Honse v. Clinton

CHRISTOPHER HONSE and SALLY HONSE, Respondents, v. PATRICE CLINTON, RICHARD SORRELS, Appellants,CHRISTOPER SORRELS, as Trustee to RAVENSCREST TRUSTand KEY CENTER ENTERPRISES, LLC, Defendants.

No. 45616-8-II

C/w No. 46336-9-II

No. 46336-9-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

September 29, 2015

UNPUBLISHED OPINION

WORSWICK, J. — Patrice Clinton and Richard Sorrels, self-represented litigants, appeal a writ of restitution and subsequent orders in an unlawful detainer action commenced as a result of a trustee's sale. Clinton and Sorrels failed to make payments to Christopher and Sally Honseafter they entered into an owner-financed sale for the purchase of the Honses' real property. The Honses obtained a writ of restitution and subsequent clarifying orders, giving them possession of the real property and allowing them to dispose of Clinton's and Sorrels's personal property. Clinton and Sorrels argue that the superior court erred in issuing the writ and the clarifying orders by (1) ruling that the Honses gave Clinton and Sorrels sufficient notice under RCW 59.12.032 and RCW 61.24.040, (2) extending the writ of restitution, (3) refusing to grant Clinton and Sorrels a continuance on a partial motion for summary judgment, (4) setting an appeal bond in an unreasonable amount, and (5) not ordering the Honses to store Clinton's and Sorrels's property under RCW 59.18.312. We affirm the writ and the clarifying orders.

FACTS

The procedural facts in this case are convoluted. This case is, in essence, an unlawful detainer action. However, matters became complicated through a series of filings in the superior court.

Christopher and Sally Honse owned approximately six acres of real property in Lakebay, Washington. In 2006, the Honses sold the property to Patrice Clinton through a seller-financed transaction for which the Honses accepted a promissory note from Clinton secured by a deed of trust against the property. Clinton's significant other, Richard Sorrels, lived with Clinton on the property and ran an unauthorized business selling old vehicles.

By 2008, Clinton had defaulted on the promissory note. Since that time, the property has been the subject of protracted litigation. The Honses attempted to regain the property over a period of four years through two foreclosure actions. Clinton and Sorrels (or entities they controlled) delayed the foreclosure process through the filing of four bankruptcy proceedings.The bankruptcy court found that these filings were an "effort to somehow forestall foreclosure." Clerk's Papers (CP) at 21. The bankruptcy court also found that Clinton and Sorrels were engaged in "a scheme to delay and hinder the Honses with respect to their lien against the Lakebay property." CP at 23.

In 2013, the Honses successfully foreclosed through a trustee's sale and regained title to the property. At the time of the trustee's sale, Clinton owed more than $410,000 to the Honses. Law firm Davies Pearson, PC was appointed as successor trustee. There are two discrepancies in the documents supporting the sale. First, on the amended notice of trustee's sale, James Tomlinson signed the document "[f]or" Brian King, but the notary attestation states that Brian King appeared and signed. CP at 125. Second, the amended notice of trustee's sale and the notice of foreclosure contained two different amounts for the principal balance owed.¹ Neither Clinton nor Sorrels initiated any action to enjoin or restrain the trustee's sale.

After the foreclosure, both Clinton and Sorrels remained on the property. The Honses then commenced an unlawful detainer action, and the superior court set a show cause hearing for October 17, 2013.

At the show cause hearing, Clinton and Sorrels argued that the trustee's sale was defective. After hearing testimony and considering the evidence, a superior court commissioner entered findings of fact and conclusions of law. As part of the findings of fact, the commissionerfound: "Prior to conducting the Trustee's Sale, the Trustee provided notice in compliance with RCW 61.24.040 and .060." CP at 135.

Accordingly, the commissioner's conclusions of law included a determination that Clinton and Sorrels should be adjudged guilty of unlawful detainer, that their occupancy at the Lakebay property should be terminated, and that they should be evicted under a writ of restitution. The commissioner also entered a writ of restitution. Thirteen days later, another commissioner extended the writ "in increments of twenty days until possession in the manner provided by law." CP at 302-03. The Honses obtained this extension after Clinton and Sorrels requested additional time to vacate the premises.

On October 23, 2013, the Honses filed a motion for partial summary judgment to "confirm" their right of possession. CP at 144. On October 28, Clinton and Sorrels filed a motion to revise the first commissioner's ruling regarding the writ of restitution. Clinton and Sorrels did not assign error to any of the commissioner's findings of fact. On November 12 and 13, 2013, Clinton and Sorrels served interrogatories and requests for production on the Honses. At the same time, Clinton and Sorrels moved for a continuance of the summary judgment hearing so that they could retain counsel and obtain answers to outstanding discovery requests. On November 13, the Honses filed a motion asking the superior court to clarify their responsibilities under the writ regarding storage of substantial personal property left behind by Clinton and Sorrels, including numerous vehicles in varying states of disrepair.

On November 22, 2013, after hearing arguments from all parties, the superior court granted the Honses' motion for partial summary judgment ruling, as a matter of law, that they were entitled to possession of the real property. The superior court denied Clinton and Sorrel'smotion for a continuance, relying in part on the unchallenged findings of the bankruptcy court that Clinton and Sorrels had engaged in an extended "scheme . . . to hinder, delay, or defraud creditors." Verbatim Report of Proceedings (VRP) (Nov. 22, 2013) at 10. Additionally, the superior court denied Clinton and Sorrels's motion to revise the commissioner's rulings regarding the writ of restitution without making additional findings of fact or conclusions of law. Finally, the superior court entered an order which ruled that the Honses could, without further notice to Clinton and Sorrels, dispose of any and all personal property left following execution of the writ. In an ex parte hearing three days later, the superior court set a bond amount of $295,000 to stay the writ of restitution. Clinton and Sorrels appealed.

The sheriff executed the writ of restitution on November 26, 2013. Despite the court's order clarifying that the Honses could dispose of the remaining personal property, Clinton and Sorrels served on the Honses a written request to store their personal property.

Over the next several months, the Honses worked to inventory and remove the property left behind. Of the 188 vehicles on the property, 173 qualified as "'junk vehicles'" under the Pierce County Code. CP at 942 (quoting PIERCE COUNTY CODE 8.08.030(F)). On May 2, 2014, the superior court entered an order clarifying its November 22 ruling that the Honses were permitted to dispose of the remaining vehicles left on the property. Clinton and Sorrels then filed an appeal contesting this superior court order, which we consolidated with their first appeal.

ANALYSIS

I. STANDARDS OF REVIEW

Where the superior court affirms the commissioner's order without entering findings or conclusions of its own, we review the commissioner's findings and conclusions as the superiorcourt's findings and conclusions. See In re Marriage of Williams, 156 Wn. App. 22, 27-28, 232 P.3d 573 (2010). We review whether substantial evidence supports the findings of fact and if so, whether those findings support the conclusions of law. Casterline v. Roberts, 168 Wn. App. 376, 381, 284 P.3d 743 (2012). Evidence is sufficient when it is enough to "persuade a rational, fair-minded person that a finding is true." Casterline, 168 Wn. App. at 381. We consider unchallenged findings of fact to be verities on appeal. Casterline, 168 Wn. App. at 381 (citing Cowiche Canyon Conservancy v. Bosley, 118 Wn. 2d 801, 808, 828 P.2d 549 (1992)). Unchallenged conclusions of law become the law of the case. King Aircraft Sales. Inc. v. Lane, 68 Wn. App. 706, 716-17, 846 P.2d 550 (1993).

Decisions of a court commissioner are subject to revision by the superior court upon the records of the case and the findings of fact and conclusions of law entered by the court commissioner.² RCW 2.24.050. The scope of the superior court's review is limited to the evidence presented to the commissioner. RCW 2.24.050 (stating that the scope of review on motion for revision "shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner"); In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). To obtain review on appeal in this case, Sorrels must meet four procedural requirements. First, when considering an appeal from the motion to revise, the superior court and this court are limited to the evidence presented to the commissioner; anyevidence not before the commissioner cannot be considered. Moody, 137 Wn.2d at 992-93. Second, under Pierce County Local Rule (PCLR) 7(a)(12)(C), a motion for revision must state with specificity the portion of the commissioner's order sought to be revised. Any portion not so specified is binding as if no motion for revision had been made. PCLR 7(a)(12)(C). Third, we treat any findings of fact to which no error has been assigned as verities on appeal.³ RAP 10.3(g). And fourth, we decline to consider arguments made for the first time on appeal. RAP 2.5.

The "Deed of Trust Act," chapter 61.24 RCW, provides that the purchaser at a trustee's sale is entitled to...