                                                                           Filed
                                                                     Washington State
                                                                     Court of Appeals
                                                                      Division Two

                                                                     August 15, 2017




  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                  DIVISION II
CLARK COUNTY, a political subdivision of            No. 49023-4-II
the State of Washington,

                          Respondent,

      v.

DAVID A. DARBY,                                 UNPUBLISHED OPINION

                          Appellant,

EDNA STEINHAUER AGUN & HELEN
ANDERSON CRAIG AGUN; CRAIG
ANDERSON; WAYNE LORENZO APLING;
YVETT M. BADDGOR & JESSIE (C/B)
BADDGOR; JEFFREY M. BANNAN;
DONALD RAY BLANCHARD & KIM
BLANCHARD; DOUGLAS E. CARDON;
THOMAS CARLISLE & GAIL CARLISLE;
GARNET W. CHRISTIAN III & MICHAEL
D. CHRISTIAN & MARK A. CHRISTIAN;
CORNERSTONE CONSULTANTS; EQUITY
BUILDERS PROP. LLC; ORVALEE A.
FARRIS; FEDERAL NATIONAL
MORTGAGE ASSOCIATION; RICHARD
FLEMING & CHERYL FLEMING; DALE
GAWLEY; ADELE GLASS; DEUTSCHE
BANK NATIONAL TRUST COMPANY;
GRANITE HIGHLANDS LLC; VIKKI
HAINES & RICHARD PETERSON;
DEBORAH HANSEN; COREY D. HARRIS
& JULINE K. HARRIS; JAMES W.
HAUENSTEIN & RENEE HAUENSTEIN;
No. 49023-4-II


 MICHELLE D. HETTRICK; GLEN D.
 HOLLAR; ARLEEN D. GRAVES JACKSON;
 MARGARET JORGENSON ESTATE; AMIR
 KHAZENI & DEBORAH KHAZENI; TODD
 KOOISTRA & BRIDGET KOOISTRA;
 HELEN LILIANA LANGSTON; LIFETIME
 LEASING & LIFETIME RESOURCES;
 KIMBERLY D. MANECKE & JOSEPH
 MANECKE; ORVILLE MARSH &
 ROSALIE MARSH; SHARI L.
 MCCLENNEN; JUNE MCCOURT; ROBERT
 D. MEDEROS & TRACI I MEDEROS;
 KATHERINE MEYER ESTATE; RYAN
 MOSS & KERI MOSS; ERIK ODONNELL &
 KELLY ODONELL; PACIFIC MOUNTAIN
 DEVELOPMENT INC.; KIMBERLY
 PENNINGTON 50%; PETE PEREZ &
 BERNADETTE PEREZ; BRADLEY R.
 PERSHING & CHRISTINA L. PERSHING;
 MICHAEL RUPE & ANGELA RUPE;
 DAVID L. RUTH & PAMELA RUTH; JULIE
 RYAN; BENJAMIN SAGON & ANITA
 SAGON; SLD PROPERTIES LLC; SOPER
 HILL PROPERTIES INC; JOSEPH G.
 SPEARS; JOHN L. SULLIVAN & JULIANA
 SULLIVAN; SANDRA SWANSON;
 STEVEN TUCK & BONNIE TUCK; GREGG
 STEWART WALKER; CHARLES
 WALLACE; THOMAS WALLING &
 CARRIE WALLING; ANTHONY
 WILLBANKS & SARAH WILLBANKS,

                               Defendants.

       JOHANSON, J. — David A. Darby appeals the superior court’s order denying his CR

60(b)(5) motion. Darby sought to set aside the superior court’s order granting Clark County’s (the

County) summary judgment motion and the superior court’s judgment of foreclosure in a tax

foreclosure proceeding. The County requests sanctions under RAP 18.9(a). We hold that the




                                                2
No. 49023-4-II


superior court properly denied Darby’s CR 60(b)(5) motion. We also grant the County’s motion

for sanctions. We affirm.

                                              FACTS

                    I. TAX FORECLOSURE ACTION AND SUMMARY JUDGMENT

       In September 2012, the Clark County Treasurer filed a certificate of delinquency initiating

a tax foreclosure proceeding against Darby. The County alleged that Darby had not paid real

property taxes on his property for three or more years. In October, the treasurer filed a notice and

summons of intention to file application for judgment foreclosing tax liens against Darby.

       In June 2014, the County moved for summary judgment authorizing the tax foreclosure

sale of Darby’s property. It argued that there was no question of fact as to whether Darby had paid

the delinquent property tax for more than three years. The County supported its motion for

summary judgment with a declaration from Clark County Treasurer Doug Lasher.

       In his declaration, Lasher stated that the outstanding taxes, interest, foreclosure costs, and

penalty accrued on Darby’s property from the second half of 2008 to 2014 totaled $22,988.71. He

further asserted that on May 17, 2012, Darby had been notified that his property would be subject

to foreclosure if the taxes, penalty, and interest were not paid by February 2013 and that Darby did

not pay.

       Lasher further stated that the treasurer’s office issued a notice and summons to Darby

advising him that the treasurer’s office intended to seek a judgment foreclosing the tax liens and

attached a copy of the October 2012 notice and summons to his declaration. Lasher also asserted

that Darby had been served in person at the treasurer’s office on November 30, 2012 and attached




                                                 3
No. 49023-4-II


a copy of the proof of service. Lasher stated that as of June 23, 2014, Darby had still not paid the

delinquent taxes.

       Three days before the hearing on the County’s summary judgment motion, Darby filed his

own summary judgment motion and a response to the County’s summary judgment motion. In his

summary judgment motion, Darby asserted that the laws the County was trying to enforce were

unconstitutional and that the county treasurer and county auditor had failed to rebut his demand

that the County “prove in Constitutional Law that the county has the right to tax and control [his]

Land Patented land.” Clerk’s Papers (CP) at 473. He asserted that under his “Land Patent,” no

government could tax his property unless it had an interest in the property. And he demanded that

the County prove that the tax was lawful under the “supreme law of the land” found in the 1787

federal constitution and bill of rights and the 1878 Washington Constitution. CP at 473. Darby

asserted that because the County had not “rebutted” various “affidavits”1 he had filed with the

County and the court, those affidavits established the “truth” and he was entitled to summary

judgment. CP at 473.

       On July 31, Darby filed an amended response to the County’s summary judgment motion.2

In this response, he again argued that the County did not have the authority to collect delinquent

real property taxes under the 1878 Washington Constitution and the “Land Patent Law pursuant

to Article 1, Section 10 of the 1787 Constitution for the United States of America.” CP at 554-55.



1
 Darby did not identify these affidavits with any specificity in his summary judgment motion. He
appears to refer to numerous documents he had earlier submitted to the court and the County.
2
 In his original response, Darby asserted that he had not received any discovery and that the
County could not prove its case without first proving that the statutes it was relying on were valid
under the federal constitution, the Bill of Rights, and the 1878 Washington Constitution.

                                                 4
No. 49023-4-II


He further asserted that there were genuine issues of material fact because (1) the County had not

presented any “competent fact witness” or other “authentic” evidence,3 (2) he had provided

“testimony before the Court and in the court record,” and (3) Clark County had not presented

evidence showing that the 1878 Washington Constitution had been amended to allow for taxation

of private property or that the 1878 Washington Constitution was “fraudulent.” CP at 555-57. In

addition, he suggested that there were “standing” issues under article III of the United States

Constitution. CP at 557. Darby also attached a motion to compel discovery, asking that the

superior court compel the County to “provide all the documents that prove in constitutional law

that the county has the constitutional authority to foreclose on property that has a lawful Land

Patent listing the Defendant David A. Darby as the titled owner.”4 CP at 478.

          That same day, the County moved to strike Darby’s response and summary judgment

motion as untimely under CR 56(c). The County also asserted that even if the court were to

consider Darby’s filings, Darby appeared to concede that there were no genuine issues of material

fact preventing summary judgment because he did not dispute that (1) he owned the property in

question, (2) he had been assessed $22,988.71 in property taxes, and (3) he had not made any

payments.

          The summary judgment hearing was held on August 1, 2014. The superior court granted

the County’s summary judgment motion and authorized the foreclosure sale after finding that there

were no disputes as to any material facts. In its order, the superior court stated that it “ha[d] heard




3
    He asserted that the County had only provided statements from counsel, which were not evidence.
4
    In the motion to compel, Darby mentions the documents described in note 2, supra.

                                                  5
No. 49023-4-II


oral argument and reviewed the pleadings, files and records herein, including Clark County’s

Motion for Summary Judgment and supporting materials and Defendant’s responsive briefing.”5

CP at 1126.

       Rather than appeal the foreclosure action, Darby filed a new action and a CR 60 motion

under a new cause number. See Darby v. Clark County, noted at 192 Wn. App. 1069, 2016 WL

917807, at *1. The superior court dismissed the new action and the CR 60 motion. Darby, 2016

WL 917807, at *2. In an unpublished opinion filed in March 2016, we affirmed the superior court,

noting that Darby could not challenge the superior court’s decision in the foreclosure action by

means of another, separate action. Darby, 2016 WL 917807, at *3.

                                        II. CR 60 MOTION

       On May 2, 2016, apparently in response to our appellate decision, Darby filed a motion in

the tax foreclosure action in which he asserted he was bringing a CR 60(b)(5) “[c]ollateral attack

to vacate a void Order and Judgement [sic] of Foreclosure.” CP at 590 (emphasis omitted). In

this motion, he appears to assert that the judgment was “void” because (1) the County did not

present any evidence supporting its summary judgment motion, (2) the County’s failure to rebut

his affidavits demonstrated that the court had no jurisdiction, that his property was not subject to

lien under the “Land Patent” laws, and that he was a sovereign citizen, (3) the County had no

standing because it had no interest in Darby’s property, (4) the tax lien was unlawful and the court

had no jurisdiction under the 1878 Washington constitution, and (5) the tax lien was unlawful



5
  It appears that the superior court did not consider Darby’s summary judgment motion at this
hearing, but we are unable to verify this because we do not have the record from the summary
judgment hearing before us. Darby does not argue that the superior court erred when it refused to
consider his summary judgment motion.

                                                 6
No. 49023-4-II


because the State had no contract with Darby. Two days later, Darby filed a motion entitled

“Plaintiff’s Collateral Attack to Vacate a Void Order” in the original foreclosure action.6 On May

17, the County responded, arguing that the superior court should deny Darby’s motion because it

failed to set forth any legal or factual basis to support any relief “and represents an improper

attempt to circumvent Washington’s appellate process.” CP at 1138.

       The next day, Darby filed a “Memorandum in Support” of his motion, which appears to be

a reply to the County’s response to the CR 60 motion. Darby argued that the judgment was void,

apparently based on lack of subject matter jurisdiction under the 1878 Washington Constitution

and because of his status as a sovereign citizen. Darby also appeared to argue that (1) the superior

court was required to apply less stringent standards to him because he was pro se,7 and (2) summary

judgment for the County was improper because the superior court considered counsel’s arguments

as evidence and the County did not dispute his (Darby’s) “testimony.”8

       At the May 20 hearing on the CR 60 motion, Darby stated that he would rely on his briefing.

The County asserted that Darby’s motion did not articulate any factual or legal basis for relief and

that Darby did not seem to be seeking any relief. The County also asserted that it believed that




6
  Our record contains only a “citation” Darby filed on May 4, 2016 and a supporting brief filed
May 18. It is unclear whether Darby filed additional supporting materials on May 4. The County’s
May 17 response suggests that there was additional briefing with the May 4 filing, but the County’s
response may be referring to Darby’s May 2 filing.
7
 Darby’s citations to Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), and
Platsky v. Central Intelligence Agency, 953 F.2d 26 (2nd Cir. 1991), suggest this issue.
8
 This appears to be a reference to the affidavits and other documents that Darby had filed with the
court.

                                                 7
No. 49023-4-II


Darby was just trying to circumvent the rules and appeal despite the fact that he previously waived

his appeal by not filing one. Darby stated that he had no response to that argument.

       The superior court denied Darby’s motion. The superior court stated,

                Self-represented litigants may file their pleadings in accordance with the
       civil rules. You failed to do this in the underlying case almost two years ago.
                In fact, I recall when you left the courtroom at the time of my decision, you
       stated on the record that you should not have listened to the person that you had
       consulted. The person hadn’t filed some pleadings that appeared with you in court.
                You have been given a chance to be heard, and I’m denying your motion to
       vacate.
                The County had legal standing to foreclose for failing to pay the property
       taxes.

Report of Proceedings at 4-5.

       Darby appeals the denial of his CR 60 motion.

                                            ANALYSIS

       Raising a variety of issues, Darby appeals the superior court’s denial of his CR 60(b)(5)

motion. Darby does not establish that the superior court erred when it denied his motion.

                                     I. STANDARD OF REVIEW

       Generally, we review a trial court’s decision on a motion to vacate under CR 60(b) for

abuse of discretion. Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn. App. 803, 821, 225 P.3d

280 (2009) (citing Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978)). “‘An abuse of

discretion is present only if there is a clear showing that the exercise of discretion was manifestly

unreasonable, based on untenable grounds, or based on untenable reasons.’” Mitchell, 153 Wn.

App. at 821 (quoting Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995)). A superior

court’s “‘decision is based on untenable grounds or made for untenable reasons if it rests on facts

unsupported in the record or was reached by applying the wrong legal standard.’” Mitchell, 153


                                                 8
No. 49023-4-II


Wn. App. at 821-22 (internal quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647,

654, 71 P.3d 638 (2003)). However, a trial court’s denial of a CR 60(b)(5) motion based upon a

claim that the judgment is void for lack of jurisdiction is reviewed de novo. Ahten v Barnes, 158

Wn. App. 343, 350, 242 P.3d 35 (2010).

                                     II. JURISDICTIONAL ISSUES

       Darby brought his motion under CR 60(b)(5). CR 60(b)(5) provides that “the court may

relieve a party or the party’s legal representative from a final judgment, order, or proceeding for

the following reason: . . . The judgment is void.” “A void judgment is a ‘judgment, decree or order

entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks

the inherent power to make or enter the particular order involved.’” State ex rel. Turner v. Briggs,

94 Wn. App. 299, 302-03, 971 P.2d 581 (1999) (internal quotation marks omitted) (quoting Dike

v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968)).

       Reading Darby’s pleading broadly, the jurisdictional issues Darby raised in his CR 60(b)(5)

motion were based on his claims that (1) the superior court lacked jurisdiction under the 1878

Washington Constitution, (2) the County had no standing under article III of the United States

Constitution because it had no contractual relationship to him (Darby) or an interest in the property

at issue, and (3) the superior court failed to recognize that he is a private citizen and therefore not

subject to “STATE OF WASHINGTON,” because it is a “corporation” that has no authority over

a “Private Natural Born Sovereign Citizen[ ] of Washington State” other than by contract. Br. of

Appellant at 11.




                                                  9
No. 49023-4-II


           Darby’s claim that the only true constitution in effect is Washington’s so called “First

Constitution”9 from 1878, and he is, under this constitution, a sovereign citizen not subject to the

jurisdiction of the superior court has no merit. Washington’s Constitution was ratified by the

people on October 1, 1889, and came into effect on November 11, 1889, when Washington was

granted statehood in accordance with the Enabling Act, 25 U.S. STATUTES AT LARGE, ch. 180, p.

676 (1889). The 1878 constitution to which Darby refers was ratified in 1878, when the

Washington Territory made its first bid for statehood, but this constitution never came into effect

because the territory did not achieve statehood that year.10 Because the 1878 constitution was

never effective, Darby’s jurisdictional argument based on the 1878 constitution fails.11




9
  See Meany & Condon, Washington’s First Constitution, 9 Wash. Hist. Q. 131 (1918), reprinted
in E. Meany & J. Condon, Washington’s First Constitution, 1878, and Proceedings of the
Convention 19 (1924), http://lib.law.washington.edu/waconst/sources/Wash1stConst.pdf (last
visited July 28, 2017).
10
     Id.
11
   Darby also asserts that the superior court and the County “are committing treason against the
1878 Constitution.” Br. of Appellant at 12. This argument also fails because the 1878 constitution
never came into effect.
        Darby also claims that the superior court judge violated his oath of office and the 1878
constitution by not requiring the County to prove jurisdiction under the 1878 constitution and by
failing to comply with or ignoring various articles in the 1878 constitution. Darby refers to
“Parosa v. Tacoma,” “Johnson v. City of Spokane,” and Gerberdinger v. Munroe” without a
citation. Br. of Appellant at 10. Darby’s reference to Parosa could be a reference to Parosa v.
City of Tacoma, 57 Wn.2d 409, 357 P.2d 873 (1960), or Port of Tacoma v. Parosa, 52 Wn.2d 181,
324 P.2d 438 (1958). Johnson v. City of Spokane could refer to one of three citations: 72 Wash.
298, 130 P. 341 (1913); 29 Wash. 730, 70 P. 122 (1902), or 19 Wn. App. 722, 577 P.2d 164 (1978).
None of these cases supports the proposition that the 1878 constitution is “the supreme law of
Washington State” or that properly enacted codes and statutes are not law. Br. of Appellant at 10.
We were not able to find any case named Gerberdinger v. Munroe. Again, because the 1878
constitution never came into effect, these arguments have no merit.

                                                  10
No. 49023-4-II


         Darby also asserts that the superior court lacked jurisdiction because the County lacked

standing under article III of the United States Constitution,12 which requires an injury. Darby

appears to contend that the County has suffered no injury because it does not have a contractual or

property interest in the property. Darby cites no authority establishing that the County must have

an interest in the property to foreclose on property when a property owner fails to pay his or her

property taxes. Thus, Darby does not show a lack of jurisdiction on this basis.

         Darby’s argument that the superior court failed to recognize that he is a private citizen and

therefore not subject to “STATE OF WASHINGTON” because it is a “corporation” that has no

authority over a “Private Natural Born Sovereign Citizen[ ] of Washington State” other than by

contract argument also fails. Br. of Appellant at 11. To support this argument, Darby refers us to

“the 1943 Clearfield Doctrine.” Br. of Appellant at 11. This appears to be a reference to Clearfield

Trust Co. v. United States, 318 U.S. 363, 318 U.S. 744, 63 S. Ct. 573, 87 L. Ed. 838 (1943).

Clearfield addressed the rights and obligations of the United States with respect to commercial

paper when the government is acting in a business capacity—it is irrelevant to Darby’s

jurisdictional claim and does not establish that the State of Washington is a corporation. 318 U.S.

at 366. Accordingly, Darby fails to cite to any authority supporting his argument and this argument

fails.




12
       Article III standing requires that the complaining party demonstrate (1) an “injury
       in fact”—a harm that is both “concrete” and “actual and imminent, not conjectural
       or hypothetical”; (2) causation; and (3) redressability.
In re Estate of Duxbury, 175 Wn. App. 151, 167 n.14, 304 P.3d 480 (2013) (internal quotation
marks omitted) (quoting Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.
765, 771-72, 120 S. Ct. 1858, 146 L. Ed. 2d 836 (2000)).

                                                  11
No. 49023-4-II


                                 III. NONJURISDICTIONAL CLAIMS

       In addition to his jurisdictional claims, Darby also presents several nonjurisdictional

claims. Even presuming these arguments relate to and were properly raised in Darby’s CR 60(b)(5)

motion, these argument have no merit.

              A. RELIANCE ON PROSECUTOR’S ARGUMENT AND LACK OF EVIDENCE

       Darby argues that the superior court judge failed to consider cases such as Trinsey v.

Pagliaro, 229 F. Supp. 647 (E.D. Pa. 1964), and United States v. Lovasco, 431 U.S. 783, 97 S. Ct.

2044, 52 L. Ed. 2d 752 (1977). It appears that Darby is referring to these cases, at least in part, for

the premise that the superior court could not ignore proper procedure and consider facts outside

the record, such as statements of counsel in their briefs or argument. See Trinsey, 229 F. Supp. at

649; Lovasco, 431 U.S. at 790. This appears to relate to Darby’s contentions that the County was

not entitled to summary judgment because it presented no evidence and that the superior court

considered the County’s argument as evidence. The record does not support this argument. The

County presented evidence in the form of Lasher’s declaration and its supporting documentation,

and the superior court’s summary judgment order states that it had considered the County’s

“supporting materials.” CP at 1126. Thus, Darby does not show that the superior court’s decision

was based only on the County’s argument.

       Darby also appears concerned that the superior court relied on the County’s argument at

the CR 60(b)(5) hearing, in which the County asserted that Darby had failed to support his motion,

failed to ask for any relief, and appeared to be attempting to circumvent the fact that he failed to

file an appeal of the summary judgment order. Nothing in the record shows that the superior court

relied solely on the County’s arguments and failed to review Darby’s filings. In fact, the superior


                                                  12
No. 49023-4-II


court expressly stated that it had “reviewed the pleadings.” CP at 1126. Accordingly, this

argument fails.

                            B. SELF-REPRESENTED LITIGANT STANDARDS

         Darby also asserts that the superior court erred by holding him to the same standard as an

attorney. Although the federal court rules require that the federal courts hold a self-represented

litigant to a lower standard, see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d

652 (1972), the federal rules do not apply to Washington courts. Under Washington law, self-

represented litigants “are bound by the same rules of procedure and substantive law as attorneys.”

Westberg v. All-Purpose Structures Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).

Accordingly, regardless of whether Darby is referring to the superior court’s actions during the

summary judgment proceedings or during the CR 60(b)(5) motion proceedings, this argument

fails.

                                   IV. MISCELLANEOUS MATTERS

         In addition to the issues related to his CR 60(b)(5) motion, Darby asks that if we rule against

him, we file findings of fact and conclusions of law. This court decides appeals by opinion; we

are not required to issue findings of fact and conclusions of law. RCW 2.06.040 (“In the

determination of causes all decisions of the court shall be given in writing and the grounds of the

decisions shall be stated.”).

         Darby also requests a variety of relief. Because we affirm the superior court, Darby is not

entitled to relief. Accordingly, we do not address his individual requests.




                                                   13
No. 49023-4-II


       To the extent Darby raises other claims, they fail, either because they relate to actions that

occurred during the summary judgment hearing, which is not before this court,13 or because they

are unsupported by reasoned argument or citation to authority. See Cowiche Canyon Conservancy

v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). To the extent that Darby raises new claims

in his reply, we do not consider new issues raised for the first time on appeal in a responsive brief.

RAP 10.3(c).

       Because Darby fails to show that the superior court abused its discretion when it denied his

CR 60(b)(5) motion, we affirm the superior court.

                                           V. SANCTIONS

       The County moves for sanctions, attorney fees, and costs under RAP 18.9(a) for having to

respond to a frivolous appeal. RAP 18.9(a) provides in part,

       The appellate court on its own initiative or on motion of a party may 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.

       “[A]n appeal is frivolous if it raises no debatable issues on which reasonable minds might

differ and it is so totally devoid of merit that no reasonable possibility of reversal exists.” Protect

the Peninsula’s Future v. City of Port Angeles, 175 Wn. App. 201, 220, 304 P.3d 914 (2013). “All

doubts as to whether the appeal is frivolous should be resolved in favor of the appellant.”

Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245

P.3d 764 (2010).




13
  For instance, Darby’s brief mentions the superior court excluding an individual from the
summary judgment hearing. This matter does not relate to the superior court’s jurisdiction and
was not before the superior court under CR 60(b)(5).
                                              14
No. 49023-4-II


        Even the most generous reading of Darby’s appeal demonstrates that it raises no debatable

issues and is entirely devoid of merit. Accordingly, we grant the County’s motion for sanctions

and award attorney fees and costs on appeal upon its compliance with RAP 18.1.

        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.



                                                    JOHANSON, J.
 We concur:



 MAXA, A.C.J.




 LEE, J.




                                               15
