Hovickv.Page

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONENov 5, 2012
NO. 65606-6 -I (Wash. Ct. App. Nov. 5, 2012)

NO. 65606-6 -I

11-05-2012

RAYMOND A. HOVICK and JACQUELINE K. HOVICK, husband and wife, Respondents, v. WALTER S. PAGE, Appellant.


UNPUBLISHED OPINION

Lau, J. — Walter Page appeals from trial court orders rejecting his claims to ownership of real property on Whidbey Island. Because a valid 1999 dissolution decree awarded the property to Page's ex-wife and Page failed to identify any supporting evidence or legal theory, we agree with the trial court that Page's ongoing claims of ownership are frivolous. We therefore affirm the trial court rulings cancelling a lis pendens, dismissing Page's counterclaims, and quieting title to the property in respondents Raymond and Jacqueline Hovick. We also award attorney fees for a frivolous appeal.

FACTS

The relevant facts are undisputed. Walter Page and Debra Page divorced in November 1999. The agreed dissolution order awarded Ms. Page the two parcels of real property on Whidbey Island at issue in this appeal (the Deer Lake property). The decree also directed the parties to "execute whatever documents are necessary to carry out the transfers and distributions order[ed] herein."

In 2000, Page moved to vacate the decree, alleging, among other things, that he had not signed the decree and had not authorized his attorney to approve the decree for entry. After considering the conflicting testimony of Page and his former attorney, the trial court denied the motion to vacate, finding that Page had authorized his attorney to enter into the proposed settlement and to approve the agreed dissolution decree. Page did not appeal from the trial court's decision.

In September 2000, Ms. Page sold the Deer Lake property to respondents Raymond and Jacqueline Hovick via a statutory warranty deed. In November 2002, Page and his ex-wife entered into a CR 2A stipulation settling a dispute about an unrelated parcel of property. Under the terms of the stipulation, Page also agreed "that he will assert no claims against the petitioner [Ms. Page] or any third parties in connection with the respondent's [sic] sale of the Island County, Deer Lake Road real property that was awarded to her in the decree."

In November 2002, Page filed a legal malpractice action, once again alleging that he had not authorized his former attorney to approve the agreed dissolution decree. The trial court eventually dismissed Page's claims on summary judgment. This court affirmed, concluding that collateral estoppel barred Page's attempt to relitigate the alleged lack of authority issue. See Page v. Kelly & Harvey, No. 55518-9-I (Wash. Ct. App. Jan. 12, 2006). Despite the court rulings, Page continued to claim he had an ownership interest in the Deer Lake property in various representations to the title company, the sheriff's office, and various businesses.

On February 23, 2009, Page recorded a lis pendens against one of the Deer Lake parcels, alleging a pending action under the dissolution cause number. On June 12, 2009, the Hovicks filed this action seeking release of the lis pendens and an injunction prohibiting Page from any future efforts to cloud their title on the Deer Lake property. In response, Page filed counterclaims seeking an award of damages based on a theory of ouster and an order quieting title to the property in Page and the Hovicks as tenants-in-common.

At the hearing on April 23, 2010, Page once again alleged that he had never authorized his attorney to enter into a settlement and approve the entry of the decree. He argued that because he had never conveyed his interest in property to his ex-wife, he retained an ownership interest.

The court found that the dissolution decree awarded the disputed property to Page's ex-wife and that Page had no ownership interest. The court cancelled the lis pendens, restrained Page from "filing, recording or otherwise affecting title to the real property," and awarded the Hovicks attorney fees under RCW 4.28.328.

On June 17, 2010, the trial court granted the Hovicks' motion for summary judgment and dismissed all of Page's counterclaims as frivolous. The court entered a judgment quieting title to the property in the Hovicks and awarding the Hovicks their attorney fees under RCW 4.84.185.

DECISION

Deer Lake Property Page contends the trial court erred in releasing the lis pendens, quieting title in the Hovicks, dismissing his counterclaims, and awarding attorney fees. But his arguments all rest on the mistaken belief that he retained an ownership interest in the Deer Lake property. Page concedes the 1999 decree awarded the Deer Lake property to his ex-wife, but he points to the provision requiring both parties to execute the necessary documents to carry out the property distribution. He reasons that because he never complied with this provision by signing a deed or otherwise formally conveying his interest in the property, he retains an ownership interest "until he signs a deed to another, or a court of law orders him to do the same." Br. of Appellant at 13. But Page's reliance on cases addressing the general requirements for conveying real property is misplaced. See, e.g., Kesinger v. Logan, 113 Wn.2d 320, 324, 779 P.2d 263 (1989) ("The conveyance of an interest in real property must be by deed"). Those decisions are inapposite because they do not involve dissolution proceedings.

In a dissolution proceeding, the trial court "'has practically unlimited power over the property, when exercised with reference to the rights of the parties and their children.'" In re Marriage of Kowalewski, 163 Wn.2d 542, 550, 182 P.3d 959 (2008) (quoting Arneson v. Arneson, 38 Wn.2d 99, 102, 227 P.2d 1016 (1951)). A dissolution decree "operates not only to vest in the spouse designated the property awarded to him or her, but to divest the other spouse of all interest in the property so awarded, except as the decree may otherwise designate." United Benefit Life Ins. Co. v. Price, 46 Wn.2d 587, 589, 283 P.2d 119 (1955), overruled on other grounds, Aetna Life Ins. Co. v. Wadsworth, 102 Wn.2d 652, 689 P.2d 46 (1984). Consequently, "a Washington [dissolution] decree awarding property situated within the state has the operative effect of transferring title . . . ." Kowalewski, 163 Wn.2d at 548.

The 1999 dissolution decree effectively divested Page of his interest in the Deer Lake property. He has not identified any relevant authority or legal theory supporting his claim to a continuing interest in the property. Because Page's arguments on appeal rest solely on his meritless allegations of a continuing interest in the Hovicks' property, his challenges to the release of the lis pendens, dismissal of his counterclaims on summary judgment, and order quieting title necessarily fail.

Moreover, as the court noted, Page's legal challenges to the dissolution decree were previously rejected. And in 2002, Page stipulated he would not interfere with the property distributed by the decree. The record amply supports the trial court's determination that Page failed to establish any legal justification for filing the lis pendens. The court therefore did not abuse its discretion in awarding the Hovicks attorney fees for cancelling the lis pendens. See RCW 4.28.328(3).

Nor did the trial court err in awarding attorney fees under RCW 4.84.185. RCW 4.84.185 authorizes the court to award a prevailing party reasonable expenses, including attorney fees, for opposing a frivolous action. "'A lawsuit is frivolous when it cannot be supported by any rational argument on the law or facts.'" Skimming v. Boxer, 119 Wn. App. 748, 756, 82 P.3d 707 (2004) (quoting Tiger Oil Corp. v. Dep't of Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997)).

Page's counterclaims, including his claim for quiet title and claim for ouster, were based solely on conclusory allegations of a continuing interest in the property. The record supports the trial court's finding that these claims were unfounded, advanced without reasonable cause, and unsupported by any rational argument. The court did not abuse its discretion in awarding attorney fees under RCW 4.84.185. See Fluke Capital & Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986).

On appeal, Page repeatedly asserts that the 1999 dissolution decree was invalid because he did not sign it and never authorized his attorney to agree to its entry. Page raised identical claims in his 2000 motion to vacate the decree. After conducting an evidentiary hearing, the trial court in that proceeding rejected Page's allegations, and Page did not appeal the decision. Collateral estoppel bars Page's attempts to relitigate the issue yet again. See Hanson v. City of Snohomish, 121 Wn.2d 552, 564, 852 P.2d 295 (1993).

Virtually all of Page's arguments on appeal rest on unsupported factual assertions, including sweeping allegations of fraud or misfeasance directed to individuals and entities that are not parties to this action. Page further alleges the 2002 stipulation is invalid and fraudulent.

But Page has not identified any evidence in the record to support these allegations. Neither Page's opening brief nor his reply brief contains any meaningful references to the record, in violation of the Rules of Appellate Procedure. See RAP 10.3(a)(6) (legal argument in brief must include reference to relevant parts of the record). Appellate courts are not required to search the record to locate documents that might be relevant to a litigant's arguments. Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966). Page's factual allegations warrant no further judicial consideration. Page contends the trial court's order quieting title in the Hovicks violated both RCW 7.28.120 and .050. RCW 7.28.120 provides that the plaintiff in a quiet title action must set forth "the nature of his [or her] estate, claim or title to the property" in the complaint. Page fails to identify any relevant deficiency in the Hovicks' pleadings. And in any event, Page's arguments rest primarily on the mistaken assumption that he has an interest in the Deer Lake property.

RCW 7.28.050 specifies the limitations period for a party seeking to recover property under certain circumstances from the party possessing the property. There is no dispute that the Hovicks are in possession of the Deer Lake property. RCW 7.28.050 has no application to the facts of this case.

Motion to Supplement the Record

While this appeal was pending, Page moved in the trial court to supplement the record with 12 documents. On February 28, 2011, the trial court denied the motion, noting that Page had not submitted the documents for consideration on summary judgment. The court also denied Page's motion for reconsideration and awarded attorney fees for a frivolous motion. A commissioner referred Page's objection to the trial court's order for consideration along with his appeal. See RAP 9.13. Page seeks to supplement the record with documents relating to the purchase and sale of the Deer Lake property. There is no dispute that Page failed to submit these documents to the trial court for consideration on summary judgment. On appeal from a summary judgment order, we will consider "only evidence and issues called to the attention of the trial court." RAP 9.12. Accordingly, the trial court properly denied Page's motion to supplement the record.

Motion to Recuse Page contends the trial judge erred in denying his motion to recuse. At the hearing on the motion, Page informed the judge he had learned she was "the owner of a real estate brokerage" and that her "livelihood" was derived from the title company paying the Hovicks' attorneys. RP 3/28/2011, at 3. He further alleged she was biased, misapplied the law, and acted according to the "marching orders from the title companies." RP 3/28/2011 at 4.

The judge noted that her husband's real estate company was separate property and denied the motion to recuse.

"The trial court is presumed ... to perform its functions ... without bias or prejudice." Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000). Consequently, the party seeking to overcome that presumption bears the burden of presenting evidence of a judge's "actual or potential bias." State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172 (1992). We review the trial court's decision not to recuse for an abuse of discretion. State v. Perala, 132 Wn. App. 98, 111, 130 P.3d 852 (2006). Page failed to submit any relevant evidence to support the existence of the trial judge's alleged financial conflict of interest. Contrary to Page's apparent belief, a judge's unfavorable rulings and critical comments about a party's legal arguments are insufficient, without more, to demonstrate actual or potential bias. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). The trial court did not abuse its discretion in denying the motion to recuse.

Attorney Fees

The Hovicks request an award of attorney fees under RCW 4.84.185 and RAP 18.9(a) for a frivolous appeal. An appeal is frivolous "if the appellate court is convinced that the appeal presents no debatable issues upon which reasonable minds could differ and is so lacking in merit that there is no possibility of reversal." In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). Page's continuing assertions of an interest in the Deer Lake property (unsupported by any coherent legal theory), his reliance on factual allegations directly rejected in a prior court proceeding, and his failure to identify any meaningful evidentiary support in the record satisfy that standard here. The Hovicks are awarded their attorney fees on appeal subject to compliance with RAP 18.1(d). We reject Page's request for costs and expenses on appeal.

Affirmed.

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