attorney fees without entering findings and

conclusions supporting an award in that amount. We reverse this portion of the award and

remand for entry of proper findings of fact and conclusions of law supporting the amount of that

portion of the award.




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         3.    No Findings or Conclusions


         The commissioner supplied no written findings of fact and conclusions of law supporting

the reasonableness of its attorney fee awards entered on January 23, 2014 and April 11, 2014.

Because no record of these proceedings has been provided on appeal, we are unable to determine

whether or why the commissioner found that the amount of attorney fees awarded was

reasonable. Therefore, we vacate the amount of those attorney fee awards and remand for entry

of proper findings of fact and conclusions of law supporting the amount of the awards.

C.       ATTORNEY FEES ON APPEAL


         1.    Walker' s Request


         Walker requests reasonable attorney fees on appeal based on the attorney fees provisions

of the Real Estate Contract Forfeiture Act, ch. 61. 30 RCW; RCW 7.21. 030; and the provisions of

the underlying contract between the parties. We may award attorney fees on appeal if applicable

law   provides such a right.   RAP 18. 1(   a).   But we hold that Walker is not entitled to recover his


reasonable attorney fees on appeal.

         Walker argues that the forfeiture statute supports an award of attorney fees. He cites

RCW 61. 30. 140( 5), which provides that


         If the purchaser or other person commencing the action [ to set aside a forfeiture]
         establishes a right to set aside the forfeiture, the court shall award the purchaser or
         other person commencing the action actual damages, if any, and may award the
         purchaser or other person its reasonable attorneys' fees and costs of the action.


By its own terms, this statute is inapplicable here because the supplementary proceedings were

ancillary to Bremer' s successful unlawful detainer action, not a successful action to set aside the

resulting forfeiture. Therefore, we reject this basis for an attorney fees award.


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         Walker also argues that the Coffin rule6 and RCW 7. 21. 030( 3) should be reciprocally

applied to allow him to collect attorney fees. Both the rule and the statute allow a court to award

a party attorney fees and other costs incurred as a result of another person' s contempt and the

resulting proceedings.      Bering   v.   SHARE, 106 Wn.2d 212, 246, 721 P. 2d 918 ( 1986); RCW


7. 21. 030( 3).   These provisions allow a court to award fees only to a party defending a contempt

order on appeal, not to a party challenging a contempt order. See In re Marriage of Curtis, 106

Wn.   App.     191, 202, 23 P. 3d 13 ( 2001).   But according to Walker, "[ p] ublic   policy and equity

demand reciprocity." Br. of Appellant at 33. Here, we need not decide whether reciprocal


application is warranted because the commissioner did not enter any contempt order. Therefore,

we hold that Walker is not entitled to recover attorney fees on this basis.

         Finally, in his reply brief Walker requests attorney fees based on the underlying contract.

However, RAP 18. 1( b) requires that such arguments be made in the opening brief. Gardner v.

First Heritage Bank, 175 Wn.         App.    650, 677, 303 P. 3d 1065 ( 2013). Because Walker makes this


request only in his reply brief, and without argument or citation, we do not consider this basis for

Walker' s fee request.




6 This rule was based on former RCW 7. 20. 100. State ex rel. Lemon v. Coffin, 52 Wn.2d 894,
896, 332 P. 2d 1096 ( 1958). That statute has since been repealed and effectively replaced by
RCW 7. 21. 030( 3).      Walker argues that it should now be treated as an equitable rule.



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        2.     Bremer' s Request


        Bremer also requests reasonable attorney fees on appeal. He bases his request on the

attorney fees provisions of the contract. A contract awarding a party attorney fees at trial also

can support such an award on appeal.   Atlas      Supply, Inc.   v.   Realm, Inc.,   170 Wn. App. 234, 241,

287 P. 3d 606 ( 2012). However, because both parties prevailed on major issues, Bremer is not


the substantially prevailing party. Hertz   v.   Riebe, 86 Wn.    App.    102, 105 -06, 936 ]?. 2d 24 ( 1997).


Therefore, we do not award Bremer attorney fees on appeal.

        We affirm in part and reverse in part, and remand for entry of findings of fact and

conclusions of law relating to the amounts of the commissioner' s attorney fee awards dated

January 23, 2014 and April 11, 2014, and the additional $ 500 awarded by the trial court on April

11, 2014.




We concur:




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