Willard Gibson v. Marie-claire Harper Pagh

CourtCourt of Appeals of Washington
DecidedMarch 17, 2014
Docket68731-0
StatusUnpublished

This text of Willard Gibson v. Marie-claire Harper Pagh (Willard Gibson v. Marie-claire Harper Pagh) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willard Gibson v. Marie-claire Harper Pagh, (Wash. Ct. App. 2014).

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARIE-CLAIRE HARPER PAGH, NO. 68731-0-

Respondent, DIVISION ONE f>» o o f> o •c- v. 2=» ZO _ o

WILLARD GIBSON, UNPUBLISHED OPINION __>_! -J :<~ur~ 3a. Appellant. FILED: March 17,2014 3

• *

en o en zz~

Lau, J. — In this appeal from garnishment and controversion proceedings, Willard

Gibson challenges the trial court's $5,000 judgment in favor of Marie-Claire Pagh

against the garnishee law firm and the court's award of attorney fees in favor of Pagh

against Gibson. Because this court vacated the judgment underlying the garnishment

proceedings, no valid basis exists to support those proceedings or the resulting TATE URT monetary awards. We vacate the judgment and attorney fee award in Pagh's favor and

remand with instructions to the trial court to dismiss the garnishment proceedings.

FACTS

February 2011 Judgment

In early 2010, Marie-Claire Pagh filed a domestic violence protection order and

parenting plan action against Willard Gibson. The underlying facts of that case are fully 68731-0-1/2

discussed in our unpublished opinion on direct appeal (case 66833-1). See In re

Gibson, noted at 172 Wn. App. 1012, 2012 WL 5992104, review denied. 177 Wn.2d

1018 (2013). Trial occurred on February 1, 2011. On February 15, 2011, the trial court

ruled in Pagh's favor on the protection order and parenting plan issues and granted

Pagh a money judgment against Gibson in the principal amount of $45,876.48

representing her attorney fees and costs in the underlying litigation. Gibson appealed

the judgment to this court in case 66833-1. He posted no supersedeas bond.1

Gibson's Fee Agreement with Garnishee

Gibson retained the Law Offices of Michael W. Bugni & Associates, PLLC

(garnishee) on an hourly basis to represent him in his appeal of the February 15, 2011

judgment.2 Gibson's fee agreement with garnishee required him to give garnishee a $5,000 "advance deposit (retainer)." The fee agreement further explains that this

$5,000 advance "will be deposited into our trust account and withdrawn as fees are

earned and expenditures made." The fee agreement also indicates that Gibson will

receive a "monthly statement for fees and costs which unless otherwise agreed, must

be paid in full within 20 days of receipt." Billing statements generated for Gibson's

account indicate:

Please be advised that 15 days from the date of [each statement] your trust fund balance (if applicable) will be adjusted to pay the balance due on your account.

1A trial court decision may be enforced pending appeal or review unless a party stays enforcement of the judgment by filing a supersedeas bond or cash in the trial court. RAP 8.1(b)(1).

2Gibson contacted garnishee "in May 2011 to seek representation for his appeal of the trial court's decision." Pagh raised a conflict of interest challenge regarding garnishee's representation of Gibson, which the court resolved in Gibson's favor in September 2011. -2- 68731-0-1/3

If there are insufficient funds in your account to pay the current balance, please remit any amounts still owing within 20 days or less of your receipt of this invoice.

On November 21, 2011, Gibson's trust account balance was $5,000. Also on

November 21, garnishee sent Gibson a bill for $2,919.11 for attorney fees and costs

through November 21. The bill contained the language quoted above, indicating that

Gibson's trust account balance would be used to pay the $2,919.11 bill "15 days from

the date of this statement," i.e., 15 days after November 21, 2011.

Garnishment and Controversion Proceedings

On November 28, 2011—before 15 days had passed—King County Superior

Court issued a writ of garnishment in favor of judgment creditor Pagh for the full amount

of her February 15, 2011 judgment, plus interest. The writ was issued against

garnishee and named Gibson as respondent.3 Garnishee received service of the writ on November 29. The writ stated in part:

YOU ARE HEREBY COMMANDED, unless otherwise directed by this court, by the attorney of record for the petitioner, or by this writ, not to . .. deliver, sell, or transfer, or recognize any sale or transfer of, any personal property or effects of the respondent in your possession or control at the time when this writ was served. . . . YOU ARE FURTHER COMMANDED to answer this writ by filling in the attached form according to the instructions in this writ and in the answer forms . . . . IF YOU FAIL TO ANSWER THIS WRIT AS COMMANDED, A JUDGMENT MAY BE ENTERED AGAINST YOU FOR THE FULL AMOUNT OF THE PETITIONER'S CLAIM AGAINST THE RESPONDENT WITH ACCRUING

3A garnishment proceeding "is essentially an ancillary action to the principal suit between a creditor and a debtor." Watkins v. Peterson Enters.. Inc.. 137 Wn.2d 632, 638, 973 P.2d 1037 (1999). It is "adversarial in the sense that a creditor takes action against a garnishee, but only to satisfy an underlying claim against a debtor. The proceeding is also ancillary in that the court's subject matter jurisdiction is based on the validity of the principal action against the debtor." Watkins. 137 Wn.2d at 639 (citation omitted). -3- 68731-0-1/4

INTEREST, ATTORNEY FEES, AND COSTS WHETHER OR NOT YOU OWE ANYTHING TO THE RESPONDENT. . . .

On December 19, garnishee answered the writ of garnishment and attached a

letter responding to several of the writ's directives. The letter stated in part:

Any funds received or held by [garnishee] were advance fee deposits (commonly referred to as retainers) paid pursuant to agreement to cover the costs and legal services related to his appeal. As such, title to these funds lies with [garnishee], not Willard Gibson (unless he should request a refund or other disposition). Advanced fee deposits are held in a common or pooled IOLTA [Interest on Lawyers' Trust Accounts] trust account. Our firm's IOLTA account, as inferred above, is a "pooled account" and contains deposits from or on behalf of numerous other clients to which Mr. Gibson has no particular right. Mr. Gibson has made no request for disbursal of funds such that he would be "entitled" to that disbursement, which might trigger a potential obligation to withhold such funds and deposit same into the registry of the Court.

The letter also stated that "[garnishee's] trust account is not subject to a Writ of

Garnishment as requested" and claimed, "Prosecution of such a Writ is not appropriate,

legally or ethically."

In trial court proceedings following its answer and also on appeal, garnishee

admitted that at the time the writ of garnishment was served, (1) garnishee held $5,000

in its IOLTA trust account for Gibson and (2) without Pagh's or the trial court's approval

and despite service of the writ of garnishment, it withdrew and paid itself the $5,000 it

was holding in the IOLTA trust account for Gibson.

On January 5, 2012, Pagh filed an "Affidavit Controverting Answer to Writ of

Garnishment" under RCW 6.27.210.4 CP 20-24. Under RCW 6.27.220, garnishee had

4 RCW 6.27.210

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Related

Hinote's Home Furnishings, Inc. v. Olney & Pederson, Inc.
700 P.2d 1208 (Court of Appeals of Washington, 1985)
In Re the Estate of Couch
726 P.2d 1007 (Court of Appeals of Washington, 1986)
Johnson v. Berg
265 P. 473 (Washington Supreme Court, 1928)
Watkins v. Peterson Enterprises, Inc.
973 P.2d 1037 (Washington Supreme Court, 1999)
In re the Marriage of Hardt
693 P.2d 1386 (Court of Appeals of Washington, 1985)

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Willard Gibson v. Marie-claire Harper Pagh, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willard-gibson-v-marie-claire-harper-pagh-washctapp-2014.