DO NOT CITE.  UNPUBLISHED SEE RAP 10.4(h).

 Court of Appeals Division III

State of Washington

Docket Number:       19906-1-III

Title of Case:       Donald P. Cary

                              v.

                              Dan G. Verhaag, et ux, et al

File Date:           08/08/2002

Appeal from Superior Court of Spokane County

Docket No:      002011223

Judgment or order under review

Date filed:     12/29/2000

Judge signing:  Hon. Richard J. Schroeder

Authored by Kenneth H Kato

Concurring: Dennis J. Sweeney

            Frank L. Kurtz

Counsel for Appellant(s)

            Dan G. Verhaag  (Appearing Pro Se)

            Springdale, WA  99173

Counsel for Respondent(s)

            J E. Short

            Coeur D Alene, ID  83816 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DONALD P. CARY, a single man,                

                                                                                No. 19906-1-III

               Respondent,                                         

 v.                                                                 

DAN G. VERHAAG, SR., and JANE                 

DOE VERHAAG, husband and wife                   Division Three

and their marital community,                                Panel Nine

               Appellants,                                            

WAYNE VERHAAG and JANE DOE                

VERHAAG, husband and wife and                    

their marital community,                                     

               Defendants.                                         UNPUBLISHED OPINION

KATO, A.C.J. -- Dan G. Verhaag appeals a superior court order and judgment ordering him to pay damages and attorney fees to Donald P. Cary for fraud.  We affirm and award attorney fees for this frivolous appeal.

Mr. Verhaag has not assigned error to the trial court's findings of fact, which therefore are verities on appeal.  See Davis v. Dep't of Labor & Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980); RAP 10.3(g).  The findings establish that Mr. Cary sold property by real estate contract to Mr. Verhaag in March 1996.  The contract required Mr. Verhaag to pay off the $37,500 balance by March 1, 1997.  Mr. Verhaag defaulted and executed a quit claim deed in lieu of forfeiture on January 8, 1998.  He instructed an escrow company to release the quit claim deed to Mr. Cary if Mr. Verhaag failed to sell the property by February 5, 1998.  On February 1, 1998, Mr. Verhaag executed a quit claim deed conveying the property to his father.  Mr. Cary then sued Mr. Verhaag and his wife, Roberta, and father, Wayne.  After a bench trial in which the Verhaags appeared pro se, the court found the February 1, 1998, conveyance was fraudulent, but there was insufficient evidence to establish that Roberta and Wayne Verhaag participated in the fraud.  The court entered judgment against Mr. Verhaag.

Mr. Verhaag then filed this appeal.  His brief is primarily a collection of factual allegations without citation to the record.  It is not the role of an appellate court to weigh the evidence or the credibility of witnesses.  In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234, review denied, 129 Wn.2d 1030 (1996).  We therefore will not address these allegations.

Mr. Verhaag does contend Mr. Cary failed to prove the elements of fraud.  However, he has presented no argument or legal authority on the issue.  We therefore will not consider this contention.  See Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991) (assignment of error unsupported by legal argument will not be considered on appeal); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 ('Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.'), review denied, 136 Wn.2d 1015 (1998).

Mr. Cary seeks an award of reasonable attorney fees and costs on appeal.  RAP 18.9(a) provides in part:  'The appellate court . . . may order a party . . . who . . . files a frivolous appeal . . . to pay terms or compensatory damages to any other party who has been harmed by . . . the failure to comply.'

The following considerations apply in determining whether an appeal is frivolous:

(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.  Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980).

Mr. Verhaag's appeal is entirely based on unsupported factual allegations.  He has raised no debatable issues on which reasonable minds might differ.  The appeal is totally devoid of merit and is frivolous.  Mr. Cary is entitled to an award of fees, to be determined by the court's commissioner pursuant to RAP 18.1(f).

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.

Kato, A.C.J.

WE CONCUR:

Sweeney, J.

Kurtz, J.