Opinion
No. 52926-9-I
Filed: December 13, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 99-3-06845-2. Judgment or order under review. Date filed: 07/23/2003. Judge signing: Hon. Richard D Eadie.
Counsel for Appellant(s), Jerry Richard Kimball, Attorney at Law, 900 Fourth Ave Ste 3250, Seattle, WA 98164-1005.
Counsel for Respondent(s), Wolfgang Richter Anderson, Attorney at Law, 207 E Edgar St, Seattle, WA 98102-3108.
H. Michael Fields, Attorney at Law, 207 E Edgar St, Seattle, WA 98102-3108.
After this court affirmed the division of property and liabilities in William Lukoskie and Soon Kim's dissolution, the trial court granted Kim's motion under CR 60 to provide access to property awarded to Kim over an existing driveway on Lukoskie's adjacent property. Lukoskie challenges the trial court's decision and contends the court lacked authority to amend the decree of dissolution and the amendment was an abuse of discretion. The trial court had authority under CR 60(a) to amend the decree and clarify its intent based on the record at trial. We affirm.
See In re the Marriage of William M. `Luke' Lukoskie Jr. and Soon Kim, 114 Wn. App. 1015, No. 49544-5-I (Wash.Ct.App. Oct. 28, 2002).
FACTS
During their 23-year marriage, Lukoskie and Kim acquired several parcels of real estate on Vashon Island. Two of the properties, `Suni's Home' and `the cabin,' are adjacent parcels that border Vashon Highway Southwest (the highway). A dirt road provides vehicle access from the highway to Suni's Home and the cabin and is used as the driveway for both properties. The dirt road traverses the Suni's Home property and leads to the cabin. The only other access from the highway to the cabin is a stairway and footpath on the steep slope from the highway up to the cabin.
As part of the dissolution proceedings, Lukoskie and Kim hired real estate appraiser Brenda Sestrap to determine the fair market value of their real estate, including Suni's Home and the cabin. Prior to the October 2001 dissolution trial, Lukoskie and Kim stipulated to Sestrap's appraisal and the fair market value of the properties. They presented no other evidence at trial regarding valuation. During trial, Kim and Lukoskie also stipulated to the admissibility of trial court Exhibit No. 15 (Exhibit 15). Exhibit 15 contains a 1997 letter from land surveyor Jerold O'Hare to Lukoskie with the legal description for the location of a `driveway easement' on the Suni's Home property, and a copy of a county records map for several lots including Suni's Home and the cabin property. The map shows the location of the two properties and contains a dotted line labeled `driveway.' The driveway shown on the map crosses the Suni's Home property from the highway to the cabin property.
Clerk's Papers (CP) at 107.
CP at 110.
The court awarded Lukoskie property worth $712,224 and awarded Kim property worth $707,241, and entered findings of fact and conclusions of law and the decree of dissolution. The trial court relied on the valuations stipulated to by the parties in awarding the Suni's Home property to Lukoskie and the cabin property to Kim, and in dividing the parties' other property and liabilities. Lukoskie appealed the trial court's division of property and liabilities. See In re the Marriage of William M. `Luke' Lukoskie Jr. and Soon Kim, 114 Wn. App. 1015, No. 49544-5-I (Wash.Ct.App. Oct. 28, 2002).
While the appeal was pending, a dispute arose between Lukoskie and Kim regarding use of the driveway to access the cabin property. Because there was no recorded easement for the driveway, Lukoskie blocked Kim's access across his property. Kim filed a motion in the trial court for an order requiring Lukoskie to remove the barrier from the driveway and allow vehicle access to the cabin. In support of her motion, Kim submitted Exhibit 15 and the land surveyor's letter with the legal description for the location of a `driveway easement' on the Suni's Home property, together with a copy of a county records map with the dotted line labeled `driveway' crossing the Suni's Home property from the highway to the cabin property. Kim also submitted a declaration from Sestrap stating that her appraisal and the stipulated valuation used at trial assumed an easement for vehicle access to the property. The trial court ordered Lukoskie to remove the barrier blocking access from the driveway to the cabin property and reserved ruling on Kim's motion until this court decided Lukoskie's appeal. On October 28, 2002, this court affirmed the trial court's division of property and liabilities.
CP at 107, 110.
Sestrap said that if she had known there was no driveway easement the appraised value would have been lower.
Lukoskie, 114 Wn. App. 1015 (concluding the trial court did not abuse its discretion in its division of property and liabilities including the assignment of responsibility for post-separation unsecured credit card debt, an award of maintenance for Kim, an attorney fee award for Kim, and an order that Lukoskie pay an additional amount each month equivalent to a sewer district payment).
In February 2003, Kim filed a motion under CR 60 to amend the decree to provide driveway access to the cabin property across the Suni's Home property. In her motion, Kim sought relief under CR 60(b)(4) and (11). The trial court granted Kim's motion to amend the decree under CR 60(a), and in the alternative under CR 60(b)(11). Lukoskie appeals the trial court's order.
While this current appeal was pending, an additional dispute arose between Lukoskie and Kim regarding the scope of the easement. The court ruled an evidentiary hearing was necessary but decided it lacked jurisdiction to conduct the hearing until after the mandate was issued for this appeal.
ANALYSIS
Preliminarily, Lukoskie contends the trial court did not have authority to correct and amend the decree of dissolution after this court affirmed the trial court's decision in Lukoskie, 114 Wn. App. 1015. RAP 12.2 governs the trial court's authority after an appellate mandate has issued. The rule provides `[a]fter the mandate has issued, the trial court may hear and decide postjudgment motions otherwise authorized by statute or court rule so long as those motions do not challenge issues already decided by the appellate court.' RAP 12.2.
Lukoskie relies on State v. Supreme Court of Spokane County, 7 Wash. 234, 34 P. 930 (1893), and Richardson v. Sears, 87 Wash. 207, 151 P. 504 (1915), to support his contention that the trial court lacked authority to amend the judgment. But those cases predated adoption of the Rules of Appellate Procedure and RAP 12.2. See Alpine Indus., Inc. v. Gohl, 101 Wn.2d 252, 255, 676 P.2d 488 (1984).
Lukoskie also relies on State v. Dorosky, 28 Wn. App. 128, 622 P.2d 402 (1981), to argue that modifications of a judgment must occur prior to or during an appeal so that the appellate court can consider the modification before making a decision. In Dorosky, the issue the appellant sought to reconsider in the trial court had already been dismissed on appeal. Dorosky does not control where, as here, the postjudgment motion in the trial court is unrelated to the issues considered in the appeal. See State v. J-R Distrib., Inc., 111 Wn.2d 764, 765 P.2d 281 (1988) (A trial court decision on a postjudgment motion that does not affect the issues raised in the appeal of the case or have the effect of dismissing the entire case does not `change a decision then being reviewed by the appellate court' for purposes of RAP 7.2(e).).
Lukoskie relies on Alpine Industries, Inc. v. Gohl, 101 Wn.2d 252, 676 P.2d 488 (1984), to argue a trial court may modify a judgment after an appellate mandate only if the modification relates to later events that were not before the appellate court during the first appeal. He contends the modification was not related to later events and the trial court lacked authority to modify its earlier judgment. But Alpine Industries does not limit a trial court's authority to correct or modify a judgment under CR 60 after a mandate is issued. Alpine Industries holds only that `appellate leave is not required where a party seeks modification of a decision after issuance of the appellate mandate if the modification sought relates to later events not before the appellate court during the first appeal.' Alpine Industries, 101 Wn.2d at 256 (emphasis added). The current dispute between Kim and Lukoskie about whether the trial court intended to provide access to the property awarded to Kim does not involve issues decided by this court in Lukoskie, 114 Wn. App. 1015. The trial court granted Kim's motion to amend the decree after the opinion in Lukoskie, 114 Wn. App. 1015, was issued. The trial court had authority to rule on Kim's motion under RAP 12.2.
In amending the decree, the court relied on CR 60(a) and CR 60(b)(11) to clarify its intent to provide a driveway easement over Lukoskie's property to access the adjacent property awarded to Kim. Lukoskie contends the trial court improperly sought to correct a judicial error under CR 60(a). A court's decision under CR 60(a) is reviewed for abuse of discretion. Shaw v. City of Des Moines, 109 Wn. App. 896, 900-01, 37 P.3d 1255 (2002). The decision will not be overturned on appeal unless it plainly appears that the trial court exercised its discretion on untenable grounds or for untenable reasons. Id.
CR 60(a) provides:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. Such mistakes may be so corrected before review is accepted by an appellate court, and thereafter may be corrected pursuant to RAP 7.2(e).
RAP 7.2 describes the authority of a trial court after review has been accepted by an appellate court. RAP 7.2(e) provides, in part: The trial court has authority to hear and determine (1) postjudgment motions authorized by the civil rules, the criminal rules, or statutes, and (2) actions to change or modify a decision that is subject to modification by the court that initially made the decision. The postjudgment motion or action shall first be heard by the trial court, which shall decide the matter. 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 purpose of CR 60(a) is to permit correction of the original judgment or decree to reflect what was intended by the trial court at the time of trial. Presidential Estates Apt. Assoc. v. Barrett, 129 Wn.2d 320, 328-29, 917 P.2d 100 (1996). CR 60(a) allows a trial court to grant relief from judgments only for clerical mistakes and errors arising from oversight or omission; it does not permit correction of judicial errors. Presidential Estates, 129 Wn.2d at 326.
The Court in Presidential Estates addressed the requirements of CR 60(a) and described the distinction between clerical mistakes and judicial errors. `In deciding whether an error is `judicial' or `clerical,' a reviewing court must ask itself whether the judgment, as amended, embodies the trial court's intention, as expressed in the record at trial.' Presidential Estates, 129 Wn.2d at 326. If the answer is yes, the error is clerical. Id. If the answer is no, the error is judicial and may not be corrected under CR 60(a). Id.
In Presidential Estates, the owners of the Presidential Estates apartment complex sued the owners of the adjacent apartment complex, Colonial Commons II, to enjoin four encroachments by Colonial Commons II onto Presidential Estates' property. The four encroachments were (1) using 548 feet of the Presidential Estates' property for additional access, instead of the 390 feet authorized for an access and utility easement; (2) connecting the Colonial Commons II storm water system to Presidential Estates' storm water system; (3) using the easement for access for more living units than were authorized by the easement; and (4) using the access for storage units when none were authorized. The trial court agreed that Colonial Commons II had encroached on Presidential Estates' property and enjoined the encroachments. But as a matter of equity, the trial court gave Colonial Commons II the right to pay to use the easement for two additional units.
Under the terms of the court's order, Colonial Commons II paid to use the easement for the two additional units. Presidential Estates refused to allow Colonial Commons II to use the portion of the roadway that exceeded the length of the easement for emergency vehicle access. Colonial Commons II asked the trial court under CR 60(a) to amend the judgment to clarify its intent. The court ruled that it intended to allow Colonial Commons II to use Presidential Estates' driveway for emergency vehicle access, and to install a storm water drain pipe under the 390-foot easement.
The Supreme Court decided that the trial court's amendment of the judgment with respect to emergency vehicle access corrected a judicial error, not a clerical error or omission. Although the record indicated that emergency access was an important issue in the trial, the court in its oral decision said "there will be no right to use the easement beyond 390 feet." Presidential Estates, 129 Wn.2d at 327. The trial court's later decision to allow access for emergency vehicles was an irreconcilable conflict with the court's original decision. The Court held the trial court's decision to correct the judgment to provide emergency access was a judicial error that could not be corrected under CR 60(a).
In contrast, the Court concluded the trial court did not abuse its discretion by amending the judgment to allow installation of a storm drain under the 390-foot easement and that decision was not an impermissible attempt to correct a judicial error. Unlike emergency access, the trial record indicated the court intended to permit the storm drain to be located under the existing easement. The Court ruled that while the original judgment was arguably ambiguous as to where a storm drain could be located, the trial court's decision to clarify its intent to locate it under the easement did not conflict with its original decision and it was `appropriate for a court to invoke CR 60(a) to clarify an ambiguity in a judgment.' Presidential Estates, 129 Wn.2d at 329.
Here, the trial court cited and relied on CR 60(a) and the Court's decision in Presidential Estates to amend the decree to clarify its intent to provide vehicle access to Kim's property by the driveway easement over Lukoskie's property. The court also cited and relied on Exhibit 15 in its decision, including the description of a driveway easement in the surveyor's letter and the map showing the `driveway.' In its written order, the trial court stated `it was the intent of the court that the Cabin property be served by legal access via the established driveway, as it had been prior to dissolution, and modification to effectuate that intent should be allowed.'
CP at 110.
CP at 320.
Here, like the decision in Presidential Estates to allow installation of a storm drain, the trial court did not improperly correct a judicial error under CR 60(a) and did not abuse its discretion in amending the decree. The record at trial establishes that Suni's Home and the cabin property are located next to each other and were historically served by the same driveway located on the Suni's Home property. The house and cabin are built uphill from the highway and the driveway provides the only means of vehicle access. Trial Exhibit 15 includes a map that shows the location of Suni's Home, the cabin and the existing driveway. Also included in Exhibit 15 is a legal description of the `driveway easement.'
CP at 107.
Based on the evidence at trial, the trial court stated it `understood, in making the property distribution that there would be no impairment in the actual access to the cabin property that had existed during the marriage and at the time of trial.' The court also said that `if the absence of legal driveway access to the cabin property had been raised at trial, an easement would have been provided to preserve the existing driveway access.' We agree with the trial court that under Presidential Estates, the trial court could clarify its intent and correct the decree under CR 60(a). The amendment clarified the court's intent to provide access to Kim's property by means of the existing driveway over Lukoskie's property. The trial court's decision is consistent with the trial record and the trial court's intent.
CP at 318.
CP at 318.
Kim argues she is entitled to attorneys' fees on appeal because Lukoskie's appeal was frivolous and Lukoskie was intransigent. 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. In re Marriage of Penry, 119 Wn. App. 799, 82 P.3d 1231 (2004). An award of attorneys' fees based on the intransigence of a party is warranted when the party made the proceedings unduly difficult and increased legal costs by his or her actions. In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992). We conclude Lukoskie's appeal is not frivolous, and Kim has not shown Lukoskie was intransigent. Kim is not entitled to an award of fees on appeal.
Lukoskie requests CR 11 sanctions on the ground that Kim's brief included numerous factually frivolous statements. Sanctions may be awarded under RAP 18.9. The factual statements Lukoskie identifies are not misrepresentations, and we conclude the shortcomings in Kim's brief do not justify sanctions under RAP 18.9.
While CR 11 sanctions were formerly available on appeal under RAP 18.7, a 1994 amendment to RAP 18.7 and 18.9 eliminated the reference to CR 11 in RAP 18.7 and provided for sanctions on appeal only under RAP 18.9. See 3 Lewis H. Orland Karl B. Tegland, Washington Practice: Rules Practice, RAP 18.7 author's cmts. at 603-04 (5th ed. 1998).
CONCLUSION
The trial court did not abuse its discretion in amending the decree under CR 60(a) to clarify its intent based on the record at trial to provide vehicle access to Kim's property. We affirm the trial court's decision. We deny Kim's request for attorneys' fees and Lukoskie's request for sanctions.
Because we affirm the trial court's order amending the decree to confirm Kim's right to use the existing driveway on Lukoskie's property under CR 60(a), we do not need to address the alternative ground relied on by the trial court under CR 60(b)(11). CR 60(b)(11) is only applicable in `extraordinary circumstances.' In re the Marriage of Furrow, 115 Wn. App. 661, 673, 63 P.3d 821 (2003).
KENNEDY and GROSSE, JJ., Concur.