Dick Pelascini V. Tien T Ha, Et Ano
CourtCourt of Appeals of Washington
Date FiledOctober 26, 2026
Docket87563-9
StatusUnpublished
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Full Opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DICK PELASCINI, HUNG DO, AN VAN
CHIEM, and KING PROPERTY No. 87563-9-I
HOLDINGS, LLC, a Washington limited
liability corporation, DIVISION ONE
Respondents, UNPUBLISHED OPINION
v.
TIEN T HA AND JANE DOE HA,
husband and wife, and their marital
community,
Appellants.
COBURN, J. — After a seven-day bench trial, the court found that King Property
Holdings, LLC (KPH) member Tien Ha violated the duty of care he owed to KPH,
materially breached KPH’s Operating Agreement, committed theft, engaged in
misconduct, and engaged in grossly negligent conduct. Ha does not challenge any of
those findings. Instead, he claims the trial court improperly imposed judgment against
his wife Trinh Luu and their marital community; failed to consider his counterclaims;
failed to determine the value of his equity interest in KPH; and failed to grant his CR
60(a) motion alleging a clerical error in the judgment orders. Ha has not established a
basis for relief. We affirm.
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FACTS
In 2017 Dick Pelascini, Andy Chiem, 1 and Hung Do (collectively “Plaintiff
members”) formed KPH with Ha to invest in a property together in Seattle (the
“Property”) “for the purpose of permitting the Property for residential/commercial
development and selling it to a purchaser who would further develop the Property.” The
four entered into a formal operating agreement, creating KPH with each having an equal
25 percent share as members. 2 As KPH manager, Ha opened a single account for KPH
with Chase Bank and gave himself sole access to the account. Within KPH, the
members’ expectation was to eventually sell the Property to make a profit. Instead, Ha’s
actions, which he does not dispute, led to defaults on loans, higher interest rates, a near
foreclosure, in and out of a receivership, more loans, and more personal loans from
Plaintiff members. Some of Ha’s harmful actions include that he: removed KPH funds
for his personal use; failed to deposit, and kept for his own use, KPH’s capital funds;
modified KPH account statements, passing them off as true and correct; failed to make
the agreed upon initial $580,000 contribution; exerted unauthorized control over KPH
funds with the intent to deprive KPH of capital; accepted $60,000 from respondent
member Do without depositing it into the Chase account; falsified bank records;
transferred rent payments to the Chase account to his personal account; failed to notify
KPH’s members that he was unable to make monthly loan payments; and failed to notify
KPH’s members that KPH’s loan was in default.
1
The court’s findings of fact identifying plaintiff “Andy Chien” appears to be a
typographical error.
2
Interest holders also include Dick Pelascini’s and Hung Do’s spouses.
2
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Plaintiff members voted to remove Ha as KPH manager in July 2022. The same
month, Plaintiffs 3 sued, naming the defendants in the caption as “TIEN T HA AND JANE
DOE HA, husband and wife, and their marital community,” alleging breach of the
fiduciary duty of loyalty and care, conversion, and intentional misrepresentation and
fraud. The complaint alleged that Ha is married, resides in King County and “the monies
and other benefits gained by Tien Ha from his wrongful acts as alleged in this Complaint
directly benefited his marital community.” Ha denied that allegation in his answer.
Throughout the litigation, Ha continued to change the caption in his pleadings so that
only he was listed as a defendant. In July 2023 the building on the Property was
destroyed in a fire.
A seven-day bench trial was held in October 2024. At the time of trial, the
Property was on the market but had not sold. During trial, Ha testified that he married
Trinh Luu, in June 2023, 4 and that she was not actively involved in his real estate
investment business. There was no further testimony about Luu or their marital
community.
After trial, both Ha and Plaintiffs submitted proposed findings of fact and
conclusions of law. Though the captions continued to differ, with Ha identifying only
himself as the defendant, and Plaintiffs identifying the defendants as “TIEN T HA AND
JANE DOE HA, husband and wife, and their marital community,” neither caption
substantively made any mention of Luu or “marital community.” The court entered its
amended extensive findings of fact and conclusions of law on November 21, 2024. The
3
Plaintiffs added KPH as a party in the first amended complaint in September 2023.
4
Ha also testified that he was previously married to Ha Nguyen and they have one child
together that was 11 years old at the time of trial. There was no further testimony as to the time
frame of this marriage.
3
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findings and conclusions made no mention of Luu or marital community. The detailed 69
findings of fact identified Ha’s actions that occurred between 2017 and May 2023. The
caption identified only Ha as the defendant. The court found that Ha violated the duty of
care he owed to KPH, materially breached KPH’s Operating Agreement, committed
theft, engaged in intentional misconduct, and engaged in grossly negligent conduct. In
its award of damages, the court concluded:
• “KPH is entitled to recover from Defendant Ha the unnecessary costs
arising from the default and subsequent receivership totaling $450,358.”
• “KPH is entitled to recover from Defendant Ha the unnecessary costs
arising from the default and subsequent settlement with North Pearl[5] in
the amount of $83,758.”
• “Defendant Ha's illegal and intentional misconduct was the proximate
cause of monetary losses to KPH for rent payments. KPH is entitled to
recover $27,440 in misappropriated rent.”
The court found good cause under KPH’s Operating Agreement to remove Ha as a
member of KPH but noted that “Defendant Ha shall retain whatever equity interest he
would otherwise have except to the extent it is offset by the amount of judgment entered
against him in this action.” The court also awarded Plaintiffs attorney fees under section
17.14 of KPH’s Operating Agreement. 6
Five days after the trial court issued its findings and conclusions, Plaintiffs moved
for an award of attorney fees “against Defendants.” The following day, Plaintiffs moved
for an order of judgment and judgment. In both motions, the case caption named Ha
and Luu, as husband and wife, and their marital community. In their motion for an order
5
Pearl Holdings, LLC provided a loan to KPH in July 2020 to pay off its initial loan with
another company and terminate the Property’s receivership.
6
The only change in the amended version of the court’s findings of fact and conclusions
of law was correcting the section number of the Operating Agreement in the conclusion
awarding attorney fees.
4
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of judgment and judgment, Plaintiffs included a proposed order that, in relevant part,
stated:
judgment shall be and hereby is entered for Plaintiff King Property
Holdings, LLC (“KPH”) against Defendants Tien T Ha and Trinh Luu, and
their marital community, for damages of $721,546 and attorneys’ fees and
costs of $451,786, a total judgment of $1,173,332, and Tien T Ha is
hereby removed as a Member of King Property Holdings, LLC, but shall
retain whatever equity he may otherwise hold in KPH, subject to offset by
the judgment entered in this action.
Twelve days later, Plaintiffs’ attorney emailed the court stating that Ha’s attorney “just
brought to our attention this evening that defendant Tien Ha did not get married to his
current wife, Trinh M Luu, until May 2023, which postdates all the events in this case, so
his actions were not for the benefit of his current marital community.” Therefore,
Plaintiffs “stipute[d] that her name be removed from the judgment entered against
defendant Tien Ha.” The next morning, Plaintiffs’ counsel emailed the trial judge’s clerk
a revision of the order of judgment that did not include Luu as a named defendant. Later
that same day, Ha’s counsel emailed opposing counsel a screenshot of his “marriage
certificate.” According to a declaration from Plaintiffs’ counsel, the screenshot “appeared
to be a receipt from the Snohomish County Recording office, dated May 25, 2023, re
payment of ‘Marriage License Fees’ in the amount of $70. The receipt references a
‘Marriage Certificate,’ but did not include an actual marriage license.” While a copy of
the email with the screenshot is in the record, an actual marriage certificate is not. The
screenshot in the record is so small it is not legible. Later that morning, Plaintiffs’
counsel conferred with his clients and reviewed Ha’s deposition from March 2023 where
he testified that his wife’s name was Trinh Luu, that they have an “execute marriage
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certificate” but no marriage license, and that they had been married a year. 7 Plaintiffs’
counsel then called the trial judge’s bailiff and asked her to disregard his earlier email
and that Plaintiffs would not file a revised order.
On December 11, 2024, Ha filed his objection to the motion for post-judgment
award of attorney fees. The next day, Ha filed a notice of appeal of the court’s findings
of fact and conclusions of law as well as any award of attorney fees relating to the
same.
On December 13 the trial court signed two judgment orders, both submitted by
Plaintiffs’ counsel; one included judgment against Ha and Luu, husband and wife, and
the marital community, and the other included judgment only against Ha. Four days
later, the trial court signed an order granting attorney fees to Plaintiffs “against
Defendants” totaling $475,797.81. The caption included Ha and Luu, husband and wife,
and their marital community as defendants. It appears that on December 20 Plaintiffs’
counsel filed a “JUDGMENT SUMMARY” that lists the judgment debtor as Ha and Luu
and their marital community and attached the trial court’s December 13, 2024, judgment
order that included Ha’s wife and the marital community.
On February 15, 2025, Ha’s counsel emailed Plaintiffs’ counsel, reporting that
Plaintiffs have “liened up” Luu’s separate real property given to her post-marriage from
someone unaffiliated with Ha and asked if Plaintiffs’ counsel will cooperate to remove
the lien. Plaintiffs’ counsel responded that it depends if Ha had interest in those
properties and whether he transferred his interest to Luu, and that Plaintiffs will “look
into that issue.”
7
It appears Plaintiffs’ counsel’s declaration mistakenly stated the deposition date as
April 2, 2023.
6
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Almost half a year later, on August 4, 2025, Ha, with different counsel, filed a CR
60(a) motion to correct a clerical error in contradicting orders and a motion for an order
to show cause to correct a scrivener’s error in contradicting orders. Ha requested the
judgment orders and the judgment summary that named Luu as a judgment debtor be
stricken and that the parties should prepare an amended judgment summary that lists
only Ha as the judgment debtor. Because the trial judge had retired, a show cause
hearing was held before a different superior court judge.
Plaintiffs filed a response in opposition to the CR 60 motion with multiple
attached exhibits to support their argument that Ha and Luu represented themselves as
a married couple during the time Ha was KPH manager. None of these documents were
presented during the trial. The exhibits included a part of Ha’s March 2, 2023,
deposition, where he stated that he considers himself married to Luu for a year, and that
they have an “execute [sic] marriage certificate” but no marriage license. Also included
was evidence that Ha had quit-claimed his property to Luu, spouse to spouse, in March
2023. Plaintiffs’ counsel pointed out that the attached December 10 email with the
screenshot he received appeared to be a receipt for payment of marriage license fees,
but not an actual marriage license.
The chief civil judge heard the CR 60 motion and denied it. The court explained:
I cannot find, based on the record before me, that there is a clear clerical
error. There was a complaint asserting claims against a marital
community. It may be that the Findings of Fact are inadequate to support
that, but that would be a matter for an appellate court to decide, not for
this court. I’m not sitting in a capacity where I’m going to review a trial
court judge’s findings for adequacy. That’s for a higher court. But based
on this record and the chronology of the court file, if this were a clerical
error, I would have expected it to have been challenged by trial counsel
promptly. I understand that’s not a strict requirement under Civil Rule 60
but, nonetheless, I’m going to infer, based on the fact that trial counsel for
7
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the defendants failed to challenge the entry of a judgment against the
marital community and there was no objection to a judgment summary
that clearly purported – were not purported – it clearly stated that the
judgment ran against the marital community, leads this court – leads me
as chief civil judge at this juncture of the case to decide, as a matter of
law, that there was not a clerical error evident from the record, the trial
record before the Court.
Plaintiffs moved, under the attorney fee provision of the Operating Agreement, for
attorney fees incurred while opposing Ha’s CR 60 motion. In a supporting declaration,
Plaintiffs’ counsel stated that his standard hourly rate is $350 an hour and he spent 52
hours working on the motion, charging $14,100 in fees after writing off $4,100 in fees.
Ha opposed the award of fees and costs on two bases: (1) Ha has a pending motion for
reconsideration; and (2) Plaintiffs failed to attach a copy of counsel’s billings to establish
that his attorney fee request is reasonable. In reply, Plaintiffs’ counsel explained that he
had to go back, review, and reconstruct emails and legal documents that he had filed
away because the CR 60 motion was filed almost eight months after the court entered
judgment.
The court denied Ha’s motion for reconsideration of the CR 60 motion. 8 The court
granted attorney fees to Plaintiffs for $14,100.
Ha filed an amended notice of appeal.
DISCUSSION
Judgment Against the Marital Community
Ha argues that the trial court erred as a matter of law when it listed Luu and the
marital community as judgment debtors. We review alleged errors of law de novo.
Barton v. State, Dep’t of Transp., 178 Wn.2d 193, 202, 308 P.3d 597 (2013).
8
Plaintiffs filed a response to this motion, which the court struck as improper under LCR
7(b)(6).
8
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“Typically, creditors can access only the separate property of a debtor to satisfy
separate debts.” Wash. Trust Bank v. Kozak, 27 Wn. App. 2d 542, 549, 533 P.3d 152
(2023). The separate property of either spouse is not subject to the “debts or contracts”
of the other. RCW 26.16.010. Furthermore, under the marital bankruptcy rule,
community property is generally not available to satisfy the separate debts of either
spouse. Wash. Trust Bank, 27 Wn. App. 2d at 549-50 (citing Haley v. Highland, 142
Wn.2d 135, 148, 12 P.3d 119 (2000)). The “marital bankruptcy” rule is reflected in RCW
26.16.200. Id. at 550. However, RCW 26.16.200 also includes provisos. See RCW
26.16.200. RCW 26.16.200 states, in relevant part:
Neither person in a marriage … is liable for the debts or liabilities of the
other incurred before marriage or state registered domestic partnership,
nor for the separate debts of each other, nor is the rent or income of the
separate property of either liable for the separate debts of the other:
PROVIDED, That the earnings and accumulations of the spouse … shall
be available to the legal process of creditors for the satisfaction of debts
incurred by such spouse or domestic partner prior to the marriage…. For
the purpose of this section, neither person in the marriage … shall be
construed to have any interest in the earnings of the other: PROVIDED
FURTHER, That no separate debt, …, may be the basis of a claim against
the earnings and accumulations of either spouse … unless the same is
reduced to judgment within three years of the marriage …of the parties….
(Emphasis added.) “Provisos operate as limitations on or exceptions to the general
terms of the statute to which they are appended” and are strictly construed. Shoulberg
v. Pub. Util. Dist. No. 1 of Jefferson County, 169 Wn. App. 173, 180, 280 P.3d 491
(2012). “RCW 26.16.200’s provisos alleviate the ‘harsh effects’ of its general terms in
which a creditor was ‘faced with marital bankruptcy from the moment of the debtor’s
marriage.’” Wash. Trust Bank, 27 Wn. App. 2d at 550 (quoting Watters v. Doud, 92
Wn.2d 317, 322, 596 P.2d 280 (1979), overruled on other grounds by Haley, 142 Wn.2d
at 150)). Therefore, a creditor can reach all “the earnings and accumulations” of a
9
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debtor spouse to satisfy a separate debt incurred before marriage if the debt is reduced
to a judgment within three years of marriage. Haley, 142 Wn.2d at 148 (citing RCW
26.16.200). The intent of RCW 26.16.200 is “to protect one spouse from vicarious
liability for the separate obligations of the other,” not to protect community property. Id.
at 147.
In the instant case, Ha testified at trial that he married Luu in June 2023. Plaintiffs
obtained a judgment within three years of Ha’s marriage because the court granted
Plaintiffs’ order for judgment and judgment on December 13, 2024. The court found that
Ha violated KPH’s Operating Agreement and determined the debt owed. The court then
entered judgment against Ha individually, as well as against the marital community, well
within three years of Ha’s marriage.
RCW 26.16.200 does not bar the use of Ha’s community property to satisfy a
judgment based on his premarital tort. Ha’s one-half interest in community personal
property can be used to satisfy his separate tort obligation if his separate property is
insufficient to satisfy the claim. The court did not err in entering judgment against the
marital community.
Judgment Against Luu Individually
Ha also alleges that judgment against Luu’s separate property was improper as a
matter of law. Neither the trial court nor Plaintiffs interpreted the judgment in such a way
at the hearing on Ha’s CR 60 motion. Rather, Plaintiffs stated “we are not contending
that Trinh Luu’s personal separate property is subject to this – to this judgment. Only
that the community is subject to the judgment, and that includes Trinh Luu.” The court
agreed, responding “That’s how I read the judgment myself.” In their brief on appeal and
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at oral argument, Plaintiffs again conceded that they do not contend that Luu’s separate
assets are liable. Wash. Ct. of Appeals oral arg., Pelascini v. Ha, No. 87563-9-I (May
29, 2026), at 13 min., 59 sec. through 14 min., 13 sec., video recording by TVW,
Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-
appeals-2026051157/.
However, a little more than a month after oral argument, Ha filed a motion to
supplement the record with newly discovered evidence under RAP 9.11. The asserted
newly discovered evidence includes an email from Plaintiffs’ counsel in their collection
case, sent to Ha and Luu’s trial counsel, asserting that Plaintiffs have a judgment
against each defendant, Tien Ha and Trinh Luu, as well as their martial community.
Plaintiffs responded to this motion, stating “To the extent that [Plaintiffs’] counsel
inadvertently, whether in briefing or oral argument, confused or miscommunicated that
intent, [Plaintiffs] here clarif[y] and reiterate [their] position that both [Ha] and his wife,
Trinh Luu are subject to judgment per the order of the Trial Court.” 9 We are not
persuaded that Plaintiffs “inadvertently” conceded that they were not going to collect
against Luu individually three separate times at three separate stages of this case:
before the trial court, in their brief on appeal, and at oral argument.
Regardless, under RAP 2.5(a), we “may refuse to review any claim of error which
was not raised in the trial court.” This would include Plaintiffs’ change in position that the
judgment is enforceable against Luu individually. However, the RAPs are “liberally
9
Plaintiffs’ counsel Corey Evan Parker filed the response to Ha’s RAP 9.11 motion, but
different attorneys represented Plaintiffs in their brief on appeal and at oral argument, though
Parker had filed a limited notice of appearance for the Plaintiffs prior to oral argument. Ha’s
motion included email correspondence purportedly from the attorney representing Plaintiffs in
the collection phase of this matter.
11
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interpreted to promote justice and facilitate the decision of cases on the merits.” RAP
1.2(a). Additionally, we “may waive or alter the provisions of any of these rules in order
to serve the ends of justice.” RAP 1.2(c). 10 Given the procedural history of this issue, we
exercise our discretion and accept Plaintiffs’ change in position and address the merits.
We need not address the admissibility of the email under RAP 9.11 as a motion to
supplement the record because we consider the parties’ declarations simply as
communicating to this court that this issue is not moot.
To the extent the trial court’s order could possibly be interpreted to grant
judgment against Luu’s separate property, the record does not support such a
conclusion. Plaintiffs presented no argument or evidence that Luu was liable to them
separately or that her separate property benefitted from Ha’s tortious conduct. The only
testimony at trial about Luu was Ha’s testimony that he married Luu in June 2023 and
Luu was not actively involved in Ha’s real estate investment business. Luu’s separate
property is not subject to the judgment. This holding does not bar the parties from
contesting as allowed under the law whether property is actually Luu’s separate
property or property that is subject to collection. Any post-trial litigation related to
collection is not before us in this appeal.
Counterclaims
Ha next argues that the trial court erred when it failed to address his
counterclaims in its findings of fact and conclusions of law. We disagree.
“It is the general rule in this state that findings of fact need not be made
concerning every contention made by parties to a case.” Daughtry v. Jet Aeration Co.,
10
This RAP is subject to restrictions under RAP 18.8(b) and (c), which are not applicable
to this appeal.
12
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91 Wn.2d 704, 707, 592 P.2d 631 (1979). Still, findings must be made as to all “material
issues” Id. “The purpose of findings is to enable this court to review the questions upon
appeal, and when it clearly appears what questions were decided by the trial court, and
the manner in which they were decided, we think that the requirements have been fully
met.” Bowman v. Webster, 42 Wn.2d 129, 134, 253 P.2d 934 (1953). Unchallenged
findings are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 808, 828 P.2d 549 (1992). “When issues that are not raised by the pleadings are
tried by express or implied consent of the parties, they will be treated in all respects as if
they had been raised in the pleadings.” Karlberg v. Otten, 167 Wn. App. 522, 530, 280
P.3d 1123 (2012) (citing CR 15(b)).
Ha filed a motion for leave to amend his answer and include a proposed
counterclaim. Attached to his motion was a proposed first amended answer and
counterclaim in narrative form alleging that Plaintiff members took Ha’s LLC interest
without paying him for his “extensive investment of money, time and expertise, or to
account for [his] share in the proceeds of the Property’s sale” and Plaintiff members
“acted in bad faith, without authority, and in breach of the fiduciary obligations they
owed to the LLC and Mr. Ha” because they “remov[ed] Mr. Ha from the LLC without any
accounting of [his] capital contributions to the LLC or [his] share in the LLC’s profits
upon its sale of the Property.” The court granted Ha’s motion for leave to amend but the
record before this court supports that Ha did not file his first amended answer and
counterclaim. Plaintiffs do not argue that Ha failed to file his amended answer.
To support his claim that the trial court failed to make findings as to his
counterclaims, Ha summarily cites his trial brief, his motion for leave to amend, and the
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trial court granting that motion. Ha does not assert that he filed his amended answer
and added counterclaims. And Ha does not argue or cite to the record to establish that
the parties expressly or impliedly tried his counterclaims.
To the extent Ha argues that the court’s findings of fact and conclusions of law
are insufficient as to his proposed counterclaims, we disagree. First, Ha was still an LLC
member at the time of trial. Plaintiff members removed him as a manager, not a
member. Additionally, the court concluded that “[b]y failing to make the agreed upon
Capital Contributions to KPH of $580,000, Defendant Ha breached the Operating
Agreement.” Therefore, the court rejected his counterclaim that he contributed sufficient
capital to KPH. Finally, Ha alleges that there has not been an accounting related to the
proceeds of the Property’s sale, but the Property had not sold at the time of trial. We
reject Ha’s claim that the trial court failed to enter findings as to his counterclaims.
Ha’s Equity Interest
Next, Ha alleges that the trial court erred when it failed to determine the value of
his equity interest in KPH. In the court’s conclusions of law, it stated that “[d]efendant
Ha shall retain whatever equity interest he would otherwise have except to the extent it
is offset by the amount of judgment entered against him in this action.” Ha cites nothing
in the record that supports why the trial court was required to determine the value of his
equity interest in KPH. At the end of trial, KPH still existed; the only testimony related to
profits was that the members hoped to profit from selling the Property.
On this record, Ha has not established any basis as to why the trial court was
required to determine the value of his equity interest. 11
Nor does this undermine the finality of the judgment for purposes of appeal. “[A] final
11
judgment is recognizable as final for purposes of appeal if it finally determines the rights of the
14
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CR 60 Motion
Ha also avers that the trial court abused its discretion when it denied his CR
60(a) motion because the judgment does not reflect the trial court’s intention in its
findings of fact and conclusions of law. 12 We review a trial court’s decision to vacate a
judgment or order under CR 60 for an abuse of discretion. Luckett v. Boeing Co., 98
Wn. App. 307, 309, 989 P.2d 1144 (1999). We will not overturn the trial court’s decision
on appeal unless the trial court’s discretion was exercised on untenable grounds or for
untenable reasons. Stoulil v. Edwin A. Epstein, Jr. Operating Co., 101 Wn. App. 294,
297 n.4, 3 P.3d 764 (2000). The civil rules contain a preference for deciding cases on
their merits. Vaughn v. Chung, 119 Wn.2d 273, 280, 830 P.2d 668 (1992). However,
“weighted against this principle is the need for a structured, orderly judicial system.”
Luckett, 98 Wn. App. at 314. A trial court should exercise its authority liberally and
equitably to preserve the parties’ substantial rights when considering whether to grant a
motion to vacate under CR 60. Vaughn, 119 Wn.2d at 279. We can affirm a trial court’s
order on any basis the record supports. Amy v. Kmart of Wash. LLC, 153 Wn. App. 846,
868, 223 P.3d 1247 (2009).
CR 60(a) states that “[c]lerical mistakes in judgments, … and errors therein
arising from oversight or omission may be corrected by the court at any time of its own
parties in the action and is not subject to de novo review at a later hearing in the same cause.”
Wlasiuk v. Whirlpool Corp., 76 Wn. App. 250, 255, 884 P.2d 13 (1994). Given the record below,
including the continued existence of KPH, the trial court’s order satisfies these finality
requirements.
12
Though Ha references the denial of his motion for reconsideration with his CR 60
motion argument, he does so in passing. Ha does not substantively present argument with
citations to authority as to why the court erred in denying his motion for reconsideration. Thus,
we decline to address it. RAP 10.3(a)(6) (requiring briefs to contain “argument in support of the
issues presented for review, together with citations to legal authority and references to relevant
parts of the record.”)
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initiative or on the motion of any party[.]” The rule addresses clerical errors only;
therefore, CR 60(a) cannot be used to correct judicial errors. In re Marriage of Getz, 57
Wn. App. 602, 604, 789 P.2d 331 (1990). “In deciding whether an error is ‘judicial’ or
‘clerical,’ a reviewing court must ask itself whether the judgment, as amended,
embodies the trial court’s intention, as expressed in the record at trial.” Presidential
Ests. Apt. Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100 (1996).
If the amended judgment embodies the trial court’s intention, then the error is
clerical and the amended judgment only corrects or supplies language from the original
judgment. Id. However, if the amended judgment does not embody the trial court’s
intention, the error is judicial. Id. “[E]ven though a trial court has the power to enter a
judgment that differs from its oral ruling, once it enters a written judgment, it cannot,
under CR 60(a), go back, rethink the case, and enter an amended judgment that does
not find support in the trial record.” Id.
First, as discussed above, despite the circumstance where one spouse is
separately liable, under RCW 26.16.200, if a debt is reduced to judgment within three
years of marriage, the marital community is not immune from judgment based on a
separately liable spouse. Next, the record supports that the trial judge signed the
judgment against the martial community on December 13, and on December 17 entered
another order awarding attorney fees “against Defendants.” Both these orders identify
the defendants as “TIEN T HA AND TRINH LUU, husband and wife, and their marital
community.” Nothing in the record supports that the trial court entering judgment against
the marital community was a clerical error.
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Ha also contends that there was a clerical error because the two orders on
judgment are contradictory. They are not. The judgment can be enforced against Ha
individually, which encompasses his separate property, and the judgment can be
enforced against his half of the marital community under the facts in this record. We
conclude that the superior court did not abuse its discretion in denying Ha’s CR 60(a)
motion.
Attorney Fees Below
Ha also argues that the trial court erred when it granted attorney fees to Plaintiffs
because the KPH operating agreement’s attorney fee provision cannot support an
award of attorney fees for a CR 60(a) motion, and Plaintiffs did not support their award
with a breakdown of the fees incurred. We disagree.
We review the court’s initial determination of whether there is a legal basis to
award attorney fees de novo. Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100
(2012). A court may award attorney fees and costs to a party when authorized by
contract, statute, or a recognized ground in equity. Berryman v. Metcalf, 177 Wn. App.
644, 656, 312 P.3d 745 (2013). First, Plaintiffs requested attorney fees under section
17.14 of the KPH Operating Agreement, which states:
If any arbitration, action, suit, or proceeding is instituted to interpret,
enforce, or rescind this Agreement, or otherwise in connection with the
subject matter of this Agreement, including but not limited to any
proceeding brought under the United State Bankruptcy Code, the
prevailing party on a claim will be entitled to recover with respect to the
claim, in addition to any other relief awarded, the prevailing party’s
reasonable attorney’s fees and other fees, costs, and expenses of every
kind incurred in connection with the arbitration, action, suit, or proceeding,
any appeal or petition for review, the collection of any award, or the
enforcement of any order, as determined by the arbitrator or court.
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Ha argues that this provision does not allow for attorney fees because under Wachovia
SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009), contractual fee
provisions are strictly construed and limited to disputes within their scope. Kraft did not
so hold. The Kraft court denied the plaintiff’s request for attorney fees under the parties’
underlying contract because he “provide[d] no authority for an award of fees other than
RAP 18.1(a).” Kraft, 165 Wn.2d at 493. That is different from the instant case.
Under the plain language of KPH’s Operating Agreement, “the prevailing party on
a claim will be entitled to recover with respect to the claim … reasonable attorney’s fees
and other fees, costs, and expenses of every kind incurred in connection with the
arbitration, action, suit, or proceeding, … or the enforcement of any order” as the court
determines. (Emphasis added.)
In the instant case, Plaintiffs prevailed in the hearing on the CR 60(a) motion that
was connected to the suit and related to enforcement of the trial court’s order. The KPH
operating agreement supports Plaintiffs’ attorney fees award.
Ha also argues that Plaintiffs did not support their attorney fees award with a
breakdown of the fees incurred. A trial court’s decision on the amount of an attorney fee
award is reviewed for abuse of discretion. Mayer v. City of Seattle, 102 Wn. App. 66, 79,
10 P.3d 408 (2000). “A trial court abuses its discretion when its decision is manifestly
unreasonable or based upon untenable grounds, or if no reasonable person would take
the position adopted by the trial court.” Id.
“The party seeking fees has the burden of proving that which constitutes
‘reasonable fees.’” Johnson v. State, Dep’t of Transp., 177 Wn. App. 684, 699, 313 P.3d
1197 (2013). “Counsel must provide contemporaneous records documenting the hours
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worked.” Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998). “Although such
records need not be exhaustive, any reconstructed hours ‘should be credited only if
reasonable under the circumstances and supported by other evidence such as
testimony or secondary documentation.’” Johnson, 177 Wn. App. at 699 (citing Frank
Music Corp v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 1989); accord
Mahler, 135 Wn.2d at 434-35 (“Courts should not simply accept unquestioningly fee
affidavits from counsel.”)
Almost eight months after the court issued its amended findings of fact and
conclusions of law, Ha filed his CR 60 motion on August 4, 2025. Plaintiffs responded
eight days later. A hearing was held on August 18, where the chief civil judge denied the
motion and a corresponding order was issued the same day. Plaintiffs moved for
attorney fees on August 29. In Plaintiffs’ motion for attorney fees, Plaintiffs’ counsel
explained that he spent 52 hours opposing Ha’s CR 60 motion, which included
reviewing Ha’s declarations and memorandum in support, reviewing documents
showing that Ha held himself out as married to Luu, and preparing Plaintiff member
Pelascini’s and his own declarations, as well as the response to the CR 60 motion.
Counsel also indicated that he has an hourly rate of $350 and wrote off $4,100 in fees.
After Ha objected to the lack of billing records, Plaintiffs’ counsel in reply submitted
another declaration. This time, counsel explained that Ha’s motion to correct a clerical
mistake was filed almost eight months after the court’s findings of fact and conclusions
of law so he “had to go back and review, reconstruct, dozens of e-mails and legal
documents.” The court granted Plaintiff’s motion, awarding $14,100 in attorney fees.
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We reject Ha’s argument that Plaintiffs did not support their attorney fees award
with a breakdown of the fees incurred. Based on the record before this court and the
timeline with respect to Ha’s CR 60 motion, we cannot say, under the facts and
circumstances of this case, that this chief civil judge abused its discretion in awarding
attorney fees.
Attorney Fees on Appeal
Both parties request attorney fees on appeal under RAP 18.1 and section 17.14
of KPH’s Operating Agreement. As stated, KPH’s Operating Agreement awards
attorney fees to the “prevailing party on a claim.” Because Plaintiffs are the prevailing
party in this appeal, we award them reasonable attorney fees13 subject to their further
compliance with RAP 18.1(d).
CONCLUSION
We affirm.
WE CONCUR:
13
These fees relate to attorney work on the appellate briefs and oral argument, not for
any work related to responding to Ha’s motion to supplement the record.
20