103 Wash. 2d
768, 774,
698 P.2d 77 (1985). The moving party under CR 56 can satisfy its initial
burden by demonstrating the absence of evidence supporting the nonmoving party's
case. Young v. Key Pharms.. Inc.,
112 Wash. 2d 216, 225 n.1,
770 P.2d 182 (1989). The
burden then shifts to the nonmoving party to set forth specific facts demonstrating a
genuine issue for trial. Kendall v. Public Hosp. Dist. No. 6,
118 Wash. 2d 1, 8-9,
820 P.2d
497 (1991). A "'complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts immaterial.'"
Young, 112
Wash. 2d at 225 (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322-23,
106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)).
Young contends that Kempf had a duty to transfer the IRA account to him on
request because his interest in the account "vested" upon entry of the dissolution
17 CP at 116-17.
18 CP at 105.
No. 70922-4-1 / 5
decree.19 He relies on the general principle that 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 Wash. 2d 587, 589,
283
P.2d 119 (1955), overruled on other grounds by Aetna Life Ins. Co. v. Wadsworth,
102
Wash. 2d 652,
689 P.2d 46 (1984).
But contrary to Young's contentions, the trial court correctly recognized that the
general principle set forth in Price addresses only the respective property rights of the
parties before the court in the dissolution proceeding. See
Price, 46 Wash. 2d at 588-89.
Neither below nor on appeal has Young identified any authority or legal theory
suggesting that the dissolution decree imposed an obligation on third parties to transfer
property before entry of the QDRO. Because the challenged withdrawal occurred
before entry of the QDRO, Young failed to demonstrate that Kempfs actions were
improper. The trial court properly entered summary judgment dismissing Young's
claims against Kempf.
For the first time on appeal, Young contends that there are material factual
issues as to whether Kempf supplied "false information"20 under a theory of negligent
misrepresentation. Because Young neither pleaded nor argued this claim to the trial
court, we decline to consider it for the first time on appeal. See Sourakli v. Kyriakos,
Inc.,
144 Wash. App. 501, 509,
182 P.3d 985 (2008); see ajso RAP 9.12 ("On review of an
19 Br. of Appellant at 6.
20 Br. of Appellant at 8.
No. 70922-4-1 / 6
order granting or denying a motion for summary judgment the appellate court will
consider only evidence and issues called to the attention of the trial court.").
Young also contends that the trial court erred in awarding Kempf attorney fees.
RCW 4.84.250 authorizes an award of attorney fees in actions in which "the amount
pleaded" is $10,000 or less. A defendant is the "prevailing party" under RCW 4.84.250
if the plaintiff "recovers nothing." RCW 4.84.270; see AllianceOne Receivables Mqmt.,
Inc. v. Lewis, 180 Wash. 2d 389, 395,
325 P.3d 904 (2014).
Young asserts that he "prevailed" on his separate cause of action for an
accounting because Kempf supplied an accounting and that Kempf prevailed on the
action for a money judgment. Because both parties prevailed, Young maintains that
neither party was entitled to an award of attorney fees.
Young initially filed a complaint for account disclosure and sought a judgment
compelling a written accounting. The court made no ruling on the allegations in the
complaint. Young amended the complaint to request only a monetary judgment for
Kempfs alleged mishandling of the funds in the IRA account. The trial court dismissed
all of Young's claims against Kempf and entered a judgment solely in Kempfs favor.
Young did not prevail in a separate cause of action, and he recovered nothing. The trial
court properly awarded attorney fees under RCW 4.84.250.
As the prevailing party, Kempf is also entitled to an award of attorney fees on
appeal. RCW 4.84.290; see RCW 4.84.250. We grant Kempfs request and award
reasonable attorney fees on appeal, subject to compliance with RAP 18.1(d).
No. 70922-4-1 / 7
Affirmed.
T/;^gv; zr
WE CONCUR:
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