FILED NOVEMBER 20, 2024 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
Mine Holding Trust, ) ) No. 39623-1-III Respondent, ) ) v. ) ) Keldon Pavlish and Marianne Pavlish, ) PUBLISHED OPINION husband and wife, and David P. Boswell, ) and all other persons or parties unknown ) claiming any right, title, estate, lien or ) interest in the real estate described in the ) complaint adverse to Plaintiff’s ownership ) or any cloud on Plaintiff’s title. ) ) Appellants. )
FEARING, J. — A byzantine trail of financial swindling, entity obscuring, asset
veiling, and litigation finessing leading back two decades and extending into two lawsuits
precedes this appeal. The principal question underlying many convoluted issues
presented in this appeal is whether a settlor’s trust created by a judgment debtor who
committed fraud can remove two encumbrances filed on the trust’s land. Conversely,
must the trust’s trustee file the quiet title action to eliminate the encumbrances? The
judgment creditors filed the property liens in an attempt to collect the judgment amount.
Underlying the principal question are numerous questions concern legal standing, trusts, No. 39623-1-III, Mine Holding Trust v. Pavlish
real property transfers, collateral estoppel, res judicata, preparation of appeal briefs, and
abandonment of assignments of error. The superior court ruled in favor of the trust. We
hold that the trust lacks standing to maintain this suit, vacate the order to quiet title, and
remand to the superior court for further proceedings. Assuming this court ever reviews
the other issues on appeal, we will do so another day.
FACTS
This lawsuit arises from a mendacious real estate transaction between Keldon and
Marianne Pavlish, the defendants, and Elden and Joan Sorensen. The Sorensens have
committed fraud, not only against the Pavlishes, but also against a bank, if not additional
parties. The Sorensens employed many trusts, including plaintiff Mine Holding Trust
(MHT), in furtherance of their dishonest dealings. In an earlier lawsuit, the Pavlishes
procured a judgment against Elden and Joan Sorensen, if not one or more trusts. As
usually happens with judgments against a swindler, the Pavlishes unsuccessfully
attempted to collect their judgment, and thus the couple filed a lien on property owned by
MHT in Cheney. MHT brings this suit to remove the encumbrances from the Cheney
property, which we label the “disputed property.” Our narration of the facts begins with
the Sorensens’ fraudulent transaction with the Pavlishes and ends with a more recent
lawsuit involving the two couples.
In February 2000, Elden Sorensen contacted Keldon and Marianne Pavlish about
selling the couple a commercial parcel located on First Street in Cheney. We refer to this
2 No. 39623-1-III, Mine Holding Trust v. Pavlish
property as the “First Street property.” The First Street property is not the parcel subject
to this lawsuit. Like all accomplished confidence men, Sorensen represented himself as
trustworthy and told the Pavlishes he would give them an offer they could not refuse.
Sorensen added that he was an experienced real estate agent with broad experience in the
sale of real property. Sorensen represented that he controlled the property’s owner, Vine
Holding Trust (VHT). Sorensen insisted that, with his knowledge, he would prepare the
documents necessary for the sale.
Before February 16, 2000, the title to the First Street property identified Elden
Sorensen and his wife, Joan, as owners. On February 16, 2000, the Sorensens conveyed
the property to VHT by a warranty deed, which deed was recorded on March 14.
On May 8, 2000, VHT, as seller, and Keldon and Marianne Pavlish, as buyers,
entered a real estate contract for the sale of the First Street property. Elden Sorensen
signed on behalf of VHT. The real estate contract mandated that the Pavlishes pay
monthly installments directly to Sorensen. The contract precluded payments to VHT.
Neither party recorded the real estate contract.
On May 8, 2000, Keldon and Marianne Pavlish took possession of the First Street
property. The Pavlishes thereafter timely tendered each contract payment. On June 14,
2001, VHT reconveyed the First Street property to Elden and Joan Sorensen by warranty
deed filed in the Spokane County Auditor’s office.
3 No. 39623-1-III, Mine Holding Trust v. Pavlish
In July 2003, Elden and Joan Sorensen applied for a loan with Sterling Savings
Bank. The Sorensens offered the First Street property to the bank as collateral for the
loan. When applying for the loan, the Sorensens altered and forged the real estate sales
contract between Keldon and Marianne Pavlish and VHT and deceitfully presented the
sales contract to the bank as a lease. The bank issued a loan for $138,000. The
Sorensens duplicitously executed a deed of trust encumbering the First Street property
and an assignment of fabricated rents from the property to the bank.
We move now from the First Street property to another Cheney parcel that we
have already labeled as the “disputed property.” On August 1, 2003, the Sorensen Living
Trust (SLT), through trustees Elden and Joan Sorensen, deeded the disputed property to
MHT. MHT recorded the deed on August 15, 2003. Also in August 2003, the Sorensens
reconveyed, to VHT, the First Street property they had sold to Keldon and Marianne
Pavlish on behalf of VHT.
The Sorensens never disclosed to the Pavlishes the loan from Sterling Savings
Bank, the deed of trust granted to the bank on the First Street property, or the forged and
altered real estate lease that purported to bear the Pavlishes’ signatures and that
characterized them as tenants of the First Street property. The Sorensens never informed
the Pavlishes that title to the First Street property had been conveyed back and forth
between VHT and the Sorensens after the execution of the real estate contract between
VHT and the Pavlishes.
4 No. 39623-1-III, Mine Holding Trust v. Pavlish
Jack McKinlay and Debra Wilson procured a judgment against Elden and Joan
Sorensen in the sum of $86,000. A judgment lien created by the judgment then attached
to the First Street property. During the time that Keldon and Marianne Pavlish paid on
their real estate contract, the Sorensens’ actions resulted in more than $220,000 liens on
the First Street property.
In January 2009, Keldon and Marianne Pavlish sought to refinance the First Street
property and to lease its premises and business operations. The finance company then
ordered a commitment for title insurance. The title commitment informed the Pavlishes
that Elden and Joan Sorensen had encumbered the First Street property in favor of
Sterling Savings Bank. The title company declined to insure the First Street property.
The title company advised the Pavlishes to seek legal counsel. We assume the Pavlishes
never procured a refinancing loan.
Keldon and Marianne Pavlish ceased payments on the real estate contract. At that
time, they still owed $102,108 on the contract. As a result of the lawsuit, Elden Sorensen
alternatively cajoled and intimidated the Pavlishes’ tenants at the First Street property to
pay rent to Sorensen. The tenants stopped paying rent to the Pavlishes. The Pavlishes
incurred legal expenses when bringing an unlawful detainer action to evict the tenants.
In October 2009, Keldon and Marianne Pavlish filed suit against Elden and Joan
Sorensen and VHT. We refer to the lawsuit as “the 2009 suit.” The suit sought a joint
and several judgment against the Sorensens and VHT.
5 No. 39623-1-III, Mine Holding Trust v. Pavlish
Keldon and Marianne Pavlish joined Sterling Savings Bank, Jack McKinlay, and
Debra Wilson as defendants in the 2009 suit. Sterling Savings Bank answered that its
secured interest in the First Street property held priority over the Pavlishes’ interest in the
property. The bank threatened to begin foreclosure of its deed of trust. The Pavlishes
settled the dispute with Sterling Savings Bank by paying the bank $35,000 and obtaining
an assignment of the bank’s note and secured interest.
After trial and on April 25, 2012, Spokane County Superior Court Judge Greg
Sypolt entered an order quieting title to the First Street property in favor of Keldon and
Marianne Pavlish. Judge Sypolt also entered a judgment totaling $207,621.35 in favor of
the Pavlishes and against Elden and Joan Sorensen and VHT.
When entering the judgment in favor of Keldon and Marianne Pavlish, Judge Greg
Sypolt entered findings of fact and conclusions of law. One finding of fact reads:
2.16 The court further finds that the defendant VHT, an artificial entity, has not now, nor ever had, any lawful existence, and no evidence was introduced at trial purporting to show that VHT lawfully existed; rather, the court finds that VHT was controlled by the defendant Elden Sorensen and manipulated by him as a conduit for myriad fraudulent activities and as a mere instrumentality and alter-ego, and the court further finds, that defendant Elden Sorensen has engaged in a pattern of such misconduct, using this and other artificial entities so controlled and manipulated, including, but not limited to, Partners Alliance LLC, as evidenced by PTE No. 059, and nine other “arm” entities identified by Mr. Sorensen during his testimony and pursuant to his sworn deposition testimony (published and admitted into evidence by the court at trial) including the Rock Trust, Mine Holding Trust, and others.
6 No. 39623-1-III, Mine Holding Trust v. Pavlish
Clerk’s Papers (CP) at 58 (emphasis added). A conclusion of law relevant to this appeal
declares:
3.4 The defendant VHT and the defendants Elden and Joan Sorensen, husband and wife, and the marital community composed thereof, have no separate legal identity, and whether characterized as being alter egos, parties acting in concert, or other wise [sic], the court concludes that the liability between Sorensen’s [sic] artificial entities and the individual Sorensens is joint and several.
CP at 59 (emphasis added). This language may suggest that Judge Sypolt intended to
enter the judgment against all trust entities related to the Sorensens, including MHT.
The April 25, 2012 judgment does not list the identities of the judgment debtors.
The judgment reads:
It is hereby ORDERED, ADJUDGED, and DECREED that plaintiffs [Keldon and Marianne Pavlish] are awarded judgment in the amount of $207,621.35, including damages and litigation-related fees and costs.
CP at 64. We hereafter refer to the judgment as the “2012 judgment.”
Keldon and Marianne Pavlish had not named MHT as a defendant in the 2009 suit.
Nevertheless, on February 13, 2014, the Pavlishes recorded the 2012 judgment against
the parcel owned by MHT, the disputed property.
On February 27, 2014, Keldon and Marianne Pavlish brought a motion, in the
2009 lawsuit, to add three of the Sorensens’ trust entities as defendants: Rock Trust (RT),
MHT, and SLT. The Pavlishes also asked the court to impose the 2012 judgment on
these three trusts. The Pavlishes argued, based on a declaration of a title company
7 No. 39623-1-III, Mine Holding Trust v. Pavlish
officer, that MHT currently held title to the disputed property. They asserted that: (1) in
1996, the Sorensens transferred the property from their individual names to SLT: (2) in
2000, SLT conveyed the property to MHT; (3) in 2001, MHT deeded the disputed
property to SLT; and (4) in 2003, SLT reconveyed the property to MHT. The Pavlishes
intoned that, unless the court imposed the 2012 judgment on the three trusts, they would
need to incur the expense and time of bringing another suit to retry the case against MHT.
In response, the Sorensens and MHT argued that res judicata, collateral estoppel, and the
statute of limitations barred the relief sought.
On August 15, 2014, Spokane County Superior Court Judge James Triplett entered
an order adding RT, MHT, and SLT as defendants in Keldon and Marianne Pavlish’s
2009 suit but reserved deciding the question of whether the trusts would be added as
judgment debtors to the 2012 judgment. Then, on September 25, 2014, Judge Triplett
entered an order imposing the judgment on SLT.
On January 22, 2015, Judge James Triplett declined to impose the 2012 judgment
on RT and MHT. The court found that neither Elden nor Joan Sorensen served as
trustees nor enjoyed being beneficiaries of RT or MHT. The court also reasoned that
Keldon and Marianne Pavlish failed to afford RT and MHT due process when the
Pavlishes brought suit against the Sorensens and VHT in 2009. Judge Triplett qualified
his ruling by granting the Pavlishes an opportunity to pursue their claims against RT and
MHT at trial. As of this date, the Pavlishes have not proceeded to trial against RT and
8 No. 39623-1-III, Mine Holding Trust v. Pavlish
MHT. In his ruling, Judge Triplett reserved for any trial the Sorensens’ and their trusts’
defenses of collateral estoppel, res judicata, and statute of limitations. The court’s letter
ruling noted that the Pavlishes’ counsel, David Boswell, commented that the Pavlishes
would not proceed with trial if the court, on motion, did not apply the 2012 judgment to
RT and MHT.
On April 24, 2015, Keldon and Marianne Pavlish recorded a partial assignment of
judgment against the disputed property with the Spokane County Auditor’s Office. The
assignment consigned fifty percent of the 2012 judgment to the Pavlishes’ counsel David
Boswell. The assignment held an amended caption naming MHT as a defendant in the
2009 lawsuit, and it stated that the judgment “may hereafter be amended by court order
against Mine Holding Trust and/or Rock Trust.” CP at 6.
Also on April 24, 2015, Keldon and Marianne Pavlish filed a special notice
request against the disputed property with the Spokane County Auditor. The notice used
an amended caption identifying MHT as a defendant in the 2009 litigation, and it named
MHT, the Sorensens, and SLT as grantees of the property. Both sides agree that the
assignment of judgment and notice encumbered the disputed property in favor of the
Pavlishes and David Boswell. We refer to the assignment and the special notice request
as “the two encumbrances.”
On August 8, 2022, attorney for MHT, Michael Church, called the Pavlishes’
counsel, David Boswell. Church demanded that Boswell immediately remove the two
9 No. 39623-1-III, Mine Holding Trust v. Pavlish
encumbrances from the disputed property. Church threatened a quiet title action. Ten
days later, on August 18, Church sent Boswell a letter accusing Boswell of filing the
notice and assignment in bad faith. The Pavlishes and Boswell declined to remove the
encumbrances.
PROCEDURE
On August 26, 2022, Mine Holding Trust filed this suit to quiet title to the
disputed property. MHT named Keldon and Marianne Pavlish and David Boswell as
defendants and asserted a claim of constructive fraud against the three. Hereafter, we
refer to the three defendants as Pavlish and Boswell.
In September 2022, MHT filed a motion for summary judgment requesting the
removal of the two encumbrances from the disputed property. In response, Pavlish and
Boswell argued that collateral estoppel established that the 2012 judgment bound MHT
and validated a judgment lien and an encumbrance on the disputed property. They also
argued that MHT lacked standing or capacity to bring the action and that the 2003 deed,
whereby SLT conveyed the property to MHT, was invalid. MHT, in turn, replied that res
judicata and collateral estoppel precluded Pavlish and Boswell from asserting MHT’s
lack of standing.
Within one week before the summary judgment motion hearing, MHT asked
Pavlish and Boswell to stipulate to an amended complaint that would substitute Bret
Wheeler, a purported trustee of MHT, as a party plaintiff. Pavlish and Boswell declined.
10 No. 39623-1-III, Mine Holding Trust v. Pavlish
At a January 27, 2023 motion hearing, MHT’s counsel introduced Wheeler as the trustee
for MHT, who sat at counsel table with counsel.
With the retirement of Judge Greg Sypolt and premature death of Judge James
Triplett, Spokane County Superior Court Judge Tony Hazel entertained MHT’s summary
judgment motion. Judge Hazel granted the motion, while reasoning that res judicata,
collateral estoppel, and the law of the case doctrine barred the filing of the judgment,
partial assignment, and special notice against the disputed property. The court may have
concluded that Elden and Joan Sorensen and VHT were the only judgment debtors under
the 2012 judgment. According to Judge Hazel, the Sorensens held no ownership interest
in the disputed property. No mechanism existed to permit a judgment to be recorded
against property, in which a judgment debtor has no interest.
Pavlish and Boswell appeal. In their opening appeal brief, Pavlish and Boswell
assigned no errors to the superior court’s ruling. In addition to citing three cases for the
propositions that a trust is not a legal entity and lacks standing to bring an action, Pavlish
and Boswell, in that section of their brief’s argument, twice referred this court to a total
of four pages in their trial brief for a “full discussion” of the issue. Br. of App’t 25. The
two passages read:
See, full discussion at CP-142.
Br. of App’t at 25 (emphasis in original).
discussed @ CP-142-145.
11 No. 39623-1-III, Mine Holding Trust v. Pavlish
LAW AND ANALYSIS
On appeal, Pavlish and Boswell ask for reversal on numerous grounds. First,
plaintiff MHT lacked standing to sue. Second, the 2003 deed conveying the disputed
property from SLT to MHT is void because the deed fails to name the trustee for MHT.
Third, the ruling of Judge Greg Sypolt operates as collateral estoppel to preclude MHT
from contending it is not a judgment debtor under the 2012 judgment and to prevent
MHT from arguing that Elden and Joan Sorensen own the disputed property. Fourth,
Judge Sypolt’s ruling also operates as res judicata.
MHT, in response, requests that this court refuse to address some of Pavlish and
Boswell’s contentions because of their incorporating portions of their trial brief into their
appeal brief. These contentions include MHT lacking standing to sue and the invalidity
of the 2003 deed. MHT also asks that this court affirm the superior court’s ruling that
collateral estoppel and res judicata bar Pavlish and Boswell from asserting an interest in
the disputed property. Assuming we address the merits of Pavlish and Boswell’s
contentions, MHT argues that a trust, rather than its trustee, may maintain a suit. MHT
also argues the 2003 deed was valid. MHT asks for leave to name the trustee as a party
plaintiff in the event we agree with that MHT lacks standing.
As a result of the parties’ respective contentions, we spend most of our opinion
applying procedural rules. We reject MHT’s contention that Pavlish and Boswell
12 No. 39623-1-III, Mine Holding Trust v. Pavlish
abandoned their lack of standing defense. We then hold that MHT lacks standing to file
this lawsuit.
Assignments of Error
In their opening brief, Pavlish and Boswell omit listing any assignment of error in
violation of RAP 10.3(a)(4). Nevertheless, we waive application of the appellate rule
because we can discern by the issues identified for review and by the arguments asserted
in the brief that Pavlish and Boswell assign error to the summary judgment order that
quieted title to the disputed property. We further fathom the reasons for challenging the
order.
RAP 1.2(a) encourages this court to address the merits of an appeal rather than
rejecting an appeal because of noncompliance with procedural rules. RAP 1.2(c) allows
this court to waive procedural rules to serve the ends of justice. Modern rules of
procedure are intended to allow the court to reach the merits of an appeal, as opposed to
disposing the matter on technical niceties. Fox v. Sackman, 22 Wn. App. 707, 709, 591
P.2d 855 (1979). In this appeal, MHT does not ask for affirmance of the superior court’s
quiet title order on the basis of Pavlish and Boswell’s noncompliance with
RAP 10.3(a)(4).
Incorporation of Trial Brief
MHT faults Pavlish and Boswell for incorporating portions of their trial brief
which address the subjects of standing, res judicata, collateral estoppel, and the validity
13 No. 39623-1-III, Mine Holding Trust v. Pavlish
of the 2003 deed, into their opening appeal brief. As a result of this purported
assimilation, MHT entreats this court to reject Pavlish and Boswell’s appeal. Pavlish and
Boswell counter that they did not incorporate fragments of their trial briefs. They only
cited to pages of the briefs to confirm that they presented the argument to the superior
court. Pavlish and Boswell emphasize that RAP 10.3(a)(6) directs a party to include
“references to relevant parts of the record” in the brief’s argument. We only address
whether we should decline review of the topic of standing.
We do not know whether Pavlish and Boswell purposely shortened their appeal
brief by asking the court to read portions of their trial brief. We also do not know
whether to characterize Pavlish and Boswell’s opening brief as “citing” their trial brief or
“incorporating” their trial brief. We lack the wisdom to draw a line between the act of
citing another text and the task of incorporating another writing. Regardless, we side
with Pavlish and Boswell. Although the trial brief provides a lengthier analysis, the
opening appeal brief cites sufficient authority and adequately informs MHT and this court
of the basis for the defense of lack of standing. We have ignored the trial memorandum’s
contents in coming to our decision.
A party may not incorporate, by reference, trial court briefs into appellate briefs.
U.S. West Communications, Inc. v. Washington Utilities & Transportation Commission,
134 Wn.2d 74, 111–12, 949 P.2d 1337 (1997); Holland v. City of Tacoma, 90 Wn. App.
533, 538, 954 P.2d 290 (1998); Patterson v. Superintendent of Public Instruction, 76 Wn.
14 No. 39623-1-III, Mine Holding Trust v. Pavlish
7App. 666, 676, 887 P.2d 411 (1994). Expanding the issues on appeal by references to
trial briefs renders the Rules of Appellate Procedure meaningless. State v. Kalakosky,
121 Wn.2d 525, 540 n.18, 852 P.2d 1064 (1993). The appellate court will entertain only
issues argued to it. RAP 10.3; RAP 12.1; RAP 13.7; State v. Hoffman, 116 Wn.2d 51, 71,
804 P.2d 577 (1991); Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42,
46, 785 P.2d 815 (1990). Any issue for which a party has incorporated arguments by
reference into their appellate court brief is deemed abandoned. Holland v. City of
Tacoma, 90 Wn. App. 533, 538 (1998). A party properly references a trial memorandum
in the appeal brief to the extent of alerting this court that it raised the question before the
trial court. State v. Kalakosky, 121 Wn.2d 525, 540 (1993).
The Supreme Court described the purpose behind the rule against incorporation:
Respondents would have no idea what issues required a response, and appellate courts would have to search trial court records and clerk’s papers and address all issues raised below. Such an “end run” around the Rules of Appellate Procedure will not be sanctioned; the primary purpose of the rules is to afford fairness and notice of the scope of review to the court and all litigants.
State v. Kalakosky, 121 Wn.2d 525, 540 (1993). The rule behind prohibiting
incorporation also stems from the principle that an appellate court will decline to address
inadequately briefed issues. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082
(1992); Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254
P.3d 835 (2011). Arguments unsupported by relevant citation of authority need not be
15 No. 39623-1-III, Mine Holding Trust v. Pavlish
considered by this court. State v. Hoffman, 116 Wn.2d 51, 70–71 (1991); Howell v.
Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 46 (1990).
In U.S. West Communications, Inc. v. Washington Utilities & Transportation
Commission, 134 Wn.2d 74 (1997), the phone company challenged the Commission’s
denial of its petition for a rate increase. In its brief, U.S. West assigned error to the
Commission’s rejection of its cost studies. U.S. West argued that the Commission’s
ruling was not based on substantial evidence, was arbitrary, and was manifestly contrary
to the evidence. U.S. West then, in a footnote, wrote that, although the company fully
briefed the issues to the superior court, it lacked adequate space to brief them in the
appeal. The Commission argued that U.S. West had waived this issue on appeal. The
Supreme Court agreed.
In Holland v. City of Tacoma, 90 Wn. App. 533 (1998), Dwight Holland placed no
argument in his appellate brief in support of two assignments of error and tried to expand
the issues by referencing trial court briefs. He presented no reasoned argument in his
appeal brief. If Holland had inserted the passages from the incorporated sections of the
trial brief, the appeal brief would have lasted 186 pages, well in excess of the then 50-
page limit. This court ruled that Holland had abandoned the two assigned errors.
Pavlish and Boswell did not seek to expand issues by referencing their trial brief.
Their appeal brief’s argument included citations to case law and sufficed for MHT to
respond. The relevant procedural rule now limits the length of a brief on the number of
16 No. 39623-1-III, Mine Holding Trust v. Pavlish
words, not pages. The word limitation for opening briefs is 12,000 words.
RAP 18.17(c)(2). Pavlish and Boswell’s opening brief contains 7,857 words. If they had
inserted the portion of their trial brief that addressed standing, they likely would not have
exceeded the limitation and would have probably enjoyed the ability to insert all other
pages of the trial memorandum cited in their brief.
Standing
We now address the merits of Pavlish and Boswell’s contention that MHT, the
only named plaintiff, lacks standing because of its trust nature. Pavlish and Boswell
journey further and contend that MHT lacks any trustee. In their brief, Pavlish and
Boswell cite no part of the record for this factual assertion. We limit our discussion to
whether a trustee must be named as the party plaintiff and do not address whether any
trustee exists.
The controlling court rule, CR 17(a), declares:
Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party’s own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
17 No. 39623-1-III, Mine Holding Trust v. Pavlish
(Boldface omitted.) To have standing, a party must show a real interest in the subject
matter of the lawsuit. The interest must be a present, substantial interest, as distinguished
from a mere expectancy, or future, contingent interest, and the party must show that a
benefit will accrue it by the relief granted. Primark, Inc. v. Burien Gardens Associates,
63 Wn. App. 900, 907, 823 P.2d 1116 (1992). In other words, a plaintiff must have a
personal stake in the outcome of a case. Sabey v. Howard Johnson & Co., 101 Wn. App.
575, 584, 5 P.3d 730 (2000).
The standing doctrine serves a variety of purposes, including ensuring that the
plaintiff is the appropriate party to bring the action. Keepers, Inc. v. City of Milford, 807
F.3d 24, 93 Fed. R. Serv. 3d 217 (2d Cir. 2015). Otherwise, the parties might need to
relitigate a dispute. CR 17(a) protects a defendant against a subsequent action by the
party actually entitled to recover and insures generally that the judgment will have its
proper effect as res judicata. Beal v. City of Seattle, 134 Wn.2d 769, 782–83, 954 P.2d
237 (1998); Plese-Graham, LLC v. Loshbaugh, 164 Wn. App. 530, 538, 269 P.3d 1038
(2011); Sprague v. Sysco Corp., 97 Wn. App. 169, 173, 982 P.2d 1202 (1999).
Pavlish and Boswell cite Linklater v. Johnson, 53 Wn. App. 567, 768 P.2d 1020
(1989) for the rule that only a trustee possesses standing to bring an action. We disagree
that Linklater supports the rule. Darcy Linklater sued the seller of his house and the real
estate agent for misrepresentation. After purchasing the residence, Linklater filed for
bankruptcy. He failed to inform his bankruptcy trustee of the potential claim. The court
18 No. 39623-1-III, Mine Holding Trust v. Pavlish
ruled that Linklater lacked standing to sue because legal claims became the property of
the estate. The court did not address who may sue on behalf of a settlor’s trust.
We nonetheless agree with Pavlish and Boswell on the question of standing.
Washington case law recognizes that the trustee of an express trust is the proper party to
bring suit for the trust. Townsend v. Rosenbaum, 187 Wash. 372, 392, 60 P.2d 251
(1936). Thus, the trustee is authorized to prosecute an action to quiet title to trust land in
his or her own name without joining the trust beneficiaries. Eichner v. Cahill, 11 Wn.2d
108, 110–11, 118 P.2d 419 (1941); Carr v. Cohn, 44 Wash. 586, 588, 87 P. 926 (1906).
The universal rule proclaims that a trust itself may not sue or be sued directly. In
re Daniels, 641 B.R. 165, 173 (Bankr. S.D. Ohio 2022) (applying Ohio law); Ray
Malooly Trust v. Juhl, 186 S.W.3d 568, 571 (Tex. 2006). The trustee, rather than the
trust, is the real party in interest in litigation involving trust property. Navarro Savings
Association v. Lee, 446 U.S. 458, 464, 100 S. Ct. 1779, 64 L. Ed. 2d 425 (1980);
Massachusetts Laborers’ Health & Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d
236, 239 (D. Mass. 1999) (applying Massachusetts law); Nicholson v. Fazeli, 113 Cal.
App. 4th 1091, 1102–03, 6 Cal. Rptr. 3d 881(2003). Going further, a trustee is a
necessary or an indispensable party to proceedings affecting trust property. Hett v.
Barron-Lunde, 290 So. 3d 565, 572 (Fla. Dist. Ct. App. 2020); Bank of New York v. Bell,
142 Conn. App. 125, 133 n.5, 63 A.3d 1026 (2013); Sunbelt Environmental Services, Inc.
v. Rieder’s Jiffy Market, Inc., 138 S.W.3d 130, 134 (Mo. Ct. App. 2004); Macaulay v.
19 No. 39623-1-III, Mine Holding Trust v. Pavlish
Wachovia Bank of S.C., N.A., 333 S.C. 201, 208, 508 S.E.2d 46 (S.C. Ct. App. 1998). A
trust is not a legal entity, and civil suits may be maintained only by or against parties
having an actual or legal existence. Lazenby v. Codman, 116 F.2d 607, 609 (2d Cir.
1940); Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 3d 249, 261–62 (D. Md. 2015)
(applying Maryland law); Massachusetts Laborers’ Health & Welfare Fund v. Philip
Morris, Inc., 62 F. Supp. 2d 236, 239 (D. Mass. 1999) (applying Massachusetts law);
Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex. 1995); Western Life Trust v.
State of North Dakota, 536 N.W.2d 709, 712 (N.D. 1995). In Western Life Trust v. State
of North Dakota, the North Dakota Supreme Court dismissed an appeal brought by a trust
because the trust lacked a legal existence.
The law designates the trustee as the sole legal owner of trust property. In re
Daniels, 641 B.R. 165, 173 (Bankr. S.D. Ohio 2022) (applying Ohio law); Bank of New
York v. Bell, 142 Conn. App. 125, 133 n.5 (2013); Sunbelt Environmental Services, Inc.
v. Rieder’s Jiffy Market, Inc., 138 S.W.3d 130, 134 (Mo. Ct. App. 2004). Thus, a trustee
has the sole right and responsibility to enforce a cause of action in favor of a trust, which
is only abrogated to a beneficiary when the trustee cannot or will not enforce the cause of
action. Interfirst Bank–Houston, N.A. v. Quintana Petroleum Corp., 699 S.W.2d 864,
874 (Tex. App.-Houston 1st Dist. 1985). The trustee always has all the powers of
management and control of the trust property, such that he or she should decide whether
to bring suit. Naier v. Beckenstein, 131 Conn. App. 638, 646, 27 A.3d 104 (2011).
20 No. 39623-1-III, Mine Holding Trust v. Pavlish
MHT notes that Keldon and Marianne Pavlish sued some of Elden and Joan
Sorensen’s trusts without naming the trustee of the trust. MHT seeks to use this earlier
conduct to preclude the Pavlishes from complaining that MHT sued solely in its own
name. The Sorensens, however, cite no law supporting this position. The Pavlishes
likely sued the trusts in their own name because the Sorensens had not identified any
trustee, assuming one ever existed, in their real estate documents.
MHT contends that any lack of standing did not preclude the trial court from
granting the motion for summary judgment because MHT could amend its complaint to
name the correct party. Presumably, MHT extends this contention to this appeal. MHT
comments that, at the January 29, 2023 hearing, it sought to cure any defect by offering
to add the name of a trustee to the court caption. The record confirms this offer, but
MHT has never asked the court for permission to substitute a different plaintiff.
This court should particularly impose rules addressing the administration of trusts,
including standing, on all Sorensen trusts, including MHT. Judge Greg Sypolt found that
the numerous Sorensen trusts function as artificial entities employed by Elden Sorensen
for a myriad of fraudulent activities. For this reason, we do not consider our ruling
technical in nature or nitpicky.
Remedy
To repeat, in Western Life Trust v. State of North Dakota, 536 N.W.2d 709 (N.D.
1995), the North Dakota Supreme Court dismissed an appeal brought by a trust because
21 No. 39623-1-III, Mine Holding Trust v. Pavlish
the trust lacked a legal existence. Our circumstances are reverse because the defendant
appeals an order quieting title in favor of the trust. Thus, we do not dismiss the appeal,
but instead must determine what steps need to be taken next. Neither party has briefed
for the court the ramifications of MHT’s lack of standing of MHT.
Because MHT lacked standing to maintain the suit, we vacate the order quieting
title and remand for further proceedings. On remand, the superior court should grant an
opportunity for the substitution of another plaintiff. When reviewing any motion, the
court should also consider any objections of Pavlish and Boswell to the motion.
To repeat, the last sentence in CR 17(a) reads:
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
CR 17 contemplates that a defendant will raise an “objection” that a claim is not being
prosecuted in the name of the real party in interest, after which a reasonable time will be
allowed for the plaintiff to take action, through joinder or otherwise, that protects the
defendant from the risk of a second claim. Plese-Graham, LLC v. Loshbaugh, 164 Wn.
App. 530, 538 (2011). Those steps include a motion under CR 15(c) to substitute the real
party in interest. We note that Pavlish and Boswell raised the objection to standing early
22 No. 39623-1-III, Mine Holding Trust v. Pavlish
in MHT’s suit and argued standing when opposing the summary judgment motion. MHT
does not contend that Pavlish and Boswell failed to timely raise the objection.
Assuming the superior court denies any motion for substitution, the suit should be
dismissed without prejudice. If the superior court permits leave to substitute a
replacement plaintiff, the court will then need to determine whether to reaffirm its earlier
rulings or entertain new motions. The superior court sits in a better position than this
court to resolve these questions in the first place, and we lack input from the parties on
this important question.
We do not address whether our analysis renders the 2003 deed to MHT void
because the conveyance failed to mention a trustee. If the superior court allows a
substitution of parties, the court will need to also address this question.
CONCLUSION
We vacate the superior court’s order quieting title to MHT in the disputed
property. We remand for further proceeding consistent with our opinion.
_________________________________ Fearing, J. WE CONCUR:
______________________________ _________________________________ Lawrence-Berrey, C.J. Cooney, J.