                                                                  FILED
                                                             SEPTEMBER 3, 2015
                                                          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

JAMES W. and JUDy D. AASEBY,                  )        No. 32471-1-III
husband and wife,                             )
                                              )
                     Appellants,              )
                                              )
             v.                               )        UNPUBLISHED OPINION
                                              )
WILLIAM VUE, a single person; and             )
VILAY and AGNES VUE, husband and              )
wife,                                         )
                                              )
                     Defendants, 	            )
                                              )
J. SCOTT MILLER, 	                            )
                                              )
                     Respondent.              )

      LAWRENCE-BERREY, 1. - In August 2013, this court in Aaseby I reversed a trial

court's order of sanctions against 1. Scott Miller. Aaseby v. Vue, noted at 176 Wn. App.

1013,2013 WL 4773896, review denied, 179 Wn.2d 1012 (2014) (Aaseby I). On remand,

the trial court vacated the judgment and ordered return of the funds that Mr. Miller paid to

satisfy the judgment, together with statutory interest. The Aasebys appeal, contending

that the trial court had no authority to return the judgment funds to Mr. Miller. They
No. 32471-1-111
Aaseby v. Vue


argue that once Mr. Miller satisfied the judgment in full under RCW 4.56.100, the

judgment was discharged and Mr. Miller was precluded from recovery. Additionally,

they argue that RCW 4.56.100 overrides a trial court's authority under RAP 12.8 to

restore payment on a judgment that was subsequently reversed. The Aasebys maintain

that they are entitled to the judgment funds. We disagree and affirm.

                                          FACTS

       A brief recitation of the facts from Aaseby I is provided for context. In 2000,

William Vue and James Aaseby were involved in a car accident. Aaseby I, 2013 WL

4773896 at *1. The Aasebys initiated a personal injury action against Mr. Vue. ld.

Attorney Miller was retained by Allstate Insurance Company to represent Mr. Vue. ld.

After the case was settled for the policy limits in 2004, the Aasebys identified a Farmers

Insurance policy that was not provided during discovery and found factual discrepancies

in Mr. Vue's interrogatory answers. ld. The Aasebys moved for sanctions against Mr.

Miller under CR 11(a) and CR 26(g). ld. Extensive and protracted litigation ensued. ld.

In 2011, the Spokane County Superior Court sanctioned Mr. Miller in the amount of

$22,300 for failing to exercise diligence in answering the complaint and discovery

request. ld.




                                             2

No. 32471-I-III
Aaseby v. Vue


       Mr. Miller appealed, and this court reversed the sanctions. Id. This court held that

Mr. Miller conducted a reasonable inquiry under the circumstances before certifying the

discovery request, considering Mr. Miller was not told about the policy even though Mr.

Vue, Allstate, and the Aasebys all had knowledge of the policy at the time of the

discovery request. Id. at *7. Additionally, this court held that sanctions were not

warranted for Mr. Miller's failure to correct a caption error because it made no difference

to the litigation. Id. at *8.

       Also, this court denied the Aasebys' cross motion for additional sanctions against

Mr. Miller. Id. at *9. The Aasebys argued that Mr. Miller misrepresented the law when

he objected to the Aasebys' demand that he post a supersedeas bond. Id. The trial court

deferred judgment on this issue to be resolved on appeal. Id. This court held that Mr.

Miller provided a valid argument that casted doubt on whether the Aasebys could compel

him to file a supersedeas bond. Id.

       Last, this court denied awarding attorney fees to either party on appeaL Id. at * 10.

While this court found the Aasebys' incessant request for sanctions to be troublesome, we

found the initial request for sanctions at trial was not frivolous and formed a reasonable

basis for appeal. Id.




                                             3

No. 32471-1-III
Aaseby v. Vue


       In summarizing our holding in Aaseby I, this court stated, "We reverse the trial

court's imposition of sanctions against Mr. Miller. We deny both parties' request for

attorney fees on appeal. Finally, we remand to the trial court for denial of the Aasebys'

... cross motion for sanctions." Id.

       The trial court's actions on remand are the subject of the Aasebys' current appeal.

The trial court first addressed this court's instruction that sanctions were not warranted on

the Aasebys' cross motion. The trial court determined, "I am satisfied that that

determination would render any other decision by your trial court useless and, therefore, I

am denying the motion for sanctions on the failure to file supersedeas." Report of

Proceedings (RP) at 3. The trial court then noted that it had made all of the necessary

rulings to move forward and could move forward in closing the matter.

       Mr. Miller requested return of the funds he paid to the clerk of court to satisfy the

sanctions judgment, citing RAP 12.8. The judgment payment was still in the clerk of

court's account. The Aasebys' attorney, Mike Delay, contended that Mr. Miller was not

entitled to return of the judgment funds and that the trial court should order the clerk to

pay the funds to the Aasebys. He argued that Mr. Miller discharged the judgment and

failed to preserve the right to appeal by voluntarily paying the judgment in full. Mr.

Delay also contended that because the appellate court's decision in Aaseby I did not


                                              4

No. 32471-1-II1
Aaseby v. Vue


expressly vacate the discharge of the money judgment, Mr. Miller was not entitled to

restitution of the judgment. Mr. Delay maintained that if Mr. Miller wanted return of the

funds, he should have superseded the judgment, partially satisfied the judgment, or

conditioned the payment on the outcome of the appeal.

       Applying RAP 12.8, the trial court held that voluntary satisfaction of a judgment

did not waive the right to appeal the judgment. Furthermore, the court found that the

appellate court's ruling made the underlying debt void and no longer enforceable,

regardless of whether it was satisfied. The court determined that the appropriate process

was to vacate the judgment and restore the property to Mr. Miller. Correspondingly, the

court vacated the judgment and ordered the clerk to return the judgment funds to Mr.

Miller. The court also ordered Mr. Delay as the judgment creditor to pay Mr. Miller

statutory interest in the amount of$5,269.29. The Aasebys filed a motion for

reconsideration, which the court denied.

       The Aasebys appeal. They contend that the trial court erred in returning the

judgment funds to Mr. Miller because Mr. Miller voluntarily satisfied the judgment and it

therefore was discharged under RCW 4.56.100. The Aasebys argue that neither

RAP 12.8 nor the appellate decision in Aaseby I gave the trial court the authority to return




                                             5

No. 32471-1-III
Aaseby v. Vue


the funds. They also argue that Mr. Miller lost his right to appeal and recover the

judgment when he chose not to file a supersedeas bond under RAP 8.1.

                                        ANALYSIS

Whether the trial court erred in vacating the judgment and ordering the judgment funds
returned to Mr. Miller

       We review a trial court's determination of restitution under RAP 12.8 for an abuse

of discretion. Ehsani v. McCullough Family P'ship, 160 Wn.2d 586, 589, 159 P .3d 407

(2007). Questions of statutory construction are reviewed de novo. State v. Fisher, 139

Wn. App. 578, 583,161 P.3d 1054 (2007). When unambiguous, "[t]he plain meaning of

the words of the statute determines its construction." Id. at 582-83.

       Aaseby I Decision. The Aasebys contend that the appellate court decision in

Aaseby I did not direct the trial court to order return of the funds. Citing to language from

the opinion, the Aasebys contend that remand was "solely" for the trial court to deny the

cross motion for judgment. Aaseby I, 2013 WL 4773896 at *1.

       The Aasebys' very limited reading of this court's opinion in Aaseby I is incorrect.

The Aasebys selectively pick a portion of this court's disposition and ignore the rest.

This court decided in Aaseby I, "We reverse the sanctions imposed on Mr. Miller, affirm

the trial court's dismissal ofMr. Miller's law firm, deny attorney fees on appeal, and

remand solely for the trial court to deny the Aasebys' cross motion for sanctions." Id.

                                             6

No. 32471-1-II1
Aaseby v. Vue


This decision is reiterated again at the end of the 24-page opinion with the order, "We

reverse the trial court's imposition of sanctions against Mr. Miller. We deny both parties'

request for attorney fees on appeal. Finally, we remand to the trial court for denial of the

Aasebys' April 2012 cross motion for sanctions." Id. at * 10. The Aasebys' contention

that the trial court was not ordered to reverse the sanctions imposed on Mr. Miller based

on Aaseby I is unreasonable. I

       Effect o[Satisfying a Judgment under RCW 4.56.1 00(1 ). The Aasebys contend

that Mr. Miller's choice to satisfY the judgment in full under RCW 4.56.100(1)2 precludes

return of the judgment funds. The Aasebys contend that once Mr. Miller paid the

judgment in full and noted the judgment was satisfied, he completely and forever

discharged the judgment. Thus, neither the trial court nor the appellate court had the

authority to return the funds to Mr. Miller.




       1 RAP 12.2 states that after the mandate is issued, the trial court may hear and
decide postjudgment motions otherwise authorized by statute or court rule so long as
those motions do not challenge issues already decided by the appellate court. By using
"solely," this court wanted to be clear that the parties would not task the trial court with
additional needless litigation. The effort was not successful, considering this case is
again before this court on appeal.
       2 The Aasebys also cite CR 58(h), "Satisfaction of Judgment. [Reserved.

                                               7

No. 32471-1-111
Aaseby v. Vue


       RCW 4.56.1 OO( 1) states in part,

      When any judgment for the payment of money only shall have been paid or
      satisfied, the clerk of the court in which such judgment was rendered shall
      note upon the record in the execution docket satisfaction thereof giving the
      date of such satisfaction upon either the payment to such clerk of the
      amount of such judgment, costs and interest and any accrued costs by
      reason of the issuance of any execution, or the filing with such clerk of a
      satisfaction entitled in such action and identifying the same executed by the
      judgment creditor or his or her attorney of record in such action or his or her
      assignee acknowledged as deeds are acknowledged. . .. Every satisfaction
      ofjudgment and every partial satisfaction ofjudgment which provides for
      the payment of money shall clearly designate the judgment creditor and his
      or her attorney if any, the judgment debtor, the amount or type of
      satisfaction, whether the satisfaction is full or partial, the cause number, and
       the date of entry of the judgment. A certificate by such clerk of the entry of
      such satisfaction by him or her may be filed in the office of the clerk of any
      county in which an abstract of such judgment has been filed. When so
      satisfied by the clerk or the filing of such certificate the lien of such
      judgment shall be discharged.

       The Aasebys' contention is without merit. The right to appeal is not denied to "a

party who complies with an outstanding judgment by paying benefits; that party may still

pursue an appeal and, if successful, obtain restitution." LaRue v. Harris, 128 Wn. App.

460,464, 115 P.3d 1077 (2005) (emphasis in original). Furthermore, nothing in the

language ofRCW 4.56.100(1) supports the Aasebys' contention that a debtor who fully

satisfies a judgment loses the right to return of the judgment if reversed. It does not

require a judgment debtor to include a notation on the judgment if he or she intends to


See RCW 4.56.100.]."
                                              8
No. 32471-1-II1
Aaseby v. Vue


seek return of the judgment. Nor does it remove the authority from the trial court to order

the return of a satisfied and discharged judgment.

       Satisfaction and discharge is a necessary part ofRCW 4.56.100(1). Satisfaction

and discharge stops enforcement of the action. See RAP 7 .2( c). Postjudgment interest

accrues unless and until the judgment debtor unambiguously and unconditionally directs

the court to apply the funds in the court registry to the satisfaction of the judgment.

Lindsay v. Pac. Topsoils, Inc., 129 Wn. App. 672, 678-79, 120 P.3d 102 (2005). Once

the clerk finds that the judgment is satisfied, it must be discharged. Satisfaction and

discharge should not be held against a debtor.

       For authority, the Aasebys cite to In re Estate ofBailey, 56 Wn.2d 623, 354 P.2d

920 (1960), and Lindsay to support their argument that recovery is not available to a

person who pays ajudgment in full under RCW 4.56.100(1). We disagree that these

cases are helpful or supportive of the Aasebys' argument. Bailey holds that when a

debtor makes a payment to a clerk and does not note that the payment is for satisfaction of

judgment, the payment does not operate to satisty the judgment and interest will accrue

on the entire amount until the payment is ordered to be turned over to the judgment

creditor. Id. at 628. Similarly, in Lindsay, the court held that when ajudgment debtor

places a condition on a payment that acceptance is in exchange for entry of a full



                                              9

No. 32471-1-III
Aaseby v. Vue


satisfaction of the judgment in the amount paid, and the creditor decides not to accept the

payment because he contests the.judgment amount and does not accept the terms, the

payment does not satisfY the judgment. Interest is calculated on the entire amount of the

judgment from the date of the verdict until the time of disbursement. ld. at 678-79.

       The Aasebys contend that the opposite in Bailey and Lindsay occurred in Mr.

Miller's case-he included a satisfaction note with the judgment and paid without

condition. Therefore, the Aasebys maintain that unlike Bailey and Lindsay, Mr. Miller

satisfied the judgment, and he is not entitled to a return of the judgment. This is a

strained interpretation of case law and these cases do not support the asserted proposition.

The cases address whether a judgment is satisfied for the purpose of calculating interest.

They do not address whether a satisfied judgment under RCW 4.56.100 may be returned

to the debtor when the basis for the judgment is reversed on appeal. As previously stated,

a debtor who satisfies a judgment does not lose the right to seek return of the judgment.

       The Aasebys imply that Mr. Miller's appeal is moot because he chose to satisfY

and discharge the judgment under RCW 4.56.100. Again, we find no language in the

statute to support a loss of appeal when the debtor satisfies a judgment. Mr. Miller did

not lose his right to appeal by satisfYing the judgment under RCW 4.56.100.




                                             10 

No. 32471-1-III
Aaseby v. Vue


       Trial Court Authority under RAP 12.8. The Aasebys contend that RAP 12.8 did

not give the trial court the authority to order return of the judgment funds to Mr. Miller

because RAP 12.8 does not supersede RCW 4.56.100. Thus, the Aasebys argue that once

ajudgment is discharged under RCW 4.56.100, a trial court cannot rely on RAP 12.8 to

reverse the discharge of the judgment. We disagree.

       RAP 12.8 governs the effect of reversals on intervening rights. Under the rule, the

trial court determines the appropriate restoration or restitution where property is

transferred or taken in compliance with a judgment that is subsequently reversed.

RAP 12.8 states:

                If a party has voluntarily or involuntarily partially or wholly satisfied
       a trial court decision which is modified by the appellate court, the trial court
       shall enter orders and authorize the issuance of process appropriate to
       restore to the party any property taken from that party, the value of the
       property, or in appropriate circumstances, provide restitution. An interest in
       property acquired by a purchaser in good faith, under a decision
       subsequently reversed or modified, shall not be affected by the reversal or
       modification of that decision.

       There is no conflict between RAP 12.8 and RCW 4.56.100(1). RCW 4.56.100(1)

addresses satisfaction of trial court judgments. Subsequently, if a satisfied judgment is

modified by the appellate court, RAP 12.8 governs the trial court's ability to restore the

property to the party who satisfied the judgment.




                                              11 

No. 32471-1-III
Aaseby v. Vue


       Furthermore, a trial court's authority under RAP 12.8 to return a satisfied

judgment after reversal is a well-settled issue oflaw. The Washington Supreme Court in

Ehsani recognized that the purpose of RAP 12.8 was to restore property to a party when

the party wholly or partially satisfied a trial court decision that is reversed or modified by

the appellate court. Ehsani, 160 Wn.2d at 590-91. In support of RAP 12.8, Washington

courts have looked to Restatement (First) o/Restitution § 74 (1937). Id. at 590-91. The

Restatement generally entitles a person to restitution when property is taken in

compliance with a judgment and that judgment is later reversed. Id. at 592. In

accordance with RAP 12.8 and Restatement 0/ Restitution § 74, the trial court had the

authority to follow the mandate of the appellate court and order return of the judgment

funds to Mr. Miller.

       Necessity ora Supersedeas Bond. The Aasebys contend that Mr. Miller was

required to post a supersedeas bond ifhe wished to seek repayment of the judgment and

preserve the right to appeal. The Aasebys are incorrect.

       A supersedeas bond is a means of staying enforcement of a trial court judgment

while on appeal. RAP 8.1. "A trial court decision may be enforced pending appeal or

review unless stayed pursuant to the provisions of this rule. Any party to a review




                                              12 

No. 32471-1-111
Aaseby v. Vue


proceeding has the right to stay enforcement of a money judgment, or a decision affecting

real, personal or intellectual property, pending review." RAP 8.1 (b).

       In making this argument, the Aasebys ignore the prevailing case law. Failure to

supersede a judgment or decree does not affect the right of the appealing party to obtain

review of the proceedings that led to such judgment or decree. Ryan v, Plath, 18 Wn.2d

839,856, 140 P.2d 968 (1943). Mr. Miller's decision not to tile a supersedeas bond did

not waive his right to appeal. Nor was his remedy limited because he did not avail

himself of the benefits of a supersedeas bond. "When the unsuperseded judgment is

reversed, after execution thereon, the judgment debtors' recourse is provided by

RAP 12.8." State v. A.N. W Seed Corp" 116 Wn.2d 39, 44,802 P.2d 1353 (1991).

       The Aasebys rely on Ehsani to establish that RAP 12.8 does not provide a remedy

for Mr. Miller because he chose not to protect his interests by filing a supersedeas bond

under RAP 8.1. This reliance is misplaced. Ehsani supports the trial court's actions

under RAP 12.8. In Ehsani, the Washington Supreme Court held that RAP 12.8 did not

provide a remedy for a judgment debtor who sought to recover judgment funds from an

attorney when the attorney received the funds on behalf of his clients and distributed the

funds per his clients' request. ld. at 594. The court explained that the attorney's clients

were the judgment creditors in the case, not the attorney. ld. Thus, it was the clients, not



                                             13 

No. 32471-I-II1
Aaseby v. Vue


the attorney, who was the party liable for restitution under RAP 12.8. Jd. The court

added that allowing an attorney to be liable for the client's judgment would render the

supersedeas bond mechanism superfluous because many debtors could decide to recover

from the attorney rather than using the protections available in the bond. Jd. at 601.

       Thus, contrary to the Aasebys' argument, Ehsani entitles a judgment debtor to

return of the funds paid to satisty the judgment and makes the judgment creditor the liable

party, regardless if a supersedeas bond was filed. Here, Ehsani supports the trial court's

decision to return the judgment funds to Mr. Miller. Both the Aasebys and Mr. Delay are

judgment creditors. It makes no difference that they chose not to withdraw the judgment

funds from the clerk of court's account; the funds were available to the Aasebys after

satisfaction. Ehsani does not limit Mr. Miller's remedy. Mr. Miller may seek repayment

under RAP 12.8.

       In sum, Mr. Miller's decision to pay the judgment instead of protecting himself by

filing a supersedeas bond has no bearing on the trial court's decision to return the

judgment funds. "An appellant is under no obligation to supersede a judgment or a

decree appealed from. It is a right and a privilege granted, in certain cases under certain

conditions, to preserve the fruits of his appeal if he prevails, but it is not something he is

obligated to do." In re Estates ojSims, 39 Wn.2d 288,297,235 P.2d 204 (1951). By


                                              14 

No. 32471-1-III
Aaseby v. Vue


paying the judgment instead of filing a supersedeas bond, Mr. Miller risked that the

Aasebys would not repay the judgment funds, or "fruits of [the] appeaL" Id. However,

he did not waive his right to appeal or the remedy available to him under RAP 12.8. The

trial court properly ordered return of the judgment funds to Mr. Miller.

Whether reasonable attorney fees should be awarded to Mr. Miller

       Mr. Miller requests reasonable attorney fees for having to respond to the Aasebys'

frivolous appeal, citing RAP 18.1, RCW 4.84.185 and RAP 18.9. He contends that the

Aasebys' appeal has no legal basis to support their claim that a trial court lacks the

jurisdiction to comply with an appellate court opinion. Mr. Miller maintains that the

appeal is premised solely on incomprehensible and unsupported legal arguments.

       RAP 18.1 directs a party on appeal to make a request for attorney fees or expenses

as provided in the rule if applicable law grants the party the right to recover such items.

RCW 4.84.185 provides a statutory basis to award reasonable attorney fees against a party

asserting a frivolous claim advanced without reasonable cause. In addition, RAP 18.9(a)

allows this court to impose sanctions against a party or counsel who asserts frivolous

arguments on appeal. Such sanctions may be in the form of terms or compensatory

damages to the harmed party.




                                             15 

No. 32471-1-III
Aaseby v. Vue


       In the context of RAP 18.9(a), an appeal is frivolous when it presents no debatable

issue on which reasonable minds might differ, and is so devoid of merit that there is no

possibility of reversal. Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr 'gs

Rd., 170 Wn.2d 577, 580,245 PJd 764 (2010). Doubts as to whether an appeal is

frivolous should be resolved in favor of the appellant. Id. (citing Tiffany Family Trust

Corp. v. City ofKent, 155 Wn.2d 225, 241,119 PJd 325 (2005». Raising at least one

debatable issue precludes a finding of frivolity. Advocates, 170 Wn.2d at 580-81.

       The Aasebys' appeal is frivolous in its entirety. No debatable issue is raised and

the appeal is devoid of merit. Well-settled case law and court rules grant the trial court

the ability to restore judgment funds to a debtor when reversed on appeal. The authorities

that the Aasebys cite to support their arguments are irrelevant and/or misinterpreted.

Additionally, portions of the Aasebys' briefs filed in this appeal are essentially a veiled

attempt to relitigate the issues from Aaseby I. As such, pursuant to RAP 18.9(a), and

conditioned on his further compliance with RAP 18.1, we grant Mr. Miller reasonable

attorney fees as sanctions. The mandate shall direct that liability for the amount imposed

is joint and several against the Aasebys and Mr. Delay.




                                             16 

No. 32471-1-III
Aaseby v. Vue


      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, J.

WE CONCUR:




    :1] dhwe' ~a- Fearing,~)
Siddoway, C.J.
                   :1A - .s·




                                            17 

