Opinion
No. 62555-1-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-08362-8, John P. Erlick, J., entered April 8, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Ellington and Lau, JJ.
UNPUBLISHED OPINION
When a judgment creditor commenced proceedings to execute against Knedlik's real property, his mother, Giovannini, filed an affidavit alleging that Knedlik had previously conveyed the property to her. The superior court found that Giovannini's claim of ownership was probably not valid and later confirmed a sheriff's sale of the property to the judgment creditor. Knedlik and Giovannini appeal, arguing among other things that the superior court and the sheriff failed to follow statutory procedures requiring a trial on Giovannini's claim of ownership. Because appellants failed to demonstrate a triable issue on ownership below, and because their other arguments on appeal were either not preserved or lack merit, we affirm.
FACTS
After obtaining a $29,000,000 judgment in California against appellant Will Knedlik, Spark Networks, PLC, filed the judgment in King County Superior Court. It then obtained a judgment lien and a writ of execution against Knedlik's real property in Kirkland, Washington.
On February 4, 2008, Knedlik's mother, appellant Anna Giovannini, filed an "Affidavit of Ownership" in which she claimed ownership of the Kirkland property under a contract executed by her and Knedlik in 1995. The contract, which Giovannini attached to her affidavit, obligated Knedlik to pledge the Kirkland property and other assets as security for loans from Giovannini. In turn, Giovannini pledged not to foreclose on Knedlik, to give Knedlik a life estate in the property, and to set up a trust fund for Knedlik's son.
On February 11, 2008, Giovannini moved for a hearing under RCW 6.19.030(2) to establish the probable validity of her claim of ownership.
On February 13, 2008, the court issued an order setting a sale of the property for February 15, 2008, and a probable validity hearing for February 20, 2008. The order recited that the applicable homestead exemption amount was $40,000.
On February 15, 2008, Spark purchased the Kirkland property for $4,000,000.
On February 20, 2008, following a hearing, the court concluded that Giovannini had failed to show that her claim of ownership was probably valid. The court observed that the title report showed Knedlik as the owner, that Knedlik asserted ownership in his bankruptcy filings, that Giovannini had not asserted ownership in her bankruptcy petition, and that the 1995 conveyance document did not comport with the statute of frauds, RCW 64.04. The court ruled that the document was "void as a matter of law," that Knedlik owned the property, and that its ruling was "binding on Will Knedlik and Anna Giovannini with respect to the question of ownership in connection with Spark's upcoming Motion for Court Confirmation of the Sale of the Property pursuant to the Writ of Execution. . . ."
Appellants moved for reconsideration, arguing in part that the court was not authorized to determine ownership of the property at the probable validity hearing. They also argued that, contrary to Spark's assertions, RCW 6.19 afforded Giovannini a trial on her ownership claim regardless of whether she established probable validity or posted a bond. The court denied the motion.
On March 21, 2008, Spark moved to confirm the sheriff's sale, noting that a sale must be confirmed unless "there were substantial irregularities in the proceedings . . . to the probable loss or injury of the party objecting." RCW 6.21.110(3). Spark argued that appellants had shown no irregularities or harm and that there were no issues requiring a trial on Giovannini's claim of ownership. Appellants replied that the sale was void due to the court's failure to afford them a trial on Giovannini's claim of ownership and the Sheriff's failure to recuse herself as required by statute.
On April 8, 2008, the court confirmed the sale, ruling in part that appellants failed to demonstrate any harm from any irregularities in the proceedings. The court reaffirmed its previous ruling regarding Giovannini's claim of ownership, stating that "[t]here are no issues of fact remaining" on that claim. The court subsequently denied appellants' motion for reconsideration.
DECISION
Appellants' principal claim on appeal is that the superior court and the sheriff failed to follow the procedures set forth in RCW 6.19 for adjudicating Giovannini's claim of ownership in the Kirkland property. They contend the court exceeded its authority when it ruled at the probable validity hearing that she had no ownership interest in the property. They also contend the sheriff was required to immediately return Giovannini's affidavit of ownership to the appropriate court for trial. These omissions, they conclude, denied them their rights to a trial under RCW 6.19.030 and .050 and to due process. In response, Spark argues that appellants were entitled to a trial under the statute only if they posted a bond with the affidavit of ownership, or established the probable validity of Giovannini's ownership claim.
RCW 6.19.030 provides:
(1) An adverse claimant to property levied on may demand and receive the property from the sheriff who made the levy, upon making and delivering to the sheriff an affidavit that the property is owned by the claimant or that the claimant has a right to the immediate possession thereof, stating on oath the value thereof, and giving to the sheriff a bond, with sureties in double the value of such property. The bond shall be conditioned that the claimant will appear in the court specified in RCW 6.19.050 after the bond is accepted by the sheriff, and make good the claim in the affidavit or will return the property or pay its value to the sheriff.
(2) Without giving a bond, an adverse claimant who delivers to the sheriff an affidavit as described in subsection (1) of this section may, on motion made within seven days after delivering the affidavit, appear in the court specified in RCW 6.19.050, with notice to the sheriff and to the attorney of record for the levying creditor, if any, otherwise to the levying creditor, and set a hearing at which the probable validity of the claim stated in the affidavit can be considered. If the court, after the hearing, finds that the claim is probably valid, it shall direct the sheriff to release the claimed property to the claimant; otherwise, the court shall direct the sheriff to continue to hold the property unless the claimant gives a bond as provided in subsection (1) of this section.
RCW 6.19.050 provides in part:
The sheriff shall immediately return the affidavit of an adverse claimant and the bond and justification, if any, to the office of the clerk of the court that issued the writ . . . and this case shall stand for trial in said court. The adverse claimant shall be the plaintiff, and the sheriff and the levying creditor shall be the defendants. The sheriff or levying creditor or both of them may respond to the affidavit, but no further pleadings are required, and any party may cause the matter to be noted for trial.
We decline to engage in construction of RCW 6.19 on the limited briefing before us. Instead, we will assume, without deciding, that the superior court could not dismiss Giovannini's ownership claim at the probable validity hearing and that appellants were, at that point, entitled to a trial on that claim. A right to trial does not, however, guarantee that a civil matter will ultimately be adjudicated in a trial. Courts routinely dismiss civil cases prior to trial where no factual or legal basis for a trial exists. CR 56; CR 12(b)(6). That is, in effect, what happened here.
The orders denying probable validity and confirming the sheriff's sale dismissed Giovannini's claim of ownership as a matter of law. While we assume for purposes of our analysis that the court could not dismiss Giovannini's claim of ownership at the probable validity stage of the proceedings, nothing precluded the court from dismissing the claim thereafter. As noted above, the ownership issue arose again in the subsequent confirmation proceedings. Appellants filed objections to the sale, presented oral argument, and filed a motion for reconsideration of the order confirming the sale. The confirmation process thus provided the appellants with a full opportunity to demonstrate that a triable issue existed on the ownership claim. The confirmation order was, in essence, a determination that they failed to make that showing. We conclude, therefore, that any violations of RCW 6.19 do not require reversal and that appellants were not denied due process. See Dependency of H., 71 Wn. App. 524, 859 P.2d 1258 (1993) (due process violation harmless where proper hearing was eventually held and original decision was confirmed).
We note that the appellants had over a month between the order on probable validity and the confirmation hearing to produce any additional evidence or arguments supporting Giovannini's ownership claim.
To the extent appellants contend they demonstrated a triable issue on Giovannini's ownership claim, their contention is frivolous. Neither Giovannini nor Knedlik disputed below that Knedlik was listed as the owner in the title report. Although Giovannini claimed that Knedlik conveyed the property to her in a 1995 document, the alleged conveyance was legally flawed. Under the statute of frauds, a conveyance of land must contain, or incorporate by reference, a description of the land sufficiently definite to locate it without recourse to oral testimony. RCW 64.04.010 — .050; Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995). The 1995 document contained no legal description. It also was not acknowledged in the manner required by RCW 64.04.020. Therefore, it was legally insufficient to convey the property to Giovannini. Because the 1995 document was the only evidence of conveyance offered below, the superior court correctly ruled that Giovannini's ownership claim failed as a matter of law.
Appellants also contend the superior court abused its discretion in confirming the sheriff's sale. Casey v. Chapman, 123 Wn. App. 670, 678, 98 P.3d 1246 (2004) (order confirming a sale is reviewed for abuse of discretion). Citing RCW 6.01.030 and RCW 6.19.050, they claim that the sheriff was required to recuse herself in favor of the coroner once she became a party to the action. We need not consider this claim, because, as Spark correctly points out, appellants did not assert this objection to confirmation within the 20-day deadline for filing objections set forth in RCW 6.21.110(2). See Hazel v. Van Beek, 135 Wn.2d 45, 50-52, 954 P.2d 1301 (1998) (20-day period is mandatory and bars all objections except those involving matters of jurisdiction). But even if we were to consider the claim, it would fail.
RCW 6.01.030 only requires a sheriff to recuse when the sheriff "is a party or otherwise interested in an action in which a writ of execution . . . is to be served. . . ." Here, the sheriff was not a party to, or otherwise interested in, the execution of the writ. It is true that had the matter gone to trial on Giovannini's ownership claim the sheriff would have become a nominal party to that proceeding. But, the matter did not proceed to trial.
Under RCW 6.19.050. supra, the sheriff is made a defendant for purposes of any ownership trial: "The adverse claimant shall be the plaintiff, and the sheriff and the levying creditor shall be the defendants. The sheriff or levying creditor or both of them may respond to the affidavit, but no further pleadings are required, and any party may cause the matter to be noted for trial."
Finally, Knedlik contends the superior court should have applied a statutory amendment increasing his homestead exemption amount from $40,000 to $125,000. When Spark's counsel raised this issue below, he noted that Knedlik had "not filed any opposition papers that speaks [sic] to that aspect of our motion. . . ." Counsel then reiterated Spark's position, stating that under "the statutory history . . . the amendment, as well as case authority, there is absolutely no basis for a retroactive application of that increased amount." When given an opportunity to respond, Knedlik offered no argument on this issue. The argument before us is thus raised for the first time on appeal. Under RAP 2.5(a), we need not consider it and decline to do so.
Affirmed