                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           July 6, 2016
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 DONALD R. EARL,                                                    No. 47034-9-II

                               Appellant,

        v.

 XYZPRINTING, INC.                                           UNPUBLISHED OPINION

                               Respondent.

       WORSWICK, J. — Donald Earl, a self-represented litigant, appeals three adverse rulings in

his lawsuit against XYZPrinting for an allegedly defective printer: the superior court’s order

granting summary judgment in favor of XYZPrinting Inc., the superior court’s unsigned

memorandum opinion denying Earl’s motion for reconsideration of the summary judgment

order, and the superior court’s order imposing fees and costs against Earl as CR 11 sanctions.

Earl argues that the superior court erred by (1) delaying Earl’s hearing, (2) conducting a hearing

telephonically, (3) denying his cross motion for summary judgment, (4) failing to comply with

the notice requirement in CR 54(f)(2), (5) denying his motion for reconsideration, (6) granting

sanctions against him, (7) awarding XYZPrinting fees and costs in violation of CR 54(d)’s 10-

day time limit, (8) failing to sanction XYZ’s opposing counsel, (9) denying his motion to compel

discovery, and (10) denying his conditional motion to change venue. Most of Earl’s arguments

either fail or were inadequately preserved for appeal. However, the superior court failed to

support the CR 11 sanctions against Earl with sufficient findings of fact and conclusions of law.

Consequently we affirm in part, reverse in part, and remand for further proceedings consistent

with this opinion.
No. 47034-9-II

                                              FACTS

        Earl purchased a 3-D printer manufactured by XYZPrinting Inc. from an online reseller

for $600.33 and received the printer on May 20, 2014. Ten days later, Earl was dissatisfied with

the functionality of the printer and contacted XYZPrinting. That same day, Earl began

threatening litigation, stating in his second email to XYZPrinting:

        As an aside, you REALLY should familiarize yourself with US warranty laws.
        Your “warranty” is in violation of so many laws, you would lose any class action
        lawsuit filed against you about ten minutes after it was filed. Or perhaps more
        accurately, you would lose on summary judgment after spending half a million
        dollars on attorney fees.

Clerk’s Papers (CP) at 126. Despite efforts by XYZPrinting to meet Earl’s needs, Earl filed a

complaint against XYZPrinting in Jefferson County Superior Court on June 20, 2014, one month

after receiving the printer.

        Jefferson County, where Earl resides, has one superior court judge. Earl filed an affidavit

of prejudice against this judge, which required visiting judges to hear this case.

        XYZPrinting moved for summary judgment dismissal of Earl’s claims on September 15,

2014. Earl filed a cross motion for summary judgment on September 18, a motion for sanctions

against XYZPrinting’s counsel on October 8, and a motion to compel discovery on October 10.

        The motions were scheduled to be heard in Jefferson County by Judge Melly, a visiting

judge from Clallam County on October 17, 2014. On October 15, the superior court notified the

parties that the hearing could not occur in Jefferson County as scheduled, but offered to give the

matter a special setting in Clallam County on October 17. Earl declined the offer and requested

that the hearing be continued to a later date in Jefferson County. The next day, the Jefferson

County Superior Court’s administrator confirmed a special setting for the matter on November

10. The confirmation letter stated in part, “Parties will be in the Jefferson County Superior Court

                                                 2
No. 47034-9-II

and the Clallam County Visiting Judge will either be here in person or will appear

telephonically.” CP at 309. On November 7, the parties received confirmation that Judge Melly

intended to conduct the hearing telephonically. On November 10, the parties attended the

hearing in person and Judge Melly appeared telephonically. At no point did Earl object or

otherwise raise any issue regarding the judge’s telephonic appearance.

       On November 10, after hearing argument from both XYZPrinting and Earl, the superior

court granted XYZPrinting’s motion for summary judgment, denied Earl’s cross motion for

summary judgment, denied Earl’s motion for CR 11 sanctions against XYZPrinting’s counsel,

and awarded attorney fees and costs to XYZPrinting as CR 11 sanctions against Earl. The

superior court then stayed the attorney fees and costs pending Earl’s acceptance of the refund of

the purchase price of his printer and dismissal of his lawsuit with prejudice.

       Earl moved for reconsideration and to vacate the summary judgment order. The superior

court denied his motion for reconsideration in a memorandum opinion filed on December 24.

On December 29, Earl filed a notice of appeal with this court seeking review of the superior

court’s order granting XYZPrinting’s summary judgment motion and the court’s memorandum

opinion denying reconsideration.

       On January 16, 2015, XYZPrinting filed its motion to set fees and costs as awarded by

the superior court’s order granting summary judgment. On January 30, Earl filed a conditional

motion for change of venue, and a CR 60 and RCW 4.72 motion to vacate summary judgment.

On February 6, a different visiting judge, Judge Olsen, set the fees and costs, specifically finding

that Earl filed his litigation in bad faith without factual or legal bases and failed to conduct a

reasonable inquiry into the factual and legal basis of his pleadings.



                                                   3
No. 47034-9-II

       On February 25, Earl filed an amended notice of appeal seeking direct review by our

Supreme Court of the order granting XYZPrinting’s motion for summary judgment, the

memorandum opinion denying reconsideration, and the order setting the amount of fees and

costs. The Supreme Court transferred the matter to us on November 4, 2015.

                                            ANALYSIS

   I. JEFFERSON COUNTY’S ADMINISTRATIVE PRACTICES REGARDING AFFIDAVIT OF PREJUDICE

       Earl argues that his constitutional rights were violated by the superior court’s delay in

hearing Earl’s motions after he filed an affidavit of prejudice. We disagree.

       As a threshold matter, Earl raises the issue of Jefferson County’s administrative practices

for the first time on appeal. An appellate court generally will not consider a claimed error that

was not raised in the trial court. RAP 2.5(a). However, under RAP 2.5(a)(3), a party may raise

for the first time on appeal a manifest error affecting a constitutional right. Before addressing

the merits of such a claim, a reviewing court must determine whether there is a constitutional

issue at all. In re Detention of Strauss, 106 Wn. App. 1, 11, 20 P.3d 1022 (2001). Although Earl

contends that Jefferson County’s administrative practices, “[o]n its face” violate the article I,

section 10 right to justice without unnecessary delay and the right of access to the courts, this

bald assertion is insufficient to demonstrate a constitutional issue.

       Earl’s right under article I, section 10 is a right to justice without unnecessary delay.

King v. Olympic Pipeline Co., 104 Wn. App. 338, 362, 16 P.3d 45 (2000). Here, the delay was

necessary pursuant to Earl’s statutory right to one change of judge without inquiry. RCW




                                                  4
No. 47034-9-II

4.12.0401 gives every party the right to a change of judge if the requirements of RCW 4.12.0502

are satisfied. Marine Power & Equipment Co., Inc. v. Dep’t of Transportation, 102 Wn.2d 457,

459, 687 P.2d 202 (1984). Washington courts have acknowledged the reality that a litigant’s

statutory right to one change of judge without inquiry may implicate the orderly administration

of justice. 102 Wn.2d at 463. Washington courts consistently accord great weight to the party’s

right to a change of judge. 102 Wn.2d at 463. We hold that the modest delay between Earl’s

affidavit of prejudice and the motions hearing does not qualify as an error of constitutional

magnitude, and therefore, Earl fails to satisfy the manifest constitutional error exception in RAP




1
    RCW 4.12.040(1) provides:

         No judge of a superior court of the state of Washington shall sit to hear or try any
         action or proceeding when it shall be established as hereinafter provided that said
         judge is prejudiced against any party or attorney, or the interest of any party or
         attorney appearing in such cause. In such case the presiding judge in judicial
         districts where there is more than one judge shall forthwith transfer the action to
         another department of the same court, or call in a judge from some other court. In
         all judicial districts where there is only one judge, a certified copy of the motion
         and affidavit filed in the cause shall be transmitted by the clerk of the superior court
         to the clerk of the superior court designated by the chief justice of the supreme
         court. Upon receipt the clerk of said superior court shall transmit the forwarded
         affidavit to the presiding judge who shall direct a visiting judge to hear and try such
         action as soon as convenient and practical.

(Emphasis added.)
2
    RCW 4.12.050(1) provides, in pertinent part:

         Any party to or any attorney appearing in any action or proceeding in a superior
         court, may establish such prejudice by motion, supported by affidavit that the judge
         before whom the action is pending is prejudiced against such party or attorney, so
         that such party or attorney cannot, or believes that he cannot, have a fair and
         impartial trial before such judge . . . and in any event, in counties where there is but
         one resident judge, such motion and affidavit shall be filed not later than the day on
         which the case is called to be set for trial.


                                                    5
No. 47034-9-II

2.5(a)(3). As Earl’s claim of error is unpreserved and does not meet RAP 2.5(a)(3), we do not

address it further.

                                           II. RCW 2.28.030

        Earl next argues that by conducting the motions hearing telephonically, the superior court

judge violated RCW 2.28.030 and consequently violated Earl’s constitutional rights. We hold

that Earl also failed to preserve this issue for appeal.

        Earl concedes that he was notified nearly a month before the hearing that it was possible

the visiting judge would appear telephonically. Furthermore, three days prior to the hearing Earl

received confirmation that the judge would appear telephonically. Earl made no objection, at

any point, to the hearing arrangements. Because he did not object, Earl failed to preserve this

issue, and we do not address it.

                       III. EARL’S CROSS MOTION FOR SUMMARY JUDGMENT

        Earl next argues that the superior court erred by denying his cross motion for summary

judgment. We disagree.

        Earl provides no argument or authority to support this assignment of error. Earl simply

lists the documents relied on by the trial court in denying his motion and encourages us to

conduct a de novo review of the listed filings. Earl does not articulate what his underlying

claims are, does not point to any particular evidence supporting those claims, and provides no

argument as to why denial of his summary judgment motion was inappropriate. The entirety of

his argument on the issue is as follows:

                De novo review of the above listed filings will demonstrate Mr. Earl’s
        motion for summary [sic] is exhaustively supported by fact and law throughout,
        that the Defendant failed to demonstrate any nonfrivolous legal theory in opposition
        to the motion and, that the facts in this case supporting summary judgment in Mr.
        Earl’s favor are undisputed.

                                                   6
No. 47034-9-II


Br. of Appellant 46. In his reply brief, Earl defends his lack of argument, contending that he has

fulfilled his duty on appeal by simply designating the documents considered by the superior

court.

         Although we review the grant or denial of a motion for summary judgment de novo,

appellants are nonetheless bound by the Rules of Appellate Procedure. City of Puyallup v.

Hogan, 168 Wn. App. 406, 416, 277 P.3d 49 (2012). RAP 10.3(a)(6) requires an appellant to

make reasoned arguments supported by citations to the record and legal authority. The purpose

of this rule is to enable the court and opposing counsel to efficiently and expeditiously review the

accuracy of the factual statements made in the briefs and the relevant legal authority. Litho

Color, Inc. v. Pacific Employers Ins. Co., 98 Wn. App. 286, 305, 991 P.2d 638 (1999). Even

when appealing a summary judgment where our review is de novo, a party is required to support

his assignments of error with legal arguments. Howell v. Spokane & Inland Empire Blood Bank,

117 Wn. 2d 619, 624, 818 P.2d 1056 (1991). We do not address appellant’s claim because it is

inadequately supported by authority or argument.

                                      IV. CR 54(f)(2) NOTICE

         Earl also argues that the order granting XYZPrinting’s motion for summary judgment is

void because the superior court failed to comply with the notice requirements of CR 54(f)(2).

Because Earl fails to show the alleged lack of notice of summary judgment caused him any

prejudice, his claim fails.

         “Failure to comply with the notice requirement in CR 54(f)(2) generally renders the trial

court’s entry of judgment void.” Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986). “A

judgment entered without the notice required by CR 54(f)(2) is not invalid, however, where the


                                                 7
No. 47034-9-II

complaining party shows no resulting prejudice.” 105 Wn.2d at 352. No prejudice exists when

the complaining party is able to appeal the judgment and argue the issues it wished to raise. 105

Wn.2d at 352-53. Here, Earl filed a motion for reconsideration and appealed. On appeal, he

makes no argument that he was prejudiced. Therefore, the order is not void for lack of notice.

                          V. RULING ON MOTION FOR RECONSIDERATION

       Earl next argues that the superior court violated his constitutional right to have his case

decided within ninety days because the court entered a memorandum opinion on reconsideration

as opposed to a signed order. We disagree.

       Earl argues that the opinion issued by the superior court on December 24, 2014, is void

because it was not a signed, formal order. Earl contends this violated article IV, section 20 of the

Washington Constitution, which requires: “Every cause submitted to a judge of a superior court

for his decision shall be decided by him within ninety days from the submission thereof.”

       Here, the superior court judge clearly rendered his decision on Earl’s motion for

reconsideration. The memorandum opinion clearly addressed each of Earl’s issues noted for

reconsideration and concluded: “There are no material issues of fact. Summary judgment in

favor of the Defendant was properly granted. Plaintiff’s Motion for Reconsideration is denied.”

CP at 333. The clarity of the superior court’s decision denying Earl’s motion for reconsideration

is underscored by Earl’s prompt appeal of the memorandum opinion. The superior court judge’s

decision on the merits of Earl’s motion was unequivocal and Earl treated it as such. Therefore,

we reject Earl’s claim.




                                                 8
No. 47034-9-II

                                  VI. SANCTIONS AGAINST EARL

       Earl challenges the superior court’s imposition of CR 11 sanctions against him. Because

the superior court failed to enter proper findings of fact and conclusions of law supporting the

award of sanctions, the court erred by imposing sanctions against Earl.3

       We review an award of sanctions under CR 11 for abuse of discretion. Biggs v. Vail, 124

Wn.2d 193, 197, 876 P.2d 448 (1994). CR 11 allows a trial court to sanction parties and

attorneys for baseless filings and filings made for an improper purpose. MacDonald v. Korum

Ford, 80 Wn. App. 877, 883, 912 P.2d 1052 (1996). If a party violates CR 11, the court may

impose appropriate sanctions ordering that party to pay reasonable expenses incurred by the

other party, including reasonable attorney fees. CR 11. A trial court must exercise its discretion

on articulable grounds, making an adequate record so the appellate court can review a fee award.

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

       “[I]n imposing CR 11 sanctions, it is incumbent upon the court to specify the

sanctionable conduct in its order.” Biggs, 124 Wn.2d at 201. This requires specific findings that

“either the claim is not grounded in fact or law and the attorney or party failed to make a

reasonable inquiry into the law or facts, or the paper was filed for an improper purpose.” 124

Wn.2d at 201 (emphasis omitted). Otherwise, we must remand for the trial court to “make

explicit findings as to which filings violated CR 11, if any, as well as how such pleadings

constituted a violation.” 124 Wn.2d at 202. A successor judge does not possess the authority to




3
 Earl also argues that (1) XYZPrinting failed to provide timely notice that it would seek CR 11
sanctions, (2) the trial court erred by awarding XYZPrinting fees and costs in violation of CR
54(d)’s 10-day time limit, and (3) the trial court failed to comply with the notice requirements of
CR 54(f). Because we reverse the trial court’s award of fees and costs on other grounds we do
not address these additional arguments.
                                                 9
No. 47034-9-II

do acts which require finding facts. State v. Ward, 182 Wn. App. 574, 584, 330 P.3d 203, review

denied, 339 P.3d 634 (2014).

       Here, the superior court awarded attorney fees and costs to XYZPrinting as CR 11

sanctions against Earl. However, the superior court did not enter findings specifically

identifying any sanctionable actions, and the court failed to otherwise explain its reasons for

imposing sanctions.

       XYZPrinting argues that the court’s written order setting costs and fees provides an

adequate record for review. We disagree. The order setting costs and fees was not signed by

Judge Melly who presided over the summary judgment hearing and granted the CR 11 sanctions,

but was instead signed by Judge Olsen, who presided over a hearing setting the amount of fees

and costs. The order contained findings of fact developed at a hearing over which she did not

preside. Judge Olsen did not have authority to enter findings of fact, thus her findings cannot

support CR 11 sanctions.

       XYZPrinting also contends that Judge Melly’s oral ruling clarified the court’s reasons for

imposing sanctions against Earl. Earl argues that the superior court’s oral ruling was nothing

more than an attempt “to force Earl to accept a settlement . . . under pain of retaliation.”4 Br. of

Appellant at 44. Although a trial court’s oral decision may provide an adequate record for

review, we hold that Judge Melly’s oral ruling was insufficient to support its imposition of CR

11 sanctions. See Just Dirt, 138 Wn. App. at 416.




4
 Because we reverse the imposition of CR 11 sanctions, we do not reach the issue of whether the
court’s improper actions violated Earl’s constitutional rights of access to the courts, equal
protection of the laws, and due process.
                                                 10
No. 47034-9-II

       On the issue of XYZPrinting’s request for costs and fees as CR 11 sanctions against Earl,

the superior court told Earl:

       I will award costs and fees under CR 11, Mr. Earl. However, I will stay those if
       you accept the defense proposal for a nonsuit in exchange for a total refund of your
       purchase price. To the extent that you deny that then I will sign an order authorizing
       sanctions against you on CR 11 because I think that your lawsuit was brought
       baselessly and in, in bad form, excuse me, bad faith and, uh, much, with much too
       rapidity. Without trying to really resolve the underlying issue I think you sort of
       jumped at the opportunity to file a lawsuit and you were working towards that at
       the very beginning. That, that’s the way it appears to the Court. That’s why I’m
       ordering the fees and, and the sanctions against you. However, I am going to hold
       that in abeyance if you accept their offer for settlement and for nonsuit in exchange
       for a six hundred refund payment to you. It’s your choice. That’s reasonable folks.

Verbatim Report of Proceedings (VRP) (Nov. 10, 2014) at 24. The superior court’s comments

are not adequate for us to review this issue. While the superior court stated its belief that Earl’s

lawsuit was brought in bad faith, it appears from these statements that the court’s primary reason

for imposing CR 11 sanctions against Earl was to convince him to settle the case. Indeed, the

court stayed the imposition of sanctions, encouraging Earl to “take that refund and run with it . . .

and bring this thing to a . . . peaceful conclusion.” VRP (Nov. 10, 2014) at 23. If the superior

court was using the threat of sanctions to encourage settlement, this was improper. Additionally,

the court’s oral ruling failed to make proper, specific findings as to why sanctions were

appropriate.

       Because the superior court failed to make an adequate record for us to review the award

of costs and fees as sanctions, we reverse the CR 11 sanctions against Earl and remand for the

superior court to properly consider whether Earl violated CR11 and, if so, to enter written

findings of fact and conclusions of law supporting the imposition of sanctions.




                                                 11
No. 47034-9-II

                                           VII. CR 54(d)

       Earl argues that the trial court erred by awarding XYZPrinting fees and costs in violation

of CR 54(d)’s 10-day time limit. Because XYZPrinting complied with the plain language of CR

54(d), we disagree.

       “‘Interpretation of a court rule is a question of law, subject to de novo review.’” Mitchell

v. Wash. Inst. of Pub. Policy, 153 Wn. App. 803, 821, 225 P.3d 280 (2009) (quoting Gourley v.

Gourley, 158 Wn.2d 460, 466, 145 P.3d 1185 (2006)). “Court rules are interpreted in the same

manner as statutes. If the rule’s meaning is plain on its face, we must give effect to that meaning

as an expression of the drafter’s intent.” Jafar v. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042

(2013). Where a court rule is ambiguous, we look to the drafter’s intent by “‘reading the rule as

a whole, harmonizing its provisions, and using related rules to help identify the legislative intent

embodied in the rule.’” 177 Wn.2d at 526-27 (quoting State v. Chhom, 162 Wn.2d 451, 458, 173

P.3d 234 (2007)).

       Washington’s CR 54(d) states, in relevant part:

       Costs, Disbursements, Attorneys’ Fees, and Expenses.
               ....
               (2) Attorneys’ Fees and Expenses. Claims for attorneys’ fees and expenses,
       other than costs and disbursements, shall be made by motion unless the substantive
       law governing the action provides for the recovery of such fees and expenses as an
       element of damages to be proved at trial. Unless otherwise provided by statute or
       order of the court, the motion must be filed no later than 10 days after entry of
       judgment.

       CR 54(d)(2) clearly requires claims for attorney fees and expenses be filed no later than

10 days after entry of judgment. Here, XYZPrinting expressly moved the court for costs and

fees when it filed its motion for summary judgment on September 15, 2014. Nothing in the text

of CR 54, nor related rules, suggests that the substance of XYZPrinting’s motion, or the manner


                                                 12
No. 47034-9-II

in which it was submitted, fails to comply with the requirements set forth in CR 54(d)(2). See

North Coast Elec. Co. v. Signal Elec., Inc., No. 47618-5-II, 2016 WL 2343172, at *3 (Wash. Ct.

App. Apr. 26, 2016).

       When the trial court granted XYZPrinting’s motion for summary judgment, it explicitly

granted XYZPrinting attorney fees and costs, but stayed the award pending Earl’s acceptance of

a settlement. When Earl refused to accept the settlement offer, XYZPrinting brought its motion

to set the amount of fees and costs. XYZPrinting’s motion to set the amount of fees and costs

pursuant to the order granting summary judgment was not a CR 54(d)(2) motion, as Earl

describes it, rather it was simply a request that the court calculate the amount of fees and costs

already authorized.

       We hold that XYZPrinting’s inclusion of its request for attorney fees in its motion for

summary judgment complied with the plain language of CR 54(d)(2) because it claimed attorney

fees and expenses, was made by motion, and that motion was filed not later than 10 days after

judgment was entered. CR 54(d)(2). Therefore, Earl’s argument on this ground fails.

                         VIII. FAILURE TO SANCTION OPPOSING COUNSEL

       Earl also argues that the superior court violated his due process rights by failing to

sanction opposing counsel. We disagree.

       Despite Earl’s attempt to cast this argument in a constitutional light, we review the

superior court’s decision not to impose CR 11 sanctions for an abuse of discretion. Biggs, 124

Wn.2d at 197. The trial court abuses its discretion when its decision is based on untenable

grounds or reasons. Clarke v. Office of the Attorney General, 133 Wn. App. 767, 777, 138 P.3d

144 (2006). A trial court abuses its discretion when it relies on unsupported facts, adopts a view



                                                 13
No. 47034-9-II

that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an

erroneous view of the law. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

        Most of Earl’s argument on this issue consists of his simply naming documents contained

within the record wherein he lists examples of alleged misconduct by opposing counsel. Merely

listing documents in the record is insufficient to carry Earl’s burden on appeal, and we do not

address those insufficiently argued claims. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d

801, 809, 828 P.2d 549 (1992).

        Of his claims which may be sufficiently argued, Earl lists some specific examples of

opposing counsel’s alleged misconduct, but of these examples, none had yet occurred at the time

the superior court ruled on Earl’s motions for sanctions. Earl contends that opposing counsel

“perpetuate[s] fraud” on the court by referring to the memorandum opinion on reconsideration

entered by the superior court as “signed” in her motions and at the hearing on Earl’s CR 60

motion to vacate on February 6, 2015. Br. of Appellant at 34. Earl also contends that opposing

counsel’s statement to the superior court at the reconsideration hearing—pointing out Earl’s

litigious history—warranted sanctions. Not only are the statements Earl criticizes not

misconduct, these statements were made well after the superior court denied Earl’s motion for

sanctions on November 10, 2014. It would be illogical to hold that the superior court abused its

discretion by failing to impose sanctions for behavior that had yet to occur.

        Earl claims that opposing counsel’s “reprehensible conduct, and the extreme prejudice

Mr. Earl has suffered as a result, clearly warrants harsh sanctions . . . . The trial court’s failure to

curb misconduct of this magnitude amounts to little more than a frontal assault on Mr. Earl’s

right to due process and access to the courts.” Br. of Appellant at 39. But neither the record nor



                                                   14
No. 47034-9-II

Earl’s argument supports such a bold allegation. We find no abuse of superior court discretion in

denying Earl’s request for sanctions under CR 11.

                              IX. MOTION TO COMPEL DISCOVERY

       Earl next argues that the superior court violated his due process rights by denying Earl’s

motion to compel discovery.5 We disagree.

       The decision to grant or deny a motion to compel discovery is within the discretion of the

trial court, and we will not reverse the decision absent an abuse of discretion. Clarke, 133 Wn.

App. at 777. The trial court abuses its discretion when its decision is based on untenable grounds

or reasons. 133 Wn. App. at 777.

       Earl filed his motion to compel discovery on October 10, 2014. However, prior to his

motion to compel discovery, Earl had filed a cross motion for summary judgment on September

18, 2014. In his motion for summary judgment, Earl stated:

                The Plaintiff intended to move for summary judgment on completion of
       discovery, as the Plaintiff reasonably believes the Defendant is in possession of
       documents, information and witness testimony that would aid the Plaintiff in
       supporting his case. However, in the course of preparing a response to the
       Defendant’s Motion for Summary Judgment, after reviewing the evidence already
       in the Plaintiff’s possession, and on further study of relevant statutes, rules and
       precedent, the Plaintiff believes the case is sufficiently well developed to warrant
       filing this Motion for Summary Judgment, in spite of the fact that Plaintiff would
       have preferred to do so after the production of information currently being withheld
       by the Defendant.




5
  Earl does not explain how a denial of his motion to compel discovery violated his due process
rights.



                                               15
No. 47034-9-II

CP at 87-88 (emphasis added). The superior court validly relied on Earl’s statement in concluding

that the evidentiary posture of the case was sufficient for the court to consider the motions for

summary judgment.6

       On appeal, Earl fails to explain why, contrary to his assertion in his cross motion for

summary judgment, further discovery was necessary or would have helped him to defeat

summary judgment. Moreover, he offers no argument that the denial of his motion was an abuse

of discretion. His argument fails.

                               X. CONDITIONAL CHANGE OF VENUE

       Earl also argues that the superior court erred by denying his conditional motion for

change of venue. We disagree.

       Earl’s conditional motion for change of venue asked the superior court to prematurely

rule that in the event his appeal was remanded for further proceedings that those further

proceedings be conducted in King County. The superior court did not abuse its discretion by not

addressing this motion because the superior court has no duty to address premature motions.

                                        ATTORNEY FEES

       Finally, Earl requests costs and fees pursuant to RAP 14.2, RAP 18.1, and RCW 4.84.

Because Earl is not a substantially prevailing party, we reject his request.

       XYZPrinting also requests attorney fees and costs pursuant to RAP 18.1 and RAP 18.9

on the basis that Earl’s appeal is frivolous. Because we reverse the superior court’s imposition

of CR 11 sanctions against Earl, we hold that Earl’s appeal was not frivolous and therefore deny

XYZPrinting’s request for attorney fees and costs.


6
  As of September 10, 2014, XYZPrinting had sent responses to Earl’s first interrogatories and
requests for production. The parties conducted a discovery conference on September 16, 2014.
                                                 16
No. 47034-9-II

       In conclusion, of the three orders Earl appeals, we affirm the order granting

XYZPrinting’s motion for summary judgment, and the decision denying Earl’s motion for

reconsideration of the summary judgment order. However, because the superior court failed to

properly specify any findings or conclusions supporting its imposition of CR 11 sanctions

against Earl, we reverse the order imposing sanctions, and remand for further proceedings

consistent with this opinion.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                    Worswick, J.
 We concur:



 Bjorgen, C.J.




 Lee, J.




                                               17
