Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                           Feb. 07, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BHISHAM SAINI and NEENA SAINI,                 )       No. 29150-2-III
Husband and Wife, and the Marital              )
Community Comprised Thereof;)
PNS PROPERTIES, INC., a Washington )
corporation,                                   )
                                               )
                             Appellants,       )       Division Three
                                               )
                      v.                       )
                                               )
PARMINDER SINGH GILLON and                     )
BHUPINDER GILLON, As Individuals               )
together with the Marital Community            )
Composed Thereof,                    )
                                               )
                             Respondents.      )       UNPUBLISHED OPINION

       Korsmo, J.  --  The primary issues in this appeal involve the dismissal of the 

appellants' individual claims against the respondents and whether the trial judge should 

have recused himself.  Finding no error, we affirm. 

                                            FACTS

       In 2006, Neena Saini and Parminder Gillon formed a corporation, PNS Properties,  

No. 29150-2-III
Saini v. Gillon 

Inc. (PNS), for the purpose of running a gas station, convenience store, and bulk fuel 

sales operation in Cle Elum.  Mr. Gillon and Ms. Saini were the sole officers and 

intended shareholders of PNS.  However, no shares of stock were ever issued. Prior to 

forming PNS, the parties entered into an oral agreement that Mr. Gillon would manage 
the day-to-day operations of PNS.1 PNS generated a profit during 2007, but in August 

2007, Ms. Saini and her husband filed suit against Mr. Gillon and his wife claiming 

misconduct by Mr. Gillon in his role as director and president of PNS.

       After PNS's financial status began to decline in 2008, Ms. Saini hired a forensic 

accountant, Tiffany Couch, to investigate the corporate funds and financial assets of PNS.  

After receiving Ms. Couch's report, which concluded that Mr. Gillon was self-dealing, 

Ms. Saini assumed sole control and ownership of PNS on August 12, 2008 pursuant to a 

memorandum of agreement (MOA) with the Gillons.  On March 20, 2009, the Sainis filed 

a second amended complaint in which both the Sainis and PNS brought concurrent claims 

against the Gillons.  On April 24, 2009, the trial court granted the Gillons' motion for 
partial summary judgment as to the Sainis' five individual causes of action.2

       1The parties dispute several material terms of the oral agreement.
       2 The Sainis' five individual causes of action which were dismissed on summary 
judgment were: breach of contract, breach of fiduciary duty between shareholders, breach 
of director's and officer's duty of good faith and loyalty, wrongful diversion of corporate 
assets, and conversion.  In the Order Granting Defendant Gillons' Motion for Partial 
Summary Judgment, the trial court listed all the files and materials it considered in 
making its determination, including the Gillons' motion for summary judgment, the 
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No. 29150-2-III
Saini v. Gillon 

       The case proceeded to trial on PNS's claims for breach of fiduciary duty and 

wrongful diversion/conversion of corporate assets as well as the Gillons' counterclaims 

for specific performance of contract, constructive trust, and request for injunctive relief.  

The trial took place in two parts.  It began with three days of trial on August 20, 21, and 

25, 2009, and resumed after a continuance on March 9-12, and 16-17, 2010.  At trial, 

both parties relied heavily on the testimony of accountants, with Genine Pratt serving as 

the Gillons' expert and Ms. Couch serving as the expert for the Sainis.  

       Ms. Couch was a certified public accountant who had 13 years experience, but 

testified that she had no prior experience doing any accounting for a convenience store or 

fuel station.  Ms. Pratt served as PNS's accountant during the time that Mr. Gillon was 

the director, and she also had experience working as an accountant for several other gas 

station operations.  On March 11, just before Ms. Pratt testified for the defense, the trial 

judge disclosed to the parties that the accountant he used for his personal taxes worked at 

the same accounting firm as Ms. Pratt.  Neither party objected or requested that the judge 

recuse himself and the trial continued.

       The trial court found for the Gillons.  On May 24, 2010, the court entered findings 

of fact and conclusions of law, and entered judgment for the Gillons.  The Sainis timely 

Sainis' response to the motion for summary judgment, and declarations of Noah Davis, 
Tiffany Couch, and Douglas W. Nicholson.  Clerk's Papers (CP) at 189-191.
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No. 29150-2-III
Saini v. Gillon 

appealed to this court.

                                               4 

No. 29150-2-III
Saini v. Gillon 

                                         ANALYSIS

       This appeal raises four issues, which we will address in the order they were 

presented.  The Sainis initially attack the trial court's summary judgment dismissal of 

their individual claims against the Gillons.  They also allege that the trial judge should 

have recused himself and that he improperly discounted their claims in the factual 

findings.  Additionally, both parties request attorney fees.  

       Summary Judgment.  The Sainis contend that the trial court erred in dismissing 
their individual claims against the Gillons on summary judgment.3  The Sainis argue that 

the claims were wrongfully dismissed because there were genuine issues of material fact

relating to each claim.  They also contend that as minority shareholders they had the right 

to bring a claim of breach of shareholder's fiduciary duty against Mr. Gillon, and that the 

breach of contract claim was not a derivative claim because the parties entered into the 

agreement before the formation of PNS.

       This court reviews summary judgments de novo.  Hisle v. Todd Pac. Shipyards 

Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).  Summary judgment is appropriate if 

"there is no genuine issue as to any material fact and the moving party is entitled to 

       3 The Sainis' initial claim is that the trial court improperly relied on unsupported 
conclusory statements in a brief filed by the Gillons when it decided to dismiss the 
Sainis' individual claims on summary judgment.  However, the order on summary 
judgment listed all the materials the court considered, and therefore the record establishes 
that the trial court did not rely solely on unsupported conclusory statements.
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No. 29150-2-III
Saini v. Gillon 

judgment as a matter of law." CR 56(c).  "A material fact is one that affects the outcome 

of litigation."  Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 

1220 (2005).  When considering a summary judgment motion, the court must construe all 

facts and reasonable inferences in the light most favorable to the nonmoving party.  

Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).  Once a moving party 

has made a showing that no material facts are in dispute, the party opposing summary 

judgment must come forward with specific facts in dispute; it cannot rely on conclusory 

statements or speculation to defeat summary judgment.  Ranger Ins. Co. v. Pierce 

County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).

       A fundamental rule of corporate law is that when a third party harms a 

corporation, if the corporation does not bring an action for compensation, a shareholder 

may not proceed by way of a direct action to seek recovery.  Gustafson v. Gustafson, 47 

Wn. App. 272, 276-277, 734 P.2d 949 (1987).  Instead, the shareholder must bring a 

derivative action, acting on behalf of the corporation.  Id.  A shareholder may only bring 

a derivative action if he can show that he has exhausted his means to obtain corporate

action and the officers and directors have failed to assert the corporation's rights or have 

done so improperly.  In re F5 Networks, Inc., Derivative Litig., 166 Wn.2d 229, 236, 207 

P.3d 433 (2009).  Although a stockholder may maintain an action in his own right against 

                                               6 

No. 29150-2-III
Saini v. Gillon 

a third party when the injury to the individual resulted from the violation of some special 

duty owed to the stockholder, he may do so "only when that special duty had its origin in 

circumstances independent of the stockholder's status as a stockholder."  Hunter v. 

Knight, Vail & Gregory, 18 Wn. App. 640, 646, 571 P.2d 212 (1977), review denied, 89 

Wn.2d 1021 (1978)).  "As a general rule, a plaintiff cannot join in the same suit a claim 

on behalf of the corporation and an individual, personal claim against the defendants."  

3A Karl B. Tegland, Washington Practice: Rules Practice CR 23.1 author's cmts., at 518

(5th ed. 2006) (citing Hames v. Spokane-Benton County Nat. Gas Co., 118 Wash. 156, 

203 P. 18 (1922)).  

       We initially consider the Sainis' claims for breach of director's and officer's duty 

of good faith and loyalty, wrongful diversion of corporate assets, and conversion, which 

are all claims that arise from alleged harms to PNS.  None of these claims arise from any 

special duty that Mr. Gillon owed the Sainis apart from their status as shareholders of 

PNS.  Therefore, the Sainis could only bring these claims as derivative actions on behalf 

of PNS.  However, a shareholder may only bring a derivative suit when he establishes 

that he made efforts to compel the corporation to file suit, and the corporation failed to 

take action.  Here, PNS was already bringing claims of breach of fiduciary duty, 

conversion, and wrongful diversion against Mr. Gillon.  Therefore, the trial court 

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No. 29150-2-III
Saini v. Gillon 

properly dismissed these three individual claims.  

       The Sainis also contend that they could bring an individual claim against the 

Gillons for breach of fiduciary duty between shareholders because they are minority 

shareholders in a closely-held corporation, citing Interlake Porsche + Audi, Inc. v. 

Bucholz, 45 Wn. App. 502, 728 P.2d 597 (1986), review denied, 107 Wn.2d 1022 (1987).  

In Interlake, the court allowed a minority shareholder of a closely-held corporation to 

bring an individual action against the majority shareholder for injunctive and declaratory 

relief as well as a shareholder's derivative action on behalf of the corporation for breach 

of fiduciary duty.  Id. at 504-506. The Sainis argue that Interlake establishes that 

shareholders in closely-held corporations owe each other fiduciary duties, that it allows 

them to bring a claim of breach of fiduciary duty individually rather than derivatively on 

behalf of the corporation, and that the court should have allowed this claim.

       In Washington, a minority shareholder of a closely-held corporation may bring a 

direct action against the majority shareholder for breach of fiduciary duty and also bring a 

derivative suit on behalf of the corporation. Id. at 504-506, 519-520.  Washington courts 

have allowed direct recovery for minority shareholders against the corporation's officers 

when a derivative claim would result in the majority shareholders receiving an award to 

which they were not entitled.  LaHue v. Keystone Inv. Co., 6 Wn. App. 765, 496 P.2d 

                                               8 

No. 29150-2-III
Saini v. Gillon 

343, review denied, 81 Wn.2d 1003 (1972).  For purposes of a stockholder derivative suit, 

a person may be considered a stockholder if he holds a mere equitable interest in the 

stock, even if the stock was never issued.  Id. at 776.

       The Sainis maintain that Mr. Gillon acted as the majority shareholder from the 

time of PNS's incorporation until August 12, 2008, and that they were minority 

shareholders during that time.  However, no shares of PNS stock were ever issued.  The 

record shows that the Sainis invested $320,000 in exchange for shareholder status and an 

equity interest in PNS.  The Sainis allege that Mr. Gillon agreed to match their 

investment, but that he never actually did so.  The record also shows that when Mr. 

Gillon was the president and manager of PNS, Ms. Saini was a director and officer.  In 

light of these facts, the Sainis have failed to establish that Mr. Gillon was the majority 

and controlling shareholder of PNS and that the Sainis were minority shareholders.  Since 

the Sainis have failed to show that they were minority shareholders, they may not bring 

individual claims under Interlake.  The trial court properly dismissed their individual 

claim for breach of fiduciary duty.

       The final argument the Sainis present regarding the summary judgment is that their 

breach of contract claim should not have been dismissed because it is an individual 

personal claim rather than a derivative claim.  They contend that Mr. Gillon breached the 

                                               9 

No. 29150-2-III
Saini v. Gillon 

oral agreement when he took a salary, failed to pay the Sainis the return they were owed, 

and failed to divide the profits.

       A corporation is an entity that is separate and distinct from the personality of its 

shareholders.  RCW 23.01.050; State v. Nw. Magnesite Co., 28 Wn.2d 1, 41, 182 P.2d 

643 (1947).  As a distinct entity, a corporation acts through its directors and officers.  

Lycette v. Green River Gorge, Inc., 21 Wn.2d 859, 862, 153 P.2d 873 (1944); RCW 

23B.08.010.  "This statutory entity, so long as it exists, is the owner of all the property 

which the corporation possesses." State of Cal. v. State Tax Comm., 55 Wn.2d 155, 157, 

346 P.2d 1006 (1959).  An individual shareholder has no property rights in the 

corporation's physical assets.  Id.

       The parties agree that they entered into an oral agreement prior to the creation of 

PNS, under which they agreed to form PNS and to invest money for the purpose of 
acquiring the gas station operation.4 The Sainis claim that Mr. Gillon breached that 

agreement by taking a salary, failing to pay the Sainis their return, and failing to divide 

the profits.  However, the actions that the Sainis seek to recover from were actually the 

actions of PNS, acting through Mr. Gillon as the managing director of the corporation.  It

was PNS that paid Mr. Gillon's salary and failed to pay the Sainis' return.  The Sainis 

       4 CP at 441-442; Ex. 2; Report of Proceedings (RP) (March 9, 2010) at 124-125; 
RP (March 16, 2010) at 14-15.  
                                               10 

No. 29150-2-III
Saini v. Gillon 

may have invested their money pursuant to the oral agreement, but once the money was 

invested it became the property of PNS.  Therefore, the Sainis cannot successfully 

maintain an individual breach of contract claim against Mr. Gillon for actions he took in 

his capacity as a director of PNS.

       The general rule is that a plaintiff cannot join a claim on behalf of the corporation 

and an individual, personal claim against a defendant.  3A Tegland, supra, CR 23.1 

author's cmts., at 518. Thus, even if the breach of contract claim were viewed as an 

individual, personal claim against Mr. Gillon rather than as a derivative claim, the Sainis 

could not properly bring this claim in the same suit as the claims brought by PNS.  The 

trial court correctly dismissed the Sainis' individual claims on summary judgment.  

       Recusal. The Sainis also challenge the trial judge's decision to wait to disclose 

that his accountant worked at the same firm as the Gillons' expert witness until the 

middle of trial, March 11.  They claim that they did not waive their right to complain

about the judge's impartiality because they were never given a meaningful opportunity to 

object.  They also argue that the record establishes both potential and actual bias on the 

part of the judge.

       Under former CJC 3(D)(1)(a) (2002), "Judges should disqualify themselves in a 

proceeding in which their impartiality might reasonably be questioned." This includes 

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No. 29150-2-III
Saini v. Gillon 

"instances in which: . . . (a) the judge has a personal bias or prejudice concerning a party, 

or personal knowledge of disputed evidentiary facts concerning the proceeding." "A trial 

court is presumed to perform its functions regularly and properly without bias or 

prejudice."  Bus. Servs. of Am. II, Inc. v. WaferTech, LLC, 159 Wn. App. 591, 600, 245 

P.3d 257 (2011).  The party challenging the impartiality of a judge bears the burden of 

presenting evidence of actual or potential bias.  State v. Dominguez, 81 Wn. App. 325, 

328-329, 914 P.2d 141 (1996).

       When a claimant presents sufficient evidence of potential bias, the reviewing court 

considers whether the appearance of fairness doctrine was violated.  In re Marriage of 

Wallace, 111 Wn. App. 697, 706, 45 P.3d 1131 (2002), review denied, 148 Wn.2d 1011 

(2003).  The test is whether a reasonably prudent and disinterested observer would 

conclude [that the claimant] obtained a fair, impartial, and neutral trial." Dominguez, 81 

Wn. App. at 330.  Decisions on recusal are reviewed for an abuse of discretion.  State v. 

Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006), review denied, 159 Wn.2d 1022 

(2007).  A party who claims that a trial judge is biased may waive his right to complain 

by not timely raising the objection and proceeding with trial as if the judge were not 

disqualified.  Brauhn v. Brauhn, 10 Wn. App. 592, 597, 518 P.2d 1089 (1974).   

       On March 11, the following exchange occurred after Mr. Gillon's counsel called 

                                               12 

No. 29150-2-III
Saini v. Gillon 

Ms. Pratt to the stand:

              THE COURT:  I need to disclose to everybody Bill Wilson is my 
       accountant in that firm so everybody I think I don't know if that's  -- 
       inaudible  --  how many choices do you have in Ellensburg, right?  So he 
       has been my accountant for a long time.  We don't talk about anything 
       except my taxes.  He doesn't have time to talk to me.  So I don't know 
       anything about this case.  He never mentioned  --  it's not come up.
              Q.  (By Mr. Nicholson) I want to clarify you don't know  -- 
       personally you have no personal association or social relationship of any 
       kind with Your Honor Judge Sparks?
              A.  (By Ms. Pratt)  No.
              THE COURT:  I would second that. I know where she lives because 
       she lives on the same road as I do but everybody knows everybody where I 
       live.
              MR. NICHOLSON: I live kind of close to you also.
              THE COURT:  Yeah, small town stuff.

RP (March 11, 2010) at 40.  After this disclosure, the Sainis did not raise any objection.  

They also did not ask the judge to recuse himself.  

       On the record, it appears that the trial judge may have had notice of his accounting 

firm's involvement in the trial prior to March 11 because several documents showed 

Bivens and Wilson as the accountants for Mr. Gillon.  These documents included an 

order on a motion in limine regarding Mr. Gillon's witness list with references to Bivens 
and Wilson and an order referencing Bivens and Wilson as Mr. Gillon's accounting firm.5  

However, the Sainis did not object after the trial judge disclosed his relationship with 

Bivens and Wilson and instead proceeded with the trial.  Under Brauhn, the Sainis 

       5 CP at 44, 588, 622-628, 932.  
                                               13 

No. 29150-2-III
Saini v. Gillon 

waived their right to complain that the trial judge was biased or violated the appearance 

of fairness doctrine.

       However, even if the Sainis did not waive their claims, they also have failed to 

establish sufficient evidence of bias or potential bias. Although another member of the 

Bivens and Wilson accounting firm has prepared the trial judge's taxes for years, there is 

no evidence that the trial judge ever had a personal or professional relationship with Ms. 

Pratt.  The Sainis' bare assertion that a person would not use an accountant he did not 

trust, and therefore the trial judge would automatically give more credibility to the expert 

from Bivens and Wilson is not sufficient to establish potential bias.  In Dominguez, this 

court held that "unless there is a specific showing of bias, a judge is not disqualified 

merely because he or she worked as a lawyer for or against a party in a previous, 

unrelated case." 81 Wn. App. at 329.  Arguably, a past professional relationship like the 

one at issue in Dominguez presents a greater appearance of potential bias than the 

situation here.  Although the testimony of the two accountants was relied upon heavily in 

the case, the mere fact that the trial judge used the same accounting firm as Mr. Gillon is 

not enough to establish potential bias.

       The Sainis also contend that the trial judge was actually biased because he gave 

great deference to Ms. Pratt and gave no credibility to their expert, Ms. Couch.  They 

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No. 29150-2-III
Saini v. Gillon 

claim that the trial judge's bias is evident in the record because the findings of fact do not 
track the testimony presented at trial.6  However, in order to prove bias here, the test is 

not whether the findings disagree with the testimony of the Sainis' expert, but instead 

whether no reasonable person would have taken the view adopted by the trial court in 

light of the record. A party claiming judicial bias must provide evidence of actual or 

potential bias.  State v. Post, 118 Wn.2d 596, 618-619, 826 P.2d 172, 837 P.2d 599 

(1992).  This court applies an objective test, viewing the evidence as would a reasonable 

person familiar with all of the facts, to determine if there is the appearance of bias.  In re 

Marriage of Davison, 112 Wn. App. 251, 257, 48 P.3d 358 (2002).

       The record shows that the findings for the most part do track the evidence 
presented by Ms. Pratt rather than Ms. Couch.7  It also shows that the trial judge did not 

unconditionally believe the testimony of Ms. Pratt, as alleged by the Sainis, because he

reduced Ms. Pratt's MOA accounting by $43,000 based on the evidence, including Ms. 

Pratt's admission that she did not deduct several bounced checks from Mr. Gillon's 

       6 Specifically, the Sainis contend that findings of fact 20-22, 29-31, 37-38, and 56-
57 all establish the trial judge's bias because the findings disagree with the testimony 
presented by Ms. Couch.  They also claim that the findings launched unnecessary 
personal attacks on Ms. Couch by stating that Ms. Couch "relied on whatever information 
suited her purposes." CP at 492.
       7 See RP (March 9, 2010) at 76-82, 110-211; RP (March 10, 2010) at 37-38, 60-
92, 178-183; RP (March 11, 2010) at 7-10, 69-71 102-105; RP (March 12, 2010) at 10-
42, 45-50, 76, 105-109, 125-127, 149-152; Exs. 8, 234, 244.
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No. 29150-2-III
Saini v. Gillon 

equity share.8 The Sainis have also failed to establish that Ms. Couch was somehow 

more qualified than Ms. Pratt and that therefore the trial judge's reliance on Ms. Pratt's 

testimony reveals his bias.  Although Ms. Pratt admitted that she did not renew her CPA 

license from 1999 to 2009, she also testified that she had been an accountant since 1989 

and that she had extensive prior accounting experience with convenience store and fuel 
sales.9 Ms. Couch testified that she had 13 years of experience as a certified public 

accountant and was trained in forensic accounting, but admitted she had no prior 

experience accounting for a gas station operation and that she called a colleague to get an 
explanation for how the accounting for a gas station normally works.10 Based on each of 

the experts' relevant credentials, it does not appear that Ms. Couch was more qualified 

than Ms. Pratt, and certainly not to the extent that reliance on Ms. Pratt's testimony 

establishes bias.

       In essence, the Sainis are asking this court to find substantial evidence of bias by 

reweighing the trial court's credibility determination regarding the experts.  However, this 

court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, 

and the persuasiveness of the evidence.  State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 

       8 CP at 458. 
       9 RP (March 11, 2010) at 38, 44, 52; RP (March 12, 2010) at 45-47, 50-51, 66-74, 
151-156.  
       10 RP (March 9, 2010) at 25-27.  
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No. 29150-2-III
Saini v. Gillon 

850 (1990).  The Sainis have failed to show that the trial judge was biased on the basis 

that his findings disagreed with the testimony of Ms. Couch because there is sufficient 

evidence in the record to support the court's findings. 

       Findings of Fact.  The Sainis also claim that the trial court erred by making 

findings of fact at trial which were adverse to the Sainis' previously dismissed individual 
claims.  The Sainis contend that findings of fact 7-1011 improperly discounted their five 

individual claims against the Gillons.

       Under CR 52, in all actions tried upon the facts without a jury or with an advisory 

jury, the court shall enter written findings of fact and conclusions of law.  CR 52(a)(1).  

The findings must cover all of the material issues that have been developed in the case.  

Peterson v. Neal, 48 Wn.2d 192, 195, 292 P.2d 358 (1956). This court's review of 

findings and conclusions is limited to whether substantial evidence supports the findings 

and, if so, whether the findings support the trial court's conclusions of law and judgment.  

Sunnyside Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002), 

       11 Finding of fact 7 relates to the terms of the agreement signed by the parties 
under which Ms. Saini became the sole officer and director of PNS; finding 8 states that 
"Ms. Saini, who was now the sole officer and director of PNS, had the opportunity to sell 
the business for $1.57 million," but chose not to; finding 9 notes that "Ms. Saini caused 
PNS to join as a plaintiff in the Sainis' lawsuit against the Gillons, and to assert identical 
corporate claims against Mr. Gillon that the Sainis were bringing individually;" and 
finding 10 states that "[a]fter taking control of PNS, Ms. Saini . . . engage[d] in the very 
conduct" which the Sainis accused Mr. Gillon of, including refusing to keep Mr. Gillon 
informed about PNS and using PNS funds to pay for her daughter's expenses.
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No. 29150-2-III
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aff'd, 149 Wn.2d 873, 73 P.3d 369 (2003).  Substantial evidence is evidence that is 

sufficient to persuade a fair-minded person that the declared premise is true.  Id.  The 

burden is on the party challenging the findings to show that the record does not support 

the findings.  

       The four findings that the Sainis challenge are all material to the claims brought by 

PNS against the Gillons or the counterclaims brought by the Gillons against the Sainis, 

and the trial court was required to cover all of the material issues that have developed in 

the case in the findings.  The Sainis have failed to show that the challenged findings are 

immaterial to the issues of the case, and have also failed to show that the record does not 

support the challenged findings.  In addition, the Sainis failed to allege a harm caused by 

the trial court's dismissal of their individual claims on the findings of fact and they do not 

request a remedy for the allegedly improper findings.

       Attorney Fees.  Both parties also request attorney fees.  The Sainis request

attorney fees pursuant to RAP 18.1, while the Gillons contend that they should be 

awarded attorney fees pursuant to RAP 18.9(a) because the Sainis' entire appeal is 

frivolous.  We deny both requests.

       RAP 18.1 and 18.9(a) provide that this court may award attorney fees on appeal 

where authorized by law, court rule, or where the appeal is frivolous.  Harrington v. 

                                               18 

No. 29150-2-III
Saini v. Gillon 

Pailthorp, 67 Wn. App. 901, 913, 841 P.2d 1258 (1992), review denied, 121 Wn.2d 1018 

(1993).  An appeal is frivolous if it presents no debatable issues upon which reasonable 

minds could differ and it is so devoid of merit that no reasonable possibility of reversal 

exists.  Id. Further, all doubts as to whether an appeal is frivolous are resolved in favor of 

the appellant.  Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007), 

review denied, 162 Wn.2d 1009 (2008).  "An appeal that is affirmed merely because the 

arguments are rejected is not frivolous."  Halvorsen v. Ferguson, 46 Wn. App. 708, 723, 

735 P.2d 675 (1986), review denied, 108 Wn.2d 1008 (1987).

       The Sainis request attorney fees pursuant to RAP 18.1 but do not recite any 

reasons why they should be awarded fees, other than claiming that Mr. Gillon should 

have to pay the Sainis' attorney fees due to his mismanagement of PNS.  This argument is 

unconvincing because the Sainis did not effectively establish that Mr. Gillon mismanaged

PNS.  In addition, the Sainis did not devote a section of their opening brief to the request 

for attorney fees as required by RAP 18.1(b).  Instead, they abruptly requested fees in the 

last sentence of the opening brief.  The Sainis are not entitled to attorney fees.

       The Gillons are also not entitled to attorney fees under the theory that the Sainis'

appeal was frivolous because the appeal was not so devoid of merit that no reasonable 

possibility of reversal existed.  In particular, the Sainis' argument regarding the trial 

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No. 29150-2-III
Saini v. Gillon 

judge's duty to disclose his relationship with Bevins and Wilson was not frivolous, even 

if it was ultimately unconvincing.  The Gillons have not established that there were no 

debatable issues upon which reasonable minds could differ, and any doubts as to whether 

an appeal is frivolous must be resolved in favor of the Sainis.  Thus, neither party is 

entitled to attorney fees.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Sweeney, J.

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