                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          August 4, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

 MARGARET GARRISON,                                                 No. 53501-7-II

                                Respondent,

         v.

 DELBERT LEE MCGILL,                                          UNPUBLISHED OPINION

                                Appellant.

       LEE, C.J. — Delbert L. McGill filed a notice of appeal designating the superior court’s

order denying motions to reconsider restraining order and attorney fee awards. However, the

superior court’s order is not an appealable order under RAP 2.2. Furthermore, we decline to grant

discretionary review of the order under RAP 2.3(b). Accordingly, we dismiss McGill’s appeal.

                                               FACTS

       Margaret Garrison was appointed the full guardian of the person and estate of Vernon Jacob

Horst, her father. As Horst’s guardian, Garrison filed a petition under the Trust and Estate Dispute

Resolution Act (TEDRA), chapter 11.96A RCW, against McGill. The petition sought to invalidate

deeds, contracts, or gifts Horst made based on fraud, undue influence, and lack of capacity. The

petition also sought McGill’s removal as Horst’s attorney in fact and a finding that McGill engaged

in financial exploitation of a vulnerable adult.
No. 53501-7-II



       Garrison filed a motion to show cause to restrain McGill and his attorney from contacting

Horst. A show cause hearing was set for March 22, 2019. Around the same time, McGill filed a

motion to compel discovery. The motion to compel was also set for March 22.

       On March 29, the superior court entered a judgment and order on Garrison’s motion to

show cause. The order restrained McGill and his counsel from knowingly making contact with

Horst. The order also provided that “[a]ny party may seek relief from these restraints.” Clerk’s

Papers (CP) at 259. And the superior court awarded Garrison her attorney fees and costs in the

amount of $4,562.50.

       Also on March 29, the superior court denied McGill’s motion to compel and granted

Garrison costs and attorney fees in the amount of $1,050.00. The superior court entered a judgment

and order on McGill’s motion to compel discovery.

       McGill asked the superior court to make a CR 54(b) certification that the judgments were

final. The superior court declined, stating “I don't believe it's a final judgment, no.” Verbatim

Report of Proceedings (VRP) (March 29, 2019) at 8.

       McGill filed motions to reconsider both of the superior court’s March 29 judgments and

orders. The trial court denied McGill’s motions to reconsider and entered an order denying the

motions to reconsider restraining order and attorney fee awards.

       McGill filed a notice of appeal designating the order denying the motions to reconsider

restraining order and attorney fee awards. McGill acknowledges that the TEDRA petition had not

yet been tried when he filed his notice of appeal.




                                                 2
No. 53501-7-II



                                            ANALYSIS

A.     APPEALABILITY

       McGill argues that we should review the order denying his motions to reconsider the

restraining order and attorney fee awards under RAP 2.2(a)(3) because the attorney fee awards

were reduced to judgment. But even though the attorney fees were reduced to judgment, the order

denying reconsideration does not meet the requirements of RAP 2.2(a)(3) and is not appealable.

       RAP 2.2 governs which superior court decisions may be appealed. RAP 2.2(a) states, in

relevant part,

       Unless otherwise prohibited by statute or court rule and except as provided in
       sections (b) and (c), a party may appeal from only the following superior court
       decisions:

                 ....

               (3) Decision Determining Action. Any written decision affecting a
       substantial right in a civil case that in effect determines the action and prevents a
       final judgment or discontinues the action.

McGill relies on Herzog v. Foster & Marshall, Inc., 56 Wn. App. 437, 738 P.2d 1124 (1989), to

argue that the superior court’s decisions meet the requirements of RAP 2.2(a)(3). But Herzog is

inapplicable.

       In Herzog, the court held that an order denying a motion to stay litigation pending

arbitration was appealable as a matter of right under RAP 2.2(a)(3). 56 Wn. App. at 442. The

court’s decision relied primarily on the fact that the motion to stay litigation was simply a variation

of a motion to compel arbitration, which could have been filed as a separate action, independent

of the underlying litigation. Id. at 441-42. Therefore, the order denying the motion to stay




                                                  3
No. 53501-7-II



effectively terminated that separate action. Id. at 442. The determining factors were that the

decision was an independent matter and not allowing an appeal would result in a judgment that is

too late to effectively review. Id. at 442-43. In considering whether appeal would have been too

late to effectively review, the court relied on the strong public policy in favor of arbitration which

would be undermined by allowing the case to proceed to trial. Id. at 443. Neither of the

determining factors found in Herzog apply here.

       Here, the motion for show cause and the motion to compel were inextricably linked to the

underlying litigation. Neither could have been filed independently from the TEDRA petition. And

although the judgments for attorney fees may result in McGill paying money to Garrison prior to

the final judgment, those judgments can still be effectively reviewed and remedied if they are

determined to be in error.

       In contrast, if the order in Herzog was not reviewed until after final judgment, there would

have been an entire trial and the “benefits of arbitration [would] thus be irretrievably lost,” and the

strong public policy of favoring arbitration would be frustrated. 56 Wn. App. at 443. But here,

nothing will be irretrievably lost if the superior court erred by ordering McGill to pay attorney

fees; the judgment and order can be reversed, and Garrison can be ordered to repay the fees.

Furthermore, the superior court specifically allowed the parties to seek relief from the restraints of

the restraining order, so that order did not determine any action.

       Despite the fact that the attorney fee awards were reduced to judgments, the order denying

reconsideration of those judgments is not a written decision affecting a substantial right in a civil

case that, in effect, determines the action and prevents a final judgment or discontinues the action.




                                                  4
No. 53501-7-II



And the record confirms that the judgments were not final judgments from which an appeal can

be taken. Therefore, the order denying the motions to reconsider the restraining order and attorney

fee awards is not appealable under RAP 2.2(a)(3).

       However, a “notice of appeal of a decision which is not appealable will be given the same

effect as a notice for discretionary review.” RAP 5.1(c). For the reasons discussed below, we

decline to grant discretionary review.

B.     DISCRETIONARY REVIEW

       Alternatively, McGill asks us to grant discretionary review because the superior court’s

order denying his motions to reconsider the restraining order and attorney fee awards was obvious

error. We disagree.

       RAP 2.3(b)(1) allows us to accept discretionary review when “[t]he superior court has

committed an obvious error which would render further proceedings useless.” Here, McGill

asserts that it was obvious error for the superior court to designate the underlying orders as

judgments without written findings. However, McGill fails to show, or even argue, that further

proceedings are rendered useless by the superior court’s alleged obvious error. And even if

McGill’s assertion of obvious error is true, he fails to show that any error renders further

proceedings useless.

       The superior court’s restraining order allows for the parties to seek modification of the

restraints imposed, and therefore, the restraining order does not render further proceedings useless.

As for the superior court’s judgments awarding attorney’s fees, they have no impact on the

underlying TEDRA litigation.




                                                 5
No. 53501-7-II



       Thus, the order denying McGills’ motions to reconsider the restraining order and attorney

fee awards does not render further proceedings in this case useless. Because the order denying the

motions to reconsider the restraining order and attorney fee awards does not render further

proceedings useless, discretionary review under RAP 2.3(b)(1) is inappropriate.

                               ATTORNEY FEES ON APPEAL

       Garrison requests that we award attorney fees on appeal under RCW 11.96A.150 and this

court’s equitable power to award sanctions. McGill also requests attorney fees on appeal under

RCW 11.96A.150.

       RCW 11.96A.150(1) provides,

       Either the superior court or any court on an appeal may, in its discretion, order
       costs, including reasonable attorneys' fees, to be awarded to any party: (a) From
       any party to the proceedings; (b) from the assets of the estate or trust involved in
       the proceedings; or (c) from any nonprobate asset that is the subject of the
       proceedings. The court may order the costs, including reasonable attorneys' fees, to
       be paid in such amount and in such manner as the court determines to be equitable.
       In exercising its discretion under this section, the court may consider any and all
       factors that it deems to be relevant and appropriate, which factors may but need not
       include whether the litigation benefits the estate or trust involved.

This statute leaves it to the court’s discretion to determine whether awarding attorney fees on

appeal is equitable. We exercise our discretion and award Garrison her attorney fees on appeal,

and we deny McGill his request for attorney fees.




                                                6
No. 53501-7-II



          Because the superior court’s order is not an appealable order under RAP 2.2 and we decline

to grant discretionary review of the order under RAP 2.3(b), we dismiss McGill’s appeal.

          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.



                                                      Lee, C.J.
    We concur:



    Maxa, J.




    Siddoway, J.P.T.1




1
 Judge Siddoway is a Division III judge serving with the Court of Appeals, Division II, under
CAR 21(a).


                                                  7
