FLED 00WIT-0F APPEALSIPV I STATE OF WASHINGTON
2017 SEP I I AM 10: 15
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
LEONARD UMINA, No. 75577-3-1 Appellant, DIVISION ONE V.
LUKE LUMINA, UNPUBLISHED OPINION
Respondent. FILED: September 11, 2017
SPEARMAN, J. — Several legal and equitable doctrines serve to avoid inconsistency and protect the finality of judgments. Under the doctrine of res
judicata, a party is barred from bringing a claim that was or could have been
litigated in a previous action. The doctrine of judicial estoppel bars a party from
gaining an advantage in a later proceeding by taking a position inconsistent with
that he asserted in an earlier proceeding.
Leonard Umina appeals the dismissal of his petition under the trust and
dispute resolution act(TEDRA), chapter 11.96A RCW. But his claims were or
could have been litigated in previous actions. And the position Leonard' takes in
his TEDRA petition is inconsistent with the position he asserted in a previous
action. We affirm.
1 We refer to members of the Umina family by their first names for ease of reference. We intend no disrespect. 75577-3-1/2
FACTS
Luke Lumina2 had four children: Leonard, Michael, Mary, and Kathryn. In
the 1970s, Luke created the Equestrian Trust. He appointed himself trustee and
his four children beneficiaries. Years later, Luke travelled abroad on a two year
mission. Before departing, he made arrangements for his sons to manage his
affairs. Luke amended the Equestrian Trust to add Leonard and Michael as co-
trustees. He also created a new trust, the LMMK Trust, and appointed Leonard
and Michael as co-trustees. In addition, Luke gave Leonard and Michael power
of attorney.
When Luke returned from his mission, he discovered that Leonard had
transferred property from the Equestrian Trust to the LMMK Trust and placed
property belonging to the LMMK trust under his unilateral control. Luke eventually
revoked Leonard's power of attorney, removed him as co-trustee of both trusts,
and essentially removed him as a beneficiary of the Equestrian Trust.3 Several
lawsuits followed. In 2010, a California court entered judgment for $229,500
against Leonard for unjust enrichment.
In 2016, Leonard filed a TEDRA petition. He asserted that the 2010
judgment arose from his conduct as trustee of the Equestrian Trust and, under
the terms of the trust, a trustee may not be held personally liable for his
management of the trust. Leonard sought an order requiring the trust to satisfy
2 Luke Lumina was formerly known as Anthony Umina.
3 Leonard is to receive $10 from the trust after Luke's death. CP at 25.
2 75577-3-1/3
the judgment and prohibiting enforcement of the judgment against his personal
assets.
In answer, Luke primarily asserted that Leonard's action was barred as
res judicata. He attached as exhibits the orders handed down in four previous
actions. These orders provide a summary of the previous litigation.
In 2005, Luke, Michael, Mary, and Kathryn filed a California petition for an
accounting, seeking a record of assets acquired by Leonard in his capacity as
trustee of the LMMK Trust. Leonard responded with his own request for an
accounting. Luke and Michael then filed a complaint against Leonard individually
and as trustee of the LMMK Trust. The complaint asserted fraud, breach of
fiduciary duty, unjust enrichment, and other claims. The California actions were
consolidated.
Meanwhile, Leonard filed a Massachusetts suit against Michael
individually and as trustee of the LMMK Trust and the Equestrian Trust.4 Id. Luke
responded by filing a Massachusetts complaint against Leonard individually and
as trustee of the LMMK Trust and the Equestrian Trust. This complaint asserted
claims of conversion, breach of contract, and breach of fiduciary duty. The
Massachusetts complaints were consolidated.
In 2007, a California Superior Court ruled that the LMMK Trust never
came into existence. In 2008, a jury found Leonard had been unjustly enriched
4 The Massachusetts action included allegations concerning two other Umina family trusts that are not at issue here.
3 75577-3-1/4
and awarded Luke damages of $229,500.5 These rulings were affirmed on
appeal. Luke filed a judgment lien against real estate held by Leonard.
The Massachusetts action was apparently stayed during the California
action. Following the California court of appeals decision, the Massachusetts
court granted Leonard's motion for summary judgment, ruling that Luke's claims
could have been litigated in the California action and were thus barred. The court
rejected Leonard's various counterclaims, including his claims that the
Equestrian Trust was irrevocable and that the assets of the LMMK Trust should
be distributed to Leonard and his siblings.
In 2015, Luke brought a fraudulent conveyance action against Leonard.
He asserted that Leonard fraudulently transferred his interest in real property to
his wife, Vicki, to shield the property from judgment. Leonard and Vicki denied
transferring title in an effort to avoid the judgment lien. They also stipulated that
the unjust enrichment judgment was a community debt and the real property at
issue was subject to the judgment lien. Based on this stipulation, the court ruled
that the property transfer failed to shield the property from judgment and Luke
thus failed to show injury. The court dismissed Luke's claim.
Luke relied on these previous judgments to contend that Leonard's claim
in the 2016 TEDRA petition was or could have been litigated in the series of
previous litigation. He also asserted that Leonard was judicially estopped from
5 The jury also found in favor of Luke on his other claims, but the court granted Leonard's motion for a new trial on these. The second jury returned a verdict for Leonard.
4 75577-3-1/5
disclaiming liability for the judgment in this action because, in the fraudulent
conveyance action, he stipulated that the judgment was a community debt.
Leonard objected that the previous rulings were inadmissible. He
reiterated his assertions that the 2010 judgment was based on his conduct as
trustee of the Equestrian Trust, the trust absolved trustees of personal liability for
obligations incurred in connection with trust business, and the trust was thus
liable for the judgment. Leonard asked the court to prohibit enforcement of the
judgment against his personal assets and/or order the Trust to satisfy the
judgment.
The trial court stated that the issue raised in Leonard's petition had been
"very fully litigated" and dismissed the petition. Verbatim Report of Proceedings
(VRP) at 6. Leonard appeals.
DISCUSSION
As an initial matter, Leonard asserts that the trial court erred in
considering the rulings from previous court actions. He argues that the rulings
were inadmissible because they were not authenticated. He also cites to ER 104,
401, and 402, and thus appears to challenge the rulings as irrelevant.
We review evidentiary decisions for abuse of discretion. Univ. of Wash.
Medical Center v. Dep't of Health, 164 Wn.2d 95,104, 187 P.3d 243(2008).
Evidence is generally admissible if it is relevant.
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FLED 00WIT-0F APPEALSIPV I STATE OF WASHINGTON
2017 SEP I I AM 10: 15
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
LEONARD UMINA, No. 75577-3-1 Appellant, DIVISION ONE V.
LUKE LUMINA, UNPUBLISHED OPINION
Respondent. FILED: September 11, 2017
SPEARMAN, J. — Several legal and equitable doctrines serve to avoid inconsistency and protect the finality of judgments. Under the doctrine of res
judicata, a party is barred from bringing a claim that was or could have been
litigated in a previous action. The doctrine of judicial estoppel bars a party from
gaining an advantage in a later proceeding by taking a position inconsistent with
that he asserted in an earlier proceeding.
Leonard Umina appeals the dismissal of his petition under the trust and
dispute resolution act(TEDRA), chapter 11.96A RCW. But his claims were or
could have been litigated in previous actions. And the position Leonard' takes in
his TEDRA petition is inconsistent with the position he asserted in a previous
action. We affirm.
1 We refer to members of the Umina family by their first names for ease of reference. We intend no disrespect. 75577-3-1/2
FACTS
Luke Lumina2 had four children: Leonard, Michael, Mary, and Kathryn. In
the 1970s, Luke created the Equestrian Trust. He appointed himself trustee and
his four children beneficiaries. Years later, Luke travelled abroad on a two year
mission. Before departing, he made arrangements for his sons to manage his
affairs. Luke amended the Equestrian Trust to add Leonard and Michael as co-
trustees. He also created a new trust, the LMMK Trust, and appointed Leonard
and Michael as co-trustees. In addition, Luke gave Leonard and Michael power
of attorney.
When Luke returned from his mission, he discovered that Leonard had
transferred property from the Equestrian Trust to the LMMK Trust and placed
property belonging to the LMMK trust under his unilateral control. Luke eventually
revoked Leonard's power of attorney, removed him as co-trustee of both trusts,
and essentially removed him as a beneficiary of the Equestrian Trust.3 Several
lawsuits followed. In 2010, a California court entered judgment for $229,500
against Leonard for unjust enrichment.
In 2016, Leonard filed a TEDRA petition. He asserted that the 2010
judgment arose from his conduct as trustee of the Equestrian Trust and, under
the terms of the trust, a trustee may not be held personally liable for his
management of the trust. Leonard sought an order requiring the trust to satisfy
2 Luke Lumina was formerly known as Anthony Umina.
3 Leonard is to receive $10 from the trust after Luke's death. CP at 25.
2 75577-3-1/3
the judgment and prohibiting enforcement of the judgment against his personal
assets.
In answer, Luke primarily asserted that Leonard's action was barred as
res judicata. He attached as exhibits the orders handed down in four previous
actions. These orders provide a summary of the previous litigation.
In 2005, Luke, Michael, Mary, and Kathryn filed a California petition for an
accounting, seeking a record of assets acquired by Leonard in his capacity as
trustee of the LMMK Trust. Leonard responded with his own request for an
accounting. Luke and Michael then filed a complaint against Leonard individually
and as trustee of the LMMK Trust. The complaint asserted fraud, breach of
fiduciary duty, unjust enrichment, and other claims. The California actions were
consolidated.
Meanwhile, Leonard filed a Massachusetts suit against Michael
individually and as trustee of the LMMK Trust and the Equestrian Trust.4 Id. Luke
responded by filing a Massachusetts complaint against Leonard individually and
as trustee of the LMMK Trust and the Equestrian Trust. This complaint asserted
claims of conversion, breach of contract, and breach of fiduciary duty. The
Massachusetts complaints were consolidated.
In 2007, a California Superior Court ruled that the LMMK Trust never
came into existence. In 2008, a jury found Leonard had been unjustly enriched
4 The Massachusetts action included allegations concerning two other Umina family trusts that are not at issue here.
3 75577-3-1/4
and awarded Luke damages of $229,500.5 These rulings were affirmed on
appeal. Luke filed a judgment lien against real estate held by Leonard.
The Massachusetts action was apparently stayed during the California
action. Following the California court of appeals decision, the Massachusetts
court granted Leonard's motion for summary judgment, ruling that Luke's claims
could have been litigated in the California action and were thus barred. The court
rejected Leonard's various counterclaims, including his claims that the
Equestrian Trust was irrevocable and that the assets of the LMMK Trust should
be distributed to Leonard and his siblings.
In 2015, Luke brought a fraudulent conveyance action against Leonard.
He asserted that Leonard fraudulently transferred his interest in real property to
his wife, Vicki, to shield the property from judgment. Leonard and Vicki denied
transferring title in an effort to avoid the judgment lien. They also stipulated that
the unjust enrichment judgment was a community debt and the real property at
issue was subject to the judgment lien. Based on this stipulation, the court ruled
that the property transfer failed to shield the property from judgment and Luke
thus failed to show injury. The court dismissed Luke's claim.
Luke relied on these previous judgments to contend that Leonard's claim
in the 2016 TEDRA petition was or could have been litigated in the series of
previous litigation. He also asserted that Leonard was judicially estopped from
5 The jury also found in favor of Luke on his other claims, but the court granted Leonard's motion for a new trial on these. The second jury returned a verdict for Leonard.
4 75577-3-1/5
disclaiming liability for the judgment in this action because, in the fraudulent
conveyance action, he stipulated that the judgment was a community debt.
Leonard objected that the previous rulings were inadmissible. He
reiterated his assertions that the 2010 judgment was based on his conduct as
trustee of the Equestrian Trust, the trust absolved trustees of personal liability for
obligations incurred in connection with trust business, and the trust was thus
liable for the judgment. Leonard asked the court to prohibit enforcement of the
judgment against his personal assets and/or order the Trust to satisfy the
judgment.
The trial court stated that the issue raised in Leonard's petition had been
"very fully litigated" and dismissed the petition. Verbatim Report of Proceedings
(VRP) at 6. Leonard appeals.
DISCUSSION
As an initial matter, Leonard asserts that the trial court erred in
considering the rulings from previous court actions. He argues that the rulings
were inadmissible because they were not authenticated. He also cites to ER 104,
401, and 402, and thus appears to challenge the rulings as irrelevant.
We review evidentiary decisions for abuse of discretion. Univ. of Wash.
Medical Center v. Dep't of Health, 164 Wn.2d 95,104, 187 P.3d 243(2008).
Evidence is generally admissible if it is relevant. ER 402. The requirement of
authentication is satisfied by evidence sufficient to support a finding that the
evidence is what its proponent claims. ER 901(a).
5 75577-3-1/6
In this case, the rulings from previous court actions are relevant to
determine whether Leonard's claim has already been litigated and whether the
claim is barred by judicial estoppel. The rulings bear court stamps or other indicia
of authenticity. The trial court did not abuse its discretion in considering the
exhibits.
Leonard next challenges the dismissal of his TEDRA petition. He asserts
that his petition concerned interpretation of a trust provision, an issue that is
expressly within the trial court's authority under TEDRA. Luke contends that the
trial court properly dismissed the petition because several legal theories require
that result. Because the trial court's decision appears to be based on res
judicata, we first examine whether previous litigation precluded Leonard's
petition.
Whether an action is barred by res judicata is a question of law that we
review de novo. Enslev v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99(2009).
The doctrine of res judicata bars a claim that was or could have been litigated in
a previous action. Id. at 899 (citing Marino Prop. Co. v. Port Comm'rs, 97 Wn.2d
307, 312, 644 P.2d 1181 (1982)). The doctrine applies where the current and
previous actions have the same (1) persons and parties;(2) causes of action;(3)
subject matter; and (4)"quality of the persons for or against whom the claim is
made." Id. at 902(quoting Landry v. Luscher, 95 Wn. App. 779, 783, 976 P.2d
1274 (1999)). Only the first and second elements appear to be in dispute.
6 75577-3-1/7
Leonard contends that res judicata does not apply because the parties are
not the same. He asserts that the Equestrian Trust is a party to the present
action but was not a party in the 2010 dispute. This claim is without merit.
Leonard, Luke, Michael, Mary, and Kathryn are parties to Luke's TEDRA
petition and were parties in the previous litigation. The TEDRA petition also lists
Dallas Jolley, a co-trustee of the Equestrian Trust, as a notice party. Jolley was
not named in the previous litigation. But, his only interest in the dispute is as a
co-trustee and that interest was adequately represented by the named parties.
See Ensley, 152 Wn. App. at 902 (citing Kuhlman v. Thomas, 78 Wn. App. 115,
121,897 P.2d 365 (1995)); Feature Realty, Inc., v. Kirkpatrick & Lockhart
Preston Gates Ellis, LLP, 161 Wn.2d 214, 224,164 P.3d 500(2007). The parties
are the same.
Leonard also asserts that his petition presents a novel issue. He thus
appears to argue that the causes of action are not the same. This argument also
fails.
To determine whether the causes of action are the same, we consider "(1)
whether the rights or interests established in the prior judgment would be
destroyed or impaired by the prosecution of the second action;(2) whether
substantially the same evidence is presented in the two actions;(3) whether the
suits involved infringement of the same right; and (4) whether the two suits arise
out of the same transactional nucleus of facts." Ensley, 152 Wn. App. at 903
(quoting Pederson v. Potter, 103 Wn. App. 62, 72, 11 P3d 833(2000)). Each of
these factors weighs against Leonard.
7 75577-3-1/8
The claims in this action and the previous litigation involve Leonard's
alleged appropriation of trust property. The claims arise from the same
"transactional nucleus of facts." Id. Leonard asserts here that the alleged
appropriation arose from his conduct as trustee. To examine this claim, the court
would have to consider the same evidence considered in the previous litigation.
The current and previous litigation involve the same rights and responsibilities:
the right to trust property and the liability for diminution of that property. The
California judgment established a right for Luke to receive restitution in the
amount that Leonard was unjustly enriched. This right would be impaired by the
order Leonard seeks in this action. The causes of action are the same. And
because Leonard makes no argument that the third and fourth elements are not
met, we conclude that the claim in Leonard's TEDRA petition was or could have
been litigated in the previous actions. The petition is barred as res judicata.6
Furthermore, even if Leonard had not already had opportunity to litigate
his claim, his petition was barred by judicial estoppel. Judicial estoppel precludes
a party from asserting a position in one proceeding and later seeking an
advantage by taking a clearly inconsistent position. Miller v. Campbell, 164
Wn.2d 529, 539, 192 P.3d 352(2008). The doctrine applies where (1)the party's
later position is clearly inconsistent with his earlier position;(2) accepting the
later position would create the perception that either the first or the second court
6 Leonard contends that, if the trial court found Luke's res judicata argument persuasive, it should have ordered a further hearing on the matter. He asserts that his reply brief and argument at hearing were insufficient for him to be fully heard. This argument is without merit.
8 75577-3-1/9
was misled; and (3)the party would derive an unfair advantage if not estopped.
Id.
In the fraudulent conveyance action, Leonard stipulated that the judgment
was a community debt and the real property at issue was subject to the judgment
lien. In his TEDRA petition, Leonard seeks an order requiring the trust to satisfy
the judgment and prohibiting enforcement against his personal assets. His later
position is clearly inconsistent with his earlier position. Accepting his position in
this action would create the perception that the court was misled in the previous
action. And, having prevailed in the fraudulent conveyance action by stipulating
to personal liability, Leonard would receive an unfair advantage if he were able to
escape personal liability through his TEDRA petition. The petition is barred by
judicial estoppel. Because the doctrines of res judicata and judicial estoppel both
support the dismissal of Leonard's petition, we do not reach Luke's arguments
concerning collateral estoppel and the full faith and credit clause.
Leonard also challenges the trial court's award of attorney fees to Luke.
He contends that the trial court's order was unreasonable because he brought
his petition in good faith. He also asserts that the fees awarded were excessive.7
The trial court may award reasonable attorney fees "as the court
determines to be equitable." RCW 11.96A.150(1). We review an award of
attorney fees for abuse of discretion. Brand v. Dep't of Labor & Indus., 139
7 Leonard also asserts that Luke's motion for attorney fees was untimely. This argument is without merit. Luke requested attorney fees in his response to Leonard's TEDRA petition and the trial court's order dismissing the petition includes the grant of attorney fees to Luke.
9 75577-3-1/10
Wn.2d 659, 665, 989 P.2d 1111 (1999). We will not reverse unless the award is
manifestly unreasonable or based on untenable grounds. içj.
In this case, the trial court found that an award of reasonable attorney fees
was appropriate because Leonard's petition was unreasonable. The court found
that the fees were reasonable because they were based on necessary work
performed at a customary rate. There was no abuse of discretion.
Affirmed.
WE CONCUR: c 6.?(,T