                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 10, 2017




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    In the Matter of the Estate of                                   No. 49410-8-II

    DARLENE B. SNIDER,

                           Deceased.                          UNPUBLISHED OPINION



          WORSWICK, J. — Kenneth and Dennis Crogg appeal the superior court’s order denying

their motion for relief under CR 60(b)(11). The Croggs argue that the superior court erred as a

matter of law under RCW 11.96A.220 by not enforcing a settlement agreement they entered into

regarding the distribution of their mother’s estate as written, and that the superior court abused

its discretion by authorizing an additional property appraisal. Snider’s husband Bradley Milligan

argues that the Croggs did not properly provide an adequate record for review and improperly

made arguments that cannot now be appealed. We affirm the superior court order denying the

Croggs’ motion for relief, and we award attorney fees to Milligan.

                                                 FACTS

          In 2014, Darlene Snider died intestate and was survived by her husband Bradley

Milligan, her adult sons, Kenneth and Dennis Crogg, and one daughter.1 A dispute arose




1
    Snider’s daughter is not a party to this action.
No. 49410-8-II



between Milligan and the Croggs regarding the distribution of various assets of Snider’s estate.

The dispute here involves the distribution of a vacant lot adjacent to Snider’s residential home

that she shared with Milligan prior to her death.

       In February 2015, the estate’s administrator hired a property appraiser, Kirstin Moe, to

complete a land appraisal report for the disputed lot. Moe completed the report appraising the lot

at $150,000.

       Milligan then filed a petition under the Washington’s Trust and Estate Dispute Resolution

Act (TEDRA)2 claiming an equitable lien against the marital home and seeking a determination

of property interest. The Croggs objected to Milligan’s claims, and the parties agreed to mediate

the dispute.

       Following mediation, the parties entered into a Non-Judicial Binding Settlement

Agreement pursuant to TEDRA. The relevant portion of the agreement provided:

       Right to Purchase Property: [Milligan] shall have the first option to purchase [the
       lot] based upon a current appraised value to be obtained by [the Croggs] within 60
       days of this agreement. [Milligan] shall have 30 days from the date of delivery of
       the appraisal to finalize & complete the purchase of the property.

Clerk’s Papers (CP) at 3. The agreement further stated that matters of the agreement were to be

resolved under the procedures authorized in RCW 11.96A.2203 and that attorney fees were

available to a prevailing party for claims brought to enforce the agreement.



2
  TEDRA, chapter 11.96A RCW, among other things, provides for the resolution of disputes
involving estates.
3
   Under RCW 11.96A.220, if all parties agree to a resolution to a matter related to a trust or an
estate, the matter can be settled by a written agreement signed by all parties, and that agreement
is then binding and conclusive on all persons interested in the estate or trust.


                                                    2
No. 49410-8-II



       In 2016, after finalizing the agreement, the Croggs hired a property appraiser, Jeffrey

Yohe, to complete a land appraisal report for the disputed lot. Yohe completed the report,

appraising the lot at $460,000.

       Eighteen days after receiving the appraisal, Milligan filed a motion to “compel

compliance” with the settlement agreement in Clark County Superior Court. Suppl. CP at 48.

Milligan argued that the Croggs breached their duty of good faith because Yohe appraised the

property at three times the amount of the 2015 appraisal. Milligan argued that in conducting the

appraisal, Yohe improperly compared the property to other lots that had a view of the Columbia

River and that Yohe failed take into account the lack of views, access to utilities, easements, and

other factors impacting the lot’s value. Milligan also claimed the Croggs had a direct financial

interest in a high appraisal of the lot. Milligan requested that the court order another appraisal

and that a neutral appraiser be selected to ensure fairness of a purchase price. Milligan also

requested that he be given 30 days from the date of the new appraisal to decide if he wanted to

purchase the property.

       Along with his motion, Milligan filed a supplemental addendum authored by Kirstin Moe

regarding her 2015 appraisal of the lot. In the addendum, Moe stated that the shape of the lot

was irregular and that the southern portion of the property was unusable. Moe also explained

that water and sewer utility lines did not service the property and would have to be extended 165

feet to reach the property’s edge. Moe stated the property was mostly covered in trees and the

property did not have a river view. Moe also stated that she compared the lot to four nearby

properties and determined the property to be worth $150,000.




                                                  3
No. 49410-8-II



       On April 22, 2016, after a hearing on the motion, the superior court entered an order

granting Milligan’s motion to compel compliance.4 The court ordered the administrator of the

estate to arrange another appraisal of the property with a certified appraiser. The court also

ordered that Milligan could exercise his option to purchase the property within 30 days from the

date of receiving the new appraisal and that if Milligan did not purchase the property, the

property would be distributed to the Croggs per the terms of the settlement agreement.

       In June 2016, two months after the court entered its order enforcing compliance, the

Croggs filed a motion for relief requesting the court vacate its April 2016 order under CR 60(b)

and 60(c)5. The Croggs also requested the court to enforce the settlement agreement by

awarding the Croggs the disputed lot because Milligan failed to exercise his option to purchase

within 30 days after receiving Yohe’s appraisal.

       Specifically, the Croggs argued that there was nothing in the settlement agreement which

allowed any party to dispute Yohe’s appraisal. The Croggs argued that because they had

provided Milligan with the Yohe appraisal, they had “judiciously performed” the requirements of

the settlement agreement. CP at 35. The Croggs also sought attorney fees under RCW




4
 The record provided to this court does not contain an opposition filed by the Croggs against
Milligan’s motion to compel compliance. No transcript of the hearing was provided to this court
on appeal. The Croggs state in their motion for relief and in their appellate brief that they were
not represented by counsel at the time Milligan moved for compliance.
5
 Although the Croggs’ motion cited “CR 60(b) and 60(c)” as legal basis for their motion, they
argued that they were entitled to relief under only CR 60(b)(11). CP at 40. The Croggs did not
argue the application of CR 60(c) in their supporting memorandum to the trial court, nor do they
argue CR 60(c) in their appellate briefs.


                                                   4
No. 49410-8-II



11.96A.150, claiming that Milligan breached his fiduciary duties by bringing a motion to

compel.

        In support of their motion, the Croggs submitted a declaration from Jeffrey Yohe. Yohe

stated that upon being notified of the prior appraisal conducted by Moe, he visited the site and

reviewed his appraisal. Yohe stated that he could find no errors or any reason to revise his

earlier appraisal.

        On August 5, 2016, after hearing argument on the matter, the superior court entered an

order denying the Croggs’ motion for relief under CR 60(b). The superior court ordered:

        2. The Court denies Petitioner’s Motion to vacate the Court’s Order entered on
           April 22, 2016 pursuant to CR 60(b) and (c). The Court’s prior Order is
           confirmed.
        3. The Court finds that the Non Judicial Binding Settlement Agreement requires
           the Croggs to “attain an appraisal.” The Court finds that the appraisal obtained
           after the agreement was entered “. . . is so far out of the ball park that it is not
           reliable.” The Court confirms its prior ruling that the only solution is to get a
           neutral third appraisal because otherwise the term ‘appraisal’ is a meaningless
           term in the agreement.
        4. The Court finds no evidence that the Croggs perpetuated any fraud in obtaining
           the appraisal, but finds that Mr. Yohe’s logic in support of the $460,000.00
           appraisal is not persuasive based on the Court’s review of Ms. Moe’s
           $150,000.00 appraisal.

CP at 43.

        The Croggs appeal the superior court’s order denying their CR 60(b) motion.

                                            ANALYSIS

                                     I. ADEQUACY OF RECORD

        As a preliminary matter, we address Milligan’s argument that the record on appeal is

inadequate for review. Citing RAP 9.2(b), Milligan asserts that because the Croggs failed to




                                                  5
No. 49410-8-II



designate the transcript of the CR 60 motion hearing, they have failed to provide us with an

adequate record of proceedings to review the issues. He argues that we should dismiss the

Croggs’ appeal on this basis. We hold that the record is adequate for review.

       A party seeking review has the burden to perfect the record so that all relevant evidence

is before us. See RAP 9.2; Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9 (2012). An

insufficient appellate record precludes review of the alleged errors. Stiles, 168 Wn. App. at 259.

       Although the Croggs did not designate any verbatim transcripts from any motion hearing,

the record on appeal contains the settlement agreement, land appraisal reports, the parties’

motions, and the other documents reviewed by the superior court. The record also contains the

court’s order denying the Croggs’ motion for relief. We hold that the record is minimally

sufficient for review.

                                      II. SCOPE OF APPEAL

       As second preliminary matter, we address which of the superior court’s orders are

properly on appeal. Milligan correctly states that the Croggs’ notice of appeal designates only

the August 5 order as the decision on review, but that the Croggs’ briefs appear to argue only the

propriety of the April 22 order. The Croggs argue that because the superior court “reaffirm[ed]”

the April 22 order within the August 5 order that the contents of both orders are on appeal.

Reply Br. of Appellant at 4. We agree with Milligan that the only decision on review is the

August 5 order denying the Croggs’ motion for CR 60(b) relief.

       RAP 5.2(a) requires filing a notice of appeal within 30 days after the trial court enters its

decision. Additionally, RAP 5.3(a) requires the notice of appeal to designate the decision to be




                                                 6
No. 49410-8-II



reviewed. When a party seeks review of a trial court’s denial of a CR 60(b) motion, our review

is limited to the propriety of the denial and not the impropriety of the underlying judgment. Barr

v. MacGugan, 119 Wn. App. 43, 48 n.2, 78 P.3d 660 (2003).

       Here, the Croggs sought a motion for relief under CR 60(b) two months after entry of the

April 22 order. The superior court denied CR 60(b) relief in the August 5 order. The Croggs

then appealed only the court’s August 5 order. Consequently, we review only the propriety of

the August 5 order denying the CR 60(b) motion.

       Both parties address the propriety of the April 22 order in their briefs. The Croggs argue

that under RCW 11.96A.220, the superior court erred as a matter of law by not enforcing the

settlement agreement as written. The Croggs also assert that the superior court abused its

discretion by authorizing an additional appraisal. Milligan argues that because the superior

court’s decision to order an additional appraisal was reasonable, the superior court did not abuse

its discretion.6 Because we do not review the propriety of the April 22 order, we do not consider

these arguments.




6
  The Croggs also assert that Milligan did not have a “right” to buy the property but rather only
had an “option.” They cite generously to case law purporting to distinguish an option to
purchase from a right to purchase. The Croggs further argue that a court interpreting a TEDRA
agreement must apply general principles of contract law. The Croggs assert that because there
was no ambiguity in the language of the settlement agreement, the court should have not
considered extrinsic evidence, specifically the Moe appraisal, to clarify an ambiguity.
         These arguments were not raised before the trial court in the Croggs’ CR 60(b) motion.
It is unclear what was argued in response to Milligan’s motion to enforce compliance because
the record on appeal does not contain the Croggs’ response, nor does it contain a transcript of the
proceedings.
         We do not reach these arguments.



                                                 7
No. 49410-8-II



                                III. RELIEF UNDER CR 60(b)(11)

A.      Standard of Review

       The Croggs argue that we should review the superior court’s interpretations of the

settlement agreement de novo. We disagree. The decision to grant or deny a motion to vacate a

judgment under CR 60(b) is within the superior court’s discretion. Jones v. City of Seattle, 179

Wn.2d 322, 360, 314 P.3d 380 (2013). A superior court abuses its discretion when its decision is

based on untenable grounds or is made for untenable reasons. Union Bank, N.A. v. Vanderhoek

Assocs., LLC, 191 Wn. App. 836, 842, 365 P.3d 223 (2015). An appeal from a CR 60(b) motion

is limited to the propriety of the denial and not the propriety of the underlying judgment. Barr,

119 Wn. App. at 48.

B.     CR 60(b)(11)

       The Croggs argue that the superior court erred as a matter of law by not enforcing the

settlement agreement as written and that the superior court abused its discretion by ordering a

second appraisal. We hold that the superior court did not abuse its discretion when it denied the

Croggs’ CR 60(b)(11) motion.

       CR 60(b)(11) is a catchall provision that allows a court to vacate a judgment for “[a]ny

other reason justifying relief.” CR 60(b)(11) is confined to situations involving extraordinary

circumstances not covered by any other section of the rule. Union Bank, 191 Wn. App. at 844.

Extraordinary circumstances involve irregularities which are extraneous to the action of the court

or go to the question of the regularity of its proceedings. Tatham v. Rogers, 170 Wn. App. 76,

100, 283 P.3d 583 (2012).




                                                 8
No. 49410-8-II



       Generally extraordinary circumstances sufficient to afford CR 60(b)(11) relief are

unusual circumstances that are not within the control of the party. State v. Gamble, 168 Wn.2d

161, 169, 225 P.3d 973 (2010); see Barr, 119 Wn. App. at 48 (holding that irregularities in a

plaintiff’s attorney’s ability abide by court rules was outside the control of the plaintiff, the

defendant, and the court). Errors of law are not extraordinary circumstances correctable through

CR 60(b)(11); rather, direct appeal is the proper means of remedying legal errors. Union Bank,

191 Wn. App. at 847.

       1. Errors of Law

       The Croggs argue that the superior court erred as a matter of law by not enforcing the

settlement agreement as written under RCW 11.96A.220. We do not review this claim.

       Here the Croggs appeal only the order denying their CR 60(b)(11) motion. Because

errors of law may not be corrected by a CR 60(b)(11) motion, we do not review the Croggs’

argument that RCW 11.96A.220 bound the superior court as a matter of law.

       2. No extraordinary circumstances under CR 60(b)(11)

       Here, the Croggs do not argue that extraordinary circumstances exist warranting a

vacation of the court’s order denying their motion for relief. Moreover a thorough review of the

record reveals no extraordinary circumstances.

       Because errors of law are not reviewable under CR 60(b)(11) and because nothing in the

record or in the appellant’s arguments purport to show extraordinary circumstances warranting

vacation of the August 5 order, we affirm the superior court’s order denying relief under CR

60(b)(11).




                                                   9
No. 49410-8-II



                            IV. ATTORNEY FEES IN THE TRIAL COURT

       The Croggs argue that the superior court erred by not awarding them attorney fees under

RCW 11.96A.150. We disagree.

       Under RCW 11.96A.150, the court may order the costs, including reasonable attorney

fees, to be paid in such amount and in such manner as the court determines to be equitable.

Further, RCW 11.96A.150 provides that an award of fees is discretionary, and a court, in its

discretion, may consider any and all factors that the court deems to be relevant and appropriate.

RCW 11.96A.150. Accordingly, we review an award of fees here for abuse of discretion. A

superior court abuses its discretion when its decision is manifestly unreasonable or is based on

untenable grounds or reasons. Union Bank, 191 Wn. App. at 842.

       The Croggs have not provided a verbatim report of proceedings for our review. The

record on appeal shows that the superior court did not impose discretionary fees to either party in

its order denying the motion for relief. However, nothing in the record shows the superior

court’s reasoning for not imposing fees under RCW 11.96A.150. Considering the limited record

on appeal, we find that the superior court did not abuse its discretion in not awarding

discretionary fees to the Croggs. See RAP 9.2(b).

                                 V. ATTORNEY FEES ON APPEAL

       Both the Croggs and Milligan request reasonable attorney fees on appeal under RAP 18.1

and RCW 11.96A.150. Milligan asserts that he should be awarded fees under the settlement

agreement for having to respond to the Croggs’ appeal. We agree and award Milligan reasonable

attorney fees on appeal.




                                                10
No. 49410-8-II



       RAP 18.1 (a) allows a party to recover its reasonable attorney fees and costs on appeal if

an applicable law grants that party a right to recover attorney fees and costs. RCW 11.96A.150

grants broad discretion to courts to award attorney fees “‘in such manner as the court determines

to be equitable’ in ‘all proceedings governed by this title [11].’” Sloans v. Berry, 189 Wn. App.

368, 379, 358 P.3d 426 (2015) (quoting RCW 11.96A.150). RCW 11.96A.150(1)(c) allows us to

consider “any and all factors” that we deem to be relevant and appropriate but the factors need

not include a determination as to whether the litigation benefits the estate. The settlement

agreement also states that attorney fees are available to a prevailing party for claims to enforce

the agreement.

       The Croggs argue that Milligan’s initial motion to compel compliance with the settlement

agreement did not benefit the estate. However, RCW 11.96A.150 does not require us to solely

consider whether a litigation benefits an estate in awarding fees. The Croggs improperly raise

arguments on appeal that they did not raise below and they do not even attempt to address the

burden they must meet under CR 60(b)(11). Further, the superior court noted that something

was unusual about Yohe’s appraisal that came in several times higher than Moe’s appraisal.

       Because we may award fees in such manner as we deem to be equitable under RCW

11.96A.150 and because the settlement agreement authorizes an award of fees to the prevailing

party in a suit to enforce the agreement, we award reasonable attorney fees on appeal to Milligan.

       We affirm the superior court’s order denying the Croggs’ CR 60(b) motion, and we

award reasonable attorney fees on appeal to Milligan.




                                                 11
No. 49410-8-II



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

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

2.06.040, it is so ordered.



                                                                    Worswick, J.
 We concur:



 Bjorgen, C.J.




 Maxa, J.




                                               12
