Opinion
No. 35839-5-II.
May 28, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-2-00065-5, John F. Nichols, J., entered December 22, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
In January 2005, Mark Farhood, Tee Jay Vaughn, and Patricia Vaughn as trustee of the Vaughn family trust (collectively in the masculine singular as Farhood) brought claims against Jill Allyn (individually and as administrator of the Estate of Joseph S. Allyn) and Eric Johnson (Guardian ad Litem for Joseph B. Allyn) (collectively in the feminine singular as Allyn) for wrongful execution, trespass, conversion of rents, and interference with property owners' rights. Farhood brought the action after Allyn executed an attachment to Farhood's real property that she obtained in 1999 to recover part of a wrongful death action judgment. The trial court granted summary judgment for Allyn and dismissed Farhood's claims as time barred, findingany cause of action complete when Allyn obtained the wrongful writ of attachment.
Farhood appeals, arguing that his current claims arose from Allyn's execution on the property and related actions that were distinct from wrongful attachment and that occurred later. Farhood also argues he was estopped from bringing his claims until September 2003 when we declared Allyn's 1999 writ of attachment invalid. We affirm.
FACTS
The parties bring this matter before us for the third time. In the current appeal, they rely solely on pertinent facts as set forth in our earlier opinions. Those facts are:
Farhood v. Asher, noted at 118 Wn. App. 1050 (2003); Farhood v. Allyn, 132 Wn. App. 371, 131 P.3d 339 (2006).
On January 22, 1999, Steven Asher lost control of his vehicle and was seriously injured. His passenger, Joseph Allyn, died. In March 1999, Joseph's widow, Allyn, filed a wrongful death action, and the State charged Asher with vehicular homicide and vehicular assault. Farhood v. Allyn, 132 Wn. App. 371, 373, 131 P.3d 339 (2006).
In filing her wrongful death complaint, Allyn obtained an ex parte writ of prejudgment attachment on some of Asher's real property, including three lots in Washougal (Washougal property). In issuing the writ, the trial court relied on Allyn's allegation that "`the damages for which the action is brought are for injuries arising from the commission of some felony' under RCW 6.25.030(9)." Farhood, 132 Wn. App. at 373. The trial court issued an order to show cause why attachment should not continue, appended a statement of Asher's right to a hearing, and set a hearing date for April 16, 1999. Asher filed written opposition to the attachment. No record shows anything further about the hearing. Farhood, 132 Wn. App. at 373.
Between August and September 1999, Asher sold the Washougal property to Mark Farhood. Farhood knew of the felony-injury attachment on the property, and he spoke with Asher's criminal defense attorney before purchasing it. Farhood, 132 Wn. App. at 373.
On May 2, 2000, a jury acquitted Asher of vehicular homicide and of vehicular assault. Farhood, 132 Wn. App. at 373.
In May 2001, Farhood sought to intervene in Allyn's wrongful death suit. The trial court denied his motion. On August 10, he initiated a declaratory judgment action to quiet title. On cross motions for summary judgment, the trial court granted summary judgment for Allyn. Farhood, 132 Wn. App. at 373.
On November 7, a jury in the wrongful death case found Asher negligent and awarded Allyn $1,001,736.13. Asher appealed. After Allyn collected payment from Asher's insurance policy, the judgment debt remained $545,829.65 as of January 2002. Farhood, 132 Wn. App. at 374.
On February 22, 2002, Allyn obtained a writ of execution to compel sale of the Washougal property. Farhood, 132 Wn. App. at 374. In April, Farhood filed for chapter 7 bankruptcy protection.
On July 12, Allyn took the Washougal property at the execution sale by bidding $400,000 of the outstanding judgment debt. On June 25, the bankruptcy trustee abandoned the property and, on July 17, the bankruptcy court discharged Farhood's bankruptcy claim. On August 30, Farhood contested the trial court's confirmation of the Washougal property sale.
According to Allyn and her counsel, after she obtained the Washougal property, she leased it to business tenants and collected rent in the amounts the tenants showed they had previouslypaid to Farhood. She performed repairs and paid taxes, insurance, and other necessary expenditures. Her counsel retained in trust all proceeds remaining after expenses.
Farhood appealed the trial court's confirmation of sale in the wrongful death lawsuit and grant of summary judgment in Allyn's favor in the quiet title action, arguing that Allyn's prejudgment writ of attachment was unconstitutional. Farhood v. Asher, noted at 118 Wn. App. at 1050, 2003 WL 22183939, at *1. Allyn responded by asserting that the adversarial hearing held April 16, 1999, cured any constitutional harm in the writ of attachment. We ordered Allyn to supplement the record with all documentation relating to the April 16 hearing. Allyn provided only an electronic notation that the hearing had occurred and a copy of a brief filed in opposition to the ex parte writ, and she conceded that the trial court did not enter an order following the hearing. Farhood, 132 Wn. App. at 374.
In September 2003, we resolved Farhood's appeal in his favor because, although we determined that some kind of hearing had occurred, there was no record and the trial court did not issue an appealable order. We held that the ex parte prejudgment writ of attachment violated constitutional due process standards, stating that "the due process violation was complete when Allyn invoked the ex parte attachment." Asher, 2003 WL 22183939, at *3. Because we determined that there was no valid attachment underlying Allyn's forced sale of property ownedby someone other than the judgment debtor, we found the sale on writ of execution improper. Farhood, 132 Wn. App. at 375. We determined that the appropriate remedy was to nullify attachment and quiet title to the Washougal property in Farhood, free and clear of Allyn's interest. Farhood, 132 Wn. App. at 375. In July 2004, we filed a mandate. Farhood, 132 Wn. App. at 376.
We considered the due process violation complete as of the ex parte writ of attachment because, based on the inadequate record, we were unable to find the harm cured by the April 16, 1999 hearing held after the writ's approval. Asher, 2003 WL 22183939, at *3. We determined that because there was no appealable order (either continuing the attachment or purporting to cure it), the hearing was irrelevant, and Allyn executed on Farhood's property based on an unconstitutional ex parte order. Farhood, 132 Wn. App. at 375. We did not address whether a hearing with a sufficient record and appealable order could have cured the constitutional harm. Farhood, 132 Wn. App. at 375.
Allyn unsuccessfully moved for reconsideration and also unsuccessfully petitioned our Supreme Court for review, again arguing that the April 16, 1999 hearing cured any constitutional defect in the writ of attachment. Farhood, 132 Wn. App. at 375-76. After we issued our mandate, Allyn returned all net proceeds from the Washougal property to Farhood.
On April 18, 2005, to enforce our mandate, Farhood filed a motion for judgment on remand quieting title and sought an order vacating the writ, setting aside the Washougal property sale, and quieting title in him. Farhood, 132 Wn. App. at 376. Allyn objected, arguing that new evidence existed that the April 16, 1999 hearing cured the prejudgment writ's constitutional violation. Farhood, 132 Wn. App. at 376.
On May 10, the trial court entered an order voiding attachment, setting aside the writ of execution, and quieting title in Farhood. Farhood, 132 Wn. App. at 376-77. Allyn returned the Washougal property to Farhood.
Allyn then appealed the trial court's order. In April 2006, we declined to review it, finding that the trial court's authority to act outside of strict conformance with appellate judgments was limited, the hearing issue was fully vetted during the first appeal, and Allyn remained unable to provide formal documentation of the hearing. Farhood, 132 Wn. App. at 378-80. Meanwhile in January 2005, Farhood had filed claims against Allyn for wrongful execution, trespass, conversion of rents, and interference with property owners' rights based on Allyn's February 2002 seizure of the Washougal property and related actions. The trial court granted summary judgment in Allyn's favor and dismissed Farhood's claims as time barred. Farhood appeals.
ANALYSIS
We review a summary judgment order de novo, performing the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). In conducting our inquiry, we view all facts and reasonable inferences in the light most favorable to the nonmoving party. Hisle, 151 Wn.2d at 860. On appeal, we may affirm the trial court's order on any basis the record supports. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
Farhood contends that his current claims arose after Allyn compelled sale of the Washougal property, took title and exclusive possession, and collected rents beginning in February 2002. He argues that the trial court erred in finding his claims time barred on the basis that wrongful execution is merely one aspect of damages flowing from tortious attachment and not an independent claim arising out of the physical seizure of property. He contends that the separate nature of wrongful attachment and wrongful execution claims is evidenced by the different damages arising from each, the historical treatment of wrongful execution claims in Washington, and the fact that wrongful execution does not automatically result from wrongfulattachment because one need not execute on attached property. He also contends that his current causes of action could not accrue until we invalidated the writ of attachment.
The parties agree that the applicable statute of limitations is three years, either under RCW 4.16.080(1) or (2) or under a due process analysis.
Although some jurisdictions generally recognize a tort of wrongful execution, Washington courts do not treat attachment and execution as separate causes of action. See Felton v. Citizens Fed. Sav. Loan Ass'n, 101 Wn.2d 416, 423, 679 P.2d 928 (1984), defining execution as
"simply the mode of obtaining the debt recovered by judgment. 1 Bouvier's Law Dictionary (Rawle's 3rd Rev.) 1112. It is a writ by which the judgment of the court is enforced. Mayer v. Morgan, 26 Wn. 71, 66 P. 128 (1901)."
(quoting First Nat'l Bank v. Tiffany, 40 Wn.2d 193, 196, 242 P.2d 169 (1952)); Pinebrook Homeowners Ass'n v. Owen, 48 Wn. App. 424, 431, 739 P.2d 110 (1987) (quoting same). See also Robin L. Miller Const. Co. v. Coltran, 110 Wn. App. 883, 892, 43 P.3d 67 (2002) (finding res judicata principles did not apply to bar an attempt to execute against property since execution on a "judgment lien . . . [was] not a cause of action . . . [but] an enforcement proceeding to collect upon a previously obtained judgment").
Even in jurisdictions recognizing a separate claim for wrongful execution, grounds for the claim involve actual infirmities with the execution process such as (1) irregularities in the execution procedure, Rigby v. Whitten, 196 Miss. 661, 18 So.2d 152 (1944); (2) irregularities rendering the underlying judgment void, ERA Realty Co. v. RBS Props., 185 A.D.2d 871, 586 N.Y.S.2d 831 (1992); (3) execution of a levy on a judgment already wholly satisfied, Pope v. Benster, 42 Neb. 304, 60 N.W. 561 (1894); (4) action beyond the scope of authority conveyed by the writ, Summit Hosiery Co. v. Gottschall, 292 Pa. 464, 141 A. 298 (1928); or (5) sale of property not subject to execution, Mica Indus., Inc. v. Penland, 249 N.C. 602, 107 S.E.2d 120 (1959).
Here, a jury awarded Allyn a judgment in her wrongful death action, and she executed on the Washougal property to recover that judgment based on a writ of attachment that was valid at the time. There was no infirmity in the execution procedure. In September 2003, we determined that the writ of attachment was unconstitutional, at which point we invalidated the writ and voided execution. In doing so, we did not find that execution itself was wrongful but only that it was improper because the underlying attachment was invalid., Under these circumstances, attachment and execution were not separable.
Farhood did not seek, nor did we award, damages for Allyn's wrongful attachment or execution. We simply determined that, because there was no valid attachment, the sale on writ of execution was improper, and the appropriate remedy was to nullify attachment and quiet title in Farhood. Asher, 2003 WL 22183939, at *4.
Farhood cites Gillis v. FA Enters., 934 P.2d 1253, 1255 (Wyo. 1997), holding that the statute of limitations on a wrongful execution claim started accruing when the Wyoming Supreme Court reversed the underlying judgments; until reversal, the judgments were binding and enforceable and sufficiently justified the levy, seizure, and sale of appellants' property. Gillis is distinguishable because, there, the execution process was rendered infirm when the underlying judgments were deemed erroneous. 934 P.2d at 1255. Here, Allyn's underlying judgment was always valid, and there was never any infirmity in the execution process itself.
Farhood also argues that his claims could not accrue until 2003 because it was impossible to bring the claims before Allyn actually executed on the property and because he was barred from doing so by res judicata and collateral estoppel. As a general rule, a statutory limitation period commences and a cause of action accrues when a party has the right to seek relief in court. Colwell v. Eising, 118 Wn.2d 861, 868, 827 P.2d 1005 (1992). But Washington does not treat execution as a separate claim to which one has an independent right of relief, so those principles do not apply here.,
Farhood relies on Connecticut v. Doehr, 501 U.S. 1, 11-12, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), to argue that damages for wrongful attachment and wrongful execution differ and that wrongful attachment claims have only arisen in modern case law applying due process standards to recognize that a plaintiff may suffer damages even before property is physically seized. Although the Doehr Court determined that due process concerns could be triggered before the physical seizure of property, it did not go so far as to determine whether the torts of wrongful attachment and wrongful execution could be treated as separate causes of action for purpose of accrual of the statute of limitations; that issue was not before the Court. 501 U.S. at 12. Farhood cites no case law following Doehr, nor do we find any, supporting his specific premise that a party may treat wrongful attachment and wrongful execution as separately accruing causes of action for the purpose of defeating a statute of limitations problem.
We also note that, even assuming that an independent cause of action for wrongful execution existed and did not accrue until we deemed the writ of attachment invalid, it is difficult to discern what the appropriate relief for wrongful execution standing alone would be. Allyn has already returned the Washougal property to Farhood and the trial court quieted title in him, so he no longer suffers a "complete, physical, or permanent deprivation of real property." Doehr, 501 U.S. at 12.
Finally, although we do not rely on them, we note several policy reasons to decline to treat Farhood's wrongful execution claim as a separately accruing cause of action under these facts. First, Farhood purchased the Washougal property in 1999 with full knowledge that Allyn's writ of attachment encumbered it; he had notice that if she prevailed in her wrongful death action, she could execute on the property. We do not find Farhood entitled to an extended period of time to bring a wrongful execution claim when he voluntarily purchased encumbered property.
Further, Allyn's counsel held all property proceeds in trust during the time Allyn held title and returned those proceeds to Farhood. Any remaining damages resulting from wrongful execution are limited to legal costs; but again, Farhood purchased the Washougal property with full knowledge that it might be subject to litigation, so such costs were foreseeable.
We also note that Allyn was always entitled to recover on the valid judgment awarded to her in her wrongful death action. A writ of attachment to satisfy a valid judgment would mean Page 10 little without the ability to execute on it to recover the judgment owed. As already discussed, Allyn's execution on the Washougal property was not wrongful but for the later invalidation of the writ of attachment; these circumstances do not give rise to a separate claim for wrongful execution.
In sum, Farhood's wrongful execution claim is not a separate cause of action from wrongful attachment. Because we have already determined that any injury Farhood suffered from wrongful attachment was complete in 1999, his claim for wrongful execution is time barred. Farhood's claims for trespass, conversion of rents, and interference with property rights are claims for additional damages flowing from the original harm; these claims do not postpone the statute of limitations and are likewise time barred. Taylor v. Puget Sound Power Light Co., 64 Wn.2d 534, 538, 392 P.2d 802 (1964).
Because we hold Farhood's claims time barred under the above analysis, we do not address his argument that his claims are timely under the continuing torts doctrine. Likewise, we do not address the parties' arguments as to whether Farhood is judicially estopped from bringing his claims for failure to list them in his April 2002 bankruptcy application.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., QUINN-BRINTNALL, J., concur.