      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CONCRETE SERVICES, INC., a
Washington corporation,                       DIVISION ONE


                   Plaintiff,
                                              No. 68578-3-


                                               UNPUBLISHED OPINION
ROBERT KANANY, a single man,
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                   Appellant,
                                                                           ——


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OVIDIO ESCAMILLA, a single man,                                                   s^-
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                    Respondent,                                            35»    co.-.-, j_
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FRONTIER BANK, a Washington                                                CD
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Bank, MORTGAGE ELECTRONIC                                                  cn     ~™ "!C

REGISTRATION SYSTEM, INC., a
Delaware Corporation, and
PRIMELENDING, A PLAINSCAPITAL
COMPANY, a Texas Corporation,                  FILED: May 20, 2013

                    Defendants.



      Dwyer, J. — Robert Kanany appeals from a trial court order denying his

request for relief from a default judgment entered against him. Kanany asserts

that the default judgment was satisfied by a $10,000 payment made by a title

insurance company on behalf of Ovidio Escamilla in order to obtain dismissal of
No. 68578-3-1/2



claims asserted by Concrete Services, Inc. against Escamilla and to assign the

default judgment in favor of Concrete Services against Kanany to Escamilla. We

determine that substantial evidence supports the trial court's finding that the

$10,000 payment constituted consideration for dismissal of the claims against

Escamilla and assignment of the default judgment against Kanany—not

satisfaction of that judgment. Accordingly, we affirm the trial court's denial of

Kanany's request for relief. We additionally affirm the trial court's grant to

Escamilla of an award of attorney fees incurred in defending against vacation of

the default judgment. Finally, because we determine that Kanany's appeal is

frivolous, we grant to Escamilla an award of attorney fees on appeal against both

Kanany and his counsel.1
                                               I


       On February 18, 2009, Concrete Services filed an amended complaint

seeking to collect amounts owed and to foreclose upon a lien encumbering six
parcels of property owned by Kanany, who had failed to pay for the installation of
concrete improvements to those properties. Without disclosing the existence of
the lien, Kanany had subsequently conveyed one ofthe six parcels to Escamilla.
Accordingly, the complaint filed by Concrete Services named both Kanany and
Escamilla as defendants.2 Concrete Services sought judgment against Kanany


       1As explained below, the award ofattorney fees on appeal against Kanany is warranted
pursuant to Civil Rule (CR) 11 and RCW 60.04.181—the bases for the fee award in the trial
court—in addition to Rule of Appellate Procedure (RAP) 18.9(a). The appellatefee award against
Kanany's counsel is warranted based solely upon RAP 18.9(a).
       2 Concrete Services also named as defendants Frontier Bank, Mortgage Electronic
Registration System, Inc., and Primelending, a Plainscapital Company, each of which claimed an
interest in the subject real property. Thus, Concrete Services sought judgment that the liens of

                                             -2-
No. 68578-3-1/3



in the amount of $7,688.83 with interest at a rate of 12 percent per annum,

coupled with an award of reasonable attorney fees and costs. Concrete Services

additionally sought foreclosure of the lien and application of the proceeds toward

payment of the amount owed.

       In March 2009, Escamilla contacted Ticor Title Insurance Company, which

had issued a title insurance policy insuring the parcel conveyed to Escamilla by

Kanany. Escamilla requested that Ticor Title resolve the Concrete Services

lawsuit on his behalf pursuant to the insurance policy. Escamilla thereafter

answered Concrete Services' complaint and asserted cross-claims against

Kanany for breach of warranties in the statutory warranty deed pursuant to which

the parcel was conveyed, intentional and negligent misrepresentation, breach of

contract, and unjust enrichment.

       Kanany, however, failed to answer Concrete Services' complaint.

Accordingly, Concrete Services moved for entry of an order of default and default
judgment against Kanany. On September 4, 2009, the trial court granted
Concrete Services' motion, entering a default judgment against Kanany in the

amount of $11,306.26.

        In May 2010, Ticor Title, on behalfof its insured, Escamilla, negotiated

with Concrete Services a resolution of the claims against Escamilla. Ticor Title

issued a check in the amount of $10,000 payable to Concrete Services "for the

purpose of settling" the insurance claim asserted by Escamilla. Escamilla's


these defendants against the subject property were inferior and subordinate to the lien upon
which Concrete Services sought to foreclose.

                                               -3-
No. 68578-3-1/4



attorney thereafter mailed the settlement check to Concrete Services, enclosing

three documents, entitled (1) "Stipulation and Order of Dismissal of All Claims

Between Concrete Services, Inc., as Plaintiff, and Ovidio Escamilla, as

Defendant Only"; (2) "Assignment of Default Judgment by Plaintiff Concrete

Services, Inc. to Defendant Ovidio Escamilla"; and (3) "Partial Release of Lien".

Concrete Services was authorized to cash the settlement check only upon

signing and returning the stipulation and dismissal of claims against Escamilla,
the assignment ofthe default judgment against Kanany to Escamilla, and the

release of the lien against Escamilla's property.

       The assignment of the defaultjudgment by Concrete Services to

Escamilla was filed in the trial court on June 18, 2010. Three days later,

pursuant to the stipulation and dismissal signed by the parties, the trial court
ordered that all claims between Concrete Services "and

Defendant/Crossclaimant, Ovidio Escamilla only" be dismissed with prejudice.

       Following assignment of the default judgment and dismissal of Concrete
Services' claims against Escamilla, Kanany moved, on May 25, 2011, to vacate
the default order and judgment entered against him more than 21 months earlier.
He asserted that the order and judgment were void as a matter of law due to
insufficient service of process and, thus, a lack of personal jurisdiction over him.
Contrary to Kanany's contention, the proof of service indicated that, on March 1,
2009, the summons and complaint had been personally served upon Kanany at
 his Bonney Lake residence by leaving them with a co-resident named "Cameron
 Kanany." Kanany alleged, however, that his step-brother, Kamran Kanany, had
                                         -4-
No. 68578-3-1/5



never resided at the Bonney Lake home. Kanany testified at a subsequent

deposition that he did not receive the summons and complaint in March 2009; he

further testified that he did not become aware of the lawsuit until after the default

judgment was entered in September 2009.

        In order to disprove Kanany's assertions, Escamilla submitted to the trial

court evidence that Kanany had been aware of the Concrete Services litigation

prior to entry of the default judgment. He provided a declaration of Greg Colbo, a

senior title officer and underwriter at Ticor Title, who stated that he had received

a telephone call from Kanany on March 11, 2009. During this call, Colbo

asserted, Kanany stated that he had received the summons and complaint and

discussed resolution of the lawsuit. Escamilla also submitted a handwritten note

faxed by Kanany to the title officer inquiring as to whether Ticor Title would

resolve the matter; the summons and complaint were faxed along with the note.

Moreover, Escamilla's attorney stated in a declaration that Kanany had contacted

him numerous times during July and September of 2009 regarding the Concrete

Services litigation.

        On September 26, 2011, the trial court held an evidentiary hearing on

        3The handwritten note identifies the sender as "Robert Kanany" and states: "This is the
paperwork you asked for. Are you going to answerthis or do I need to move forward with an
attorney to deal with them. Please get back to me." Kanany admitted during his deposition that
the handwriting was his own and that he had sent the fax.
         A letter from Colbo to Escamilla, dated March 16, 2009, further corroborates Colbo's
recollection of the events. The letter informs Escamilla that Ticor Title had received his claim
relating to the Concrete Services litigation. It further states:
         We have been in contact with your seller [Kanany] as well as the attorney
        representing the lien claimant. It is my understanding that Mr. Kanany is in the
        process of obtaining a release of the mechanic's lien and dismissal of the lien
        foreclosure action. We are currently working with him to help expedite resolution
        of this matter.
No. 68578-3-1/6



Kanany's motion to vacate the default order and judgment due to improper

service. Kanany testified that Kamran had never resided at the Bonney Lake

home. In addition, he again testified that he had no recollection of being served

with the summons and complaint in the Concrete Services litigation. However,

evidence presented at the hearing indicated otherwise. Recent photographs of

Kanany and Kamran, the testimony of the process server who had been asked to

serve the summons and complaint on Kanany, and notes that had been made by

the process server at the time of service established that Kanany had, in fact,

been personally served with the summons and complaint. The evidence further

suggested that Kanany, upon service, had erroneously identified himself as

"Kamran Kanany" and stated that he resided at the Bonney Lake home.

        Two days later, on September 28, 2011, Kanany filed a motion to amend

his motion to vacate the default judgment "to add CR 60(b)(6)[4] as the basis for
relief from default judgment." Kanany asserted that he had received "new

evidence" that the $10,000 payment to Concrete Services had been made by

Ticor Title, rather than by Escamilla. Although Kanany admitted that only

Escamilla was an insured pursuant to the Ticor Title insurance policy, he

nevertheless alleged that the defaultjudgment against him had been satisfied by

the $10,000 payment to Concrete Services.

        At an October 6, 2011 hearing, Kanany conceded that service had been

         4CR 60(b)(6) provides: "On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment, order, or proceeding" where "[t]he
judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application."
No. 68578-3-1/7



proper. Rather, he contended that the default judgment had been satisfied when

the $10,000 check was delivered to Concrete Services and, accordingly, that the

assignment of the default judgment to Escamilla was improper. Conversely,

Escamilla asserted that the $10,000 payment, rather than being intended to

satisfy the default judgment, instead constituted consideration for dismissal of

Concrete Services' claims against Escamilla and assignment of the default

judgment from Concrete Services to Escamilla.

       On March 7, 2012, the trial court entered findings of fact, conclusions of

law, and an order on Kanany's amended motion to vacate the default judgment

and order. The court determined that Kanany's testimony regarding whether he

had seen the summons and complaint in March 2009 "was not credible." Rather,

the court explained:

       It was clear to the court that Robert Kanany had been personally
       handed the summons and complaint at his home on March 1, 2009,
       and that he had told the process server that he was Kamran
       Kanany, in order to mislead the process server, and in preparation
       for misleading this court.

The trial court additionally rejected Kanany's argument that the $10,000 payment

to Concrete Services constituted satisfaction of the default judgment. Instead,

the court found that "[t]he evidence clearly establishes that the $10,000 was not

paid to satisfy the Default Judgment, but was consideration for the assignment of
the Default Judgment against Defendant Robert Kanany to Defendant Escamilla
and the dismissal of Concrete Services, Inc.'s, claims against Defendant Ovidio

Escamilla."

       The court concluded that (1) Kanany had been properly served with the

                                        -7-
No. 68578-3-1/8



summons and complaint; (2) the $10,000 payment to Concrete Services did not

result in satisfaction of the default judgment; (3) "[wjhether the check was paid by

Defendant Escamilla or Ticor Title Company is of no consequence to the issue of

whether or not the Default Judgment should be vacated"; and (4) the default

judgment was properly assigned to Escamilla. Thus, the court ruled that Kanany

had failed to demonstrate that he was entitled to the relief he requested pursuant

to CR 60(b)(6).

       Finally, the trial court awarded to Escamilla attorney fees and costs

incurred in defending the default judgment. The court determined that, because

the default judgment included an award of attorney fees, such an award was

authorized, pursuant to the same statute, for expenses incurred in defending that

judgment. Moreover, the court concluded that an award of attorney fees was

justified pursuant to Civil Rule (CR) 11, given that "Robert Kanany lied to this

court" and that his motion to vacate "was a frivolous motion without legal or

factual basis" that "served to waste resources of the parties, attorneys, and the

court." On March 28, 2012, the trial court entered a supplemental judgment

regarding the default judgment, awarding to Escamilla $22,825 in attorney fees

and $556.20 in costs incurred in defending the default judgment against

Kanany's motion to vacate.

       Kanany appeals.

                                          II


       Kanany first contends that the trial court abused its discretion by denying

his request for relief from the default order and judgment pursuant to CR

                                        -8-
No. 68578-3-1/9



60(b)(6). This is so, he asserts, because the $10,000 payment made by Ticor

Title on behalf of Escamilla to Concrete Services constituted satisfaction of the

default judgment against him. However, the trial court's finding of fact that the

$10,000 payment constituted consideration for dismissal of Concrete Services'

claims against Escamilla and assignment of the default judgment—not

satisfaction of that judgment—is supported by substantial evidence. Accordingly,

the trial court did not err by declining to award the requested relief.

       "We review a trial court's decision on a motion to set aside a default

judgment for abuse of discretion." Little v. King, 160 Wn.2d 696, 702, 161 P.3d

345 (2007). "A trial court abuses its discretion when its decision is 'manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.'"

Tribble v. Allstate Prop. & Cas. Ins. Co.. 134 Wn. App. 163, 170, 139 P.3d 373

(2006) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775

(1971)). "In reviewing a trial court's findings and conclusions, we determine

whether substantial evidence supports challenged findings of fact and, in turn,

whether the findings support the conclusions of law." State v. McEnrv, 124 Wn.

App. 918, 924, 103 P.3d 857 (2004). "Substantial evidence is evidence sufficient
to persuade a fair-minded, rational person of the truth of the finding." McEnrv,

124 Wn. App. at 924.

       "A judgment creditor can assign his rights in the judgment to a third party.

However, if the judgment debtor satisfies the judgment before it is assigned by
the judgment creditor, the satisfaction would bar the assignee from enforcing the
judgment." 47 Am. Jur. 2d Judgments § 811 (2013). Pursuant to this "one

                                         -9-
No. 68578-3-1/10



satisfaction" rule, a judgment creditor can receive only one satisfaction of a debt;

accordingly, once the judgment has been satisfied, the judgment creditor no

longer has an interest to assign. 47 Am. Jur. 2d Judgments § 811 (2013).

"Satisfaction" is "[tjhe giving of something with the intention, express or implied,

that it is to extinguish some existing legal or moral obligation." Black's Law

Dictionary 1460 (9th ed. 2009). Thus, a judgment is not satisfied where a third

party's payment to the creditor is intended to purchase the debt rather than to

extinguish it:

               A third person's payment of a debtor's obligation differs from
       the third person's purchase of the debt in that payment discharges
       the debt while purchase does not discharge the debt, which is
       enforceable by the third person. Ordinarily, the intention of the
       parties determines whether a transfer of money by a third person to
       a creditor constitutes a discharge or purchase of an underlying
       debt.

60 Am. Jur. 2d Payment § 5 (2013).

       Here, the trial court found that the evidence clearly established that the
$10,000 payment to Concrete Services was intended as consideration for the
assignment of the default judgment against Kanany to Escamilla and the
dismissal of Concrete Services' claims against Escamilla. The court found that

the $10,000 payment was not intended to satisfy the default judgment against
Kanany. Accordingly, the court concluded that, contrary to Kanany's assertion,
the $10,000 payment did not result in the satisfaction ofthe default judgment

against him.

        Substantial evidence supports the trial court's findings. The record shows

that Ticor Title issued a title insurance policy to Escamilla insuring the title of the

                                         -10-
No. 68578-3-1/11



parcel conveyed to Escamilla by Kanany. It was pursuant to this policy that

Escamilla requested that Ticor Title resolve the Concrete Services litigation on

his behalf. Ticor Title thereafter issued a $10,000 check, payable to Concrete

Services, indicating that the check was "for the purpose of settling" the insurance

claim asserted by Escamilla.5 Ticor Title and Concrete Services agreed that, in
exchange for the $10,000 payment, Concrete Services would dismiss its claims

against Escamilla, release the lien against Escamilla's property, and assign the

default judgment in its favor against Kanany to Escamilla. The letter to Concrete

Services accompanying the $10,000 check explicitly states that Concrete

Services was authorized to cash the check only upon signing and returning the

stipulation and dismissal, assignment of the default judgment, and partial release

of the lien. In stark contrast to the abundance of evidence indicating that the

$10,000 payment constituted consideration for dismissal of the claims against

Escamilla and assignment of the default judgment is the complete absence of

evidence suggesting that the payment was intended to satisfy the default

judgment entered against Kanany.

        Moreover, the amount of the default judgment was $11,306.26. Thus, the

$10,000 payment would not constitute full payment of the judgment, further

supporting the trial court's finding that the payment was not intended to satisfy

        5 In contending that the $10,000 payment satisfied the default judgment against him,
Kanany asserts that the payment constituted settlement of Concrete Services' claims. However,
the record clearly demonstrates that the $10,000 payment was intended to settle only those
claims by Concrete Services asserted against Escamilla, thereby settling Escamilla's insurance
claim against TicorTitle. Nowhere does the record indicate that the $10,000 payment was
intended as settlement of Concrete Services' claims against Kanany. Indeed, Concrete Services
had already obtained a defaultjudgmentagainst Kanany; thus, there were no pending claims
against Kanany to be settled.

                                            -11 -
No. 68578-3-1/12



that judgment. Finally, because, as he admits, Kanany is not an insured

pursuant to the Ticor Title policy, Ticor Title had no incentive to satisfy the

judgment on Kanany's behalf. Rather, TicorTitle, having paid $10,000 to settle

the claims against Escamilla, its insured, had incentive to purchase the judgment

and proceed against Kanany in order to recover that expense.6 Thus, the record
clearly demonstrates that the parties intended the $10,000 payment to constitute

consideration for assignment of the defaultjudgment, not the satisfaction of that

judgment.7
         Substantial evidence supports the trial court's finding that the $10,000

payment was intended as consideration for dismissal ofthe claims against
Escamilla and assignment ofthe default judgment to Escamilla—not to satisfy a
judgment against a non-party to that contract. This finding supports the trial
court's conclusion that the $10,000 payment did not result in satisfaction of the

default judgment against Kanany. Notwithstanding repeated requests at oral


         6As the trial court found, and as Kanany now admits, the title insurance policy states that
Ticor Title shall be subrogated and entitled to the rights of Escamilla where Ticor Title settles a
claim pursuant to the policy. Thus, contrary to Kanany's contention, the fact that Ticor Title
issued the $10,000 check to Concrete Services, and yetthe default judgment was assigned to
Escamilla himself, is of no moment.
        7Kanany argues at great length regarding the timing of the delivery of the $10,000 check
to Concrete Services, asserting that, because the check was delivered prior to the assignment of
the default judgment, the default judgment had been satisfied and could not thereafter be
assigned. Because, however, the evidence supports the trial court's determination that the
$10,000 payment was not intended to satisfy the default judgment, the timing of the delivery of
the check is ofno consequence. Consideration for assignment ofa judgment does not satisfy
that judgment simply because the consideration was delivered prior to the assignment. Kanany's
argument is wholly without merit.
          Moreover, the cases cited by Kanany in support of his argument are inapposite. See
Charles P Young Co. v. Anava. 119 N.M. 449, 891 P.2d 1203 (1995); Strong Mem'l Hosp. v.
AlmacBldc. Maint.. Inc.. 122 Misc.2d 246, 470 N.Y.S.2d 542 (1983). No judgmentwas obtained
against Escamilla. Accordingly, judicial authority regarding the obligations of joint debtors is
 irrelevant.


                                                -12-
No. 68578-3-1/13



argument that he do so, Kanany points to no evidence in the record indicating

that the $10,000 payment was intended to satisfy the judgment against him.

Accordingly, we reject Kanany's specious argument and hold that the trial court

properly denied his CR 60(b)(6) request for relief from the default judgment.8
                                                Ill


       Kanany additionally asserts that the trial court erred by granting an award

of attorney fees and costs to Escamilla. However, both RCW 60.04.181(3),

pursuant to which fees were awarded as part of the default judgment, and CR 11

provided applicable, independent bases for the trial court's grant of the fee

award. Accordingly, the court did not abuse its discretion by granting that award.

       We will not disturb a trial court's decision to grant or deny an award of

attorney fees absent an abuse of discretion. Roats v. Blakelv Island Maint.

Comm'n, Inc., 169 Wn. App. 263, 283-84, 279 P.3d 943 (2012). Similarly, we

review for abuse of discretion an award of sanctions pursuant to CR 11. Marina

Condo. Homeowner's Ass'n v. Stratford at Marina. LLC, 161 Wn. App. 249, 263,

254 P.3d 827 (2011). As explained above, "[a] trial court abuses its discretion if

its order is manifestly unreasonable or is based on untenable grounds." Marina

Condo. Homeowner's Ass'n, 161 Wn. App. at 263.

        Here, fees were awarded as an element of the default judgment against

Kanany pursuant to RCW 60.04.181(3), which provides authority for a court to

        8Kanany challenges numerous other findings offact and conclusions oflaw made by the
trial court. After a complete review of the record, we conclude, with regard to the challenged
findings and conclusions, that either (1) the findings and conclusions are ofno moment to the
resolution of this case or (2) substantial evidence supports the challenged findings, which
themselves support the court's conclusions.

                                              -13-
No. 68578-3-1/14



allow the prevailing party in a priority of liens action to recover, among other

expenses, "attorneys' fees and necessary expenses incurred ... in the superior

court, court of appeals, supreme court, or arbitration, as the court or arbitrator

deems reasonable." Accordingly, the trial court determined that, because the

default judgment included an award of attorney fees and costs against Kanany,

Escamilla was entitled to an award of fees incurred in defending the default

judgment. The court additionally determined that

        Escamilla is entitled to an award of costs and attorneys' fees under
       CR 11 .[9] Robert Kanany lied to this court. His motion to vacate the
       default and default judgment was a frivolous motion without legal or
       factual basis. It served to waste resources of the parties, attorneys,
       and the court.

In its supplemental judgment, the court explained that itfound "this sanction, in

light of the particulars of this particular case, to be the least severe necessary to

deter baseless filings and to curb abuses of the judicial system."

        In challenging the fee award, Kanany baldly asserts that the trial court

granted the award "without a fair and impartial assessment of all the

circumstances comprising this matter." Br. of Appellant at 46-47. He additionally

asserts that the fee award was unwarranted because, according to Kanany, the

entire matter was caused by Concrete Services' and Escamilla's "fail[ure] to


      9CR 11 provides that the signature of a party or attorney on a pleading, motion, or legal
memorandum constitutes a certificate by that party or attorney that the pleading, motion, or legal
memorandum is well grounded in fact, warranted by existing law or a good faith argument for a
change in existing law, is not interposed for an improper purpose, and contains only factual
contentions or denials warranted by the evidence. CR 11(a). Where a pleading, motion, or legal
memorandum is signed in violation of the rule, "thecourt, upon motion or upon its own initiative,
may impose upon the person who signed it, a represented party, or both, an appropriate sanction,
which may include an orderto pay to the other party or parties the amount ofthe reasonable
expenses incurred . .. , including a reasonable attorney fee." CR 11(a).

                                              -14-
No. 68578-3-1/15



acknowledge full payment and satisfaction" of the default judgment. Br. of

Appellant at 47. The record belies Kanany's assertions.

         Instead, the trial court correctly determined that, because the default

judgment included an award of attorney fees against Kanany, such an award was
authorized for those expenses incurred in defending that judgment. See RCW

60.04.181(3) (providing for a fee award to the prevailing party in a lien action

where the fees are incurred "in the superior court, court of appeals, supreme

court, nr arbitration"^: see also Aecon Bldas. Inc. v. Vandermolen Constr. Co.,

Inc., 155 Wn. App. 733, 743, 230 P.3d 594 (2009) (granting a fee award to the
prevailing party for expenses incurred in defending against an appeal of a default
judgment where the underlying contract provided for such an award in the event
of litigation between the parties). In addition, CR 11 provided a sufficient and
independent basis for the award of attorney fees granted by the trial court. The
trial court's determination that Kanany lied to the court is not reviewable on

appeal. See Frank Coluccio Constr. Co.. Inc. v. King County, 136 Wn. App. 751,
770, 150 P.3d 1147 (2007) ("The trial court's credibility determination and its
resolution ofthe truth from conflicting evidence will not be disturbed on appeal.").
Moreover, the record supports the trial court's determination that the motion to
vacate the default order and judgment was frivolous and without legal orfactual

basis.

         We hold that an award of attorney fees in the trial court was warranted




                                            15
No. 68578-3-1/16



pursuant to both RCW 60.04.181 (3) and CR 11.10 Accordingly, we affirm the trial
court's grant of a fee award in the instant litigation.

                                              IV


       Escamilla requests an award of attorney fees on appeal. Such an award

is warranted against Kanany pursuant to both CR 11 and RCW 60.04.181, the

bases for the fee award in the trial court. In addition, because we conclude that

Kanany's appeal is frivolous, an appellate fee award is warranted against both

Kanany and his counsel pursuant to Rule of Appellate Procedure (RAP) 18.9(a).

       An appellate fee award in favor of Escamilla and against Kanany is

authorized by the same grounds justifying the trial court's award of attorney

fees—CR 11 and RCW 60.04.181. An award of attorney fees on appeal is

authorized by CR 11 where sanctions have been imposed in the trial court

pursuant to that rule, as responding to the appeal "could reasonably be viewed

as a cost of collecting the judgment" entered by the trial court. Skilcraft

Fiberglass. Inc. v. Boeing Co.. 72 Wn. App. 40, 48, 863 P.2d 573 (1993),

abrogated on other grounds by Morin v. Burris. 160 Wn.2d 745, 161 P.3d 956

(2007). Moreover, an appellate fee award is available to the prevailing party on

appeal pursuant to RCW 60.04.181(3). Woodstream Constr. Corp. v. Van

Wolvelaere. 143 Wn. App. 400, 409-10, 177 P.3d 750 (2008).

       Moreover, because we determine that Kanany's appeal is frivolous, we

grant to Escamilla an award of attorney fees on appeal, pursuant to RAP 18.9(a),

        10 On appeal, Kanany asserts that the fees awarded pursuant to CR 11 must necessarily
be in a lesser amount than the fees awarded pursuant to the statute. Because we affirm the
award on both bases, we need not further address this contention.

                                            -16-
No. 68578-3-1/17



against both Kanany and his counsel. RAP 18.9(a)11 provides for the imposition
of sanctions where a party brings a frivolous appeal. Here, the record clearly

supports the trial court's finding that the $10,000 payment from Ticor Title to

Concrete Services was intended by the parties to constitute consideration for

dismissal of Concrete Services' claims against Escamilla and assignment of the

default judgment to Escamilla. To prevail on appeal, Kanany must demonstrate

that this finding is not supported by substantial evidence. This he does not even

attempt to do. Moreover, Kanany fails to point to any evidence in the record

indicating that the $10,000 payment was intended to satisfy the default judgment

against him; indeed, no such evidence exists. Accordingly, because Kanany's

appeal "presents no debatable issues upon which reasonable minds could differ

and there is no possibility of reversal," his appeal is frivolous. Wellman &Zuck.

Inc. v. Hartford Fire Ins. Co.. 170 Wn. App. 666, 681, 285 P.3d 892 (2012),

review denied, 176 Wn.2d 1019 (2013). RAP 18.9(a) sanctions against both

Kanany and his counsel are thus warranted.

        Upon proper application, the commissioner of this court will enter an order

awarding to Escamilla attorney fees and costs on appeal consistent with this

opinion.




        11 "The appellate courton its own initiative or on motion of a party may order a party or
counsel. . . who . . . files a frivolous appeal... to pay terms or compensatory damages to any
other party who has been harmed by the delay or the failure to comply or to paysanctions to the
court." RAP 18.9(a).

                                              -17-
No. 68578-3-1/18



      Affirmed.

                    ^ \ y^U~^A
We concur:




 J/l^^y^^-j H.Cj.                tt-




                    18
