Hugh F. Bangasser v. Thomas F. Bangasser

• Court: Court of Appeals of Washington
• Decided: January 14, 2019
• Docket: 77398-4
• Status: Unpublished

Opinion

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lN THE COURT OF APPEALS FOR THE STATE OF WASH|NGTON

HUGH F. BANGASSER, an individual,

DlVlSlO|\E ONE Respondent,

No, 77398»4-| v.

UNPUBLISHED OPlNEON THOMAS F. BANGASSER, art

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individual; BANGASSER & ) ASSOC|ATES, |NC., a Washington ) corporation, ) )

Appeliants,

V|S|ON VASHON, ostensibly a Washington non-profit corporation

Defendant. FlE_ED: January 14, 2019

DWYER, J. - Hugh Bangasser filed suit against his brother Thomas Bangasser to recover orr a promissory note.1 The trial court rejected Thomas’s defenses, granted i-lugh’s motion for summary judgment, and awarded attorney fees and costs to Hugh. Finding no error, we affirm.

From 1988 untii 2015, Thomas was the general partner of iViidTown

Limited Partnership (lVlidTown), whose primary assets included severat parcels of

real estate in Seattte. Nlid'i`own’s four limited partners were Thornas’s siblings or

1 This opinion refers to the parties by their first names for convenience and clarity.

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entities owned by his siblings. One of these iirnited partners was Thorrias’s brother Hugh.

ln 2003, Thomas asked Hugh and two of his sisters, Eiizabeth Hall and Margaret Delaney, for ioans to assist his now-defunct nonprofit corporation Vision Vashon to purchase real estate. The three siblings separately agreed to loan money to Thornas for his Vision Vashon venture.

On October 24, 2003, Thornas signed a $70,000 promissory note on behalf of Vision Vashon in favor of i-lugh. Thornas guaranteed the note both personally and as the president of his company Bangasser & Associates, lnc. The principal balance on the note was due one year after signing, with interest accruing at 10 percent for the first year and 12 percent thereafter The note provides that “[i]f suit should be brought to collect any of the principal or interest of this Note, the prevailing party shall be entitled to reasonabie attorney’s fees and costs." lVlidTown was not a party to the note. Thomas acknowiedged the debts to |-iugh and his sisters in writing several times between 2006 and 2015, citing various potential avenues for eventual repayment of the notes.

MidTown’s limited partners eventually became concerned that Thomas, as general partner, had taken positions and actions adverse to the interests of the partnership On June 22, 2015, atl four limited partners voted to remove Thornas as the generai partner. in September 2015, Thomas sued lVlidTown for breach of the partnership agreementl asserting that lVlidTown failed to compensate him for his partnership interest or for his past services as the general partner. lie also

sought a security interest in MidTown’s property and appointment cfa receiver

NO. 77398-4-l/3

for sale of the property. The trial court granted partial summary judgment in favor of i\/lid`lown and entered a declaratory judgment providing that Thornas could not re-fiie a lis pendens against the property. Thomas appealed We affirmed the trial court's ruling in Bangasser v. i\/i_i_c_ii`own Ltd. P’ship, No. 75226~0-l (V\iash. Ct. App. Aprii 24, 2017) (unpubiished), httb://www.courts.wa.govlopinions/odf/?SQSO.Ddf.

On December 7, 2015, Thorrias informed ilugh, Hail, and Delaney via e- ntail that "we were finally able to refinance/sell our Vashon island real estate and would like to now address the outstanding Promissory Notes payable to you.” Thornas calculated what he believed to be the precise balance owed to each, and requested a response i-iugh asked when he could expect payment on his note. Thomas responded that lie anticipated paying the note “from the proceeds of my 5% NiidTown compensation when | receive the funds.” On December 12,

2015, Hugh responded:

Torn: l am disappointed in your response to my inquiry as to when l should expect to receive the loan amount and interest for a loan that has been outstanding for over 12 years. it is also a loan i made to you based upon your representation that l would be repaid within a month of lending you the $70,000. Your email of two days ago clearly inferred that With the refinancing you indicated you had obtained, you intended to use a portion of the refinance amount to repay Eiizabeth and i promptiy. ¥ou have now wrongly attempted to tie that repayment to a totally unrelated matter, the dispute you have with the limited partners of iViTi_. Eiizabeth’s, Peg’s, and my loans to you had absolutely nothing to do with iViTL and at the time 12 years ago, you claimed to us that you wanted the funds for some investments you Were making in an independent capacity and not as a partner within iVl`l'L. l suggest you reconsider your position and discuss lt with your iawyer. l expect you to make the repayment you owe me for my loan now without regard to the status of your dispute With MTL.

NO. 77398-4-|/4

it is undisputed that Thomas never paid any principal or interest to l-lugh or i~lal|.2 in Juiy 2016, l-iail filed suit against Thomas for payment of her note with interest and attorney fees Tnomas asserted a number of affirmative defenses including that Haii‘s action was barred by the six-year statute of iimitations. The trial court rejected 'i'homas’s arguments and granted summary judgment to i-laii. Thomas appealed We affirmed the trial court’s ruling in l-lall v. Bangasser, No. 76077-7-l (Wash. Ct. App. Jan. 16, 2018) (unpub|ished), httD:/lwww.cogrts.wa.ciov/ooinions/ndi/760777.Ddf.

On November 22, 2016, i-tugh fried suit against Thornas to recover on his note. Foilowing discovery, Hugh moved for summaryjudgment. Thomas asserted that summary judgment was improper on two separate grounds. First, he argued that ilugh’s action was barred by the six-year statute of limitations Second, he argued that i-lugh effectively received payment on the note by failing to abide by the terms of the NiidTown partnership agreement and intentionally absorbing a portion of Thomas’s general partnership units into his own limited partnership units when Thomas was removed as general partner on June 22, 2015.

As the parties were conducting discovery, two significant events occurred in May 2017, iVlidTown’s property was sold for.$23,300,000 and the sale proceeds were disbursed to NlidToWn. And on June 14, 2017, MidTown and its four limited partners sued Thornas to resolve numerous remaining disputes

between Thomas and l\/lidTown, including how much, if anything, Thornas is

2 Hugh acknowledges that Thomas has repaid Deianey.

l\io. 77398-4-|/5

owed for his past services as the general partner; how much Delaney owes him for his general partner interest; and how much Thomas is entitled to receive from i\/lid`lown as his limited partner distributive share On lVlarch 20, 2018, the trial court granted lVlidTown’s motion for partial summary judgment3

On August 18, 20‘i7, the trial court in this case granted Hugh’s motion for summary judgment The court ruled that the statute of limitations did not bar recovery because `l'homas acknowledged the debt in writing on multiple occasions.“ The court also rejected Thomas’s offset theory:

The facts are that when lVir. Thomas Bangasser was

removed as the general partner from lViidTown, he was replaced by

lVls. Delaney. if anybody owed him money, it Would be iV|idTown

and/or le. Delaney. There’s no - you know, there’s a theory -

some sort of conspiracy theory that l-iugh Bangasser was behind

the ouster and that somehow he’s manipulated Ms. Delaney, but

there’s no facts to support that theory. i can’t -- l cannot find a

material fact - a material issue of disputed fact on a theory that

doesn*t have any facts to support it.

So l do not believe that offset is appropriate it can be

addressed before Judge Doyle in the MidTown case So l'm

granting the lVlotion for Summary Judgment.

The court entered a total judgment in Hugh’s favor of $185,950.36.5 Hugh separately moved for an award of attorney fees in the amount of 350,l05.70. Upon entry of written findings the trial court reduced the request and awarded

$39,831 in attorney fees to Hugh. On September 25, 2017, the court entered a

3 'l`homas‘s appeal of that decision is currently pending in this court NlidTown Ltd. P’shig v. 'l`homas Bangasser, King County Superior Court No. 17-2-l5457-‘l, Court of Appeals No. 78998-8-i.

4 We rejected Thornas‘s statute of limitations arguments in l-lai| v. Bangasser, Nc. 76077- 7-i (Wash. Ct. App. Jan. 16, 2018) {unpublished), httg:/lwww.courts.wa.gov/oginionslpdfl760777.gdf. 'l'homas does not appeal from the trial court’s rejection of his statute of limitations arguments in the present case.

5 This amount included the original $70,000 principa|, plus $114,681.09 in interest and $1,269.27 in costs

NO. 77398-4-|/6

charging order in favor of Hugh on Thomas’s partnership interest in l\/iidTown. And on October 9, 2017, the court ordered that a portion of the proceeds from the NiidTown sale set aside for `l'homas be distributed to Hugh in satisfaction of the charging order. Thomas now appeals ll

We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court. Ruvalcaba v. Kwang Ho Baek, 175 Wn.2d 1, 6, 282 P.3d 1083 (2012). The facts and all reasonable inferences are viewed in the light most favorable to the nonmoving party. ii/lichak v. Transnation 'i'itle ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. _Mjgh”a”k, 148 Wn.2d at 794-95 (guoting CR 56(c)). “[A] party resisting summary judgment cannot satisfy his or her burden of production merely by relying on conclusory allegations speculative statements or argumentative assertions." §_g_guch v. l_andover Coro.. 153 Wn. App. 595, 610, 224 P.3d 795 (2009). Rather, the nonmoving party must set forth specific facts demonstrating a genuine issue of material fact. _B_g_gg@, 153 Wn. App. at 610. _QM

Thomas contends that he is entitled to offset what NlidTown owes him against the debt he owes to l-iugh on the note We disagree “The right of setoff (also called 'offset’) allows entities that owe each other money to apply their

mutual debts against each other, thereby avoiding ‘the absurdity of making A pay

No. 77398-4~|/7

B when B owes A.”' Citizens Bank of iVlarv|and v. Strumbf. 516 U.S. 16, 18, 116 S. Ct.286, 133 L. Ed. 2d 258 (1995) (quoting §t_u_dr|ev v. Bovlston Nat’l Bank, 229 U.S. 523, 528, 33 S. Ct. 806, 57 l_. Ed. l3‘l3 (1913)). Offset applies only when the claims are mutuai, meaning that they are between the same parties acting in the same capacity Kriedler v. Statewide Gen._ ins Ag_e_r;i_gv. inc., 182 Wn. App. 557, 568, 329 P.3d 928 (2014) (insurance and bankruptcy); Cunningharn v. _l___<_)_gg, 134 Wash. 433, 436, 235 P. 964 (1925) (debt due to plaintiff to only part of joint defendants cannot be set off against joint debt due plaintiff); Johnson v. City of Aberdeen, 147 Wash. 482, 485, 266 P.707 (1928) (to be the subject of set-off, demands must be due to and from same parties in same capacity).

liere, Thomas seeks to offset Hugh’s claim against him on the note with his own claim against i\/lid`l`own. But there is no mutuality of obligation6 l\/lid'iown is not a party to the note between Thomas and Hugh. Thomas incurred the debt to take advantage of a real estate opportunity entirely unrelated to lVlidToWn.

Theoretically, the parties could have agreed to substitute another contract for the note in accord and satisfaction of the debt “An accord is a contract between debtor and creditor to settle a claim by some performance other than that which is due." Deg't of Fisheries v. J-Z Sales Corg., 25 Wn. App. 671 , 6761

610 P.2d 390 (1980). "The party alleging an accord and satisfaction must prove

6 Offset cases cited by Thomas in support of his claim are inapposite because they involve claims that meet the mutuality requirement in re Smith’s Estate, 179 Wash. 417, 38 P.2d 244 (1934); Peoples Nat’l Bank of Wash. v. Nat‘l Bank of Commerce, 69 Wn.2d 682, 420 P.2d 208 (1966). Thomas also claims that CR l3(j) authorizes offset in this situation. But that rule expressly authorizes setoffs for the assignee of a note. l-lugh is not an assignee

No. 77398~4-|/8

there was a meeting of the minds and that both parties understood that such would be the result.” Douglas Nw.. |nc. v. §iil O’l_§§rien & Sons Constr., |nc., 64 Wn. App. 661, 686, 828 P.2d 565 (1992).

l-lere, there is no evidence that such a meeting of the minds occurred `l'homas asserts that Hugh is compelled to recognize iViidTown as an offset because Thomas's e-mails identified his interest in Michwn as one of several potential sources of repayment for the note But Hugh never accepted Thomas's attempt to tie his payment of the note to his interest in iViidTown. To the contrary, ilth filed this lawsuit to collect the debt after expressly rejecting Thomas's December 11, 2015 proposal to pay Hugh with proceeds from an eventual distribution from i\/iidTown. Without mutuality of obligation or accord and satisfaction there can be no offset.? The trial court did not err in granting summary judgment to llth and entering a charging order against 'l'homas in Hugh’s favor. Attorney Fees

The promissory note provides that “[ijf suit should be brought to collect any of the principal or interest of this Note, the prevailing party shall be entitled to reasonable attorney’s fees and costs.” Thomas does not dispute that l-lugh, as the prevailing party, is entitled to attorney fees i-lowever, Thomas asserts that

the amount awarded was unreasonably excessive V\le will uphold an attorney

7 Thomas also contends that Hugh effectively paid himself on the note by intentionally absorbing Thomas’s general partnership units into Hugh’s limited partnership units following Thomas's removal as iVlid`l`own general partner on June 22, 2015. He therefore asserts that the trial court forced him to pay the debt twice by entering a charging order against Thomas's interest in Niid‘i“own. But issues regarding the distribution of li/iid‘i‘own’s assets are irrelevant to this dispute between l-lugh and Thomas on a promissory note unrelated to iviidTown.

NO. 77398-4-|/9

fee award unless the trial court manifestly abused its discretion Chuong Van Pham v. Seattle City l..ight, 159 Wn.2d 527, 538, 151 P.3d 976 (2007). “A trial court abuses its discretion when it exercises discretion on untenable grounds or for untenable reasons." Ewlng v. Giogowski, 198 Wn. App. 515, 521, 394 P.3d 418 (201`7).

`lhe trial court must create an adequate record to permit appellate review of fee award decisions ll/lahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). “A determination of reasonable attorney fees begins with a calculation of the ‘iodestar,’ Which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Berryman v. Metcalf, 177 Wn. App. 644, 660, 312 P.3d 745 (2013). liours spent on "unsuccessfui claims duplicated effort, or otherwise unproductive time” are to be discounted from the total. Bowers v. Transamerica Titie lns. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). However, “‘an explicit hour-by-hour analysis of each lawyer‘s time sheets’ is unnecessary as long as the court considers relevant factors and gives reasons for the amount awarded.” Zink v. City_ of Niesa, 137 Wn. App. 271, 277, 152 P.3d 1044 (2007) (quoting Proqressive Animal VVelfare Soc‘v v. Univ. of __Vyash_., 54 Wn. App. 180, 187, 773 P.2d 114 (1989), rev'd on other grounds 114 Wn.2d 677, 790 P.2d 604 (1990)).

`l"he trial court first found that the attorneys’ hourly rates were reasonable The court then specified that 60.5 hours billed by l-lugh’s counsel for preparation of original pleadings a default motion, preparation of written discovery,

preparation for and taking the deposition of Thomas preparation for and taking

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the deposition of Hugh, and drafting and arguing a motion for summaryjudgrnent was reasonable |-iowever, the court found counsel’s request for an additional 32.5 hours to review Thomas's response to the summary judgment motion prepare a reply, and argue the motion in court to be excessive Accordingly, the trial court reduced the lodestar by 22.5 hours resulting in an award of $39,831. Thomas argues that the trial court manifestly abused its discretion by omitting consideration of duplicative and excessive hours billed for a simple promissory note matter. He asserts that the trial court failed to review the billing and reduce it to something reasonable We disagree l-lugh’s attorneys were required to conduct discovery and to address numerous and sometimes convoluted arguments raised by Thomas including offset, statute of limitations and issues raised in the Mid`l'own action The record indicates that the trial court carefully evaluated the request for fees and substantially decreased the award accordingly This was not an abuse of discretion Hugh and Thomas both requested attorney fees and costs on appeal

based on the promissory note and RAP 18.1(a). “Reasonable attorney fees are recoverable on appeal if allowed by statute rule1 or contract, and the request is made pursuant to RAP 18.1(a)." in -rg Guardianshib of Wells, 150 Wn. App. 491, 503, 208 P.3d 1126 (2009). We award l-lugh, the prevailing party, reasonable attorney fees and costs on appeal subject to compliance with RAP 18.1. Upon

such compliance our commissioner will enter an appropriate order of award.

i\lo. 77398-4-|/11 Affirmed.

We Concur:

uri/