In re the Marriage of: Tracie Brown And Michael Brown

• Court: Court of Appeals of Washington
• Decided: June 21, 2022
• Docket: 37277-4
• Status: Unpublished

Opinion

FILED JUNE 21, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Marriage of: ) No. 37277-4-III ) TRACIE BROWN, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) MICHAEL KEITH BROWN, ) ) Respondent. )

PENNELL, J. — Tracie Brown appeals from a final divorce order that divided

business assets held by her and her former husband, Michael Brown. We affirm the

trial court and assess counsel for Ms. Brown $250 in sanctions for failing to comply

with RAP 10.3(a)(5).

FACTS

Tracie and Michael Brown were married in 1988. On December 31, 2013, Ms.

Brown filed for divorce, citing the marriage as “irretrievably broken.” Clerk’s Papers

(CP) at 70-71. The marital community’s assets included four business interests: No. 37277-4-III In re Marriage of Brown

(1) 50 percent stock ownership in Brown Boys, Inc. (the car business), (2) 50 percent

ownership of the land and buildings occupied by Brown Boys, Inc., (3) 50 percent stock

ownership in Brown Brothers, Inc. (the tavern), and (4) 50 percent ownership of the land

and buildings occupied by Brown Brothers, Inc. The remaining 50 percent of the business

and land interests was owned by Michael Brown’s brother.

In 2015, Ms. Brown moved for an order directing Mr. Brown to pay for an expert

to appraise the parties’ businesses. The court granted the motion and ordered Mr. Brown

to pay $8,000 for a “joint business valuator with ABV [accredited business valuation]

credentials to value the community’s interest in the businesses.” CP at 155. Counsel

were further ordered to confer on an expert who would work “for the community.” Id.

A business valuation report for the car business was obtained. The report valued the

business on its own, not the land on which the business sat or the buildings situated on

the land. Prior to trial, Mr. Brown had paid only $3,000 of the outstanding fees of the

business valuator.

The parties’ dissolution action proceeded for approximately six years before going

to trial. During this time, the parties were represented by various attorneys. By the time

the case went to trial in November 2019, Ms. Brown represented herself and Mr. Brown

was represented by counsel.

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At trial, Mr. Brown moved to admit the joint business valuation report into

evidence, pursuant to the parties’ agreement. Ms. Brown did not object. The report stated

the car business’s value was $419,718 as of December 31, 2013. The report did not

address the value of the land or buildings occupied by the car business.

During opening statement, Mr. Brown’s attorney explained Mr. Brown had paid

$3,000 of the business valuation fees and stated he expected the remainder of the fees

to be included as the husband’s debt in the final dissolution order. Counsel for Mr. Brown

explained he did not intend to call the author of the business valuation report to testify at

trial because he did not think the author was a necessary witness. Counsel also explained

that while Mr. Brown was introducing the business valuation report into evidence, he did

not agree with the report’s final assessment because it did not account for business debt.

The primary witnesses at trial were the Browns. The only additional witness was

Ms. Brown’s roommate, David Meckelson, who testified as to Ms. Brown’s financial and

living circumstances at the time of trial.

During her examination of Mr. Brown, Ms. Brown asked if the reason he had not

paid the full business valuation fee was because Mr. Brown did not want the report’s

author to testify at trial. Mr. Brown answered, “No, that’s not true.” Report of

Proceedings (RP) (Nov. 4, 2019) at 93.

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After the presentation of testimony, the parties agreed the evidence was closed and

they were ready for summation. During summation, Ms. Brown urged the court to order

certified appraisals of the family home, as well as the real property occupied by the car

business and the tavern. The only appraisals that had been offered into evidence has been

created at the time of separation. Alternatively, Ms. Brown asked for her share of the

profits from the two businesses for the six years that the parties had been separated

pending dissolution of the marriage. Ms. Brown said she would “accept $50,000 per year”

for the last six years. RP (Nov. 6, 2019) at 412. Ms. Brown also objected to Mr. Brown’s

disagreement with the conclusions reached in the joint business valuation report.

According to Ms. Brown, Mr. Brown was not in a position to object to the contents of the

report since he had the opportunity to pay the outstanding balance to the report’s author

and ask for a correction.

The trial court issued a written decision dividing the parties’ assets. With respect to

the 50 percent interest in the car business, the trial court reduced the $419,718 valuation

to $300,000 based on unaccounted debts and reliability problems. This was awarded to

Mr. Brown, along with the 50 percent interest in the real property, valued at $16,047.

With respect to the 50 percent interest in the tavern, the court settled on a valuation of

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$220,000 based on Ms. Brown’s testimony. 1 This was awarded to Ms. Brown along with

a 50 percent interest in the real property, valued at $47,066.

The court’s final property distribution favored Ms. Brown, as it resulted in a 60/40

split of net assets. In addition to property distribution, the court awarded a transfer

payment from Mr. Brown to Ms. Brown of $50,000.

Ms. Brown timely appeals.

ANALYSIS

Mr. Brown contends Ms. Brown’s opening appellate brief violates the terms of

RAP 10.3(a)(5). Ms. Brown has not filed a reply brief or responded to this argument.

We agree with Mr. Brown.

Requirements of RAP 10.3(a)(5)

RAP 10.3 governs the content of briefing on appeal. Under RAP 10.3(a)(5), the

opening brief of an appellant or petitioner must contain a statement of the case that

includes a “fair statement of the facts and procedure relevant to the issues presented for

review, without argument. Reference to the record must be included for each factual

statement.”

1 There was no formal written valuation of the tavern business.

5 No. 37277-4-III In re Marriage of Brown

An important aspect of RAP 10.3(a)(5) is the requirement of precise citation to the

record. The record on review is often long and includes materials extraneous to the issues

on appeal. Fair adjudication of an appeal requires this court to be able to pinpoint the

parties’ factual disputes in the record. The responsibility for providing accurate record

citation falls on the parties, not the court. Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646

(1966) (The court is “not required to search the record for applicable portions thereof in

support of the [appellant’s] arguments.”).

Another important component of RAP 10.3(a)(5) is a statement of the case must

be made “without argument.” Objectively adjudicating a dispute on review requires first

assessing what happened during the trial court proceedings and then critiquing what

happened for legal error. An argumentative statement of the case muddies this analytical

process and is unhelpful to the steps this court must take to resolve the parties’ dispute.

This is especially true if an argumentative statement of the case is accompanied by

imprecise citation to the record.

RAP 10.3(a)(5) also requires a party’s statement of the case to be “fair.” This

requirement speaks to the need for accuracy. The statement of the case is the foundation

on which the remainder of a brief is based. If the factual foundation of a brief is faulty,

the rest will crumble.

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The requirements of a precise, nonargumentative, and fair statement of the case

does not mean a party’s briefing must be dry and unpersuasive. Parties can and should

present the record in a compelling manner, focused on the facts necessary to decide the

issues on review. The best appellate briefs are ones that organize their statements of the

case in a way that anticipates presentation of the issues on review and emphasizes the

aspects of the record supporting the party’s case. But an appellate advocate will lose

credibility, and undermine the justness of their cause, by overstating or misrepresenting

the factual underpinnings of the dispute on appeal.

Ms. Brown’s brief does not meet the requirements of RAP 10.3(a)(5)

Ms. Brown’s appellate brief fails to comply with the aforementioned requirements

of RAP 10.3(a)(5).

Ms. Brown’s brief does not include precise citation to the record. The report

of proceedings in this case totals 445 pages. Ms. Brown’s statement of the case includes

12 references to the report of proceedings. Only three of these references cite a single

page. Two references cite ranges of 3 pages. The remainder of the references cite ranges

anywhere from 9 to 213 pages. Ms. Brown’s broad citation to the record includes

instances in which she makes controverted factual and procedural claims. Ms. Brown’s

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imprecise citation to the record is no more helpful than a brief completely devoid of

citation. This alone violates RAP 10.3(a)(5).

In addition to imprecise citation to the record, much of Ms. Brown’s statement of

the case is argumentative. Counsel spends a lot of time in the statement of the case

critiquing the conduct of the parties and the trial judge. For example, counsel repeatedly

praises Ms. Brown for seeming to do a good job presenting her case at trial and making

appropriate requests. Appellant’s Opening Br. at 2-4. Meanwhile counsel criticizes the

trial court for blaming the parties for holes in the record and failing to recognize the

importance of having expert testimony. Id. at 4-5. Editorial comments on the meaning of

various things said and done during trial fall outside the bounds of a statement of the case.

They are unhelpful to this court’s resolution of this appeal.

Finally, and most critically, Ms. Brown’s statement of the case fails to provide a

“fair” statement of what happened at trial. Two aspects are salient.

First, Ms. Brown claims the trial court “ordered” the author of the business

valuation report to “participate in the trial” but the author did not do so “because

Mr. Brown” did not pay the author’s fee bill. Id. at 3. This representation is false.

The trial court never ordered the report author to be a witness or otherwise participate

at trial. The court merely required Mr. Brown pay $8,000 of the bill for the report. In

8 No. 37277-4-III In re Marriage of Brown

addition, the record does not support counsel’s claim that the report author failed to

testify because he had not been paid. When Ms. Brown asked Mr. Brown about this issue

during trial, Mr. Brown denied it was true. Mr. Brown and his attorney repeatedly

explained they did not call the report author to testify because they did not think his

testimony was necessary. Nothing in the record contradicts this position. Nor is there any

suggestion Ms. Brown was prevented from calling the report author to testify, had she

wanted to do so.

Second, Ms. Brown’s counsel asserts that, at the end of trial, Ms. Brown asked for

a continuance so Mr. Brown could pay the report author, thereby allowing the author to

provide testimony regarding the value of the car business. Appellant’s Opening Br. at 4-5.

Again, this claim is false. Ms. Brown never asked for more time to have an additional

assessment of either the car business or the tavern. The only thing Ms. Brown asked for at

the end of trial was additional time to have certified appraisals of real property, including

the parties’ home and the land and buildings occupied by the parties’ family businesses.

Noncompliance with RAP 10.3 is fatal to the claim on appeal

Ms. Brown’s substantive claim on appeal is that the trial court failed to fairly

adjudicate the value of the car business because the court did not account for the

business’s goodwill value. Ms. Brown claims she was prevented from developing the

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record in this regard because of Mr. Brown’s intransigence and the trial court’s refusal

to grant a continuance.

Ms. Brown’s substantive claim fails because it rests on an inaccurate statement

of the case. Nothing in the record indicates Ms. Brown was prevented from calling the

business valuation report author as a witness at trial in order to present evidence of

goodwill value. Nor did Ms. Brown ask for a continuance for this purpose. The record on

review shows Ms. Brown agreed the business valuation report could be admitted into

evidence as is, without the need for live testimony. At trial, Ms. Brown’s only complaint

about the report was that the court failed to accept it at face value and instead adopted a

reduced business valuation.

Because Ms. Brown never preserved any arguments in the trial court regarding

the substance of the business valuation report, we decline under RAP 2.5(a) to address

the arguments on appeal. Although counsel for Mr. Brown has not requested sanctions,

we impose sanctions on our own initiative under RAP 10.7 and RAP 18.9(a) based

on appellant counsel’s failure to comply with RAP 10.3(a)(5), as set forth above.

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CONCLUSION

The trial court’s final divorce order is affirmed. Counsel for Ms. Brown is assessed

$250 in sanctions under RAP 10.7 and RAP 18.9(a), payable to this court, based on a

failure to comply with RAP 10.3(a)(5).

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________ Pennell, J.

WE CONCUR:

______________________________ Fearing, J.

______________________________ Staab, J.