June 2001

Navigating Washington's Rules of Appellate Procedure: Eight Hidden Dangers and Costly Mistakes 

The law seems like a sort of maze through which a client must be led to safety, a collection of reefs, rocks, and underwater hazards through which he or she must
be piloted.

 — John Mortimer¹

Although Mortimer was speaking of "the law" in the abstract, with unintended prescience he also described certain aspects of Washington's Rules of Appellate Procedure. When the Washington Supreme Court adopted those rules in January 1976,² it sought to consolidate the various procedural provisions into a single framework, eliminate procedural traps for the unwary, and design a system under which cases were decided on the merits rather than procedural requirements.³ Through the initial adoption of the rules and subsequent amendments, those efforts have been largely successful. And yet, in many respects, appellate practice is still the maze Mortimer describes.

The continuing problems stem, in part, from the false sense of security the rules convey. An attorney reviewing them might reasonably conclude that they are a complete statement of the rules governing cases in the Supreme Court and Court of Appeals — they appear comprehensive, proclaim to govern proceedings in those courts,⁴ and supercede all statutes and other procedural rules.⁵ A reasonable attorney might also conclude that the appellate courts are likely to forgive a procedural violation. The rules themselves promise that "[c]ases and issues will not be determined on the basis of compliance or noncompliance … except in compelling circumstances where justice demands,"⁶ and "[t]he appellate court may waive or alter the provisions of any of these rules in order to serve the ends of justice."⁷ 

The purpose of this article is to dispel any such notions — notions that lead to costly mistakes. The rules are not a complete statement of procedure. Rather, as will be discussed, there are a number of subjects they do not address, and others for which their requirements are not entirely clear. Moreover, notwithstanding the rules' promise to dispense with strict compliance, the following examples demonstrate that issues frequently are determined based on violations. There is simply no reason to expect the appellate courts will forgive a transgression.

A few caveats before we embark. This article is hardly a comprehensive treatment of every problem area within the rules. It simply covers some of the areas that frequently cause problems for attorneys in the courts of appeal. Second, this article focuses on the procedural rules pertaining to practice in the Washington Court of Appeals and Supreme Court. It does not cover other rules or statutes applicable to review proceedings, for example, the rules pertaining to superior court review of decisions from courts of limited jurisdiction⁸ or appeals under the Administrative Procedures Act.⁹ Those provisions present unique difficulties beyond the scope of the discussion here. With those limitations in mind, following are eight problem areas.

The invited error doctrine has been a part of Washington jurisprudence for more than 100 years.¹⁰ Simply stated, the doctrine prohibits a party from causing a trial error and then complaining about that error on appeal.¹¹ Quite often it arises in the context of jury instructions, where a party seeking to challenge an instruction or special verdict form on appeal is confronted by the fact that the same party requested a duplicative — and equally erroneous — instruction in the trial court. Inviting an error even waives review of constitutional claims.¹² 

The appellate rules do not mention invited error, much less warn of its consequences. Published decisions serve as the only harbinger of the doctrine. So perhaps not surprisingly, many a civil¹³ and criminal¹⁴ client has suffered the consequences of trial counsel urging a faulty instruction. Fortunately, the risk of inviting an instructional error can be greatly diminished by exercising restraint when requesting instructions.

Although both the civil and criminal rules afford each party the opportunity to propose jury instructions,¹⁵ there is no requirement that those instructions cover every legal matter for the jury's consideration. Many judges have a standard packet of instructions counsel can review before submitting their own. And often opposing counsel will provide its instructions before the deadline for submission. There is no need to request instructions that mirror those already under consideration. By supplementing instead of duplicating, you significantly reduce the chance of inviting instructional error.

A second frequent misstep is the failure to seek cross review when an opposing party files a notice of appeal or notice of discretionary review. A party seeking cross review must file the appropriate notice within the later of 14 days following the appellant's notice, or within the time allowed for filing a notice of appeal or notice of discretionary review, which is typically 30 days after the decision from which review is sought.¹⁶ Two circumstances dictate that when contemplating cross review, it is undoubtedly better to err on the side of caution and seek review. First, failure to do so will preclude some challenges you may ultimately wish to raise. And second, it is difficult to discern from the cases which issues require cross review.

The standard used to determine whether an argument may be raised in the absence of cross review sounds simple enough: cross review is essential if the respondent "seeks affirmative relief as distinguished from the urging of additional grounds for affirmance."¹⁷ But the standard falters in its application. The distinction between "affirmative relief" and "urging of additional grounds" is not always readily apparent. For example, asking the appellate court to affirm based on a statute of limitations violation is affirmative relief and requires cross review.¹⁸ But a respondent's challenge to the appellant's standing in the trial court is simply an additional ground for affirmance.¹⁹ Moreover, while some cases hold that a respondent may not challenge a trial court's factual findings absent cross review,²⁰ others hold or suggest precisely the opposite.²¹ 

Further complicating the matter is RAP 2.4(a), which permits "review [of] those acts in the proceeding below which if repeated on remand would constitute error prejudicial to respondent." The rule also permits the court to grant a respondent affirmative relief, even in the absence of cross review, "if demanded by the necessities of the case." Unfortunately, there are no firm guidelines indicating under what circumstances the appellate courts will exercise this discretion in the absence of cross review.²² 

To avoid the uncertainties that accompany a failure to seek cross review, at least one county prosecutor's office files a notice of cross review in every case in which the defendant appeals. If the office ultimately determines there are no issues on which it seeks affirmative relief, it withdraws its request for cross review by notifying the appellate court that its brief does not contain any counter-assignments of error and it does not intend to file anything further in support of its cross appeal.

Whatever method you choose in deciding whether to seek cross review, evaluate with care and err on the side of caution by seeking review.

The requirement that a party assign error to each factual finding challenged on appeal is clearly spelled out in the appellate rules. Generally, the rules require "[a] separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error."²³ And specifically, the rules require "[a] separate assignment of error for each finding of fact a party contends was improperly made … with reference to the finding by number."²⁴ A party must also include the text of a challenged finding within the brief or in an appendix to the brief.²⁵ 

The rules make clear the consequence for noncompliance: "The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto."²⁶ Unchallenged factual findings are considered verities on appeal — they are treated as the established facts of the case.²⁷ And despite the clarity of the rules on this subject, the reporters are littered with cases where a failure to abide by these mandates waived challenges on appeal.²⁸ There are cases in which the appellate court has overlooked noncompliance under RAP 1.2(a) "where justice demands,"²⁹ but there is simply no guarantee the court will choose to do so.

The appellate rules offer diminished guidance, however, on the necessity of assigning error to conclusions of law. While RAP 10.3(a)(3) requires a "concise statement of each error," unlike the rule specifically requiring an assignment for each challenged factual finding, there is no similar rule for conclusions of law. One case suggests there is no requirement that a party specifically assign error to conclusions.³⁰ That appears to have been true under a former version of the rules.³¹ In a number of other cases, however, the courts have treated unchallenged conclusions as the law of the case.³² Thus, the better practice is to assign error to erroneous conclusions.

This is a particularly wise practice in light of another rule: a finding of fact erroneously identified in the trial court as a conclusion of law is reviewed as a finding of fact on appeal.³³  Therefore, even assuming a party is not required to assign error to specific conclusions of law, if a conclusion is actually a finding, it will be treated as such by the appellate court. And a failure to assign error to what is now a finding of fact could preclude any challenge on appeal; it would be a verity. Bottom line: assign error to every finding and conclusion you seek to challenge on appeal.

The appellate courts are no place for argument by ambush. The courts frown on attempts to raise new issues or arguments where opposing counsel has not had a fair opportunity to respond. For that reason, a party may not raise new issues in a reply brief. Reply briefs are "limited to a response to the issues in the brief to which the reply brief is directed."³⁴ Nor may a party raise an issue for the first time at oral argument. Absent the appellate court's permission, the court "will decide a case only on the basis of issues set forth by the parties in their briefs."³⁵ The courts routinely refuse to consider issues and arguments in violation of these rules.³⁶ 

The lessons here are twofold. The first is obvious: carefully consider all issues you wish to raise on appeal prior to filing your brief. Indeed, this process should begin before filing the notice of appeal or notice of discretionary review. Do not assume you can raise new issues later in the process. Second, if you discover an issue that should have been raised but was not, ask permission to file a supplemental brief containing a supplemental assignment of error and argument. The rules allow for such a brief.³⁷ And if experience is a guide, the motion will likely be granted — particularly if made relatively early in the process.

There is nothing inherently bad about a footnote. It is simply "a note of reference, explanation, or comment placed below the text on a printed page."³⁸ But in an appellate brief, there is a danger associated with using footnotes for anything beyond citations to authority. The appellate courts have indicated their displeasure with argument in footnotes, finding that "[such argument] is, at best, ambiguous or equivocal as to whether the issue is truly intended to be part of the appeal."³⁹ In light of that ambiguity, the court may refuse to consider the argument altogether.⁴⁰ The rules of appellate procedure do not discuss this subject. Ironically, appellate practitioners may not be aware of the potential problem because the courts have always dealt with the issue in…footnotes.⁴¹ But the danger is real. Footnotes should be used sparingly and with care.

I was reminded of this lesson — and the adage "do as I say, not as I do" — in a recent appeal. My client challenged the trial court's admission of certain evidence based on its prejudicial effect. In a footnote, I pointed out that rather than admit the evidence wholesale, the trial court could have admitted only a portion of the testimony, allowing the jury's consideration of its relevant aspects while shielding the jury from its improper prejudice. The Court of Appeals noted that raising this point in a footnote was ambiguous. And, rather than simply treat the footnote as an additional consideration related to the issue properly raised on appeal, the court treated it as an attempt to raise a new issue and declined to consider my point. The lesson is that even a footnote intended to simply expand on an issue may be perceived as an attempt to raise a new issue, in which case it will be ignored. Confine your argument to the text of the brief.

In addition to the verbatim report of the proceedings, the record on review also consists of trial exhibits and clerk's papers (pleadings, orders and other papers) that were filed with the clerk of the trial court and designated for transmission to the

appellate court.⁴² Quite often, however, through oversight or ignorance, a party will fail to file a document or exhibit with the trial court. The party assumes the document or exhibit is part of the record on review since counsel and the court considered it below. This mistaken assumption leads to problems in the appellate courts. It may invite a motion to strike consideration of the item, which is likely to be granted.⁴³ 

Fortunately, a failure to file a document or exhibit in the trial court is easily rectified if caught early in the process. The rules permit supplementation of the record on appeal with the appellate court's permission.⁴⁴ The document or exhibit should be filed with the trial court clerk, followed by a motion in the appellate court to supplement the record on appeal and, once the motion is granted, a supplemental designation of clerk's papers and exhibits.⁴⁵

Once an appellate court accepts review, the trial court has only limited authority to act in the case. This includes the authority to enforce a judgment, to award attorney fees and litigation expenses, and to decide certain post-judgment motions.⁴⁶ But a sometimes overlooked provision, RAP 7.2(e), contains a further restriction on that authority. For postjudgment motions and other actions to modify a trial court decision, the rule provides: "If the trial court determination will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision." The key inquiry, of course, is whether the trial court action "will change a decision" under review.⁴⁷ As with other topics discussed in this article, caution is the best policy. If there is any doubt, obtain permission. Failure to do so when required may result in vacation of the trial court order.⁴⁸ 

EIGHT: If You Want Attorney Fees and Costs, You Must Ask

This last problem area differs from those previously discussed. The rules applicable to costs and fees are quite clear. Yet, for whatever reason, practitioners frequently fail to comply — hence the rules discussion here.

Under RAP 18.1, "[i]f applicable law grants to a party the right to recover reasonable attorney fees or expenses on review,"⁴⁹ that party "must devote a section of the brief to the request for the fees or expenses."⁵⁰ The party must also supplement that request with timely affidavits.⁵¹ RAP 18.1 is designed to provide counsel and the court with reasonable notice of the request, and afford opposing counsel an opportunity to contest the requested amounts.⁵²

In an effort to emphasize the rule's requirements, the word "should" was replaced with "must" in 1990.⁵³ Although under the rules both "should" and "must" refer to acts a party is obligated to perform, "must" indicates noncompliance will result in a more severe sanction.⁵⁴ Generally speaking, the appellate courts have required strict compliance with RAP 18.1.⁵⁵ The courts are willing to deny fees and costs in the face of a violation.⁵⁶ In many cases, even if the court is willing to overlook minor noncompliance, appellate counsel may be sanctioned if the court or opposing counsel has been inconvenienced.⁵⁷ 

One additional point on this subject. The request for attorney fees and expenses under RAP 18.1 should not be confused with submission of a "cost bill" under RAP 14.4. A cost bill, which must be filed within 10 days following an appellate court's decision terminating review, covers specified categories of costs and fees, including a statutory attorney fee (currently $125) under RCW 4.84.080.⁵⁸ RAP 18.1(b) specifically provides that the request for reasonable attorney fees and expenses should not be made in a cost bill. Do not falsely assume that in light of the cost-bill provisions under RAP 14.4 you have 10 days following a decision terminating review in which to seek all attorney fees and expenses. Otherwise, you may have to explain to your client why he, and not the opposing party, is paying your fee.

Mortimer described the law as a maze through which counsel must lead his or her client around innumerable hidden hazards. Some aspects of appellate practice in Washington fail to prove him wrong. And although the appellate rules permit the courts to forgive transgressions, your mantra as a practitioner should be "don't count on it." There is no adequate substitute for careful study of the rules and review of interpretive case law. Only then will you navigate the maze unscathed. Bon voyage.

1. English novelist, barrister and dramatist; Clinging to the Wreckage: A Part of Life, ch. 7 at 53 (1982).

2. 86 Wn.2d 1133 (1976).

3. See Washington Appellate Practice Deskbook, Vol. 1 § 5.5, at 5-4 (2nd ed. 1993); Comments to RAP 1.1-1.2, 86 Wn.2d 1133, 1139-1141 (1976).

4. RAP 1.1(a).

5. RAP 1.1(g).

6. RAP 1.2(a).

7. RAP 1.2(c).

8. See generally Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ).

9. See generally RCW 34.05.510-.598.

10. See Gilmore v. The H.W. Baker Co., 12 Wash. 468, 473, 41 P. 124 (1895).

11. See Davis v. Globe Machine Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984); State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds, State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995).

12. State v. Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512 (1999); State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996).

13. See Richmond v. Thompson, 79 Wn. App. 327, 338, 901 P.2d 371 (1995) (court questions whether it should decide challenge to defamation instruction where appellant proposed language), aff'd, 130 Wn.2d 368, 922 P.2d 1343 (1996); Goodman v. Boeing Co., 75 Wn. App. 60, 73-74, 877 P.2d 703 (1994) (handicap discrimination claim; appellant could not challenge court's instruction, which substantially mirrored one of its own proposed instructions), aff'd, 127 Wn.2d 401, 899 P.2d 1265 (1995); Nania v. Pacific Northwest Bell, 60 Wn. App. 706, 709, 806 P.2d 787 (1991) (where party insisted on modification to special verdict form, it could not complain on appeal regarding an inconsistency in instructions resulting from that modification).

14. See State v. Henderson, 114 Wn.2d 867, 868-870, 792 P.2d 514 (1990) (defendant proposed instructions challenged on appeal; issue waived); State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979) (same).

15. CR 51; CrR 6.15.

16. RAP 5.1(d); RAP 5.2(f).

17. Robinson v. Khan, 89 Wn. App. 418, 420, 948 P.2d 1347 (1998) (quoting Phillips Building Co. v. An, 81 Wn. App. 696, 700 n.3, 915 P.2d 1146 (1996)).

18. Robinson, 89 Wn. App. at 420.

19. Wolstein v. Yorkshire Ins. Co., 97 Wn. App. 201, 206-07, 985 P.2d 400 (1999).

20. See State v. Vanderpool, 99 Wn. App. 709, 714, 995 P.2d 104, review denied, 141 Wn.2d 1017 (2000); Miller v. Anderson, 91 Wn. App. 822, 825 n.1, 964 P.2d 365 (1998), review denied, 137 Wn.2d 1028 (1999).

21. See Strother v. Capital Bankers Life, 68 Wn. App. 224, 240 n.37, 842 P.2d 504 (1992), rev'd on other grounds sub nom. Ellis v. William Penn Life Assur. Co., 124 Wn.2d 1, 873 P.2d 1185 (1994); Fraser v. Monroe, 1 Wn. App. 14, 15, 459 P.2d 64 (1969) (citing Burt v. Heikkala, 44 Wn.2d 52, 265 P.2d 280 (1954)); Trudeau v. Pacific States Box & Basket Co., 20 Wn.2d 561, 569, 148 P.2d 453 (1944).

22. Compare Caritas Servs. v. DSHS, 123 Wn.2d 391, 415-17, 869 P.2d 28 (1994) and Seattle v. Marshall, 54 Wn. App. 829, 831, 776 P.2d 174 (1989), review denied, 115 Wn.2d 1008 (1990) (exercising discretion) with Jacques v. Sharp, 83 Wn. App. 532, 545, 922 P.2d 145 (1996) and Manson Constr. & Eng'r. v. State, 24 Wn. App. 185, 192, 600 P.2d 643 (1979), review denied, 93 Wn.2d 1004 (1980) (refusing to exercise discretion).

23. RAP 10.3(a)(3).

24. RAP 10.3(g).

25. RAP 10.4(c).

26. RAP 10.3(g).

27. See, e.g., In re Estate of Lint, 135 Wn.2d 518, 532-33, 957 P.2d 755 (1998); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); Washington State Bar Ass'n v. Great Western Federal, 91 Wn.2d 48, 53, 586 P.2d 870 (1978); State v. Hunnel, 52 Wn. App. 380, 382-83, 760 P.2d 947 (1988).

28. See, e.g., Harrington v. Pailthorp, 67 Wn. App. 901, 911, 841 P.2d 1258 (1992), review denied, 121 Wn.2d 1018 (1993); State v. Slanaker, 58 Wn. App. 161, 165-66, 791 P.2d 575, review denied, 115 Wn.2d 1031 (1990); Fuller v. Employment Security, 52 Wn. App. 603, 605-06, 762 P.2d 367 (1988), review denied, 113 Wn.2d 1005 (1989); see also In re J.K., 49 Wn. App. 670, 676, 745 P.2d 1304 (1987) (failure to set forth text of findings precludes review), review denied, 110 Wn.2d 1009 (1988).

29. See Nat'l Federation of Retired Persons v. Insurance Comm'r, 120 Wn.2d 101, 116-17, 838 P.2d 680 (1992) (court considers challenge where nature of argument is clear and text of finding is set forth in the appellate brief); In re Marriage of Stern, 57 Wn. App. 707, 710, 789 P.2d 807 (declining to impose sanctions for noncompliance), review denied, 115 Wn.2d 1013 (1990).

30. See State v. Alvarez, 74 Wn. App. 250, 255, 872 P.2d 1123 (1994), aff'd, 128 Wn.2d 1, 904 P.2d 754 (1995).

31. See McClendon v. Callahan, 46 Wn.2d 733, 740-41, 284 P.2d 323 (1955) (addressing challenge to conclusion despite failure to assign error).

32. See State v. Moore, 73 Wn. App. 805, 811, 871 P.2d 1086 (1994); King Aircraft Sales, Inc. v. Lane, 68 Wn. App. 706, 716-17, 846 P.2d 550 (1993); State v. Slanaker, 58 Wn. App. 161, 165, 791 P.2d 575, review denied, 115 Wn.2d 1031 (1990). But see Johnson v. County of Kittitas, 2000 Wn. App. Lexis 2786 (Wash. Ct. App. Nov. 2, 2000) (excusing failure to assign error to specific conclusions of law where party assigned error to ultimate conclusion and thrust of challenge was clear).

33. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986); Miller, 91 Wn. App. at 825 n.1. 34. RAP 10.3(c).

34. RAP 10.3(c).

35. RAP 12.1(a).

36. See, e.g., Yakima County Fire Protection Dist. No. 12 v. Yakima, 122 Wn.2d 371, 397, 858 P.2d 245 (1993); State v. Johnson, 119 Wn.2d 167, 170-71, 829 P.2d 1082 (1992); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); In re Personal Restraint of Peterson, 99 Wn. App. 673, 681, 995 P.2d 83 (2000); State v. McAllaster, 31 Wn. App. 554, 558, 644 P.2d 677 (1981).

37. See RAP 1.2(a) (rules liberally interpreted to facilitate decisions on the merits); RAP 10.1(h) (court may authorize additional briefs); RAP 12.1(b) (court may allow written argument on issues not addressed in briefs already filed).

38. Webster's Third New Int'l Dictionary 885 (1993).

39. State v. Johnson, 69 Wn. App. 189, 194 n.4, 847 P.2d 960 (1993).

40. State v. N.E., 70 Wn. App. 602, 606 n.3, 854 P.2d 672 (1993); Johnson, 69 Wn. App. at 194 n.4; see also State v. Trepanier, 71 Wn. App. 372, 379 n.2, 858 P.2d 511 (1993) (criticizing counsel for placing argument in a footnote).

41. See Trepanier, 71 Wn. App. at 379 n.2; N.E., 70 Wn. App. at 606 n.3; Johnson, 69 Wn. App. at 194 n.4.

42. RAP 9.1(a)-(c); RAP 9.6.

43. See State v. Krall, 125 Wn.2d 146, 149, 881 P.2d 1040 (1994) (striking appendices to brief where documents not part of record on appeal); Nolte v. City of Olympia, 96 Wn. App. 944, 950 n.17, 982 P.2d 659 (1999) (granting motion to strike document not part of record on appeal); State v. Skiggn, 58 Wn. App. 831, 839, 795 P.2d 169 (1990) (striking portions of brief referring to matters outside the record).

44. RAP 9.10 ("the appellate court may, on its own initiative or on the motion of a party . . . direct the transmittal of additional clerk's papers and exhibits . . . .").

45. RAP 9.6(a), RAP 9.10.

46. RAP 7.2(a)-(l).

47. See, e.g., State v. J-R Distributors, Inc., 111 Wn.2d 764, 768-771, 765 P.2d 281 (1988); Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 439, 723 P.2d 1093 (1986); Leen v. Demopolis, 62 Wn. App. 473, 484-85, 815 P.2d 269 (1991), review denied, 118 Wn.2d 1022 (1992); Olsen Media v. Energy Sciences, 32 Wn. App. 579, 587-88, 648 P.2d 493, review denied, 98 Wn.2d 1004 (1982).

48. See State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 250, 973 P.2d 1062 (1999) (vacating trial court's order of dismissal in matter already on review).

49. RAP 18.1(a).

50. RAP 18.1(b).

51. RAP 18.1(c)-(d).

52. Simonson v. Fendell, 34 Wn. App. 324, 329-30, 662 P.2d 54 (1983), rev'd on other grounds, 101 Wn.2d 88, 675 P.2d 1218 (1984).

53. 115 Wn.2d 1101, 1139 (1990).

54. RAP 1.2(b).

55. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 154-55, 859 P.2d 1210 (1993); Donovick v. Seattle-First Nat'l Bank, 111 Wn.2d 413, 418, 757 P.2d 1378 (1988).

56. See, e.g., Fetzer, 122 Wn.2d at 154-55 (listing cases); In re Marriage of C.M.C., 87 Wn. App. 84, 89, 940 P.2d 669 (1997), aff'd sub nom. In re Marriage of Caven, 136 Wn.2d 800, 966 P.2d 1247 (1998).

57. See Carrigan v. California Horse Racing Bd., 60 Wn. App. 79, 85-86, 802 P.2d 813 (1990) (in light of word "should" under former version of rule, court awards fees but sanctions appellate counsel), review denied, 117 Wn.2d 1002 (1991); see also Glesener v. Balholm, 50 Wn. App. 1, 9, 747 P.2d 475 (1987); Simonson, 34 Wn. App. at 332 (awarding fees but imposing sanction under former version of rule).

58. See RAP 14.3 - 14.4; Comment to RAP 18.1, 86 Wn.2d 1133, 1266 (1976).

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