       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MUFFIN F. ANDERSON,                     )
                                        )   No. 75175-1-1
                    Appellant,          )
                                        )   DIVISION ONE
             v.                         )
                                        )
GALE H. and SARAH WILL, husband         )
and wife,                               )   UNPUBLISHED OPINION
                                        )
                    Respondents.        )   FILED: October 2, 2017
                                       )

      BECKER, J. — The trial court did not abuse its discretion in denying the

appellant's motion for relief under CR 60(b) because appellant has not shown

how her alleged illness impacted or impeded her ability to prosecute her case.

We affirm.

      Appellant Muffin Anderson sued her neighbors, respondents Cale and

Sarah Will, in June 2015. She alleged claims for trespassing, encroachment,

and nuisance on property. Anderson filed her complaint pro se and has

represented herself through the entire proceedings, including this appeal.

      The Wills moved for summary judgment. The court granted the motion for

summary judgment and dismissed Anderson's claims with prejudice on October

16, 2015.
No. 75175-1-1/2

       Anderson filed two motions for relief under 60(b)(1),(2), and (9) on March

14, 2016. She sought to strike the order granting summary judgment, vacate the

order of dismissal, and stay proceedings until May 2016.

       The court denied these motions on March 31, 2016.

       Anderson filed a notice of appeal on April 19, 2016. She attached the

March 31 order denying her motions for relief under CR 60(b). She also attached

court orders denying her earlier motions seeking the same relief. This court

dismissed her appeal as untimely except for her appeal from the March 31 order,

so only that order is currently before the court.

       As a threshold matter, the Wills ask that we strike Anderson's brief

because it is not structured according to RAP 10.3. We realize it is difficult to

draft a response to a brief that does not contain an assignment of error as

required by RAP 10.3(a)(4). The commissioner's rulings in this case, however,

make clear that the only issue on appeal is the March 31 order denying

Anderson's motions for relief under CR 60(b). Accordingly, we do not grant the

motion to strike Anderson's brief.

       We review the trial court's decision under CR 60(b)(1),(2), and (9)for

abuse of discretion. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118

(1990). We will not overturn the decision unless the trial court exercised its

discretion on untenable grounds or for untenable reasons. Tang, 57 Wn. App. at

652. An appeal from the denial of a CR 60(b) motion is not a substitute for an

appeal and is limited to the propriety of the denial, not the impropriety of the




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No. 75175-1-1/3

underlying order. Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d

533(1980).

       CR 60(b) provides that "on motion and upon such terms as are just, the

court may relieve a party. . . 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;(2)for erroneous proceedings

against a.. . person of unsound mind, when the condition of such defendant

does not appear in the record, nor the error in the proceedings; . . .[or](9)

unavoidable casualty or misfortune preventing the party from prosecuting or

defending."

       Anderson's motions for relief under CR 60(b) assert that she was

hospitalized after suffering a stroke on September 1, 2015, and would be

incapacitated until about May 2016. However, during that time period she filed

many motions and supporting documents in the trial court, including about six

motions for relief after the order of dismissal was entered. The record shows that

she was actively participating in the proceedings during the time she alleges she

was incapacitated. She has not explained how her alleged stroke and

hospitalization impacted her ability to prosecute her case.

       Anderson has not shown that she was prevented from prosecuting her

case or was of unsound mind. CR 60(b)(2), (9). Nor has she demonstrated a

mistake, excusable neglect, or an irregularity in obtaining the order of dismissal.

CR 60(b)(1). Because Anderson has not shown how her alleged illness

impacted or impeded her ability to prosecute her case, the trial court did not


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No. 75175-1-1/4

abuse its discretion in denying Anderson's motions for relief under CR 60(b)(1),

(2) and (9).

          Anderson also claims that the trial court erred in refusing to consider her

medical reports. She does not point to any evidence of such refusal in the

record.

       The Wills previously moved to dismiss Anderson's appeal as frivolous

under RAP 18.9(c)(2). In a ruling on November 23, 2016, this court's

commissioner denied the motion "at this time." Anderson then filed her opening

brief on February 28, 2017. The Wills filed a response brief on March 30, 2017.

Anderson filed a reply brief on April 26, 2017. The Wills continue to argue that

the appeal is frivolous. Upon review of the briefs, we agree. As a sanction under

RAP 18.9(a), we order Anderson to pay the Wills' attorney fees for this appeal,

subject to their compliance with RAP 18.1(d).

       Affirmed.



WE CONCUR:



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