Rupert v. Campion

DIANE RUPERT, Respondent, v. ELLEN CAMPION, Appellant

FLETCHER DEBELY, Respondent.

No. 84632-9-I

Court of Appeals of Washington, Division 1

February 21, 2023

UNPUBLISHED OPINION

Díaz, J.

Three sisters (or their heirs) agreed to partition property they inherited from their father, but disagreed on how one of the sisters, Ellen Campion, managed the rental home on the property, and now disagree on how the trial court managed the litigation and resolved the trial thereafter. The trial court appointed a receiver to collect rent, to evict tenants, and to sell the property. The court subsequently awarded each of the sisters (or their heirs) a proportionate share of Citations and pin cites are based on the Westlaw online version of the cited material net rent proceeds and ordered Campion to reimburse the receiver approximately $2,000 in rent proceeds which she had improperly retained. Finding no error, substantively or procedurally, we affirm.

I. FACTS

In 2009, George DeLavergene quit claimed property in Spanaway Washington (Property) to his three daughters, Campion, Diana Rupert, and Denise Debely,^[1] transferring undivided one-third interests to each of them as their separate estates. A few days later, Rupert and Campion then granted DeLavergene a life estate on the Property, while Denise maintained a 1/3 ownership interest in fee.

In April 2017, Denise died intestate. Denise's husband, Fletcher, shortly thereafter entered into settlement agreements with Denise's children from a prior marriage, making him the sole successor to Denise's interest in the Property. Campion successfully petitioned to be named personal representative of Denise's estate, acknowledging that Fletcher was her sole heir. That court dismissed without prejudice the probate of Denise's estate in 2019, after Campion did not appear at the review hearing and without Campion taking any action against Fletcher's one-third interest in the Property.

DeLavergene died in April 2020. In October 2020, Rupert filed a complaint to partition and sell the Property and to appoint a receiver to collect rents, evict tenants and complete the sale. She named Fletcher, as Denise's successor in interest, and Campion, as defendants. Rupert did not include Denise's estate as a party to this action. In November 2020, the court appointed a custodial receiver and granted him the authority to collect rent, evict tenants and sell the Property.

In October 2020, Fletcher filed a cross-claim against Campion, alleging that Campion had collected and retained rent from tenants on the property that belonged to Rupert and him, in excess of $50,000. Campion then moved to reopen Denise's probate proceeding, a motion the probate court granted in or around February 2021.

The partition action was set for trial on October 7, 2021 but, due to lack of court availability, the trial was continued to October 27, 2021. On October 14, 2021, Campion, as personal representative of Denise's estate, filed a motion to intervene in the partition action and to continue the trial to allow the parties to engage in some form of alternative dispute resolution (ADR). The court denied these motions. Denise's estate then sought discretionary review of the denial of its motions, which was denied. Ruling Denying Review, Campion v. Rupert, No. 56928-1-II (Wash.Ct.App. June 15, 2022).

Following trial, the superior court ruled that the three parties each had a one-third interest in the Property, which no one contested; that Campion had collected and retained rent, and was allowed to use those funds to pay pro-rated taxes (from the date of DeLavergne's death), utilities and insurance due on the Property, which again no one contested; but that Campion was not entitled to use those funds to pay for an appraisal of the Property or pay herself "management" fees, without the consent of the other two co-tenants.

Specifically, the court found that Campion had collected $8,400 in rent, and was entitled to offsets for her payment of property taxes, insurance and sewer bills, resulting in net rents owing to the receiver of $2,890.74. Finding that Campion had remitted only $857.52 of this total to the receiver, the court ordered Campion to pay to the receiver the balance of $2,033.22. It ordered the receiver to calculate what each co-tenant was owed from the net sale and rent proceeds and to distribute the proceeds accordingly.

In February 2022, the court approved the receiver's final report and ordered him to distribute $146,822.53 to Campion, $149,764.66 to Rupert, and $148,947.99 to Fletcher. The distribution to Fletcher, however, was stayed at Campion's request pending this appeal. The court distributed the excess rent monies effectively evenly without those fees, and ordered Campion to pay approximately $2,000 to the receiver of the partition action.

II. ANALYSIS

Campion argues that the trial court improperly waived provisions in its own scheduling order for confirmation of joinder and for ADR; that Denise's estate is a necessary party and should have been permitted to intervene; that the trial court erred in calculating damages; and that CR 11 sanctions should have been granted against Fletcher for his allegedly inflated claims against her.

A. Joinder and Alternative Dispute Resolution

It is not disputed that the trial court ordered and the parties did not file a confirmation of joinder of parties or a declaration confirming participation in ADR. Campion asserts that the trial court erred in permitting the case to proceed to trial without requiring the parties to do either.

As to joinder, Campion speculates that, "if the Court would have required compliance [with PCLR 19(c), which mandates confirmation of joinder], the[n] Mr. DeLavergne's Estate would have been joined as a party eight (8) months before trial . . . and likely [compliance with the requirement] would have resulted in settlement."

As Fletcher argues, however, and is equally undisputed, no party ever moved the trial court to require confirmation of joinder. At most, in its motion to intervene and to continue the trial, Denise's estate mentioned only in passing its desire to be joined as a necessary party. There was no explicit reference to a failure to file the confirmation of joinder and no express demand for the court to require one. Further, in Campion's answers to Fletcher's cross-claim and to Rupert's complaint, Campion did not plead failure to name a necessary party. In short, the trial court had little reason to know in any detail about, or rule on, a procedural step not taken.

"A party may generally not raise a new argument on appeal that the party did not present to the trial court." In re Estate of Reugh, 10 Wn.App. 2d 20, 51, 447 P.3d 544 (2019) (citing In re Detention of Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144 (2007)). "A party must inform the court of the rules of law it wishes the court to apply and afford the trial court an opportunity to correct any error." Id. (citing Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983)). This principle affords the trial court an opportunity to correct the error, thereby avoiding unnecessary appeals and retrials. Ryder v. Kelly Springfield Tire Co., 91 Wn.2d 111, 114, 587 P.2d 160 (1978). This is consistent with the discretion granted this court through RAP 2.5(a), which allows this court to "refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a)

We decline to consider a procedural error not put before the trial court.

As to ADR, as a preliminary matter, PCLR 16(c) is not self-executing. The only applicable enforcement provision is in PCLR 3(1), which provides:

The assigned judicial department, on its own initiative or on the motion of a party, may impose sanctions or terms for failure to comply with the Order Setting Case Schedule established by these rules. If the court finds that an attorney or self-represented party has failed to comply with the Order Setting Case Schedule and has no reasonable excuse, the court may order the attorney or party to pay monetary sanctions to the court, or terms to any other party who has incurred expense as a result of the failure to comply, or both; in addition, the court may impose such other sanctions as justice requires.

(Emphasis added).

Here, at most, Denise's estate - again, not appellant Campion - asked the trial court to continue the trial so that the parties could conduct ADR. That motion was not a "motion of a party" to enforce the ADR requirement or for sanctions for failure to comply with the Order Setting Case Schedule under PCLR 3(1). Indeed, there was no request by any party to order ADR. As with joinder, for this reason alone, this court could decline to consider this alleged error.

More substantively, we interpret court rules as though they were drafted by the legislature. State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (citing State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993)). When interpreting statutes, "words like 'may' are permissive and discretionary." State v. Stivason, 134 Wn.App. 648, 656, 142 P.3d 189 (2006) (citing Rudolph v. Empirical Research Systems, Inc., 107 Wn.App. 861, 866, 28 P.3d 813 (2001)). Thus, any intervention by the court, or the imposition of sanctions, under PCLR 3(1) is discretionary.

Likewise "[w]hether a motion for continuance should be granted or denied is a matter discretionary with the trial court, reviewable on appeal for manifest abuse of discretion." Balandzich v. Demeroto, 10 Wn.App. 718, 720, 519 P.2d 994 (1974) (citing Jankelson v. Cisel, 3 Wn.App. 139, 473 P.2d 202 (1970)). In exercising its discretion, the court may properly consider the necessity of reasonably prompt disposition of the litigation; the needs of the...