FILED MARCH 23, 2023 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
VIRGIL D. REDWINE and TERA D. ) No. 39097-7-III REDWINE, husband and wife, ) ) Respondents, ) ) v. ) UNPUBLISHED OPINION ) JERRY LEE REDWINE, a single man, ) ) Appellant. )
LAWRENCE-BERREY, A.C.J. — Jerry Redwine appeals the release of recorded lien
claims he placed on his brother’s properties. He argues the trial court erred because he
had a right for a jury to decide whether his claims of lien were frivolous. We disagree.
His claims had been previously litigated and dismissed.
FACTS
Jerry and Virgil Redwine1 are brothers who have a long-standing dispute over two
pieces of property, referred to as “Unit 45” and “Unit 120.”
1 The brothers have the same last name, so we refer to them by their first names. We mean no disrespect. No. 39097-7-III Redwine v. Redwine
Unit 45
Jerry has lived on and farmed Unit 45 since the 1970s. He originally financed the
purchase of Unit 45 through the Farm Credit System (FCS), but he defaulted on the loan
and in 1987 FCS judicially foreclosed. Jerry retained the statutory right of redemption,
and FCS was not willing to finance his repurchase of the property. FCS was amenable,
however, to Jerry finding a third party to do so.
In 1988, Jerry and Virgil orally agreed that Virgil would purchase Unit 45 from
FCS and transfer the property back to Jerry once Jerry fully reimbursed Virgil for all
expenses. They did not discuss what would happen if Jerry failed to reimburse Virgil.
FCS agreed to sell the property to Virgil, and Virgil purchased the property under a real
estate installment contract.
While Jerry made payments to Virgil, they were insufficient to cover all of the
property’s expenses. In October 2004, Jerry acknowledged he was behind in
reimbursement payments, but a few months later claimed that Virgil owed him money.
Virgil fully paid the real estate contract, and FCS conveyed Unit 45 to him in July 2005.
Jerry lived on Unit 45 and actively farmed and invested funds in his farming
operation until some point between 2001 and 2004. He also subleased part of the farming
area during that period, receiving rent paid by the subtenants. After that period, Virgil
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prohibited Jerry from further farming but allowed him to continue to live on the farm and
manage some fruit trees. In 2005, Jerry asked Virgil to transfer Unit 45 to a third party,
but Virgil was unwilling to do so because Jerry had defaulted on his reimbursement
payments. In 2005, Virgil began leasing an irrigated portion of Unit 45 to a third-party
farmer.
Jerry continued living on Unit 45. In 2008, he leased an area of the orchard to
Seth Weeks. Weeks invested money in and revamped the orchard significantly, such that
his improvements replaced any work Jerry had done on the orchard. Weeks made rent
payments to Jerry until 2015, when he began making payments directly to Virgil. In
2011, Jerry learned that Virgil had previously paid the real estate contract in full.
Unit 120
In 1993, Jerry created a trust naming himself, Virgil, and a third brother, David,
as trustees. Their mother transferred into the trust four acres of Unit 120, on which the
family home sat. Virgil owns the remaining 77 acres of Unit 120. In 1998, the brothers,
as trustees, transferred the property from the trust to Virgil alone, apparently to obtain a
loan for Virgil’s farming operations on Unit 120. Virgil orally agreed he would treat the
property as if it were still part of the trust and transfer it back after their mother died.
After their mother died in 2006, however, Virgil did not transfer the property back. Jerry
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sent Virgil a letter two weeks after their mother died, indicating Virgil had wrongfully
taken ownership of the property and suggesting he sell it and place the proceeds in the
trust.
2012 claims of lien
On November 14, 2012, Jerry recorded a claim of lien on Unit 45 pursuant to the
mechanics’ lien statute, chapter 64.04 RCW. Jerry asserted that he had provided Virgil
all funds to pay the loan on Unit 45 and that Virgil refused to transfer ownership per their
oral agreement. He claimed a lien of $3,600,000 on the property. Jerry appended an
“Affidavit of Facts” to the recorded claim of lien, stating in relevant part:
2. Affiant purchased land known as Unit 45 . . . in 1973 and Homesteaded property in 1974 and has lived on and occupied said property continuously to this date. 3. In October 1988, the Federal Land Bank obtained a Writ of Assistance to the Sheriff to remove me from my property for an alleged debt. Jon Hatt of the Federal Land Bank on the first day came to and told me that they would sell said property to a friendly party of my choice to end further legal action between us. 4. At this time I talked with my Dad and we both thought that Virgil Redwine my brother would be the best choice because he was my brother and we believed that we could trust him to return legal ownership of property back to Affiant. 5. I talked with Virgil Redwine about this and he did not offer any reservations about doing this and understood his fiduciary responsibility to return legal ownership of said property as soon as could be done. 6. Virgil Redwine did not has not [sic] put up any monies of his own at any time to purchase legal owner ship [sic] of said property.
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7. Virgil Redwine told me in the year 2011 that he had paid said debt off. 8. That after this I sent Virgil Redwine a Quit Claim Deed to execute to return legal ownership of said property to my control and Virgil Redwine has refused to return legal ownership of said property to me and in fact refuses to talk with me. 9. So the fact is that I have purchased said property, homesteaded said property and made every improvement to said property and have had the assurance and expectation for the past 23 years or there abouts that Virgil Redwine would return legal ownership of said property back to me; and Virgil refuses to do so. 10. That at this time I am still making improvements to said property and occupy my property and Homestead known as Unit 45 . . . . 11. That a good man leaves an inheritance for his children’s children. Virgil Redwine at this time and for the past years could be stopping the inheritance of my property to my children from happening causing him to commit the act of theft (stealing) from me, my children and my grand children causing me triple damages.
Clerk’s Papers (CP) at 119-20.
On December 4, 2012, Jerry and David recorded a claim of lien on Unit 120, also
pursuant to chapter 64.04 RCW. They alleged they had been involuntarily providing
services on the property since their mother’s death in 2006 because the property should
have been distributed among the three brothers, and they claimed a lien of $300,000.
5 No. 39097-7-III Redwine v. Redwine
Jerry’s 2013 lawsuit against Virgil and Tera
In May 2013, Jerry and David petitioned to foreclose on the claims of lien and
named Virgil and his wife, Tera, as defendants.2 In response, Virgil and Tera moved for
an order directing Jerry and David to show cause why the liens should not be released as
frivolous or clearly excessive under RCW 60.04.081. After giving Jerry and David an
opportunity to hire counsel, and them being unsuccessful in so doing, the superior court
entered an order finding that Jerry and David’s liens were frivolous and ordered that they
be released pursuant to RCW 60.04.081.
Jerry later retained counsel and brought the 2013 action to trial in 2018. At trial,
Jerry requested the remedy of a constructive trust as to a portion of Unit 120 and the
remedy of express trust or constructive trust as to Unit 45. In addition, he recorded a
declaration of homestead on Unit 45.
In late 2018, the court entered a judgment dismissing Jerry’s requests for relief as
well as all other claims he had previously asserted but did not advance at trial. Regarding
Unit 120, the court concluded that Jerry’s claim for a constructive trust was subject to a
three-year statute of limitations, and Jerry’s suit, filed seven years after their mother’s
death, was therefore barred by the statute of limitations. Regarding Unit 45, it concluded
2 Grant County Superior Court Cause No. 13-2-00609-6.
6 No. 39097-7-III Redwine v. Redwine
that Jerry had failed to satisfy his burden of proof to support a constructive trust or an
express trust. Jerry appealed, and we affirmed. Redwine v. Redwine, No. 36551-4-III,
slip op. at 2 (Wash. Ct. App. Sept. 14, 2021), https://www.courts.wa.gov/opinions/
pdf/365514_unp.pdf.
2019 claim of lien
On March 1, 2019, while Jerry’s appeal was pending, he recorded a second claim
of lien on Unit 45. The document, which appended an Affidavit of Facts, made
substantially the same assertions related to Unit 45 that were made in 2012. The only
differences were minor details about the agreement, its breach, and the damages
requested.
2022 claim of lien
On April 5, 2022, shortly after we issued our mandate in the appeal, Jerry recorded
a third claim of lien, this time against Unit 45 and Unit 120. It again appended an
Affidavit of Facts, which included substantially the same information, varying only in a
couple minor details. Jerry noted “[t]hat this matter has been thru [sic] the courts and the
courts have ruled against the evidence.” CP at 40. He indicated that Virgil had not just
lied but committed perjury, which had been “proven beyond a doubt in the appeal, the
trial court records and exhibits.” CP at 40.
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Jerry also included a section titled “Common Law Lien Law and Legal
Definition,” which described a common law lien as a lien “that is not . . . a statutory lien,
a security interest created by agreement, or a judicial lien obtained by legal or equitable
process or proceedings.” CP at 38. He claimed a common law mechanics’ lien for the
irrigation system, two mobile homes, improvements to a shop building, and the orchard
on Unit 45. He claimed that Virgil should have transferred the property no later than
2013 and thus Virgil owed Jerry all rents Virgil had collected since then.
Present action
On May 11, 2022, Virgil and Tera filed a complaint against Jerry, requesting in
part that the court release Jerry’s 2018 declaration of homestead and his 2019 and 2022
claims of lien as frivolous and that it enjoin Jerry from recording any further claims of
lien or encumbrances against their property. In his answer, Jerry stated there were facts in
dispute and demanded a trial by jury.
Virgil and Tera moved for an order requiring Jerry to show cause why the court
should not release the liens as frivolous under RCW 60.04.081. They argued that all
issues raised by Jerry had been litigated and finally determined in the earlier action and
thus were barred by res judicata or collateral estoppel. They also requested that the court
enter a preliminary injunction under RCW 7.40.020. Jerry responded by again demanding
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a jury trial and asserting that “every bit of [the claim of lien] is true, not any part of the
Lien is Frivolous.” CP at 69.
The court held a show cause hearing, after which it granted Virgil and Tera’s
motion to release the lien claims and entered a preliminary injunction. The court found
that Jerry had “violated and will continue violating the property rights of” Virgil and
Tera. CP at 70.
On August 3, 2022, Jerry filed a demand to stay the execution of the court’s order
“until such time as a jury has ruled on said Order.” CP at 74. He asserted it was
“mandatory” that the case proceed to a trial by jury and, by denying him a trial by jury,
the superior court judge had “waived immunity to a personal lawsuit for liability and
damages.” CP at 76. Virgil and Tera countered that Jerry had no right to a jury trial
under the frivolous lien statute or to stay the court’s order. The court agreed and denied
Jerry’s requests.
Jerry timely appealed.
ANALYSIS
WHETHER JERRY’S CLAIMS OF LIEN WERE FRIVOLOUS
Jerry contends the trial court erred by dismissing his claims of lien. He argues the
liens were not frivolous and the facts are in dispute.
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Whether the facts are in dispute is inconsequential. Once a dispute has been
litigated and decided, the facts may not be relitigated and are subject to summary
dismissal.
Res judicata and collateral estoppel are doctrines that preclude “relitigation of that
which has previously been litigated.” Luisi Truck Lines, Inc. v. Wash. Utils. & Transp.
Comm’n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967). The doctrines are not intended to
deny a litigant his day in court; rather, they let previous judgments rest. Id. “Whether
collateral estoppel or res judicata apply are questions of law that we review de novo.”
Weaver v. City of Everett, 194 Wn.2d 464, 473, 450 P.3d 177 (2019).
Res judicata has broader implications than collateral estoppel. Res judicata,
sometimes referred to as claim preclusion, bars not only claims that were raised and
litigated, but also bars claims that could have been raised and litigated in the prior action.
Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004).
For res judicata to apply, the prior action must have resulted in a final judgment on
the merits, and the prior and subsequent actions must involve the same (1) subject matter,
(2) cause of action, (3) persons or parties, and (4) quality of persons for or against whom
the decision is made. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d
10 No. 39097-7-III Redwine v. Redwine
818 (2011). As explained below, res judicata bars Jerry from litigating the claims he now
seeks to relitigate.
In 2012, Jerry recorded claims of lien on Unit 120 and Unit 45. In 2013, he filed
an action to foreclose those lien claims. Virgil and Tera moved to have those claims of
lien dismissed as frivolous. The trial court granted their request. Years later, in 2018, the
trial court disposed of the rest of Jerry’s claims by denying his request to impose an
express trust or a constructive trust. It then entered judgment in favor of Virgil and Tera.
We affirmed and later issued our mandate. Thus, the prior action resulted in a final
judgment.
Here, application of the first, third, and fourth elements of res judicata are
straightforward. The first element, same subject matter, is met. Both actions involve
claims of lien involving Unit 45 and Unit 120. The third element, same persons or
parties, is met. Jerry is on one side of the dispute, while Virgil and Tera are on the other.
The fourth element, the same quality of persons, is met. Jerry is claiming an ownership
interest in Unit 45 and Unit 120 against the title owners, Virgil and Tera.
Application of the second element, same cause of action, requires greater
discussion. There is no single test for whether two causes of action are the same, but we
look to
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“(1) [W]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.”
Hayes v. City of Seattle, 131 Wn.2d 706, 713, 934 P.2d 1179, 943 P.2d 265 (1997)
(alteration in original) (quoting Rains v. State, 100 Wn.2d 660, 664, 674 P.2d 165
(1983)).
The first consideration, impairment of rights or interests, is met. In the first action,
the trial court determined that the claims of lien were frivolous and Jerry’s theories for
recovering a portion of Unit 120 and Unit 45 were legally and factually insufficient. In
the present action, Jerry seeks recovery of the same properties and similar damages. The
rights established in the first action would be entirely reversed if Jerry prevailed in the
second action.
The second, third, and fourth considerations are also met. Both actions (as
reflected in Jerry’s Affidavits of Facts) involve virtually the same evidence, the same
purported infringement of rights, and the same transactional nucleus of facts.
We conclude that res judicata bars Jerry from relitigating his claims against Virgil
and Tera.
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WHETHER JERRY HAD A RIGHT TO HAVE HIS CLAIMS DECIDED BY A JURY
Jerry contends he was denied his constitutional right to a jury trial. We disagree.
We review claims of constitutional violations de novo. State v. Lynch, 178 Wn.2d
487, 491, 309 P.3d 482 (2013). As an initial matter, contrary to Jerry’s arguments, the
United States Constitution does not protect his right to a civil jury trial in a Washington
court:
The seventh amendment to the United States Constitution does not apply through the Fourteenth Amendment to the states in civil trials. Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211, 60 L. Ed. 961, 36 S. Ct. 595 (1916); Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678 (1876). The right to jury trial in civil proceedings is protected solely by the Washington Constitution in article 1, section 21.
Sofie v. Fibreboard Corp., 112 Wn.2d 636, 644, 771 P.2d 711, 780 P.2d 260 (1989).
Because the federal right to a jury trial is not implicated here, we confine our analysis to
the right to a jury trial under our state constitution.
Article I, section 21, of the Washington Constitution states that “[t]he right of trial
by jury shall remain inviolate.” That does not, as Jerry contends, mean that citizens have
an “absolute right” to a jury trial in all cases. Appellant’s Br. at 4. “[T]he right of trial by
jury is not limitless.” Davis v. Cox, 183 Wn.2d 269, 289, 351 P.3d 862 (2015), abrogated
on other grounds by Maytown Sand & Gravel, LLC v. Thurston County, 191 Wn.2d 392,
423 P.3d 223 (2018). To hold the right to a jury trial inviolate, as mandated by our state
13 No. 39097-7-III Redwine v. Redwine
constitution, means that the right to a jury trial must not be diminished from what it has
always been. Sofie, 112 Wn.2d at 656.
“At its core, the right of trial by jury guarantees litigants the right to have a jury
resolve questions of disputed material facts.” Davis, 183 Wn.2d at 289. The question in
the present case is whether an issue of fact continues to exist after it has been fully
litigated and determined in a prior case. This exact question was decided in Nielson v.
Spanaway General Medical Clinic, Inc., 135 Wn.2d 255, 267, 956 P.2d 312 (1998).
In Nielson, the court discussed Parklane Hosiery Co. v. Shore, 439 U.S. 322,
99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). Nielson, 135 Wn.2d at 268. There, the United
States Supreme Court stated, “‘[O]nce an issue has been resolved in a prior proceeding,
there is no further factfinding function to be performed.’” Id. (quoting Parklane,
439 U.S. at 336 n.23). Nielson found Parklane “persuasive, sound and consistent with
Washington law.” Id. Nielson concluded:
Although the factual issue of damages is a jury question in Washington, there must be an issue of fact to resolve in order for that right to arise. Where the issue has been resolved in a prior proceeding, no factfinding duty remains for a jury on that issue. We hold the Nielsons had no right to a jury trial on the issue of damages because no factual issue remained to be decided once the [prior litigation] had determined the amount of damages suffered by the Nielsons as a result of the injury.
Id. at 269.
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Similarly, Jerry had no right to a jury trial in this civil action because no factual
issue remained to be decided once the 2013 litigation determined the rights between the
parties to Unit 45 and Unit 120. We conclude that the trial court did not violate Jerry’s
right to a jury trial by dismissing the present action.3
REASONABLE COSTS AND ATTORNEY FEES
Virgil and Tera request reasonable costs and attorney fees for this appeal. We
grant their request.
While parties typically bear their own attorney fees, we may award fees when
authorized by a contract, statute, or recognized ground in equity. Fisher Props., Inc. v.
Arden-Mayfair, Inc., 106 Wn.2d 826, 849-50, 726 P.2d 8 (1986).
Under RCW 60.04.081(4), if the court finds a lien was frivolous, it “shall issue an
order . . . awarding costs and reasonable attorneys’ fees to the applicant to be paid by
the lien claimant.” Such an award is mandatory and encompasses attorney fees for the
3 Jerry does not articulate whether he believes the trial court’s grant of injunctive relief also violated his right to a jury trial. To avoid a motion for reconsideration, we address the issue: Injunctive relief is an equitable remedy. Kucera v. Dep’t of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000). And there is no right to a jury trial for equitable relief. Bird v. Best Plumbing Grp., LLC, 175 Wn.2d 756, 769, 287 P.3d 551 (2012).
15 No. 39097-7-III Redwine v. Redwine
prevailing party on appeal. Lennar Multifamily Builders, LLC v. Saxum Stone, LLC,
18 Wn. App. 2d 435,452,492 P.3d 175 (2021). Because we affirm the trial court's
determination that Jerry's claims of lien were frivolous, subject to RAP 18.l(d), we
grant Virgil and Tera's request for reasonable costs and attorney fees on appeal.
Affirmed.
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.
Lawrence-Berrey, A.~}
WE CONCUR:
Pennell, J.