STATE v. MISIAK, 128 Wn. App. 1056 (2005)

Mark Misiak appeals from a ruling determining that the lien asserted by his trial attorney, Richard Kimberly, was valid. He contends that the trial court erred because issues of fact precluded summary judgment. But the standards for summary judgment under CR 56 are irrelevant. The trial court properly applied RCW60.40.030, which allows a court to determine the validity of an attorney's lien after `summarily' inquiring into the facts upon which the claim of lien was based. Furthermore, because such proceedings are limited, the trial court properly refused to consider Misiak's counterclaims. The lower court's decision is affirmed. In 2000, Misiak was facing charges of child rape and child molestation in Whatcom County and was free on $2,000 bail. On November 30, 2000, Misiak and his retained counsel, Jill Bernstein, appeared in court on Bernstein's motion to withdraw. Misiak apparently opposed the motion on the ground that he could not hire another attorney until Bernstein returned the unearned portion of her fee.

The trial court orally granted the motion to withdraw, urged Bernstein to work out the legal fee dispute with Misiak, and continued the matter for one week. On December 7, Bernstein and the prosecutor appeared again on the motion, but Misiak did not. The court signed the order permitting Bernstein to withdraw and, at the prosecutor's request, issued a warrant for Misiak's arrest for his failure to appear.

The police arrested Misiak the next day, and the prosecutor added a charge of bail jumping. The court set a new bail amount of $50,000, and Misiak retained attorney Richard Kimberly to represent him. Kimberly succeeded in having the bail amount reduced to $20,000. Misiak posted bail and was released.

In March 2001, a jury convicted Misiak of first degree child rape and three counts of first degree child molestation.¹The bail jumping charge apparently was never tried. The money posted for Misiak's bail was released to Kimberly's trust account after Misiak was convicted. Kimberly subsequently informed Misiak that he was keeping approximately half the money that Misiak paid him, which included the bond money, for his fee. Misiak filed a complaint with the Washington State Bar Association, which directed Kimberly to return the money to the trust account. Kimberly did so and then filed a lien. On March 4, 2002, the superior court entered an order on Kimberly's lien claim. The order recites the court's understanding of the context in which the lien was claimed:

[I]t appearing that Mark A. Misiak retained the claimant, Richard C. Kimberly, to represent him on the charges at issue herein; that Richard C. Kimberly did in fact represent Mark A. Misiak herein on an hourly basis; that certain funds posted as bail herein were released to Richard C. Kimberly after Mark A. Misiak's conviction; that those funds belonged to the mother of the [sic] Mark A. Misiak, Margaret Misiak; that both Mark A. Misiak and his mother, Margaret Misiak contemplated and understood that additional charges would be due and owing from the moneys returned to Richard C. Kimberly; that both Mark A. Misiak and Margaret Misiak communicated that understanding to Richard C. Kimberly in writing; that Margaret A. Misiak indicated that she was not interested in pursuing any action regarding the moneys returned to Richard C. Kimberly[.]

The court found that Kimberly's fees were earned and reasonable and that there was no showing why the fees should not be paid. The court thus declared the lien valid and authorized Kimberly to transfer $16,723.50 from the trust account to himself for attorney fees. The court specifically noted that it was without jurisdiction to entertain claims Misiak raised in response to the claim of lien and that Misiak was free to pursue any other claims in the proper forum.

Misiak appealed from this order and from a decision denying his subsequent motion to vacate. Kimberly filed a motion on the merits to affirm, arguing that Misiak lacked standing and should be judicially estopped from pursuing his claim. A commissioner denied the motion on the ground that the record was not adequate to resolve these issues. Misiak is not represented by counsel on appeal. But an appellant proceeding pro se must comply with the rules. In re Marriage of Olson,69 Wn. App. 621,626,850 P.2d 527(1993). The failure to do so may preclude review. State v. Marintorres,93 Wn. App. 442,452,969 P.2d 501(1999). Review also may be precluded if assignments of error are unsupported by pertinent authority, references to the record, or meaningful analysis. Cowiche Canyon Conservancy v. Bosley,118 Wn.2d 801,809,828 P.2d 549(1992) (arguments not supported by authority); Saunders v. Lloyd's of London,113 Wn.2d 330,345,779 P.2d 249(1989) (issues unsupported by adequate argument and authority); In re Marriage of Arvey,77 Wn. App. 817,819n. 1,894 P.2d 1346(1995) (assignments of error unsupported by argument and citation to authority).

Misiak makes two assignments of error. But he has failed to support his arguments with an adequate record, and his analysis often relies more upon invective than logical persuasion. Nevertheless, to the extent possible, the claims he raises will be addressed.

The Trial Court Determined the Validity of the Lien Under RCW60.40;

Summary Judgment Standards Do Not Apply

Misiak first contends that there are material factual disputes that preclude judgment, applying the standards for review of summary judgments under CR 56. But those standards are irrelevant because the trial court determined the validity of Kimberly's lien claim under RCW60.40, the statute relating to attorneys' liens.

An attorney has an enforceable lien for his compensation, whether specially agreed upon or implied. RCW60.40.010(1). The attorney's lien statute is meant to protect both the client and the attorney. Krein v. Nordstrom,80 Wn. App. 306,309,908 P.2d 889(1995). It allows a court to determine the validity of an attorney's lien after `summarily' inquiring into the facts upon which the claim of a lien is based. RCW60.40.030(2).²The findings in such a proceeding will not be disturbed on appeal if there is substantial evidence to support them. Crane Co. v. Paul,15 Wn. App. 212,214,548 P.2d 337(1976).

As far as the record shows in this case, the trial court followed the procedure set forth in the attorney's lien statute. Kimberly appeared, and Misiak submitted a written response. The court reviewed the records and files, including the pleadings related to the lien claim. It determined that the claim was valid and that Misiak and his mother, who provided some of the bail money, understood that Kimberly would be taking his fees from the money in the trust account.

There were disputed issues of fact. But the court was entitled to resolve them summarily, and it did so. The hearing on Kimberly's lien was not a summary judgment proceeding under CR 56. Therefore, the standards that relate to that rule, such as viewing the evidence in the light most favorable to the non-moving party, did not apply in the trial court and are not relevant on appeal.

Misiak's burden on appeal is to show that the court's determinations were not supported by the evidence before it, not merely that the evidence was in dispute. But Misiak has not provided any clerk's papers or transcripts and there is no `record on review' as defined in RAP 9.1(a). He provided his own unauthenticated copies of certain pleadings and transcripts, but even those do not comprise the sort of record that would be necessary to determine his challenges to the trial court's decision. For instance, there is no record of the evidence that Kimberly offered in support of his lien.

As the appellant, Misiak had the burden to provide a record adequate to address the issues he raises on appeal. Story v. Shelter Bay Co.,52 Wn. App. 334,345,760 P.2d 368(1988). Absent a record, he has no basis to challenge to the trial court's factual determinations. Misiak's first assignment of error, therefore, is rejected. In his second claim of error, Misiak contends that his attorney, Richard Kimberly, conspired with others, including his previous attorney, the Whatcom County Prosecutor, and the judge who decided the matter, to deprive him of his constitutional rights of due process and equal protection. He also alleges malicious prosecution, abuse of process, extortion, attorney malpractice, bias, breach of fiduciary duty, negligent investigation, malice, bad faith, and deprivation of his civil rights. Misiak asks this court to grant injunctive relief and award him compensatory and punitive damages.

Essentially, Misiak's theory is that Kimberly fraudulently induced Misiak's mother to supply bail money with the intent to keep the funds after Misiak was convicted. Misiak claims that the prosecutor conspired with Kimberly and the others to cause him to be charged with bail jumping in order to effectuate this scheme. He contends that Judge Nichols `rubber stamped' the lien claim and acted as Kimberly's accomplice in denying his right to due process and equal protection.

Misiak has not provided a record of the evidence and pleadings presented to the trial court and, therefore, it is unclear whether he specifically raised the issues that he asserts now. But even if he did, the trial court did not err by requiring him to assert his counterclaims in a separate proceeding.

Proceedings under RCW60.40.030are limited. Because an attorney may file a lien for fees without notice or a hearing, due process requires an expeditious procedure. Krein,80 Wn. App. at 310. As this court held in an analogous context, `[t]o protect the summary nature of that proceeding [to obtain the release of a mechanics' and materialmen's lien], other claims should generally not be permitted.' Andries v. Covey, ___ Wn. App. ___, ___ P.3d (2005); see also Savings Bank of Puget Sound v. Mink,49 Wn. App. 204,209,741 P.2d 1043(1987) (counterclaims generally are not allowed in unlawful detainer proceedings). Whether a court may allow counterclaims during the summary proceedings is a question of law that is reviewed de novo. Andries, ___ P.3d at ___.

Misiak has not offered any argument or evidence to show why his counterclaims should have been considered below or should be considered now. In fact, many of the nefarious acts he alleges were committed by persons other than Kimberly. Misiak has not shown that the trial court erred in refusing to consider them as part of Kimberly's request that the court determine the validity of his lien or that he is entitled to relief on appeal.

After appealing from the trial court's decision, Misiak filed a variety of additional pleadings in this court, including, but not limited to, requests for judgment as a matter of law, a complaint for damages, motions for default, a memorandum of law in support of his appeal and counterclaims, and a motion for CR 11 sanctions. Commissioner Ellis treated some of the pleadings as motions on the merits to reverse and denied them because Misiak's arguments did not clearly have merit under RAP 18.14(e)(2). Other arguments were rejected because no evidence supported them.

Misiak has filed several additional pleadings since the commissioner's decision was entered on January 26, 2005. For example, he filed an objection to Commissioner Ellis' ruling and asked the court to sanction opposing counsel for fraud on the court, alleging that the commissioner colluded with Kimberly's counsel. None of Misiak's motions, however, show that he is entitled to the relief he requested. Accordingly, all the unresolved motions that Misiak has filed in this case up to the date of this opinion are denied. RCW60.40.030(2) allows a court to determine the validity of an attorney's lien after summarily inquiring into the facts. The trial court followed the procedure set forth in the statute and properly refused to consider Misiak's counterclaims. There is no evidence or authority to support his remaining requests for relief. The decision is affirmed.

COLEMAN, AGID and BAKER, JJ.