IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHELLE MERCERI, No. 72615-3-1
Appellant, DIVISION ONE
v.
UNPUBLISHED OPINION SHAWN CASEY JONES,
Respondent. FILED: March 21, 2016
Leach, J. — In this quiet title and damages action, Michelle Merceri
appeals the trial court's dismissal of her claims against Shawn Casey Jones.
Merceri challenges the trial court's denial of any equitable relief, its refusal to
apply judicial estoppel against Jones, its imposition of sanctions against her and
her attorneys, and its denial of her motions for reconsideration. In response,
Jones requests attorney fees for having to defend a frivolous appeal. Because
the trial court did not abuse its discretion in rejecting Merceri's proposed
equitable relief or her judicial estoppel argument or in sanctioning her and her
attorneys, we affirm the trial court. But because she raises debatable issues on
appeal, we decline to award fees to Jones. NO. 72615-3-1/2
FACTS
Substantive Facts
In 2006, Merceri found a house for sale in Hunt's Point, Washington (the
Property). She hoped to buy the house, remodel it, and sell it at a profit. To
make her loan application more attractive, Merceri asked Shawn Casey Jones to
cosign the mortgage loan and be on title to the Property. Jones agreed. In
exchange, Merceri promised to pay Jones $15,000. Merceri agreed to pay the
loan and all other costs associated with the Property. Jones agreed that Merceri
owned any equity in the Property and any profits from its sale. Merceri also
agreed to refinance or sell the house soon after buying it, thus relieving Jones of
liability for the loan. Finally, at any sale or refinance, Jones agreed to quitclaim
his interest to Merceri, ending his involvement with the Property.
In their loan application, Merceri and Jones misrepresented that Jones
intended to live in the house. Without Jones's knowledge, Merceri inflated the
purchase price of the home by $1,550,000 to qualify for a larger loan.
Countrywide Bank loaned them $2,800,000 (the Loan) to purchase the Property
and secured payment with a deed of trust in favor of Countrywide. The seller
conveyed title to Merceri and Jones. Merceri later obtained a second loan
secured by the Property, this one for $200,000. She used the loan proceeds to NO. 72615-3-1/3
remodel. She moved into the house in 2008 and has lived there since. Jones
has never contributed financially to the Property.
Bank of America took over the Loan from Countrywide and holds Jones
liable for it. Merceri stopped making payments on both loans in 2008. She filed
for bankruptcy in November 2010, valuing the Property on an asset schedule at
$1,600,000 and encumbered by $3,946,129 of debt.
In 2007 and 2008, several homeowners sued Merceri, Jones, and other
partners, who had bought the plaintiffs' homes in a mortgage rescue operation.
Those lawsuits settled by 2010. During mediation, Merceri agreed to repay
Jones for a $140,000 debt she admitted she owed him because she anticipated a
refinancing that would pay off the Loan and provide her cash to make this
payment. Jones agreed to quitclaim his interest in the Property on receipt of the
$140,000. But "Merceri's refinance did not close, Merceri did not pay Jones, and
therefore Jones did not quit claim his interest."
Also in 2010, Jones and two other plaintiffs sued Avista Escrow Services,
alleging that Avista employees notarized the plaintiffs' forged signatures on
closing documents for several pieces of real estate, including the Property. The
plaintiffs moved for default, asserting that Jones stood to lose $2,000,000 from a
short sale of the Property because debts encumbering it exceeded the expected NO. 72615-3-1/4
sale proceeds in that amount. The court included this amount in the $3,400,000
it awarded the plaintiffs as a default judgment.
Procedural Facts
Merceri sued Jones in 2013 to quiet title in the Property and recover
damages. Her complaint also requested "such . . . relief as may be just and/or
equitable in the premises." Merceri claimed that Jones had slandered her title to
the Property by refusing "to release his 'ownership interest.'" She alleged that
Jones had admitted that his interest in the Property "has been satisfied in full."
After Merceri filed her complaint, Jones twice offered to cooperate to sell the
Property as long as he was released from the Loan. Merceri refused.
The trial court granted summary judgment for Jones on Merceri's slander
of title claim but not her quiet title claim. After a trial, the trial court found the
slander of title claim baseless and sanctioned Merceri and her attorneys for
asserting it.
In discovery, Merceri failed to answer requests for admission (RFAs) that
asked her to admit that Jones never caused the failure of any sale or refinance.
She also failed to answer interrogatories asking her to state any reasons for
denying the RFAs. The trial court therefore deemed the facts described in the
RFAs admitted.
-4- NO. 72615-3-1/5
Less than a month before trial, Merceri moved to disqualify Jones's
attorney, Matt Adamson, with a hearing on one day's notice. Merceri alleged that
both Jones and Adamson engaged in a pattern of "non-intimate partner abuse."
She called Adamson a "tool" for Jones's harassment of her. And she attached a
"Patterns of Domestic Violence checklist." She based these claims on
Adamson's request to the lender to accept a deed in lieu of foreclosure from
Jones, which would have released Jones from liability on the Loan while taking
Jones off title. The trial court denied these motions. The court later granted
Jones and Adamson's motion for sanctions in part based on the motion to
disqualify, finding "Ms. Merceri and her counsel engaged in bad faith and abusive
litigation tactics and unnecessarily ran up the costs of this litigation."
The parties tried the quiet title claim to the court in May 2014. In Merceri's
closing argument, she asked the court, for the first time, to require Jones to
execute a quitclaim deed to be held in escrow pending Jones's release from
liability for the Loan. Once the lender released Jones, the escrow agent would
record the quitclaim deed.
The trial court found that Merceri wishes to remain in the house and
believes that if the court removed Jones from the title, she would be able to
refinance through the Washington Foreclosure Act Mediation Program. The trial
court also found that Merceri admitted these facts: She consented to Jones NO. 72615-3-1/6
being on title to the Property. The two have no enforceable contract with respect
to how or when to sell the Property or refinance the Loan. Jones never caused
the failure of any refinance of the Loan. And Jones has never caused the failure
of any sale of the Property. The trial court found that "Jones has a legitimate
interest in staying on title until the Loan is repaid in full, or until Jones is
otherwise released from liability by the lender or as a matter of law."
The trial court held that it would be inequitable to remove Jones from the
title before his liability on the Loan is discharged. The court also rejected
Merceri's "springing quitclaim" remedy. The court said it lacked the power to
order this relief and, even if it had the power, "such a remedy would not be
appropriate." Accordingly, the court dismissed all of Merceri's remaining claims
with prejudice.
The trial court awarded Jones $24,338 in fees and sanctions. These
comprised $4,000 in fees as CR 11 sanctions from Merceri's attorneys, Marc
Stern and Susan Fullmer, and $20,338 in fees, costs, and expenses from Stern,
Fullmer, and Merceri, jointly and severally, under RCW4.84.185.1
1 Jones had requested $49,555 in attorney fees, an amount the court found to be reasonable though it declined to award the full amount. NO. 72615-3-1/7
STANDARD OF REVIEW
This court reviews de novo a trial court's decision about the
appropriateness of some form of equitable relief.2 Where equitable relief is
appropriate, "trial courts have broad discretionary powers to fashion equitable
remedies and we review the trial court's consideration of the equities for abuse of
discretion."3 This court "may affirm on any basis supported by the record,
whether or not the trial court considered that basis."4
This court also reviews a trial court's application of judicial estoppel and
award of sanctions for abuse of discretion.5 A trial court abuses its discretion if it
makes a manifestly unreasonable decision or exercises its discretion on
untenable grounds or for untenable reasons.6
This court reviews findings of facts to see if substantial evidence supports
them.7
2 Newport Yacht Basin Ass'n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56, 77, 277 P.3d 18 (2012). 3 Arzola v. Name Intelligence, Inc., 188 Wn. App. 588, 596, 355 P.3d 286 (2015). 4 Amy v. Kmart of Wash. LLC, 153 Wn. App. 846, 868, 223 P.3d 1247 (2009) (upholding trial court's award of fees and costs); State v. Grundy, 25 Wn. App. 411, 415-16, 607 P.2d 1235 (1980) (appellate court must affirm on any ground supported by record). 5 Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007); Stiles v. Kearney, 168 Wn. App. 250, 260, 277 P.3d 9 (2012). 6 Anfinson v. FedEx Ground Package Svs.. Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012). 7 In re Dependency of Schermer, 161 Wn.2d 927, 939-40, 169 P.3d 452 (2007). -7- NO. 72615-3-1/8
ANALYSIS
Denial of Equitable Relief
The trial court made two conclusions of law about the relief Merceri
requested in closing arguments: that the trial court did not have the authority to
order that relief and that even if it did have the authority, it would not do so
because that relief "would not be appropriate." Merceri challenges both these
conclusions. Because we find that the trial court did not abuse its discretion in
refusing to order a "springing quitclaim," we do not decide whether the trial court
had the power to do so.
Merceri argues that the trial court had a duty to resolve the difficult
situation she and Jones presented. She asserts that Jones agreed with the
general concept of the "springing quitclaim" and that he objected only to her
failure to request it in the complaint. She further argues that leaving the problem
for resolution through the parties' cooperation was hopeless and the trial court
knew it. She argues the court based its decision not to grant other equitable
relief on an error of law that it lacked power to do anything other than quiet title in
Merceri or dismiss her case.
The trial court did not abuse its discretion in denying Merceri equitable
relief. The trial court did not make a manifestly unreasonable decision because,
-8- NO. 72615-3-1/9
as Jones points out, it was not a "'view that no reasonable person would take.'"8
Before trial, Jones offered to cooperate in getting his liability released. From the
complaint to the end of trial, Merceri did not ask the court for any relief except to
remove Jones from title. She asked for a "contingent quitclaim" deed for the first
time in closing arguments. She did not explain or offer evidence about how or
when the contingency of Jones's release from the Loan would occur, whether
refinancing was financially feasible, or what consequences would flow from her
proposal. The trial court had discretion to determine whether the "springing
quitclaim" would be inequitable, and under these circumstances a reasonable
person could conclude that it would be. The trial court had no duty to order this
relief.
Dismissal with Prejudice
Merceri contends she has other claims she can bring, including partition
and breach of fiduciary duty, which sound in equity. Because she asked in her
complaint for whatever relief the court found equitable, she contends that a
dismissal with prejudice will prevent her from resolving the matter in the future.
Merceri asks that if this court affirms, it clarify that Merceri retains the right to
bring other and different claims against Jones.
8 Mayer v. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132 P.3d 115 (2006) (internal quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). -9- NO. 72615-3-1/10
"[A] dismissal 'with prejudice' appropriately follows an adjudication on the
merits, while a dismissal 'without prejudice' means that the existing rights of the
parties are not affected by the dismissal but are as open to legal controversy as if
no judgment or dismissal had been entered."9 When a trial court enters fact
findings and dismisses a claim with prejudice, it indicates that it weighed the
evidence and decided the merits.10
Merceri cites no authority supporting a dismissal of her claims on the
merits and after trial without prejudice. And this court is not in a position to
decide by declaration which claims Merceri can bring in future cases and which
will be barred by estoppel doctrines.11 We therefore reject Merceri's request.
Judicial Estoppel
Next, Merceri contends that the trial court abused its discretion in refusing
to apply judicial estoppel to bar Jones's defense.
"Judicial estoppel is an equitable doctrine that precludes a party from
asserting one position in a court proceeding and later seeking an advantage by
9 Parker v. Theubet. 1 Wn. App. 285, 291, 461 P.2d 9 (1969). 10 Banchero v. City Council, 2 Wn. App. 519, 525, 468 P.2d 724 (1970); Schermer, 161 Wn.2d at 939-40. 11 The first requirement for a "judiciable controversy is ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement." Bellewood No. 1. LLC v. LOMA, 124 Wn. App. 45, 49, 97 P.3d 747 (2004). -10- NO. 72615-3-1/11
taking a clearly inconsistent position."12 "The positions taken must be
diametrically opposed to one another" for the doctrine to apply. The rule is
meant "to protect the integrity of the judicial process."13 It is not designed to
protect litigants.14 Courts look at three factors to determine if judicial estoppel
applies:
(1) whether a party's later position is clearly inconsistent with its earlier position, (2) whether judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled, and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. These factors are not an exhaustive formula and additional considerations may guide a court's decision.1151
Here, Jones told the court in a different lawsuit, Jones v. Avista Escrow
Services LLC, that his signature on the Property's loan documents was forged.
He obtained a default judgment that included $2,044,171 for the difference
between his total liability and the net proceeds realized from the sale of the
Property to be applied to the debt. Jones testified in this case, however, that he
either signed the documents or authorized his signature. Thus, Merceri
contends, the trial court erred in allowing Jones to present evidence that he is an
12 Kellar v. Estate of Kellar. 172 Wn. App. 562, 579-80, 291 P.3d 906 (2012). 13 Kellar, 172 Wn. App. at 580. 14 Johnson v. Si-Cor Inc., 107 Wn. App. 902, 907-08, 28 P.3d 832 (2001). 15 Kellar, 172 Wn. App. at 580 (internal citation omitted). -11- NO. 72615-3-1/12
owner of the house, liable for the note, or in any other way that would be
inconsistent with his signature being forged.
The first judicial estoppel factor favors Jones. In his complaint in Avista,
Jones said his signature was forged on the loan documents for the Property.
Here, he testified that he "authorized" Merceri to sign for him but only for a
$2,500,000 loan, not the $2,800,000 one they received. Those positions may be
incoherent, but they are not "diametrically opposed."16 In both Avista and this
case, Jones represented to the court that he is on title to the Property and liable
for the Loan.
The second factor does not help Merceri either. The judgment Jones
received in Avista was a default judgment based on a complaint that asserted, as
he does here, that he is liable for the Loan. The potential damages the Avista
court calculated were the difference between the total loan debt and proceeds
likely realized from a sale of the Property. The record does not support Merceri's
assertion that Jones convinced the trial court here to dismiss her quiet title claim
"because he attested that he authorized the loan." The trial court made no such
finding. Instead, it found that Jones was on title to the Property and Bank of
America was holding him liable. Because that finding is consistent with Jones's
16 See Kellar, 172 Wn. App. at 581. The trial court noted, "[Tjhere is no authority to have somebody sign your name on real estate documents." -12- NO. 72615-3-1/13
position in Avista, there is no risk of creating a perception that Jones misled
either court.
Lastly, and for the same reasons that Jones's positions are not
inconsistent, he would not derive an unfair advantage if not estopped. The
lender holds Jones liable, and he has a legitimate interest in staying on title until
the Loan is repaid or he is released.
Because none of the judicial estoppel factors favor Merceri, the trial court
did not abuse its discretion in declining to apply the doctrine.
Sanctions
Next, Merceri asks this court to reverse the trial court's award of sanctions
against her and her trial attorneys, Stern and Fullmer.
Findings of Fact
Merceri challenges the trial court's findings that her slander of title claim
was not supported by any evidence of a false statement and her motion to
disqualify was "made in bad faith and without a reasonable basis." We reject
these challenges as substantial evidence supports both findings.
First, Merceri does not challenge the trial court's findings that she admitted
that she consented to Jones being on title to the Property and that Jones never
caused the failure of any refinance of the Loan or sale of the Property. Those
-13- NO. 72615-3-1/14
admissions alone are substantial evidence that Merceri's slander of title claim
was unsupported.
Second, substantial evidence also supports the trial court's finding that
Merceri made her motion to disqualify "in bad faith and without a reasonable
basis." Merceri does not dispute the facts underlying that conclusion either: that
she moved to disqualify Adamson on only one day's notice, accusing him of
being a "tool" for nonintimate partner harassment and abuse because he
attempted to negotiate a deed in lieu of foreclosure that would have brought an
end to this lawsuit. Her attempts to recast her and her attorneys' actions as
"intemperate in the heat of battle" and their belief that Adamson was working
contrary to their interests do not weaken that evidence.17
Conclusions of Law
Merceri also challenges the trial court's conclusions of law that her slander
of title claim was factually and legally baseless and her quiet title action legally
baseless.
CR 11 authorizes a court to impose "an appropriate sanction" on parties,
counsel, or both if a pleading is baseless, meaning it is factually or legally
frivolous, and the attorney "failed to conduct a reasonable inquiry into the factual
17 As Jones notes, Merceri has never specified her basis for concern about Adamson's conduct and potential status as a witness. -14- NO. 72615-3-1/15
and legal basis of the claim."18 RCW 4.84.185 provides a trial court with the
power to sanction a party for reasonable expenses where all the claims in the
lawsuit are frivolous.19 A claim "'is frivolous when it cannot be supported by any
rational argument on the law or facts.'"20 Such "[sjanctions are against the party,
not that party's attorney."21 Trial courts also have "inherent authority to sanction
litigation conduct. . . upon a finding of bad faith," e.g., delay or disruption.22
Where the trial court awards fees which are inappropriate under the authority it
cites but appropriate under different authority, this court may uphold the
sanctions.23
In sanctioning Merceri under CR 11 and RCW 4.84.185, the trial court
concluded her slander of title claim was legally and factually baseless and her
quiet title claim legally baseless. The trial court did not abuse its discretion in
reaching these conclusions.
18 Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992). 19 Stiles. 168 Wn. App. at 260; Biggs v. Vail, 119 Wn.2d 129, 133, 830 P.2d 350 (1992). 20 Stiles, 168 Wn. App. at 260 (internal quotation marks omitted) (quoting Skimming v. Boxer. 119 Wn. App. 748, 756, 82 P.3d 707 (2004)). 21 Stiles, 168 Wn. App. at 260. 22 State v.S.H.. 102 Wn. App. 468, 475, 8 P.3d 1058 (2000). 23 Amy, 153 Wn. App. at 868. -15- NO. 72615-3-1/16
First, as discussed above, Merceri does not challenge the trial court's
findings that she admitted facts that are dispositive of her slander of title claim.24
Nor does she contend that she did not know these facts before filing her
complaint for slander of title and seeing it through to summary judgment. The
trial court thus did not abuse its discretion in finding her slander of title claim to
be legally and factually baseless.
Merceri's challenge to the trial court's finding that her quiet title claim was
legally baseless is also meritless. The trial court found that "[t]he material facts
were undisputed" and Merceri "had no plausible legal argument as to why a party
can ask another to co-sign a loan and be on title and then sue to remove them
from title while the loan is outstanding." Merceri contends that the quiet title
issue was "hard fought" throughout in the trial court and notes that the court
denied summary judgment on the issue. But the trial court made unchallenged
findings of fact that Merceri admitted Jones did not attempt to hold the Property
"hostage" and Jones had a legitimate interest in staying on title. The record thus
supports the trial court's conclusion of law, and the court did not abuse its
discretion.
24 Merceri admitted she consented to Jones being on title to the Property and Jones never caused the failure of any refinance of the Loan or sale of the Property. -16- NO. 72615-3-1/17
Further, the trial court found, as CR 11 requires, that Merceri's attorneys
did not conduct a reasonable inquiry into the facts supporting their filings. The
trial court stated, "It is hard to imagine how attorneys can think it is acceptable to
move to disqualify opposing counsel" under the circumstances. It recounted the
litigation tactics employed by the attorneys and concluded their "allegations were
plainly made in bad faith and without a reasonable basis." These findings of fact
satisfy CR 11.25
RCW 4.84.185 Limitations
RCW 4.84.185 allows for sanctions against parties but not attorneys.
Merceri does not raise the issue here, nor did her trial attorneys Stern and
Fullmer raise it below, presumably due to conflicts. Nonetheless, the trial court
erred in holding Stern and Fullmer liable for fees under RCW 4.84.150.
This court can affirm sanctions on any basis supported by the record,
however.26 The trial court found that Merceri's slander of title claim was legally
and factually baseless and her quiet title claim legally baseless. As discussed
above, those findings were not an abuse of discretion and were sufficient to
25 Compare Harrington v. Pailthorp. 67 Wn. App. 901, 913, 841 P.2d 1258 (1992) (holding that finding attorney "'should have known that the claims he advanced were without merit'" is equivalent to finding attorney failed to conduct a reasonable inguirv). with N. Coast Elec. Co. v. Selig, 136 Wn. App. 636, 649, 151 P.3d 211 (2007) (holding CR 11 not satisfied where trial court "did not state with specificity [attomeyj's sanctionable conduct"). 26 Amy, 153 Wn. App. at 868. -17- NO. 72615-3-1/18
support CR 11 sanctions. The court made an unchallenged finding that $49,555
in fees and $4,338 in expenses were reasonable. The trial court thus had
authority under CR 11 to sanction Stern and Fullmer, as well as Merceri, $24,338
in fees, costs, and expenses. We affirm these sanctions even though the trial
court cited the wrong authority in ordering them.
Lastly, Merceri challenges the timeliness of Jones's motion for RCW
4.84.185 fees and costs, filed 31 days after the court's final order. Because the
thirtieth day, July 6, 2014, fell on a Sunday, CR 6(a) allowed Jones until the next
day to file his motion.27 He timely filed the July 7 motion.28
Motions for Reconsideration
Merceri also argues that the trial court erred in denying her motions for
reconsideration.29 In addition to reasserting the merits of her claims, Merceri
claims the trial court should have considered "new evidence" that the real estate
industry recognizes the concept of a contingent quitclaim deed and that Jones
perjured himself.
"We review a trial court's denial of a motion for reconsideration and its
decision to consider new or additional evidence presented with the motion to
27 See N. Coast Elec. Co.. 136 Wn. App. at 650. 28 We need not resolve whether the time limit ran from the court's entry of findings of fact and conclusions of law or its final judgment, which was entered in August 2014. 29 See CR 59(a). -18- NO. 72615-3-1/19
determine if the trial court's decision is manifestly unreasonable or based on
untenable grounds."30 Merceri does not contend that the trial court's decisions to
reject her motions for reconsideration violated this standard. Nor could she:
whether the real estate industry accepts "springing quitclaims" was never at
issue, and the trial court repeatedly questioned and rejected the relevance of
Jones's contradictory statements about forgeries. The trial court did not abuse
its discretion by denying her motions for reconsideration.
Fees and Costs on Appeal
Finally, Jones contends that this appeal is frivolous and this court should
award him attorney fees and costs for having to defend it.
Under RAP 18.9, this court may sanction a party who files a frivolous
appeal. An appeal is frivolous when it "presents no debatable issues upon which
reasonable minds might differ, and ... is so devoid of merit that there is no
possibility of reversal."31 If a party raises only one debatable issue, the appeal is
not frivolous.32 This court must examine the record as a whole and resolve
doubts in favor of the appellant.33
30 Martini v. Post, 178 Wn. App. 153, 161, 313 P.3d 473 (2013). 31 Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr'gs Bd.. 170 Wn.2d 577, 580, 245 P.3d 764 (2010). 32 Advocates for Responsible Dev.. 170 Wn.2d at 580-81. 33 Advocates for Responsible Dev.. 170 Wn.2d at 580-81. -19- NO. 72615-3-1/20
Merceri may be correct that the trial court erred in finding it lacked the
power to order her requested relief. Although the trial court did not abuse its
discretion in rejecting that relief, Merceri's claim was at least "debatable." Her
argument for judicial estoppel is also "debatable," though meritless, because
Jones's assertions in different court proceedings were arguably inconsistent. We
thus decline to award Jones fees under RAP 18.9.
CONCLUSION
Because the trial court did not abuse its discretion in declining to order
Merceri's requested relief, declining to apply judicial estoppel against Jones, and
finding that Merceri's claims were baseless, we affirm the trial court. Since Merceri raises debatable issues on appeal, however, we decline to award Jones
attorney fees for this appeal.
/^a^^/( */ WE CONCUR:
^oX.X
-20-