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                                                                                                    V   Se 4 NGT0i   !
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                      G
                                        DIVISION II                                             I


JOY E. FIX, a widow,                                              No. 43504 7 II
                                                                            - -


                              Appellant,

        V.



MICHAEL FIX and MARCIA FIX,                                 UNPUBLISHED OPINION
husband and wife,




        WORSWICK, C. . —
                   J    Joy     Fix,the appellant and mother of respondent Michael Fix, sued

her son to quiet title in property she alleged belonged to her. Joy alleged that Michael'
wrongfully obtained title to the property through trickery and asked that the court impose a
constructive trust in her favor. The court dismissed the case on Michael's motion for summary

judgment and awarded him attorney fees. Because issues of material fact exist as to Joy's

claims, we reverse summary judgment, vacate the award of attorney fees and costs, and remand.
                                             FACTS


        In 1985, Louis and Joy Fix sold seven and a half acres of real estate located in Roy,

Washington, to their son, Clifford, and his spouse, Laurel. The property was conveyed to

Clifford and Laurel through a deed of trust with an obligation under a note to pay $ 5, 00. That
                                                                                   3 0

same year, Clifford and Laurel's marriage faltered, and they later divorced and moved off the

property. Clifford and Laurel did not make any payments on the $ 5, 00 note. In a letter dated
                                                               3 0


  Because members of the Fix family share the same last name,we refer to them by their first
names  for clarity,intending no disrespect.
No. 43504 7 II
          - -



June 13, 1987, Clifford and Laurel stated that they had voluntarily relinquished all interest and

claims on the property. The letter states that they had not made any payments since August 1985

and never paid any of the property taxes.

       In 1985, shortly after Clifford and Laurel left,Michael Fix moved onto the property.

Michael is Clifford's brother and the son of Louis and Joy. Michael paid property taxes on the

property and worked for his father once a week, but paid no rent. He has had continuous

possession of the property since 1985.

       Joy believed that after Clifford and Laurel signed the relinquishment in 1987, she and her

husband owned the property. Consistent with this belief, Louis and Joy attempted to place the

property into a living trust through a quitclaim deed in 1990. Michael also had repeated

discussions with his parents about buying the property from them over the years following his

move onto the property.

       At some point, it is not clear exactly when, Michael, Louis, and Joy learned that title

problems existed and that title to the property remained in Clifford's and Laurel's names. They

began trying to "
                clear title"to the property. In November 2006, Clifford signed a quitclaim deed

granting the property to his brother, Michael. According to Paula MacLachlan, Michael's sister

and witness to this deed, this deed's purpose was to " lear title"to the property. For reasons that
                                                     c

are unclear, this deed was not filed.

       Louis contacted attorney Craig Powers about selling the property to Michael in March

2008. Powers obtained a title report showing that title to the property was still in the names of

Clifford and Laurel. Powers stated that Joy and Louis planned to sell the property to Michael for

135, 00 with no money down and six percent interest to be paid over 20 years. Before
   0



                                                 2
No. 43504 7 II
          - -



completing the sale, Louis died in 2008. Michael called Powers, stating that his father had died
and that his mother " id not want to deal with it anymore. ".Clerk's
                    d                                                  Papers (CP)at 62. Michael'

represented that Joy wanted the deeds for Clifford and Laurel to be conveyed to him and to

forget the sale.

       Michael contacted Laurel, who was living in New Jersey. On May 12, 2009, she signed a

quitclaim deed to Michael for whatever interest she had in the property. Michael also contacted
Clifford, who was living in Wales, Great Britain. Clifford signed a quitclaim deed conveying the

property to Michael on May 30, 2009.

        According to Clifford,the purpose of him signing the deed was to clear title on the

property so that it could be sold,not to actually transfer any ownership interest, which he

believed he and Laurel had relinquished in 1987:

                 I was contacted by Michael as he reputed on behalf of my mother to clear
        title to the 7 [and] 1/ acres in Roy that my ex wife and I had purchased in 1986
                              2                         -
        from my parents. He sent me a deed for my signature which I questioned but
        trusted him and signed.
               I found out later that he had used my deed and my ex- s to gain title to
                                                                   wife'
        the property.
                My exwife,Laural, sic]and I relinquished any interest in the property by
                        -            [
        the relinquishment signed in June 13, 1987. We have not claimed to have any
        interest in the property since. The deed was supposed to clear record title so it
        could be sold, not to actually transfer any ownership interest to Michael.

CP at 159 60.
          -


        Joy became very upset after Michael told her that the deeds had been filed in his name.

Joy denied that she wanted the property deeded to Michael without a purchase agreement. She

stated that she wanted clear title in order to sell the property to Michael. She stated that Michael

had led her to believe that he was acting as her agent; she did not suspect Michael's plan to get

title to the property in his name without purchase.

                                                  3
No. 43504 7 II
          - -



        Joy sued Michael and his wife in an action entitled " omplaint to Establish Constructive
                                                            C

Trust and Quiet Title and Waste"in March 2011. The first count alleged that "he defendants
                                                                            t

through trickery obtained quitclaim deeds wrongfully obtaining title to the property"and

continue to hold title to said property properly belonging to the plaintiff."CP at 1 -2. Count

two alleged waste. Among the requested relief,the complaint asked for a declaration that the

defendants hold the property in trust for the plaintiff and to quiet title to the property in the

plaintiff.

        Both Michael and Joy moved for summary judgment in January 2012. Michael

contended that Joy lacked standing to sue Michael and that Joy could not establish " rickery"or
                                                                                   t

fraud. The trial court denied both motions for summary judgment.

        Michael moved for.reconsideration. In the motion,he argued that Joy's pleading of

trickery"was improper because she had not pleaded the nine elements of fraud or provided

specific examples of each element. He argued that CR 9( )required dismissal when a complaint
                                                      b

fails to plead fraud with particularity.

        The court entered an order on the motion in March 2012. Among other things,the order

states that Joy was free to amend her complaint and plead fraud. The order further states that if

fraud is alleged, Joy must follow the court rules and set forth the facts in the cause of action.

        Joy filed an amended complaint alleging in count one that " efendants through DECEIT
                                                                  d

and or FRAUD obtained quitclaim deeds wrongfully obtaining title to the property"and

continue to hold title to said property properly belonging to the plaintiff."CP at 139 40. Count
                                                                                       -

one further set out the nine elements of fraud with factual allegations:

                Defendants] represented to plaintiff that they were getting deeds to
                            [ ]
                clear title to the property from plaintiff's son and former wife.


                                                   rd
No. 43504 7 II
          - -



       2.      Plaintiff was relying on defendants to assist her in clearing title.
       3.      Defendants were in fact attempting to and did obtain deeds from plaintiffs
               son and former wife.
       4.      Defendants knew their statements were false.
       5.      Defendants knew the plaintiff was depending on them to help her get clear
               title.
       6.      Plaintiff was unaware that defendants were attempting and did obtain
               deeds to the property.
       7.      Plaintiff relied on the defendants[']
                                                   representations that they were clearing
               title in the property to the plaintiff.
       8.      Plaintiff had a right to rely on her son's representations as a trusted son.
       9.      Plaintiff has lost title to property valued in excess of 100, 00.
                                                                        $ 0

CP at 140.


       Michael renewed his motion for summary judgment in April 2012. He again argued that

Joy failed to plead fraud with sufficient particularity and that Joy lacked standing. The trial court

granted Michael's motion.

       Michael moved for attorney fees and costs, arguing, inter alia, that Joy's lawsuit was

frivolous. The trial court granted the request in the amount of 10, 00. The court entered
                                                                $ 7

findings of fact and conclusions of law in support of the attorney fee award. In a finding of fact

explaining the reason for the award, the court stated that " he basis for the summary judgment"
                                                           t

was that the amended complaint did not clearly state a cause of action or the basis by which the

Plaintiffs would have standing:

       The Court does not find the purpose of the lawsuit to be either "frivolous" or
       advanced without reasonable cause"since clearing title to property is not viewed
       as an improper subject of a lawsuit. However, the Court does find that after

       allowing the Plaintiffs to amend their complaint to plead a more specific cause of
        action, other than " trickery'.'in the transfer of title, [sic] but the amended
        complaint filed thereafter did not clearly state a cause of action or the basis by
       which the     Plaintiffs would   have   standing   to   proceed   with such   a case.   Thus, the
        basis for the summary judgment the Court granted. The Court believes that some
        award of attorney's fees is warranted based on the equitable grounds granted by
        the Court under the above statute. Given the opportunity to state a valid cause of
        action, on   two different   occasions, by   the Court     allowing   the Plaintiff to amend
No. 43504 7 II
          - -



       the complaint, and the fact there was really no substantial change from the
       original complaint. The Court, however, does not find that this suit was brought
       in bad faith and would not award the full amount of attorney's fees under this
       particular provision.

CP at 234 35 ( mphasis added).
          - e

       Joy appeals both the grant of summary judgment and the award of attorney fees.
                                           ANALYSIS


                                     I. SUMMARY JUDGMENT


A.     Summary Judgment Standard

       Summary judgment should be granted when no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. City ofLakewood v. Pierce County,

144 Wn. d 118, 125, 30 P. d 446 (2001); 56( ). moving party bears the burden of
      2                 3             CR c The

demonstrating that no genuine dispute exists as to any material fact. City ofLakewood, 144

Wn. d at 125. All facts and reasonable inferences are considered in a fight most favorable to the
  2

nonmoving party. City ofLakewood, 144 Wn. d at 125. We review summary judgment orders
                                        2

de novo, engaging in the same inquiry as the trial court. Sheikh v. Choe, 156 Wn. d 441, 447
                                                                                2

128 P. d 574 (
     3       2006) .

B.     Standing and Real Party In Interest

       Michael argues that we should affirm summary judgment because Joy lacks " tanding"
                                                                               s

and is not a "real party in interest"as defined by CR 17( ). disagree.
                                                        a We

2
  Michael complains that Joy has not assigned error to any of the trial court's findings." the
                                                                                 "        But
court did not enter findings of fact on summary judgment. Moreover, if the court had entered
findings on summary judgment, they would have been superfluous and inconsequential on
appeal. Chelan County Deputy Sheriffs' Ass'n v. Chelan County, 109 Wn. d 282., n. ,745
                                                                            2        294 6
P. d 1 ( 1987).The reference to Joy's standing in the trial court's findings on attorney fees is an
  2
unsupported conclusion of law.



                                                 n
No. 43504 7 II
          - -



        1. Standing

       Michael represents that the " rial court expressly found Petitioner lacked standing to quiet
                                   t

title in the subject property in her own name."Br. of Resp't at 3. Michael does not support this

assertion with a citation to the record 3 " The doctrine of standing requires that a plaintiff must
                                        .

have a personal stake in the outcome of the case in order to bring suit."Gustafson v. Gustafson,

47 Wn. App. 272, 276, 734 P. d 949 (1987).Michael argues Joy does not have a personal stake
                           2

in this case because the statute of limitations bars her claim to the property.

       A six year statute of limitations applies to actions arising out of written contracts. RCW
             -

040.
4.6. In an action to foreclose on a mortgage or deed of trust, RCW 7.8.makes the
 1                                                                 300
                                                                    2

statute of limitations a defense. Walcker v. Benson and McLaughlin, P. ., Wn. App. 739,
                                                                     S 79

746, 904 P. d 1176 (1995).Michael argues that Joy should have sought to foreclose on Clifford
          2

and Laurel when they did not make payments on the note. He asserts that the statute of

limitations ran in 1991. He asserts that when the statute ran, Joy's interest in the property

vanished, and the property passed to Clifford, who could dispose of the property in any manner

without recourse for Joy.

        This argument misconstrues the law. Statutes of limitations, as opposed to nonclaim

statutes, do not void interests. Jordan v. Bergsma, 63 Wn.App. 825, 828; 822 P. d 319 ( 992).
                                                                              2       1

Thus, a statute of limitation does not invalidate a claim,but rather `deprives a plaintiff of the
      "

opportunity to   invoke the power of the courts in support of   an   otherwise valid claim. "' Walcker,


79 Wn. App. at 743 (quoting    Stenberg v. Pacific Power & Light Co.,
                                                                    104 Wn. d 710, 714, 709
                                                                          2

3 It is likely that Michael is referring to the court's explanation for the award of attorney fees,
which, as quoted above, says "the amended complaint filed'hereafter did not clearly state a
                                                         t
cause of action or the basis by which the Plaintiffs would have standing to proceed with such a
case."CP at 234 35 ( mphasis added).
                  - e

                                                  7
No. 43504 7 II
          - -



P. d 793 (1985)).
 2             Upon the expiration of the contract's statute of limitation, a deed of trust

securing an obligation is voidable, not void. Bergsma, 63 Wn. App. at 828. The statute of
limitations is an affirmative defense that the defendant must assert or else it is waived.

Alexander v. Food Services ofAmerica, Inc., Wn. App. 425, 428 29,886 P. d 231 (1994).It
                                          76                  -       2

is not self -
            executing: Alexander, 76 Wn. App. at 428 29. Thus, assuming that the statute of
                                                     -
limitations applies to Joy's claims, any interest Joy had in the property did not automatically

become invalid once the statute of limitations ran.


       Michael's argument is also flawed in an additional respect. In arguing that the statute of

limitations deprived Joy of standing, Michael incorrectly presumes that Joy sought title through

the deed of trust and note. But as both the original and amended complaints show, Joy sought to

quiet title through a constructive trust theory, an equitable remedy. "A constructive trust is an

equitable remedy which arises when the person holding title to property has an equitable duty to
convey it to another on the grounds that they would be unjustly enriched if permitted to retain it."

City ofLakewood, 144 Wn. d at 126. A court may impose constructive trusts not only in cases
                       2

of fraud, misrepresentation, or bad faith, but also in circumstances not amounting to fraud or

undue influence. Baker v. Leonard, 120 Wn. d 538, 547, 843 P. d 1050 (1993). recognized
                                         2                  2              As

by our Supreme Court:

        If one party obtains the legal title to property, not only by fraud or by violation of
        confidence or of fiduciary relations, but in any other unconscientious manner, so
        that he cannot equitably retain the property which really belongs to another,
        equity carries out its theory of a double ownership, equitable and legal, by
        impressing a constructive trust upon the property in favor of the one who is in
        good conscience entitled to it,and who is considered in equity as the beneficial
        owner.




                                                  N
No. 43504 7 II
          - -



Kausky v. Kosten, 27 Wn.2d 721, 728, 179 P. d 950 (1947)quoting 1 JOHN NEWTON POMEROY,
                                          2              (
A TREATISE ON    EQUITY JURISPRUDENCE § 155, at 210 (Spencer W. Symons ed., ed. 1941).
                                                                          5th

Constructive trusts may arise even if property is not acquired wrongfully because the concern is

whether the enrichment is unjust. See Brooke v. Robinson, 125 Wn. App. 253, 257, 104 P. d
                                                                                      3

674 (2004).Here, a constructive trust in Joy's favor arguably arose when Joy discovered that

Michael had obtained title to the property through quitclaim deeds from Clifford and Laurel. Joy

sued in 2011, about two years after she learned that Michael gained title to the property. An

action based on a constructive trust is subject to a three year statute of limitations. RCW
                                                           -

080;
4.6.Goodman v. Goodman, 128 Wn. d 366, 373, 907 P. d 290 (1995).Thus, her action
  1                           2                  2

for constructive trust is timely. See Goodman, 128 Wn. d at 373 n. ( The statute of limitations
                                                     2           2 "

begins to run on a constructive trust when the beneficiary discovers or should have discovered

the wrongful act which gave rise to the constructive trust. 4
                                                            ,).
       That Joy does not hold legal title to the property does not mean that she lacks standing to

assert an equitable claim to the property. " tanding to assert a claim in equity resides in the
                                           S

party entitled to equitable relief; it is not dependent on the legal relationship of those parties."

Smith v. Monson, 157 Wn. App. 443, 445, 236 P. d 991 (2010).Accordingly, in Monson this
                                             3

court held that the plaintiff had standing to sue to quiet title under an equitable mortgage theory.


4 Even assuming that the statute of limitations ran in this case because Joy did not sue Clifford
and Laurel, the doctrine of equitable estoppel may preclude the defense. See Peterson v. Groves,
111 Wn. App. 306, 310 11,44 P. d 984 (2002).The elements of equitable estoppel are: 1)
                        -         3                                                      "( an
admission, statement, or act inconsistent with a claim afterward asserted; 2)  ( action by another in
reasonable reliance on that act, statement, or admission; and (3)   injury to the party who relied if
the court allows the first party to,contradict or repudiate the prior act, statement, or admission."
Peterson, 111 Wn.App. at 310. Joy raised equitable estoppel in response below to Michael's
standing argument and has presented evidence raising issues of material fact on each element.


                                                  0
No. 43504 7 II
          - -



157 Wn. App. at 445, 448 49. There,the plaintiff had conveyed property to a relative in order
                         -

that the relative could borrow money for the plaintiff. 157 Wn. App. at 445. Rather than

conveying the property back to the plaintiff,the relative conveyed the property to family

members. 157 Wn. App. at 445. This court held that the plaintiff's action was one in equity and

the plaintiff had standing to assert her equitable claim to the property against the relative and the

relative's family members. 157 Wn. App. at 448 49. Here, Joy similarly has standing to assert
                                               -

her equitable claim to the property.

       Joy presented adequate evidence raising issues of material fact as to her constructive trust

theory and quiet title action. Joy provided evidence that Clifford and Laurel relinquished any

interest they had in the property..
                                  This shows that they had nothing to pass on to Michael.

Alternatively, their relinquishment would arguably preclude either one from claiming an interest

in the property. Evidence also shows that all the parties, Michael included, regarded Joy and her

late husband as the owners of the property. Michael repeatedly entered into talks with his

parents to buy the property. Evidence further tends to show that the purpose of the quitclaim

deeds from Clifford and Laurel were to clear title to the property so that Michael could purchase

it. Joy believed that Michael was acting as her agent. We conclude that this evidence raised

material issues of fact,precluding summary judgment.

        2. Real Party In Interest

        Similar to his argument on standing, Michael argues that Joy is not a "real party in

interest"as defined by CR 17( ). of Resp't at 16. Under that rule, e] action shall be
                            a Br.                                  "[ very

prosecuted in the name of the real party in interest."CR 17( ).
                                                           a Michael also contends that Joy

does not have a " alid subsisting interest"in the real property and,thus, cannot maintain an
                v



                                                  10
No. 43504 7 II
          - -



action to quiet title under RCW 7.8. Br. of Resp't at 15 16. Michael bases these
                                010.
                                  2                      -
arguments on the same flawed understanding of the statute of limitations. As we discussed

above, the statute of limitations did not void Joy's interest in the property and Joy asserts an

equitable theory of ownership. Nonetheless, Michael argues that Magart v. Fierce, 35 Wn. App.

264, 266, 666 P. d 386 (1983)directly applies to the case and shows that Joy lacks standing and
               2

is not a real party in interest. Michael's reliance on Magart is misplaced. Magart did not

involve a claim of equitable trust, nor did the plaintiff in Magart claim an interest through an

equitable theory. In addition, a third party owned the property at issue. Here,no evidence shows

that a third party actually owns the property at issue. Magart does not support Michael's

arguments.

       We reject Michael's argument that Joy lacks standing.

C.     Adequacy ofJoy's Pleadings

       Michael also argued to the trial court that summary judgment was proper because Joy did

not adequately plead a valid cause of action. Ignoring that Joy had asked to quiet title through a

constructive trust theory, Michael argued that trickery"was not a cause of action and that Joy
                                               "

was actually pleading a cause of action for fraud, which she had not pleaded with sufficient


5
 Under this statute, a person having a " alid subsisting interest in real property"and a "right [ f]
                                       v                                                        o
possession"may bring an action to recover the property:

        Any person having a valid subsisting interest in real property, and a right to the
        possession thereof, may recover the same by action in the superior court of the
        proper county, to be brought against the tenant in possession; if there is no such
        tenant, then against the person claiming the title or some interest therein, and may
        have judgment in such action quieting or removing a cloud from plaintiff's title.

RCW 7.8.
    010.
      2




                                                  11
No. 43504 7 II
          - -



particularity. This was despite the fact that Joy had not pleaded fraud in her original complaint.
After Joy amended her complaint, deleting the word trickery and replacing it with an allegation

of deceit"or " raud,"
   "         f      Michael renewed his argument in his second motion for summary

judgment.

          Although Michael has abandoned this argument on appeal, the trial court's statements

from the award of attorney fees suggest that the court may have granted summary judgment on

this   ground. There,the        court stated that the "
                                                      primary   cause   of action ...   was an allegation o[ ]
                                                                                                           f

fraud or trickery with regard to a subsequent transfer between the Defendants, Michael Fix and

Marcia Fix,husband and wife, and his brother, Clifford M.Fix and Laurel J. Fix,husband and

wife." at 233 34. The court went on to say that the amended complaint " id not clearly state
     CP       -                                                       d

a cause of action"and that Joy had been given " he opportunity to state a valid cause of action,
                                              t

on two different occasions."CP at 235. Thus, we address the issue despite Michael's

abandonment of the argument.

          Washington is a notice pleading state and merely requires a simple, concise statement

of the claim and the relief sought."
                                   Pacific Nw. Shooting ParkAss'n v. City ofSequim, 158

Wn. d 342, 352, 144 P. d 276 (2006); 8( ). s pleading met this standard. The focus
  2                  3             CR a Joy'

below    on   Joy's    use               trickery"in her
                             of the word "                 original complaint ignored      this standard. Given


the    name   of the   complaint ( Complaint to
                                   "              Establish Constructive Trust and        Quiet Title "), the

allegation that the property belonged to Joy, and the relief sought ( onstructive trust and quiet
                                                                    c

title), reasonable conclusion is that Joy sought to quiet title through a constructive trust
      the


6
    Under court   rule, the circumstances constituting fraud ... shall be stated with particularity."
                         "
CR 9( ).
    b



                                                        12
No. 43504 7 II
          - -



theory. Joy did not sue for mere "trickery."
                                           Neither did Joy seek damages for the tort of fraud.

While Joy later amended her complaint to incorporate an allegation of fraud into her count

seeking a constructive trust, the gravamen of her complaint remained one seeking title,to the

property.

       An opinion from our Supreme Court, Viewcrest Cooperative Association, Inc. v. Deer,

supports this analysis. 70 Wn. d 290, 422 P. d 832 (1967).There,the trial court had imposed a
                             2             2

constructive trust and entered a finding that the defendant had perpetrated a fraud upon the

plaintiff. Viewcrest, 70 Wn. d at 292 93. On appeal, the defendant argued that the trial court
                           2          -

could not make a finding of fraud"because the plaintiff had failed to allege fraud with
                            "

particularity. Viewcrest, 70 Wn. d at 293. Our Supreme Court rejected this argument.
                               2

Viewcrest, 70 Wn. d at 293. The court stated it is not required, in order to impose a
                2                               "

constructive trust, that the plaintiff must prove that he was deprived of his property through acts

constituting actionable fraud."Viewcrest, 70 Wn. d at 293. The court held that it was "patently
                                               2

obvious"that the trial court had used the word " raud"in "ts broadest sense, as meaning
                                               f         i

inequitable or unconscionable conduct."Viewcrest, 70 Wn. d at 294.
                                                       2

        Similarly, we construe Joy's use of the words " rickery," "
                                                      t         deceit," " raud"in the
                                                                       and f

broadest sense, given the request for constructive trust and. uiet title. Thus, it was improper to
                                                            q

transform Joy's claim,for constructive trust into a claim for fraud and require particularity under

CR 9( ). hold that Joy's claims were adequately pleaded.
    b We

        We reverse summary judgment.




                                                 13
No. 43504 7 II
          - -




                       II. THE TRIAL COURT'S AWARD OF ATTORNEY FEES


       Joy challenges the trial court's award of 10, 00 in attorney fees and costs to Michael.
                                                 $ 7

We review an award of attorney fees for an abuse of discretion. Greenbank Beach and Boat

Club, Inc. v. Bunney, 168 Wn. App. 517, 524, 280 P. d 1133, review denied, 175 Wn. d 1028
                                                  3                              2

2012).

       The trial court awarded fees based on RCW 4.4. Under that statute, if an action is
                                                 185.
                                                  8

frivolous and advanced without reasonable cause," court may order the nonprevailing party
                                                the

to pay the prevailing parry's incurred expenses, including attorney fees. RCW 4.4.The
                                                                              185.
                                                                               8

trial court found this statute gave it " quitable grounds"to award fees because while Joy's
                                       e

lawsuit was not frivolous or brought in bad faith, she failed to plead an adequate cause of action

despite being given an opportunity to do so and she failed to provide a basis for her standing.

       RCW 4.4.allows a trial court to award the prevailing party reasonable expenses,
           185
            8

including attorney fees, incurred in opposing a frivolous action. Because we hold Joy's

pleadings adequate and reverse the grant of summary judgment, Michael is not a prevailing

party. Because we hold material facts exist to defeat summary judgment, Joy's action is not

frivolous. Accordingly, we vacate the award for attorney fees.

                                 III. ATTORNEY FEES ON APPEAL


       Citing RAP 18. ,Michael asks for attorney fees on appeal, contending that Joy's appeal
                    9

is frivolous. Because Joy's appeal is not frivolous, we deny Michael's request.




                                                 14
No. 43504 7 II
          - -



        We reverse summary judgment, vacate the award for attorney fees and costs, and remand

for trial.


        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

040,
2.6.it is so ordered.
 0




                                                                   Worswick, C. .
                                                                              J
We concur:
                             W




                                                 15
