                                                        i-OURTOF APPEALS C;'-
                                                          STATE OF WASHIKGTG,

                                                        2013 SEP-3 AHIOjW


      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



DOUGLAS KRUGER,
                                                   No. 68008-1-1
       Respondent/Cross-Appellant,                 Consolidated w/ No. 68009-9-

                                                   DIVISION ONE



MICHAEL MOI,                                       UNPUBLISHED OPINION


       Appellant/Cross-Respondent.                 FILED: September 3. 2013



       Spearman, J. — Douglas Kruger sued Michael Moi for breach of a

business agreement involving the purchase of real property. Kruger obtained

default judgments in two separate cases, filed in 2006 and 2009.1 The trial court
denied Moi's motion to set aside the default judgment in the 2009 case. Moi

appeals that order, two related orders, and an order denying Moi's motion to

enforce the part of the 2006 default order that directed Kruger to convey half of

the joint property to Moi. Kruger cross-appeals the trial court's denial of his

motion for additional attorney's fees, filed after entry of the default judgment. We

reverse the damages portion of the default judgment and the two related orders,

and otherwise affirm. We remand for further proceedings consistent with this

opinion.




       1 Cause numbers 06-2-32029-8 and 09-2-36968-2.
No. 68008-1-1/2

                                             FACTS

        Around October 1990, Kruger and Moi jointly purchased a residential lot in

Seattle.2 At the time, a house sat on the prospective dividing line. The parties
agreed to eventually demolish the house and then divide the property, with

Kruger taking one half, Parcel A, and Moi taking the other, Parcel B. In 2003 the

parties borrowed $160,000 from a bank to pay off the original seller. Each agreed

to pay half the loan and half the expenses for the combined property. In 2003,

the parties agreed that Moi and his wife would live in the house and pay the

mortgage while they lived there.

        In autumn 2005, Kruger's application for a consumer loan was declined.

He learned that his credit had been damaged because the loan secured by the

property had been in default and the underlying note had not been paid for

months. The taxes also had not been paid for a substantial time. At some point

Moi had stopped making payments on the property. Kruger paid the past-due

mortgage payments and back taxes and had the house demolished in June 2006

in accordance with the parties' agreement. Kruger demanded that Moi pay his

share of these expenses and sign the short plat documents allowing the

properties to be divided, but Moi refused.

        Kruger filed suit against Moi on October 3, 2006. Moi was served but

failed to appear. On February 16, 2007, Kruger obtained a default judgment for

approximately $44,000, which included statutory attorney fees and costs in the


        2Clerk's Papers, "CP (06)" refers to the clerk's papers in the 2006 case. "CP (09)" refers
to the clerk's papers in the 2009 case.
No. 68008-1-1/3

amount of $390.95. The default judgment ordered the parties to convey the

parcels to each other so that each would hold title to one parcel. Moi does not

challenge this default judgment. When Moi refused to comply with the order

requiring him to sign property transfer documents, Kruger moved to enforce the

judgment. The trial court ordered Moi to convey Parcel A to Kruger. A quitclaim

deed to Kruger was executed on April 1, 2009. Kruger did not transfer Parcel B to

Moi.

       On October 12, 2009, Kruger filed a second lawsuit against Moi, alleging

he had continued to make payments on the loan, taxes, and maintenance by

himself. He requested damages caused by Moi's "past, current, and ongoing

breach of contract." CP (09) at 7. He also requested "[rjeasonable attorney's fees

and costs as allowed by law," but did not allege the parties had an agreement

with an attorney-fee provision. Id. Moi was served but failed to appear. Kruger

moved for entry of a default judgment, claiming he had incurred total costs and

fees of $79,244.36 as a result of Moi's breach since February 2007. These

amounts were listed in a spreadsheet attached to Kruger's declaration. The

amounts listed included approximately $30,000 in fees to Kruger's attorneys. On

February 23, 2010, the trial court entered a default judgment of $79,244.36.
       Sometime after Moi learned of the default judgment, he contacted attorney

Michael Malnati. On April 16, 2010, Malnati contacted Kruger's attorney, Rick

Wathen. On April 30, Kruger filed, without notice to Moi, a motion to amend the

default judgment. The motion stated:
No. 68008-1-1/4

       On February 23, 2010, this Court entered a Default Judgment
       against the Defendants in the amount of $79,244.36.... However,
       the calculation of damages, which included the periodic payments
       on a joint loan taken by Plaintiff and Defendant Moi, did not include
       the principle [sic] on that loan, $160,000.[3] Moi has failed to make
       payments on this loan, which was necessary to secure the subject
       property in the first place, thereby forcing Plaintiff Kruger to pay the
       loan in full. As a result, Mr. Kruger is entitled not only to judgment in
       the amounts that he has already paid to keep the loan from default
       to avoid foreclosure, but also to the amount necessary to pay the
       principle [sic]. As a result, Mr. Kruger asks that the Court vacate the
       February 23, 2010 Judgment and enter a new Amended Default
       Judgment in the amount set forth below.

CP at (09) 54-55. Kruger requested $214,903.56, broken down as follows:

       A. Total Money Paid Out-of-Pocket through Original
          Default Judgment (Exhibit A):                               $141,379.59
       B. Amounts Incurred on Property Since Judgment:                  $6,386.69
       C. Principle [sic] on Chase/WaMu Loan:                         $160,000.00
       D. Less Judgment obtain under Cause
          No. 06-2-32029-8:                                            ($92,862.72)

       TOTAL JUDGMENT REQUESTED:                                     $214,903.56

CP (09) at 58. Kruger provided the same spreadsheet submitted for the first

default judgment. On May 3, 2010, the ex parte court granted the motion,

awarding him $214,903.56 as damages "for a sum certain." CP (09) at 73, 279-

80.

       Shortly after learning of the amended default judgment, Moi filed for

bankruptcy on May 20, 2010. In September 2010, Moi attempted to resolve the
issues with the default judgments in bankruptcy court by filing an "adversary




        3Kruger's declaration explained that the loan payments he had been making covered
only the interestand that none of the $160,000 principal had yet been paid.
No. 68008-1-1/5

proceeding" against Kruger to vacate the default orders.4 CP (09) at 632-38.
Kruger filed a motion for summary judgment in April 2011, requesting the court to

set the amount owed by Moi to Kruger for purposes of the bankruptcy

proceeding, award attorney's fees under the parties' written agreement (the

existence of which Kruger alleged for the first time), and dismiss Moi's claim of

preference. Kruger's motion for summary judgment was set over for hearing on

May 19, 2011.

        On May 2, 2011, Moi filed a motion to set aside the default judgments in

superior court. He contended that Kruger inflated his claims for damages and

obtained the amended default judgment without notice to Moi. The motion for

order to show cause was set for May 17. Kruger filed an opposition, arguing that

Moi had not obtained relief from the bankruptcy stay and that there was a

pending motion for summary judgment in the bankruptcy proceeding. Moi filed a

motion to strike the hearing, which was granted on May 13. Around the same

time, Moi voluntarily moved to dismiss the bankruptcy proceeding. The court

granted Moi's motion on May 31. The bankruptcy case was closed on July 12,

2011.


        On August 17, 2011, Moi filed a second motion to set aside the February

2010 and May 2010 default judgments. Moi also requested CR 11 sanctions. On

November 28, the trial court denied Moi's motion. The trial court concluded that



        4Moi also alleged claims againstWathen for Racketeer Influenced and Corrupt
Organizations Act(RICO) violations, mail fraud, wire fraud, perjury, violations of 28 USC §§§
1981, 1982, and 1983. Kruger and Wathen moved to dismiss the claims against Wathen in
January 2011. The bankruptcy court granted the motion.
No. 68008-1-1/6

(1) Malnati had not appeared on behalf of Moi; (2) Wathen had not committed

misconduct or fraud in obtaining the default judgments; and (3) Moi's motion was

untimely. At the same time Moi moved to set aside the default judgments, he

moved to enforce the default judgment in the 2006 case insofar as it required

Kruger to convey Parcel B to Moi. The court denied Moi's motion.

       In December 2011, Moi filed notices of appeal regarding the order denying

his motion to set aside the default judgments and the order denying his motion to

enforce the judgment in the 2006 case.

       On February 6, 2012, Kruger filed a motion in the trial court for entry of a

judgment summary.5 Kruger argued that the lack of a judgment summary in the
default judgment was a "clerical error" under CR 60(a). Moi opposed the motion,

arguing that the amended judgment sought by Kruger could not be entered in the

trial court without obtaining permission from this court under RAP 7.2(e). The trial

court granted Kruger's motion on February 7. On March 8, Moi filed a "Motion to

Deny Entry of Corrected Amended Default Judgment" in this court.6
       On March 12, 2012, Kruger filed a motion in the trial court for a writ of

execution in the 2009 case. The trial court granted Kruger's motion on March 22.

Moi's parcel was sold to Kruger at a sheriff's sale on May 25.

       On March 29, Kruger filed a motion for an additional $116,084.96 in

attorney fees incurred since the entry of the amended default judgment. Moi



       5The judgment summary in Kruger's proposed corrected amended default judgment
separated the lump sum damages award of $214,903.56 in the existing order for judgment into a
principal judgment amount of $180,290.13 and $34,613.43 in attorney's fees and costs.

       6The commissioner of this court referred the motion to this panel.
                                               6
No. 68008-1-1/7

opposed the motion, arguing there was no basis for attorney's fees. On May 29,

the trial court denied Kruger's motion without prejudice.

       Moi filed additional notices of appeal designating the February 7, 2012

order granting Kruger's motion for entry of a judgment summary and the March

22, 2012 order granting Kruger's motion for order to clerk for issuance of writ.

Kruger filed a notice of cross-appeal designating the May 29, 2012 order denying

his motion for attorney's fees. Moi's various appeals and Kruger's cross-appeal

were consolidated.

                                   DISCUSSION

                   Motion to Vacate Amended Default Judgment

       A decision to grant or deny a motion to vacate a default judgment is within

the trial court's discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956

(2007). Abuse of discretion is less likely to be found when a default judgment is

set aside. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289

(1979). Default judgments are disfavored; courts prefer to have controversies

determined on their merits. Morin, 160 Wn.2d at 754. Where a court is asked to

vacate a default judgment, it "should exercise its authority liberally, as well as

equitably, to the end that substantial rights be preserved and justice between the

parties be fairly and judiciously done." White v. Holm, 73 Wn.2d 348, 351, 438

P.2d 581 (1968) (citing Hull v. Vining, 17 Wn. 352, 49 P. 537 (1897)).
No. 68008-1-1/8

        Moi brought his motion to vacate the amended default judgment7 under
CR 60(b), which provides in relevant part:

       (b) Mistakes; Inadvertence; Excusable Neglect; Newly
       Discovered Evidence; Fraud; etc. On motion and upon such
       terms as are just, the court may relieve a party or his legal
       representative from a final judgment, order, or proceeding for the
       following reasons: . . .

            (1) Mistakes, inadvertence, surprise, excusable neglect or
            irregularity in obtaining a judgment or order;

            (4) Fraud (whether heretofore denominated intrinsic or
            extrinsic), misrepresentation, or other misconduct of an adverse
            party;

            (5) The judgment is void;


       The motion shall be made within a reasonable time and for reasons
       (1), (2) or (3) not more than 1 year after the judgment, order, or
       proceeding was entered or taken . . .

CR 60(b). Moi contends the trial court erred in denying his motion because (1)

Kruger obtained the amended default judgment without notice to Moi after

Malnati informally appeared; (2) Kruger obtained inflated damages and attorney

fees through fraud and misrepresentation; and (3) Kruger obtained greater and

different relief than sought in the complaint, making the judgment void.

                           CR 60(b)(1) - Entitlement to Notice

        Moi contends the amended default judgment must be vacated under CR

60(b)(1) because it was obtained without notice to Moi after Malnati informally




        7While Moi seeks to vacate both default judgments, the first default judgment was
vacated by the May 2010 order granting the motion for amended default judgment. Therefore,
only the amended default judgment is at issue.

                                                 8
No. 68008-1-1/9

appeared on his behalf before entry of the amended default judgment.8 A
defendant who has appeared in an action is entitled to notice of a motion for

default. Professional Marine Co. v. Lloyd's. 118 Wn. App. 694, 708, 77 P.3d 658

(2003); CR 55(a)(3). If no notice is received, a defendant is generally entitled to

have the judgment set aside without further inquiry. Morin, 160 Wn.2d at 754

(citing Tiffin v. Hendricks. 44 Wn.2d 837, 847, 271 P.2d 683 (1954)). A defendant

can substantially comply with the appearance requirement through an informal

appearance if it shows intent to defend and acknowledges the court's jurisdiction

over the matter after the summons and complaint are filed. Sacotte Const.. Inc. v.

National Fire & Marine Ins. Co.. 143 Wn. App. 410, 415, 177 P.3d 1147 (2008)

(citing Morin, 160 Wn.2d at 749).

        Initially, we note that a motion under CR 60(b)(1) must be made no more

than one year after the judgment was entered. Here, the amended default

judgment was entered on May 3, 2010 and Moi did not file the subject motion to

set aside the default judgment until August 11, 2011. Thus, we agree with the

trial court that on this ground the motion is untimely.




        8Moi also asserts that the judgment should be vacated under CR 60(b)(4) because the
record suggests Kruger intentionally failed to notify him of the motion for an amended default
judgment. We reject this argument because Moi cites no evidence in the record to support it.
No. 68008-1-1/10

       Furthermore, the evidence does not support Moi's assertion that Malnati

informally appeared on his behalf.9 It is undisputed that Malnati and Wathen had
a phone conversation and exchanged emails before entry of the amended default

judgment. But Wathen's declaration states that Malnati informed him during their

phone conversation that Malnati did not represent Moi; that Malnati was

representing a hard money lender; and that his purpose was to secure a first

position for the hard money lender so it could loan money and obtain a security

interest ahead of other creditors. CP (09) 143-47, 677. The April 16, 2010 email

from Malnati to Wathen supports the statements made in Wathen's declaration:

       One of my lender clients sent Michael Moi to me today to review
       the Kruger lawsuits and judgments. I don't pretend to be up to
       speed, but would I like to talk to you about this, and have a few
       items to bring to your attention. The attached declaration of service
        in the 2009 lawsuit describes a Middle Eastern man with black hair.
        This isn't Mr. Moi, who didn't learn of the new lawsuit and default
        judgment until he saw it on a title report ordered by the lender. I've
        also seen the recent writ of execution of the 2006 judgment. I would
        appreciate knowing the basis for $22,000 in post judgment attorney
        fees in a case based on an oral contract.

        The overall goal is to get Mr. Kruger paid what is legitimately owed.
        That was the reason Moi went to the lender. If that's something that
        can be explored, I would like to try it. Thanks.

CP (09) at 123, 1110. The trial court correctly concluded that the evidence does

not show that Malnati manifested to Wathen or Kruger an intent to defend Moi in


        9Ordinarily, when considering a motion to set aside a default judgment under CR
60(b)(1), we consider four factors under White v. Holm. 73Wn.2d 348, 438 P.2d 581 (1968).
These are: (1) the existence ofa valid defense; (2) whether the moving party's failure to timely
appear was occasioned by mistake, inadvertence, surprise, or excusable neglect; (3) the moving
party's diligence in seeking relief after the notice ofentry ofthe default judgment; and (4) whether
substantial hardship will result to the opposing party, id at 352; Luckettv. Boeing Co., 98 Wn.
App. 307, 314, 989 P.2d 1144 (1999) (White factors apply to determining whether sufficient
grounds exist for vacating judgment under CR 60(b)(1)). Because we conclude this argument is
untimely and reject Moi's contention that Malnati made an informal appearance, we do not reach
the White factors.

                                                 10
No. 68008-1-1/11

the Kruger lawsuit before entry of the amended default judgment. Moreover,

nowhere in Malnati's declaration does he state that he represented the Mois in

the Kruger lawsuit. There was no abuse of discretion.

          CR 60(b)(4) - Fraud, Misrepresentation, or Other Misconduct

       Next, Moi argues the amended default judgment should be vacated under

CR 60(b)(4) because it was obtained by fraud, misrepresentation, and

misconduct. A party requesting relief pursuant to CR 60(b)(4) must submit proof

of misconduct that is clear, cogent, and convincing. Dalton v. State, 130 Wn.

App. 653, 665, 124 P.3d 305 (1982) (citing Peoples State Bank v. Hickev, 55 Wn.

App. 367, 371-72, 777 P.2d 1056 (1989)).

       For the reasons asserted by Moi, we agree that the amount of damages in

the amended default judgment was obtained in violation of CR 60(b)(4). First,

Kruger sought non-recoverable attorney's fees as damages. A court may not

award attorney's fees as a cost of litigation in the absence of contract, statute, or

recognized ground of equity providing for an award of fees. Dayton v. Farmers

Ins. Group. 124 Wn.2d 277, 280, 876 P.2d 896 (1994). Neither the 2009

complaint nor the motions for default asserted a legal basis for an award of

attorney's fees. Kruger nonetheless listed approximately $30,000 in attorney's

fees in the spreadsheet he submitted to the court. Second, Kruger sought the

entire loan principal of $160,000 even though his complaint states the debt was

owed jointly by both parties to the bank and he had not actually incurred such

damages by paying off the principal. Kruger thus sought $80,000 for money he

owed to the bank, for the parcel he obtained. Third, Kruger asserted that his


                                         11
No. 68008-1-1/12

"direct and proximate" damages included, among other items, the "Total Money

Paid Out-of-Pocket through Original Default Judgment (Exhibit A)." CP (09) at 58.

The alleged total amount was stated as $141,379.59. But the figures listed in

Exhibit A total approximately $80,000; leaving approximately $61,000

unaccounted for.10 Finally, Kruger asserted claims for $6,386.69 for "Amounts
Incurred on Property Since Judgment," $13,743.24 in loan payments, $9,847.76

in property taxes, $500.00 for principal on the original loan and $582.45 for

utilities. Moi contends these claims represent 100% of the amounts due, rather

than the 50% properly credited to Moi.

        Kruger argues, in response to Moi's contention about attorney's fees, that

the parties had a written agreement with an attorney-fee provision. We reject this

argument. Again, the existence of such an agreement was never alleged in the

2009 complaint or either of the motions for default. Moreover, the record contains

only an unsigned draft agreement.11 Responding to Moi's contention that it was
improper to seek the entire $160,000, Kruger argues that, due to Moi's breach,

he has become solely responsible for the principal in order to avoid foreclosure.

We reject this argument, which does not explain why the parties' agreement

permits him to recover the entire principal—including the half owed by Kruger—

from Moi. Kruger makes no response to Moi's third and fourth contentions. In


        10 The numbers in the spreadsheet are difficult to read. The approximate amountof the
apparent figures is $80,000, as Moi asserts.

        11 Sometime after Kruger filed the 2009 complaint and motions for default judgment, he
asserted that the parties had a written agreement drafted by attorney Greg Lawless. The record
contains only an unsigned draft agreement. An October 12, 1990 letter from Lawless to the
parties states that the agreement he had enclosed was a draft and that Moi and Kruger should
read the provisions to determine whether they were applicable. Moi contends the parties had only
an oral agreement.

                                               12
No. 68008-1-1/13

sum, Kruger offers no satisfactory explanation as to why he was entitled to the

amount of damages he sought in moving for an amended default judgment, and

we agree with Moi that there is substantial evidence the amount of damages

awarded was obtained by fraud, misrepresentation, or misconduct.

       A motion under CR 60(b)(4), however, must be brought within a

"reasonable time." "A reasonable time is determined by examining the facts and

circumstances; the critical period is the time between when the party becomes

aware of the order and when he or she filed the motion to vacate it." Topliff v.

Chicago Ins. Co., 130 Wn. App. 301, 305, 122 P.3d 922 (2005). Due diligence

after the discovery of a default judgment contemplates the prompt filing of a

motion to vacate. Shepard Ambulance, Inc. v. Helsell Fetterman, Martin, Todd &

Hokanson, 95 Wn. App. 231, 231, 974 P.2d 1275 (1999).

       The trial court ruled that Moi's motion was not brought within a reasonable

time.12 We conclude the court did not abuse its discretion. Over one year passed

between the time Moi became aware of the first default judgment (no later than

April 16, 2010) and when he filed his first motion to vacate on May 2, 2011. If the

filing date of the second motion to vacate (the one at issue on appeal) is



       12 The trial court wrote in its order:

       Pleadings filed by Moi show he became aware of the first default judgment
       as early as April 16, 2010, and that he was aware of the amended default
       judgment shortly after its entry on May 3, 2010. The court finds Moi did not
       act with due diligence in moving to set aside the default judgments. Moi
       strategically chose to pursue relief in the bankruptcy court in an attempt to
       discharge the debt. It is unlikely a coincidence that the first motion to vacate
       (which was voluntarily stricken) was filed one day less than one year to the
       day after the amended default judgment was entered, as an unsuccessful
       attempt to note the motion before the expiration of a year, mindful of that
       deadline in CR 60.
CP at 1110.

                                                13
No. 68008-1-1/14

considered, 16 months passed. The trial court properly found that this was not

reasonable.13

                     CR 60(b)(5) -Amended Default Judgment Void

        Finally, Moi contends the amended judgment is void because it awarded

substantially greater and different relief than that sought in Kruger's complaint. In

entering a default judgment, a court may not grant relief in excess of or

substantially different from that described in the complaint.14 In re Marriage of

Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989). "[0]ne has a right to assume

that the relief granted on default will not exceed or substantially differ from that

described in the complaint and may safely allow a default to be taken in reliance

upon this assumption." Columbia Valley Credit Exch., Inc. v. Lampson, 12 Wn.

App. 952, 954-55, 533 P.2d 152 (1975) (internal quotation marks and citations

omitted). To the extent a default judgment exceeds the relief requested in the

complaint, that portion of the judgment is void. Leslie, 112 Wn.2d at 618. A

motion attacking a void judgment may be brought at any time. Allstate Ins. Co. v.

Khani, 75 Wn. App. 317, 323-24, 877 P.2d 724 (1994).




        13 Moi argues that the time spent in the bankruptcy proceeding, from May 2010 to July
2011, should be excluded from consideration because of the automatic stay. The trial court did
not abuse its discretion in declining to exclude that period, as Moi's actions with respect to the
bankruptcy were specifically within his control. Even accepting Moi's argument, over two months
elapsed between the first default judgment and when Moi filed the subject motion to vacate. It
would not have been an abuse of discretion to conclude that two months was not reasonable
under the circumstances. See Luckett, 98 Wn. App. at 313 (four-month delay in filing motion to
vacate not reasonable where party seeking to vacate put forth no good reason for delay). Moi
offers no reasons for his failure to promptly move to vacate and does not explain why there was
excusable neglect.

        14 Although Moi raised the argument below, the trial court did notspecifically address it in
denying Moi's motion.

                                                 14
No. 68008-1-1/15

       Moi's argument is based on the complaint's failure to give notice regarding

two components of the damages awarded in the amended default judgment: (1)

the entire principal of $160,000 and (2) attorney's fees. We agree that the

judgment is partially void under CR 60(b)(5) for these reasons. First, the

complaint alleges that Moi breached the parties' contract by failing to make

"mortgage, insurance, utility, [and] tax payments on the property." CP (09) at 6.

But the complaint states that the loan was "jointly owned by both parties." CP

(09) at 6. It does not allege that Moi was required to immediately pay the entire

principal, that his failure to do so was a breach of the parties' agreement, or that

Kruger was damaged by Moi's failure to pay the full loan principal.

       Next, the complaint does not provide notice that Kruger sought attorney's

fees under an alleged written agreement. The complaint includes a request for

attorney fees and costs "as allowed by law." CP (09) at 7. But it does not allege

the existence of any contractual, equitable, or legal basis for attorney's fees.

       The amended default judgment exceeds the relief requested in the

complaint, and is partially void. We reverse the amended default judgment only

with respect to damages, not liability. Fowler v. Johnson, 167 Wn. App. 596, 606,

273 P.3d 1042 (2012) (a court may affirm a default judgment as to liability while

reversing only as to damages).

                        Moi's Reguest for CR 11 Sanctions

       Moi appeals the trial court's decision denying his request for CR 11

sanctions against Kruger and Wathen in the form of an award of attorney's fees

incurred in connection with his motion to vacate. He contends Kruger and


                                         15
No. 68008-1-1/16

Wathen violated CR 11 by misrepresenting the nature and extent of Kruger's

damages to obtain inflated default judgments. A decision under CR 11 is

reviewed for abuse of discretion. Just Dirt, Inc. v. Knight Excavating, Inc. et al..

138 Wn. App. 409, 417, 157 P.3d 431 (2007).

        As set out above, there is substantial evidence in the record of

misrepresentation or fraud in Kruger's motion seeking an amended default

judgment. Accordingly, we conclude that the trial court abused its discretion in

denying Moi's motion for fees pursuant to CR 11.15 We reverse the trial court's
CR 11 ruling and remand for the trial court to determine whether, under the facts

of this case, an award of attorney's fees or some other sanction is proper.

                        Motion to Enforce Judgment in 2006 Case

        Moi contends the trial court erroneously denied his motion to enforce its

February 2007 order to the extent it required Kruger to transfer Parcel B to Moi.

We review this issue for abuse of discretion.16 Below, Moi argued that Kruger's
refusal to transfer the property prevented Moi from selling Parcel B and paying

Kruger. Kruger argued he would transfer the property when Moi paid the


        15 We note that the trial court later recognized, in its May 2012 ruling denying Kruger's
request for attorney's fees, that Kruger had not set forth any basis for an award of attorney's fees:

        It is clear from a reading of the record and pleadings that attorneys fees have
        been entered by the commissioners in the 2/23/10 and 5/03/10 default
        judgments. However, no legal basis was set out for such. The 2/7/12 order
        amending the default judgment clarified the prior orders, but again, made no
        finding for the basis of the award of attorneys fees.

CP at 1632.

        16 Kruger contends a decision in regard to a default judgment is within the sound
discretion of the trial court, citing Morin, 160 Wn.2d at 753. Morin states that a decision on a
motion for default judgment is reviewed for abuse of discretion but not that the standard applies to
a decision to enforce or not to enforce an order obtained on default. Nonetheless, Moi does not
contest the application of the abuse of discretion standard.

                                                 16
No. 68008-1-1/17

judgment. Moi argued that the order did not place any conditions upon the

transfer requirement.

        We reject Moi's claim and agree with the trial court's well-reasoned order,

which states:


        Defendant concedes he is in default with respect to the agreement
        between the parties, and the monetary judgment against him
        remains unpaid. Plaintiff is prepared to convey parcel B to
        Defendant, as soon as he pays the money judgment owing Plaintiff.
        At this point the loan to support the purchase of both parcels is
        secured by the two parcels. It would be inequitable to require parcel
        B to be conveyed to Moi when he has not done equity, and remains
        in complete violation of the agreement between the two parties.

CP (06) at 220-21. As Kruger notes, he bore almost all of burden of the joint

venture for nearly a decade. His efforts prevented the parties' joint loan from

going into default. The trial court acted within its discretion in refusing to order

Kruger to transfer half of the property to Moi until Moi satisfied the default

judgment in the 2006 case. Moi cites no authority stating it is an abuse of

discretion for a trial court not to enforce an order under these circumstances.

       Kruger's Motion for Attorney's Fees after Amended Default Judgment

        Kruger cross-appeals from the trial court's ruling denying his request for

attorney's fees, made after entry of the amended default judgment.17 We reject
this claim. The trial court correctly noted that the complaint did not allege the

existence of an attorney-fee provision or a written agreement between the

parties. The court properly declined to order additional attorney's fees.




        17 The trial court's ruling was without prejudice. The court indicated in its order that
because of the appeal pending before this court, it was amenable to making an award of
attorney's fees ifthis court indicated such fees were proper.

                                                 17
No. 68008-1-1/18

                                 Attorney's Fees on Appeal

        Both parties request attorney's fees on appeal. Kruger makes the request

under the parties' alleged written agreement, equitable principles, and RAP

18.9(a).18 Moi requests fees under CR 11. We deny both requests. Kruger does
not prevail on appeal and never pleaded below the existence of an agreement

with an attorney-fee provision. Furthermore, Moi's appeal is not frivolous, so fees

are not proper under RAP 18.9(a). Moi's request is denied because, as an initial

matter, CR 11 is a superior court rule that "does not explicitly authorize us to

award sanctions." Schorno v. Kannada, 167 Wn. App. 895, 904, 276 P.3d 319,

rev, denied, 175 Wn.2d 1018, 290 P.3d 994 (2012). Moreover, Moi does not

explain why Kruger has violated the rule through his briefing on appeal.

                                           Conclusion

        We reverse the amended default judgment as to damages and remand for

further proceedings consistent with this opinion. Because we reverse the

amended default judgment in part, the trial court's February 7, 2012 order

granting Kruger's motion for entry of a judgment summary and its March 22,

2012 order granting Kruger's motion for order to clerk for issuance of writ must

also be reversed.19 We affirm the trial court's denial of Moi's motion to enforce

the judgment in the 2006 case and its denial of Kruger's motion for attorney's




        18 RAP 18.9(a) permits this court to ordera party or counsel who uses the rules of
appellate procedure for the purpose of delay or files a frivolous appeal to pay terms to another
party who has been harmed.

        19 Given our disposition of Moi's appeal ofthe trial court'sordergranting Kruger's motion
to correct the amended default judgment, Moi's pending motion before this court to "deny entry of
corrected amended default judgment" is moot.

                                                18
No. 68008-1-1/19

fees after entry of the amended default judgment. We award no attorney's fees

on appeal.

      Reversed in part, affirmed in part, and remanded.




WE CONCUR:                                         3            7




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