                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 25, 2020

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    JAMES and JUDITH BETOURNAY, Oregon                               No. 52313-2-II
    State residents,

                                  Plaintiffs below

    PRISCILLA STEVENS,

           Plaintiff Intervenor below/Respondent.

                v.

    2ND HALF, LLC, a Washington limited                        UNPUBLISHED OPINION
    liability company; AMARRA MANNA, a
    Washington resident,

                                 Appellants.1

         MELNICK, J. — Priscilla Stevens and her grandmother, Sara Ristick, had an option

agreement to purchase real property in Tacoma from 2nd Half LLC. Ammar Manna’a2 then

purchased the property from 2nd Half, subject to the option agreement. After a bench trial, the

court determined that Manna’a and his agents breached the option agreement and intentionally

interfered with a contractual relationship.

         Manna’a contends that the court’s findings of fact do not support its conclusion of law that

he intentionally interfered with a contractual relationship. He also contends that the court erred by

reforming the contract to allow Stevens to exercise the option alone after Ristick passed away, by


1
  RAP 3.4 allows this court on its own motion to change a case title. It is ordered that the court
clerk shall change the title of this case to reflect the case title in this opinion.
2
    His name is alternatively spelled Manna.
52313-2-II


extending the time for the option to be exercised, and by awarding attorney fees as damages. He

further argues that Stevens is not entitled to equitable relief because she has unclean hands. We

disagree. Manna’a finally argues that the court erred by awarding attorney fees as damages. We

agree. We affirm in part and reverse in part.

                                              FACTS3

       On June 5, 2013, Jeff Graham, the manager of 2nd Half, entered into an option agreement

to sell real property in Tacoma to Stevens and her grandmother, Ristick. The option agreement

referenced a lease agreement for the same property, and the lease agreement referenced the option

agreement. The option agreement had a May 30, 2016 deadline for closing. The option price for

the property was $116,000. Ristick died in 2015.

       The option agreement provided in relevant part:

       e. Method of Exercising Option. The only method for exercising the option is to
       tender into escrow, on or before the expiration date, the entire option price;
       provided, however, that the parties may make subsequent agreements in writing
       that alter or amend the expiration date or method of exercising the option. Costs of
       any escrow and excise tax will be born entirely by the Grantee/Buyer. Costs of title
       insurance, if any is desired, will be paid entirely by Grantee/Buyer.

Clerk’s Papers (CP) at 129.

       On March 17, 2016, prior to closing on the property, Stevens signed a listing agreement to

sell the property. Even though she was not the authorized owner or manager of 2nd Half, Stevens’s

grandfather, Ron Steve, represented to the listing agent that she was. She listed 2nd Half as the


3
  The procedural history of this case is a bit unusual. In an unrelated lawsuit, parties named
Betournay won a money judgment against 2nd Half. However, before the court entered judgment,
2nd Half executed a statutory warranty deed transferring title to Manna’a. The Betournays asked
the court to place a lien on the property to satisfy the judgment, claiming that 2nd Half fraudulently
transferred the property. The court then granted Priscilla Stevens motion to intervene. The
Betournays then successfully moved to dismiss their claims. The case then proceeded to trial with
Stevens against 2nd Half and Manna’a.


                                                  2
52313-2-II


sellers. At that time, because the option had not been exercised, Stevens did not own the residence

and she had no connection at all with 2nd Half, except for the option agreement.

       On April 11, Stevens signed a purchase and sale agreement for the property. She signed

on behalf of 2nd Half. The agreement listed the buyer by name. The transaction was sent to

Rainier Title for closing; however, on May 13, Rainier Title refused to close on the transaction. It

cited various reasons including that Stevens had no managerial relationship to 2nd Half and that

2nd Half sold the property to Manna’a.

       On April 19, 2nd Half transferred the title to the property to Manna’a, subject to Stevens’s

option agreement. 2nd Half was controlled by his friend and business partner, Jeff Graham.

       While listing the property for sale, Stevens sought financing so she could exercise the

option agreement. She worked with Shawn Adkins, a commercial money broker. Pinnacle Equity

Group, through its employee, Chris Unger, “was ready, willing, and able to loan $150,000 to

Stevens, which would have been more than enough to close on the option agreement.” CP at 130-

31. After Adkins and Unger learned of Rainier Title’s resignation, they had a new purchase and

sale agreement drawn up between Manna’a as seller and Stevens as buyer.

       On May 17, Adkins took the new agreement to John Stratford Mills, attorney for Manna’a.

Adkins requested that Mills call him. Instead, Mills showed up at Adkins’s office unannounced,

and for a period of twenty to twenty-five minutes discussed the bad history between the parties.

He made negative comments about Ron Steve, and discouraged Adkins from getting involved or

making a loan to Stevens. At the same time, Mills insisted that Manna’a would close if the

transaction closed in the name of the deceased Sara Ristick. A letter from Mills accompanied the

meeting. It claimed Manna’a would honor the option agreement, but it also said “Ammar isn’t




                                                 3
52313-2-II


interested in selling the property and is not going to sign your Purchase and Sale Agreement.” CP

at 131.

          On May 31, Manna’a entered into a purchase and sale agreement with the same buyers that

Stevens had earlier procured. Though the agreement had a date of May 31, the buyers signed the

agreement on May 22, eight days before the option agreement with Stevens expired. Manna’a also

used the same real estate agent and sold the property at the price Stevens agreed to in the earlier

failed transaction.

          Manna’a has a bad history with Steve.4 The following are the final findings of fact.

                  31.     Mr. [Manna’a’s] interest in obtaining the property was motivated, in
          part, by revenge against Ron Steve for past business and legal problems. Mr.
          [Manna’a] was also motivated to not perform on the option agreement by greed.
          He and his friends/business partners worked both before and after the option
          deadline to impede the exercise of the option by trying to influence loan brokers
          and lenders, conveying the property away from 2nd Half LLC, entering into another
          contract to sell to the Garlingtons, and refusing to cooperate with Ms. Stevens and
          the people assisting her.

CP at 132.

                  32.     Ms. Stevens was ready, willing and able to perform her obligations
          under the option agreement until stymied by Mr. [Manna’a’s] actions. While her
          actions, and those of Mr. Steve, in holding herself out as 2nd Half LLC in the
          Purchase and Sale Agreement with the Garlingtons in April 2016, are not condoned
          in any way by this Court, that act did not kill the ability to make the option
          agreement work. Those acts involved a transaction to sell the property, which
          couldn’t happen unless and until Ms. Stevens was able to exercise the option
          agreement. It also was not clear in the testimony that those acts were what caused
          Rainier Title to resign. The acts that killed the ability to make the option agreement
          work were done by Mr. [Manna’a], Mr. Graham, and Mr. Mills.

CP at 132.

                  33.    Mr. [Manna’a] had no intention of closing on the option. Such lack
          of intention to cooperate in good faith and close on the option was further and
          starkly demonstrated after the court in this case ordered disclosure of Ms. Stevens’s
          lender, which occurred by court filing on Friday, August 5, 2016. On Monday,

4
    For details of the history, see findings of fact 30 and 31 at Clerk’s Papers 132.


                                                    4
52313-2-II


       August 8, 2016, the disclosed lender, Mr. Unger, was subjected to a sustained
       barrage of harassment and intimidation by both Mr. Graham and Mr. Mills on
       behalf of Mr. [Manna’a]. Such conduct included, inter alia, implied threats by Mr.
       Graham by text to release Mr. Unger’s social security number to the public,
       inserting Mr. Unger's home address into the demands, causing concern for Mr.
       Unger’s family, threatening to give any of Mr. Unger’s Facebook friends $500 to
       serve Mr. Unger with a subpoena to a deposition, disclosing Mr. Unger’s past
       bankruptcy to his employer, and threatening to examine and expose the business
       dealings of Mr. Unger’s employer. Some of these threats were made late at night.
       Mr. Mills’s conduct included efforts to “friend” Mr. Unger on Facebook, which
       was disconcerting to Mr. Unger since he did not know Mr. Mills and his Facebook
       account related to his personal life, Mr. Mills’s offer to take him out for a beer, and
       Mr. Mills sending a communication explaining that Mr. Unger could avoid such
       “hassle” by simply signing a declaration which Mr. Unger believed to be false.

CP at 132-33.

       The court concluded that Manna’a breached the contract in several ways. It also concluded

that Manna’a and his agents, Mills and Graham, intentionally interfered with the contractual

relationship with Stevens’s exercise of the option.

       The court awarded monetary damages as well as specific performance of the option

agreement. It also awarded attorney fees to Stevens. 2nd Half and Manna’a appeal.

                                           ANALYSIS

I.     BREACH OF CONTRACT AND TORTIOUS INTERFERENCE

       Manna’a argues that the court erred in determining that he both breached and tortiously

interfered with Stevens’s contract. He argues that because 2nd Half transferred its interest in the

property to Manna’a before any of the events of alleged interference took place, there was no

contractual relationship between 2nd Half and Stevens to interfere with. We disagree.

       A.       Legal Principals

       “The party seeking review has the burden of perfecting the record so that the reviewing

court has before it all of the relevant evidence.” Bulzomi v. Dep’t of Labor & Indus., 72 Wn. App.

522, 525, 864 P.2d 996 (1994). A failure to provide a verbatim transcript of the record below


                                                 5
52313-2-II


renders the trial court’s findings of fact verities and binding on appeal. Morris v. Woodside, 101

Wn.2d 812, 815, 682 P.2d 905 (1984). Consequently, the scope of review is limited to determining

whether the findings support the trial court's conclusions of law and judgment. Haberman v.

Elledge, 42 Wn. App. 744, 746, 713 P.2d 746 (1986).

       Because Manna’a did not provide a verbatim transcript of the record, the findings of fact

are verities. Woodside, 101 Wn.2d at 815.

       An option to purchase property is a contract where the property owner, in return for

valuable consideration, grants another the right to purchase the property within a specified time on

the terms and conditions of the option. Corinthian Corp. v. White & Bollard, Inc., 74 Wn.2d 50,

52, 442 P.2d 950 (1968). If the option to purchase real estate is exercised within the time specified

in the contract, the seller must convey the property. But if the purchase price is not paid or tendered

within the specified time, the seller has no obligation to convey the property. Spokane, Portland

& Seattle Ry. Co. v. Ballinger, 50 Wash. 547, 549-50, 97 P. 739 (1908).

       To prevail on a breach of contract claim, a party must prove that (1) a duty imposed by

contract existed, (2) that the duty was breached, and (3) there are damages proximately caused by

the breach. Nw. Indep. Forest Mfrs. v. Dep't of Labor & Indus., 78 Wn. App. 707, 712, 899 P.2d

6 (1995).

       A claim for tortious interference with a contractual relationship or business expectancy

requires five elements: (1) the existence of a valid contractual relationship or business expectancy;

(2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or

causing a breach or termination of the relationship or expectancy; (4) that defendants interfered

for an improper purpose or used improper means; and (5) resultant damage. Commodore v. Univ.

Mech. Contractors, Inc., 120 Wn.2d 120, 137, 839 P.2d 314 (1992).



                                                  6
52313-2-II


       B.      Analysis

       The option agreement created a valid contractual relationship between Stevens and 2nd

Half. Manna’a’s argument that no contractual relationship existed to interfere with is undermined

by the fact that the transfer in ownership of the property itself constituted an attempt to interfere

with the option contract. The court determined that Manna’a had no intention of closing on the

option. The transfer itself, therefore, was an interference. These same facts support the conclusion

that a breach of contract occurred.

       Manna’a understood that he took title subject to the agreement and, therefore, had

knowledge of the relationship. An intentional interference caused a termination. Counsel for

Manna’a discouraged a money lender from making a loan to Stevens. Manna’a “worked both

before and after the option deadline to impede the exercise of the option by trying to influence loan

brokers and lenders, convey[ed] the property away from 2nd half, [and] enter[ed] into another

contract to sell to [a third party].” CP at 132.

       Manna’a interfered for an improper purpose. Revenge against Steve for past business and

legal problems motivated Manna’a to obtain the property from 2nd Half. Greed motivated

Manna’a to repudiate the contract. Stevens did not exercise the option in a timely manner because

the interference caused (in part) the escrow agent to resign from the transaction. Manna’a’s,

Graham’s and Mills’s actions “killed the ability to make the option agreement work.” CP at 132.

       The findings of fact support the conclusion that Manna’a and his agents, Mills and Graham,

both breached the contract and intentionally interfered with the contractual relationship created by

the option.




                                                   7
52313-2-II


II.    REMEDIES

       Manna’a argues that the court erred when it allowed Stevens to exercise the option alone,

when the original contract named two parties. He argues that because Stevens did not plead or

prove that there was a novation or assignment from Ristick, the court impermissibly reformed the

contract.5 He also argues that the court erred by reforming the contract to extend the date of

expiration beyond the original date set in the contract.

       A.      Legal Principals

       In matters of equity, trial courts have broad discretionary power to fashion equitable

remedies. We review the authority of a trial court to fashion equitable remedies under the abuse

of discretion standard. Rupert v. Gunter, 31 Wn. App. 27, 30, 640 P.2d 36 (1982). An abuse of

discretion occurs when the trial court’s decision is manifestly unreasonable or is exercised on

untenable grounds or for untenable reasons. Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483,

494, 145 P.3d 1196 (2006).

       “There is in every contract an implied duty of good faith and fair dealing. This duty

obligates the parties to cooperate with each other so that each may obtain the full benefit of

performance.” Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991).

       Specific performance is an appropriate remedy when the plaintiff shows that the defendant

acted in bad faith and hindered the plaintiff from fulfilling performance under the contract. Cavell



5
  Manna’a argues that absent a novation or assignment, Ristick could not be removed from the
contract. A novation is a mutual agreement among all parties to discharge a valid existing
obligation by the substitution of a new valid obligation or substitution of one party for another.
MacPherson v. Franco, 34 Wn.2d 179, 182, 208 P.2d 641 (1949). An assignment occurs when a
party to a contract transfers their rights or benefits under the contract to another person.
RESTATEMENT (SECOND) OF CONTRACTS § 317 (AM. LAW INST. 1981). Neither party argues that
there was a novation or an assignment. At issue is whether the party reformed the contract given
that there was no novation or assignment. Therefore, we do not address novation or assignment.


                                                  8
52313-2-II


v. Hughes, 29 Wn. App. 536, 539-40, 629 P.2d 927 (1981). “Specific performance is frequently

the only adequate remedy for a breach of a contract regarding real property because land is unique

and difficult to value.” Pardee v. Jolly, 163 Wn.2d 558, 568-69, 182 P.3d 967 (2008).

       The grantor of an option is “under a duty not to ‘repudiate or make performance impossible

or more difficult.’” Thompson v. Thompson, 1 Wn. App. 196, 200, 460 P.2d 679 (1969) (quoting

McFerran v. Heroux, 44 Wn.2d 631, 638, 269 P.2d 815 (1954)).

       Reformation is an equitable remedy employed to bring a writing that is materially at

variance with the parties’ agreement into conformity with that agreement. Akers v. Sinclair, 37

Wn.2d 693, 702, 226 P.2d 225 (1950). A party may seek reformation of a contract if (1) the parties

made a mutual mistake or (2) one of them made a mistake and the other engaged in inequitable

conduct. Washington Mut. Sav. Bank v. Hedreen, 125 Wn.2d 521, 525, 886 P.2d 1121 (1994).

       “Courts are not at liberty, under the guise of reformation, to rewrite the parties’ agreement

and ‘foist upon the parties a contract they never made.’” Seattle Prof'l Eng'g Employees Ass'n v.

Boeing Co., 139 Wn.2d 824, 833, 991 P.2d 1126, 1 P.3d 578 (2000) (internal quotation marks

omitted) (quoting Seattle Prof’l Eng’g Employees Ass’n v. Boeing Co., 92 Wn. App. 214, 220, 963

P.2d 204 (1998)).

       “On the death of a joint obligee, unless a contrary intention was manifested, the surviving

obligees are solely entitled as against the promisor to receive performance.” RESTATEMENT

(SECOND) OF CONTRACTS § 301 (AM. LAW INST. 1981).

       In general, issues not raised in the trial court may not be raised on appeal. RAP 2.5(a);

Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005).




                                                9
52313-2-II


       B.      Reformation Removal of Ristick

       Manna’a argues for the first time on appeal that the court reformed the contract by ordering

specific performance. Even though Manna’a raises this argument for the first time on appeal, we

resolve the issue on the merits against him.

       Although the original agreement named both Stevens and Ristick as holders of the option,

the court did not use “the guise of reformation” to rewrite the contract. The court properly granted

specific performance of the option to allow the transaction to close in the name of Stevens alone

because Ristick is deceased. Principles of contract law support Stevens’s ability to exercise the

option alone. The contract named Ristick and Stevens as joint obligees and entitled them to

exercise the option, which then required 2nd Half/Manna’a to sell the property. After Ristick’s

death, Stevens, as the surviving obligee, was entitled as against 2nd Half/Manna’a to receive

performance. See RESTATEMENT (SECOND) OF CONTRACTS § 301. Manna’a does not cite authority

to support the claim that Ristick must remain as an obligee after her death.

       C.      Equitable Grace Period

       Manna’a argues that the court erred by reforming the contract to extend the date of

expiration beyond the original date set in the contract. We disagree.

       As a general rule, option contracts “are to be strictly construed and time is of the essence.”

Jolly, 163 Wn.2d at 572. However, equitable relief from such strict construction may be warranted

in limited circumstances where an inequitable forfeiture would otherwise result. Wharf Rest., Inc.

v. Port of Seattle, 24 Wn. App. 601, 611, 605 P.2d 334 (1979).

       Whether an equitable grace period is appropriate depends on the facts and circumstances

of a case and is largely within a trial court’s discretion. Heckman Motors, Inc. v. Gunn, 73 Wn.

App. 84, 88, 867 P.2d 683 (1994).



                                                10
52313-2-II


          In determining whether an equitable grace period is appropriate, we will consider the

following factors: (1) whether the lessee’s failure to give timely notice was inadvertent rather than

intentional, culpable, or grossly negligent; (2) whether the lessee made valuable permanent

improvements; (3) whether the lessor was prejudiced by the untimely notice; (4) the length of the

lease; and (5) whether the lessor contributed to the delay.           However, not all five of the

circumstances need be present in every case in which an equitable grace period is granted. Cornish

Coll. of the Arts v. 1000 Virginia Ltd. P'ship, 158 Wn. App. 203, 218, 242 P.3d 1 (2010).

          In this case, the court properly ordered specific performance and granted Stevens additional

time to exercise the option based on the unlawful actions of Manna’a and his agents. They clearly

contributed to Stevens’s inability to close on the option agreement. The court found that Manna’a

and his agents “killed the ability to make the option agreement work.” CP at 132.

III.      UNCLEAN HANDS

          Manna’a argues that Stevens is barred from equitable relief because she signed the

Purchase and Sales Agreement for the property on behalf of 2nd Half. He argues this fraudulent

conduct caused the escrow agent to resign from the transaction, and therefore Stevens cannot be

granted equitable relief under the doctrine of unclean hands.

          We do not address this issue because Manna’a raises it for the first time on appeal. RAP

2.5(a).

IV.       ATTORNEY FEES AT TRIAL

          Manna’a argues that the trial court erred in awarding attorney fees as damages, because

attorney fees are not awardable as damages when fees are incurred in the same proceeding as being

requested.




                                                  11
52313-2-II


       Stevens argues that the court properly awarded attorney fees because the fees were awarded

as damages, rather than costs, and because they alternatively were awarded for bad faith conduct.

       The court concluded that the intentional interference caused damages. Stating:

       Such damages are not in the traditional sense of special damages, but such conduct
       forced Ms. Stevens to court in this case. . . . While the option agreement and the
       lease agreement do not have an attorney fee clause, the damages that flow naturally
       and causally from such interference are the costs of defending the eviction and
       prosecuting this action. Interfering with a legal matter gives rise to legal costs to
       remedy the breach of duty. The Court finds such costs are awardable not as
       contractual attorney fees but as damages.

CP at 134.

       The standard of review for an award of attorney’s fees is abuse of discretion. Greenbank

Beach & Boat Club, Inc. v. Bunney, 168 Wn. App. 517, 524, 280 P.3d 1133 (2012).

       The general rule in Washington, commonly referred to as the American rule, is that each

party in a civil action will pay its own attorney fees and costs. In re Impoundment of Chevrolet

Truck, 148 Wn.2d 145, 160, 60 P.3d 53 (2002). However, “a more accurate statement of

Washington’s American rule is attorney fees are not available as costs or damages absent a

contract, statute, or recognized ground in equity.” City of Seattle v. McCready, 131 Wn.2d 266,

275, 931 P.2d 156 (1997).

       The case law regarding attorney fees awardable as costs of an action is well developed.

Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 759, 162 P.3d 1153

(2007). “The case law regarding attorney fees recoverable as damages is significantly less well

developed. In the majority of cases which have discussed attorney fee damage recoveries, such

recoveries have been based on principles of equitable indemnity.” Jacob's Meadow Owners Ass'n,

139 Wn. App. at 759. Specifically, “when the natural and proximate consequences of a wrongful

act by defendant involve plaintiff in litigation with others, there may, as a general rule, be a



                                                12
52313-2-II


recovery of damages for the reasonable expenses incurred in the litigation, including compensation

for attorney’s fees.” Wells v. Aetna Ins. Co., 60 Wn.2d 880, 882, 376 P.2d 644 (1962).

       We recognize a number of equitable exceptions to the no-attorney-fees rule. A court may

award attorney fees if the losing party’s conduct constitutes bad faith or wantonness. Public Util.

Dist. No. 1 of Snohomish County v. Kottsick, 86 Wn.2d 388, 390, 545 P.2d 1 (1976); State ex rel.

Macri v. City of Bremerton, 8 Wn.2d 93, 113, 111 P.2d 612 (1941). Bad faith can warrant an

award of attorney fees for three types of conduct: (1) prelitigation misconduct, (2) procedural bad

faith, and (3) substantive bad faith. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App.

918, 927-30, 982 P.2d 131 (1999). However, we have determined that “‘[t]o allow an award of

attorney fees based on bad faith in the act underlying the substantive claim would not be consistent

with the rationale behind the American Rule regarding attorney fees.’” Greenbank Beach & Boat

Club, 168 Wn. App. at 527 (quoting Shimman v. Int'l Union of Operating Eng'rs Local 18, 744

F.2d 1226, 1231 (6th Cir. 1984)).

       The trial court awarded attorney fees as damages rather than costs. The award of attorney

fees as damages is confined to situations where the defendant’s wrongful act required the plaintiff

to engage in litigation with a third party. That is not the case here. Manna’a’s wrongful act did

require Stevens to engage in litigation, but not with a third party. Therefore, we determine that

this exception does not apply.

       Stevens argues that we could alternatively uphold the award of attorney fees as damages

under the bad faith exception. In the few cases where a court has awarded based on bad faith, the

awards are as costs, as opposed to an element of damages. However, Washington courts have

contemplated bad faith as a reason to award attorney fees as damages. See State ex rel. Macri, 8

Wn.2d at 113 (“in certain circumstances fraud or malice may furnish a basis for the recovery of



                                                13
52313-2-II


the expenses of litigation, including counsel fees, as an element of damages.”). Even if we were

to determine that the bad faith exception applies in cases where attorney fees are awarded as

damages, the award would still be improper.

          The court determined that Manna’a had breached the duty of good faith and fair dealing,

by engaging in conduct that constituted bad faith. However, the bad faith actions by Manna’a are

the actions underlying the substantive claim of this case, and so the award of fees are inconsistent

with the rationale behind the American rule. Greenbank Beach & Boat Club, 168 Wn. App. at

527. Therefore, we conclude that the trial court abused its discretion in awarding attorney fees. 6

                                          ATTORNEY FEES

          Stevens requests attorney fees under RAP 18.1(a) because applicable law grants the right

to recover reasonable attorney fees. She also argues that she should receive attorney fees under

RAP 18.9 because of delay, frivolousness, and failure to comply with the rules of appellate

procedure.

          RAP 18.1(a) allows a prevailing party to recover attorney fees on appeal if “applicable law

grants to a party the right to recover reasonable attorney fees.”

          In determining whether an appeal is brought for delay, we inquire whether, when

considering the record as a whole, the appeal is frivolous. Streater v. White, 26 Wn. App. 430,

434, 613 P.2d 187 (1980). In determining whether an appeal is frivolous we consider the

following: (1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether

the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be

considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is

not for that reason alone frivolous; (5) an appeal is frivolous if there are no debatable issues on


6
    To be clear, the court did not err in awarding the $2,500 application fee loss.


                                                   14
52313-2-II


which reasonable minds might differ, and the appeal is so totally devoid of merit that there was no

reasonable possibility of reversal. Streater, 26 Wn. App. at 434-35.

        Because this appeal does not present any exceptions to the American rule, discussed above,

applicable law does not grant the right to attorney fees under RAP 18.1.

        This appeal is not frivolous, it was not brought for delay, and the award of attorney fees is

not supported.

        We affirm in part and reverse in part.

        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.




                                                              Melnick, J.

We concur:




        Maxa, C.J.




        Sutton, J.




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