                                                                              FILED
                                                                           JUNE 18, 2019
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

RANDALL DANSKIN, P.S., a                       )
Professional Service Corporation,              )         No. 35930-1-III
                                               )
                     Respondent,               )
                                               )
       v.                                      )
                                               )         UNPUBLISHED OPINION
NANCY TAORMINA, a single person,               )
                                               )
                     Appellant.                )

       FEARING, J. — We affirm the superior court’s order granting summary judgment

to a law firm against its former client for fees incurred. In her appeal brief, the client

only cites to her unsworn answer to the complaint in order to attempt to raise a factual

question.

                                           FACTS

       In November 2015, Nancy Taormina hired attorney Michael Wolfe of Randall

Danskin, P.S. to file a guardianship petition for her father, John J. Tormino, Sr.

Curiously the last names of the father and daughter are similar, but not identical.
No. 35930-1-III
Randall Danskin v. Taormina


Taormina sought the guardianship because her brother, John J. K. Tormino, Jr., prevented

her from visiting her elderly father in an assisted living facility where he resided and

because Taormina believed John Jr. exploited his father. The parties did not enter a

written fee agreement, but Taormina admits an oral agreement. Taormina provided

Randall Danskin with a $5,000 retainer against which the law firm would initially pay

billed costs and fees.

       On December 3, 2015, Nancy Taormina, through Michael Wolfe, filed a petition

in Spokane County Superior Court seeking a guardianship of the person of her father,

John Sr., and his estate and her selection as the guardian of both the person and estate. In

her petition, Taormina alleged that John Sr. was incapacitated, that he required a full

guardian of his person and his estate, that a guardianship was preferable over powers of

attorney previously executed by John Sr. naming John Jr. as attorney in fact, and that the

powers of attorney should be voided. John Sr. and John Jr. both contested the need for a

guardianship and argued that John Jr. should remain as attorney in fact for John Sr.

Throughout the guardianship litigation, Michael Wolfe provided Nancy Taormina with

monthly billing statements that showed her legal fees and costs as they accrued.

       The superior court appointed Mayree Beckett as guardian ad litem for purposes of

the guardianship proceedings. Following an investigation, Beckett recommended the

establishment of a guardianship and the appointment of James P. Spurgetis, a certified

professional guardian, for the person and estate of John Sr. Beckett noted that the

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No. 35930-1-III
Randall Danskin v. Taormina


children of John Sr., including Nancy Taormina and John Jr., quarreled and would

continue to clash in the future.

       Before trial, Nancy Taormina’s attorney, Michael Wolfe, advised her that the court

would likely follow the guardian ad litem’s recommendation of appointing the certified

professional guardian. Taormina still insisted on being appointed, and her petition

proceeded to four days of trial.

       After trial, the superior court read in open court a lengthy oral decision. The court

agreed to create a guardianship of the person and estate of John Sr., but refused to appoint

either Nancy Taormina or John Jr. as guardian. The court questioned Taormina’s

credibility. After weighing the evidence, including testimony of independent witnesses,

the trial court concluded that Taormina was assaultive and derogatory toward her siblings

and John Sr.’s care providers and that the antagonism had resulted in two restraining

orders against her. Taormina’s denial of the allegations of assaultive behavior impeded

her credibility.

       In a later written order, the superior court also explained why the court refused to

appoint John Jr. as guardian. John Jr. did not understand his role as a fiduciary and

managed John Sr.’s estate to the benefit of John Jr. As recommended by the guardian ad

litem, the court appointed James Spurgetis as John Sr.’s guardian.

       At Nancy Taormina’s instruction, Randall Danskin sought reimbursement of her

costs and fees from the estate of John Sr. In support of the fee motion, Michael Wolfe

                                             3
No. 35930-1-III
Randall Danskin v. Taormina


submitted a fee affidavit and sent a copy to Taormina. Wolfe attached prior bills to the

affidavit. The billing showed total fees and costs of $33,109.00, of which Taormina had

paid $19,638.23, leaving a balance of $14,790.14. Taormina did not complain then to the

amount of fees. The superior court denied the application for fees. In the court’s order

denying the motion for fees, the superior court found Randall Danskin’s fees reasonable.

Nancy Taormina thereafter failed to pay any of the remaining fees owed.

       John Sr.’s attorney sought reimbursement of fees from the estate of John Sr. John

Jr. also requested that the court order John Sr.’s estate to reimburse John Jr. for attorney

fees he incurred. Nancy Taormina, through attorney Michael Wolfe, successfully argued

that independent counsel for John Sr. charged an excessive hourly rate. Taormina

through counsel also successfully opposed reimbursement of John Jr.’s fees from the

estate of her father.

                                       PROCEDURE

       Randall Danskin filed this lawsuit against Nancy Taormina to recover the unpaid

balance of Taormina’s bill. Randall Danskin moved for summary judgment. The trial

court granted the motion based on the ground that Taormina never objected to the

reasonableness of the fees when she applied for payment of the fees by the estate of John

Sr.




                                              4
No. 35930-1-III
Randall Danskin v. Taormina


                                 LAW AND ANALYSIS

                                   Summary Judgment

       On appeal, Nancy Taormina contends the trial court committed error because she

was not allowed to object to the reasonableness of Randall Danskin’s fees when applying

for payment of the fees in the underlying guardianship proceeding. She also argues the

fees to be unreasonable and that she only agreed to pay $5,000 for Randall Danskin’s

services. Finally, she argues that Randall Danskin did not sufficiently inform her of the

amount of fees incurring as the litigation progressed.

       Appellate courts review a trial court’s order granting summary judgment de novo.

Allen v. State, 118 Wn.2d 753, 757, 826 P.2d 200 (1992). This court engages in the same

inquiry as the trial court below. Vallandigham v. Clover Park School District No. 400,

154 Wn.2d 16, 26, 109 P.3d 805 (2005).

       Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show no genuine

issue as to any material fact and the moving party is entitled to a judgment as a matter of

law. CR 56(c). If the moving party satisfies its initial burden, the nonmoving party must

present evidence that demonstrates that material facts are in dispute. Atherton

Condominium Apartment-Owners Association Board of Directors v. Blume Development

Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). In making this responsive showing, the

nonmoving party cannot rely on the allegations made in its pleadings, such as its answer

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No. 35930-1-III
Randall Danskin v. Taormina


to the complaint. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d

182 (1989). CR 56(e) emphasizes the need to counter a summary judgment motion by

affidavit. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d at 225-26. If the nonmoving

party fails to make a showing sufficient to establish the existence of an element essential

to her case, then the trial court should grant the motion. Hines v. Data Line Systems, Inc.,

114 Wn.2d 127, 148, 787 P.2d 8 (1990).

       In her appeal brief, Nancy Taormina cites to no affidavit testimony that she only

agreed to pay $5,000. She cites to her answer to the complaint wherein she agreed to pay

no more than $5,000. An answer to the complaint does not suffice to defeat a summary

judgment.

       We question whether the trial court correctly found Nancy Taormina to be bound

by the guardianship court’s determination of Randall Danskin’s fees to be reasonable

when Taormina remained the client of Randall Danskin at the time of the fee application.

Nevertheless, we need not address this issue, since Taormina’s appeal brief cites to no

affidavit testimony in the pending litigation wherein she otherwise provided facts

showing the amount of fees to be unreasonable. She only cites to her answer to the

complaint wherein she disputes the reasonableness of the fees. We may affirm on other

ground supported by the record provided the parties had a full and fair opportunity to

develop the relevant facts. Bernal v. American Honda Motor Co., 87 Wn.2d 406, 414,

553 P.2d 107 (1976).

                                             6
No. 35930-1-III
Randall Danskin v. Taormina


                                       Attorney Fees

       Pursuant to RAP 18.9, Randall Danskin seeks an award of its attorney fees

incurred on appeal. RAP 18.9(a) authorizes this court to order a party 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 pay sanctions to the court.”

Appropriate sanctions may include an award of attorney fees to the opposing party.

Rhinehart v. Seattle Times, 59 Wn. App. 332, 342, 798 P.2d 1155 (1990).

       An appeal is frivolous when the appellant presents no debatable issues on which

reasonable minds could differ and when the appeal is so totally devoid of merit that there

was no reasonable possibility of reversal. Mahoney v. Shinpoch, 107 Wn.2d 679, 691,

732 P.2d 510 (1987). Appellate courts examine the record as a whole, and doubts should

be resolved in favor of the appellant. Mahoney v. Shinpoch, 107 Wn.2d at 692. We

decline to characterize Nancy Taormina’s appeal as frivolous because we question

whether the superior court’s ruling in the earlier guardianship litigation precludes her

challenging Randall Danskin’s fee request.

                                      CONCLUSION

       We affirm the trial court’s judgment in favor of Randall Danskin for attorney fees

charged in the guardianship litigation. We deny Randall Danskin fees on appeal.




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No. 35930-1-III
Randall Danskin v. Taormina


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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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