Walter Page v. Raymond A. And Jacqueline K. Hovick ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
RAYMOND A. HOVICK and No. 71020-6-
JACQUELINE R. HOVICK,
husband and wife,
Respondents,
WALTER S. PAGE, UNPUBLISHED OPINION
Appellant. FILED: June 15, 2015
Verellen, A.C.J. — The law of the case doctrine generally precludes a party
from raising claims on appeal that were or could have been raised in an earlier
appeal in the same case. All of the claims asserted by Walter Page in this appeal
were or could have been raised in his first appeal in this case. They are therefore
barred by the law of the case doctrine. We decline to exercise our discretion to
reconsider any issues addressed in our previous decision and affirm.
FACTS
The facts underlying this litigation were set forth in our 2012 decision
addressing Page's first appeal in this case:
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
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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. 55518-9-1
(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 sheriffs
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
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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
RCW4.84.185.I1]
Page appealed the trial court's decision, and we affirmed. We rejected Page's
argument that he retained an interest in the Island County property after the
dissolution decree awarded that property to his ex-wife. We also rejected his
arguments that the agreed property distribution in the decree was invalid because he
did not sign it or authorize his attorney to enter it, and that the trial judge should have
recused due to an alleged conflict of interest arising from her husband's real estate
business. The Washington State Supreme Court denied Page's petition for review
and the mandate issued.
On September 23, 2013, a court commissioner entered judgment on the
mandate. The judgment awarded the Hovicks $22,243 in fees and costs. Page filed
a notice of appeal from the commissioner's decision.
The Hovicks then moved to clarify an apparent clerical error in the judgment
entered by the commissioner. Page filed a motion for mistrial. The same judge who
granted the summary judgment we reviewed in 2012 heard the parties' motions.
Hovick v. Page, noted at 171 Wash. App. 1022, 2012 WL 5382954, at *1-*2.
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Page argued, as he did in his 2012 appeal, that the judge should have recused
because of her husband's real estate company. He also argued that the court lacked
jurisdiction "to over-ride an [agreement" between the parties as to the disposition of
their property.2
After briefly addressing the recusal argument, the court orally denied Page's
mistrial motion and granted the Hovicks' motion for clarification. The court's
subsequent written order addressed the Hovicks' motion, but said nothing about
Page's mistrial motion. Page subsequently amended his notice of appeal to include
the order of clarification.
DECISION
Page contends (1) the superior court lacked jurisdiction over the Island County
properties at all times, (2) the judge had a conflict of interest and should have
recused from hearing the motions for summary judgment and clarification of the
judgment, (3) the parties' prior agreed distribution of property has repeatedly been
mischaracterized as a divorce by trial, (4) the Hovicks admit they lack a valid legal
deed, and (5) the parties' 2002 stipulation which states that Page will assert no
claims in connection with a sale of the Island County property is unexecuted,
undated, forged, and void. The Hovicks counter that these claims either were or
could have been raised in Page's prior appeal and, under the law of the case
doctrine, should not be reviewed. We agree.
2 Clerk's Papers at 3.
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"'Where there has been a determination of the applicable law in a prior appeal,
the law of the case doctrine ordinarily precludes redeciding the same legal issues in
subsequent appeal.'"3 The doctrine also affords us discretion to refuse review of
issues that could have been raised in the prior appeal.4
All of Page's arguments were or could have been raised in his first appeal.
His challenge to the validity of the parties' 1999 agreed dissolution decree has been
repeatedly rejected in prior superiorand appellate court decisions.5 His claimed
ownership interest in the Island County property based on the absence of any
document transferring his interest to his ex-wife was expressly rejected by this court
in our 2012 decision. We noted in part that Page stipulated in 2002 that he would
"assert no claims against [Ms. Page] or any third parties in connection with the ...
sale ofthe Island County .. . property that was awarded to her in the decree."6 His
challenge to the validity of this stipulation was also raised and rejected in our 2012
decision.
Likewise, Page previously raised, and we rejected, his claim that the judge
who decided the summary judgment and clarification motions had to recuse due to a
3 State v. Worl, 129 Wash. 2d 416, 425, 918 P.2d 905 (1996) (quoting Folsom v.
County of Spokane. 111 Wash. 2d 256, 263, 759 P.2d 1196 (1988)).
4 State v. Elmore. 154 Wash. App. 885, 896, 228 P.3d 760 (2010) (citing Folsom.
111 Wash. 2d at 263-64).
5As we noted in our prior opinion, to the extent any of the issues were raised
in prior, final actions, their relitigation here is also barred by the doctrine of collateral
estoppel. See Hanson v. City of Snohomish. 121 Wash. 2d 552, 561-64, 852 P.2d 295
(1993).
6 Hovick. 2012 WL 5382954, at *1.
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conflict of interest.7 Page's claims that the Hovicks admit they have no valid title8 and
that the agreed property distribution has been mischaracterized as a trial were raised
in the first appeal.
Finally, Page's claim that the superior court lacked jurisdiction over the Island
County property is based on reasoning we rejected in our 2012 decision. Page
contends the superior court lacked jurisdiction over the property and could not quiet
title to it because the disposition of the property was controlled by the parties' agreed
property division. Because boilerplate language at the end of that agreement
required the parties to "execute whatever documents are necessary to carry out the
transfers and distributions order[ed] herein,"9 he claims his ex-wife could not sell
property awarded to her and the Hovicks could not acquire valid title until he
executed a document transferring his interest in the property to his ex-wife. But we
rejected this reasoning in our 2012 decision, stating in part that "the 1999 decree
awarded the . .. property to his ex-wife" and that the award "effectively divested Page
of his interest" in it.10 Thus, no further documents were necessary to carry out the
transfer of Page's interest in the property.
7To the extent Page made recusal arguments in his motion for mistrial below
that differed from the recusal arguments he made in his first appeal, and to the extent
the arguments could be interpreted as challenges to the judge's ability to hear the
motions before it, the court did not abuse its discretion in rejecting those arguments
and hearing the motion.
8This argument is based on a 2010 statement by the Hovicks' counsel
indicating that the Hovicks would be willing to settle for a quitclaim deed from Page.
9 Clerk's Papers at 166.
10 Hovick. 2012 WL 5382954, at *2.
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Because all of Page's claims were or could have been raised in his prior
actions, and because Page does not assert any exception to the law of the case
doctrine, we conclude the doctrine precludes review. We decline to exercise our
discretion to revisit any of our prior decisions in this case.
Because Page's appeal presents no debatable issues and is therefore
frivolous, we grant the Hovicks' request for attorney's fees and costs on appeal,
subject to their compliance with RAP 18.1(d).11
Affirmed.
WE CONCUR:
en
11
RAP 18.9(a).