                                                           FILED
                                                        10/23/2017
                                                      Court of Appeals
                                                          Division I
                                                    State of Washington
           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



LEONARD UMINA,
                                               No. 75577-3-1
                    Appellant,

      V.                                       ORDER DENYING APPELLANT'S
                                               MOTION FOR RECONSIDERATION
LUKE LUMINA,                                   AND SUBSTITUTING A CORRECTED
                                               OPINION
                    Respondent.

      Appellant Leonard Umina filed a motion for reconsideration of the opinion filed in

this matter on September 11, 2017. A majority of the panel has determined the motion

should be denied.

      NOW THEREFORE, IT IS HEREBY ORDERED the appellant's motion for

reconsideration is denied, except to correct a misplaced name.

      IT IS FURTHER ORDERED that the opinion filed on September 11, 2017 is

withdrawn and substituted with a corrected opinion.

                                  FOR THE COURT:




                                   11
                                  Presidi Wdge
      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


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LEONARD UMINA,                                                                             —t      7-
                                                                                                   ' 7 77

                                                        No. 75577-3-1
                        Appellant,
                                                        DIVISION ONE
        V.

LUKE LUMINA,                                            UNPUBLISHED OPINION

                        Respondent.                     FILED: October 23, 2017

        SPEARMAN, J. — Several legal and equitable doctrines serve to avoid

inconsistency and protect the finality of judgments. Under the doctrine of res

judicata, a party is barred from bringing a claim that was or could have been

litigated in a previous action. The doctrine of judicial estoppel bars a party from

gaining an advantage in a later proceeding by taking a position inconsistent with

that he asserted in an earlier proceeding.

        Leonard Umina appeals the dismissal of his petition under the trust and

dispute resolution act(TEDRA), chapter 11.96A RCW. But his claims were or

could have been litigated in previous actions. And the position Leonardl takes in

his TEDRA petition is inconsistent with the position he asserted in a previous

action. We affirm.


        1 We refer to members of the Umina family by their first names for ease of reference. We
intend no disrespect.
75577-3-1/2

                                             FACTS

       Luke Lumina2 had four children: Leonard, Michael, Mary, and Kathryn. In

the 1970s, Luke created the Equestrian Trust. He appointed himself trustee and

his four children beneficiaries. Years later, Luke travelled abroad on a two year

mission. Before departing, he made arrangements for his sons to manage his

affairs. Luke amended the Equestrian Trust to add Leonard and Michael as co-

trustees. He also created a new trust, the LMMK Trust, and appointed Leonard

and Michael as co-trustees. In addition, Luke gave Leonard and Michael power

of attorney.

       When Luke returned from his mission, he discovered that Leonard had

transferred property from the Equestrian Trust to the LMMK Trust and placed

property belonging to the LMMK trust under his unilateral control. Luke eventually

revoked Leonard's power of attorney, removed him as co-trustee of both trusts,

and essentially removed him as a beneficiary of the Equestrian Trust.3 Several

lawsuits followed. In 2010, a California court entered judgment for $229,500

against Leonard for unjust enrichment.

       In 2016, Leonard filed a TEDRA petition. He asserted that the 2010

judgment arose from his conduct as trustee of the Equestrian Trust and, under

the terms of the trust, a trustee may not be held personally liable for his

management of the trust. Leonard sought an order requiring the trust to satisfy



       2   Luke Lumina was formerly known as Anthony Umina.

       3 Leonard   is to receive $10 from the trust after Luke's death. CP at 25.


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75577-3-1/3

the judgment and prohibiting enforcement of the judgment against his personal

assets.

        In answer, Luke primarily asserted that Leonard's action was barred as

res judicata. He attached as exhibits the orders handed down in four previous

actions. These orders provide a summary of the previous litigation.

       In 2005, Luke, Michael, Mary, and Kathryn filed a California petition for an

accounting, seeking a record of assets acquired by Leonard in his capacity as

trustee of the LMMK Trust. Leonard responded with his own request for an

accounting. Luke and Michael then filed a complaint against Leonard individually

and as trustee of the LMMK Trust. The complaint asserted fraud, breach of

fiduciary duty, unjust enrichment, and other claims. The California actions were

consolidated.

        Meanwhile, Leonard filed a Massachusetts suit against Michael

individually and as trustee of the LMMK Trust and the Equestrian Trust.4 Id. Luke

responded by filing a Massachusetts complaint against Leonard individually and

as trustee of the LMMK Trust and the Equestrian Trust. This complaint asserted

claims of conversion, breach of contract, and breach of fiduciary duty. The

Massachusetts complaints were consolidated.

        In 2007, a California Superior Court ruled that the LMMK Trust never

came into existence. In 2008, a jury found Leonard had been unjustly enriched




         4 The Massachusetts action included allegations concerning two other Umina family
trusts that are not at issue here.


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75577-3-1/4

and awarded Luke damages of $229,500.5 These rulings were affirmed on

appeal. Luke filed a judgment lien against real estate held by Leonard.

        The Massachusetts action was apparently stayed during the California

action. Following the California court of appeals decision, the Massachusetts

court granted Leonard's motion for summary judgment, ruling that Luke's claims

could have been litigated in the California action and were thus barred. The court

rejected Leonard's various counterclaims, including his claims that the

Equestrian Trust was irrevocable and that the assets of the LMMK Trust should

be distributed to Leonard and his siblings.

        In 2015, Luke brought a fraudulent conveyance action against Leonard.

He asserted that Leonard fraudulently transferred his interest in real property to

his wife, Vicki, to shield the property from judgment. Leonard and Vicki denied

transferring title in an effort to avoid the judgment lien. They also stipulated that

the unjust enrichment judgment was a community debt and the real property at

issue was subject to the judgment lien. Based on this stipulation, the court ruled

that the property transfer failed to shield the property from judgment and Luke

thus failed to show injury. The court dismissed Luke's claim.

        Luke relied on these previous judgments to contend that Leonard's claim

in the 2016 TEDRA petition was or could have been litigated in the series of

previous litigation. He also asserted that Leonard was judicially estopped from




        5 The jury also found in favor of Luke on his other claims, but the court granted Leonard's
motion for a new trial on these. The second jury returned a verdict for Leonard.


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75577-3-1/5

disclaiming liability for the judgment in this action because, in the fraudulent

conveyance action, he stipulated that the judgment was a community debt.

       Leonard objected that the previous rulings were inadmissible. He

reiterated his assertions that the 2010 judgment was based on his conduct as

trustee of the Equestrian Trust, the trust absolved trustees of personal liability for

obligations incurred in connection with trust business, and the trust was thus

liable for the judgment. Leonard asked the court to prohibit enforcement of the

judgment against his personal assets and/or order the Trust to satisfy the

judgment.

       The trial court stated that the issue raised in Leonard's petition had been

"very fully litigated" and dismissed the petition. Verbatim Report of Proceedings

(VRP) at 6. Leonard appeals.

                                   DISCUSSION

       As an initial matter, Leonard asserts that the trial court erred in

considering the rulings from previous court actions. He argues that the rulings

were inadmissible because they were not authenticated. He also cites to ER 104,

401, and 402, and thus appears to challenge the rulings as irrelevant.

       We review evidentiary decisions for abuse of discretion. Univ. of Wash.

Medical Center v. Dep't of Health, 164 Wn.2d 95, 104, 187 P.3d 243(2008).

Evidence is generally admissible if it is relevant. ER 402. The requirement of

authentication is satisfied by evidence sufficient to support a finding that the

evidence is what its proponent claims. ER 901(a).




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75577-3-1/6

       In this case, the rulings from previous court actions are relevant to

determine whether Leonard's claim has already been litigated and whether the

claim is barred by judicial estoppel. The rulings bear court stamps or other indicia

of authenticity. The trial court did not abuse its discretion in considering the

exhibits.

       Leonard next challenges the dismissal of his TEDRA petition. He asserts

that his petition concerned interpretation of a trust provision, an issue that is

expressly within the trial court's authority under TEDRA. Luke contends that the

trial court properly dismissed the petition because several legal theories require

that result. Because the trial court's decision appears to be based on res

judicata, we first examine whether previous litigation precluded Leonard's

petition.

       Whether an action is barred by res judicata is a question of law that we

review de novo. Enslev v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99(2009).

The doctrine of res judicata bars a claim that was or could have been litigated in

a previous action. Id. at 899 (citing Marino Prop. Co. v. Port Comm'rs, 97 Wn.2d

307, 312, 644 P.2d 1181 (1982)). The doctrine applies where the current and

previous actions have the same (1) persons and parties;(2) causes of action;(3)

subject matter; and (4)"'quality of the persons for or against whom the claim is

made." Id. at 902(quoting Landry v. Luscher, 95 Wn. App. 779, 783, 976 P.2d

1274 (1999)). Only the first and second elements appear to be in dispute.




                                          6
75577-3-V7

         Leonard contends that res judicata does not apply because the parties are

not the same. He asserts that the Equestrian Trust is a party to the present

action but was not a party in the 2010 dispute. This claim is without merit.

         Leonard, Luke, Michael, Mary, and Kathryn are parties to Leonard's

TEDRA petition and were parties in the previous litigation. The TEDRA petition

also lists Dallas Jolley, a co-trustee of the Equestrian Trust, as a notice party.

Jolley was not named in the previous litigation. But, his only interest in the

dispute is as a co-trustee and that interest was adequately represented by the

named parties. See Enslev, 152 Wn. App. at 902 (citing Kuhlman v. Thomas, 78

Wn. App. 115, 121, 897 P.2d 365 (1995)); Feature Realty, Inc., v. Kirkpatrick &

Lockhart Preston Gates Ellis, LLP, 161 Wn.2d 214, 224, 164 P.3d 500 (2007).

The parties are the same.

         Leonard also asserts that his petition presents a novel issue. He thus

appears to argue that the causes of action are not the same. This argument also

fails.

         To determine whether the causes of action are the same, we consider "(1)

whether the rights or interests established in the prior judgment would be

destroyed or impaired by the prosecution of the second action;(2) whether

substantially the same evidence is presented in the two actions;(3) whether the

suits involved infringement of the same right; and (4) whether the two suits arise

out of the same transactional nucleus of facts." Ensley, 152 Wn. App. at 903

(quoting Pederson v. Potter, 103 Wn. App. 62, 72, 11 P3d 833(2000)). Each of

these factors weighs against Leonard.


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75577-3-1/8

        The claims in this action and the previous litigation involve Leonard's

alleged appropriation of trust property. The claims arise from the same

"transactional nucleus of facts." Id. Leonard asserts here that the alleged

appropriation arose from his conduct as trustee. To examine this claim, the court

would have to consider the same evidence considered in the previous litigation.

The current and previous litigation involve the same rights and responsibilities:

the right to trust property and the liability for diminution of that property. The

California judgment established a right for Luke to receive restitution in the

amount that Leonard was unjustly enriched. This right would be impaired by the

order Leonard seeks in this action. The causes of action are the same. And

because Leonard makes no argument that the third and fourth elements are not

met, we conclude that the claim in Leonard's TEDRA petition was or could have

been litigated in the previous actions. The petition is barred as res judicata.6

        Furthermore, even if Leonard had not already had opportunity to litigate

his claim, his petition was barred by judicial estoppel. Judicial estoppel precludes

a party from asserting a position in one proceeding and later seeking an

advantage by taking a clearly inconsistent position. Miller v. Campbell, 164

Wn.2d 529, 539, 192 P.3d 352(2008). The doctrine applies where (1) the party's

later position is clearly inconsistent with his earlier position;(2) accepting the

later position would create the perception that either the first or the second court



         6 Leonard contends that, if the trial court found Luke's res judicata argument persuasive,
it should have ordered a further hearing on the matter. He asserts that his reply brief and
argument at hearing were insufficient for him to be fully heard. This argument is without merit.




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75577-3-1/9

was misled; and (3)the party would derive an unfair advantage if not estopped.

Id.

        In the fraudulent conveyance action, Leonard stipulated that the judgment

was a community debt and the real property at issue was subject to the judgment

lien. In his TEDRA petition, Leonard seeks an order requiring the trust to satisfy

the judgment and prohibiting enforcement against his personal assets. His later

position is clearly inconsistent with his earlier position. Accepting his position in

this action would create the perception that the court was misled in the previous

action. And, having prevailed in the fraudulent conveyance action by stipulating

to personal liability, Leonard would receive an unfair advantage if he were able to

escape personal liability through his TEDRA petition. The petition is barred by

judicial estoppel. Because the doctrines of res judicata and judicial estoppel both

support the dismissal of Leonard's petition, we do not reach Luke's arguments

concerning collateral estoppel and the full faith and credit clause.

        Leonard also challenges the trial court's award of attorney fees to Luke.

He contends that the trial court's order was unreasonable because he brought

his petition in good faith. He also asserts that the fees awarded were excessive.7

        The trial court may award reasonable attorney fees "as the court

determines to be equitable." RCW 11.96A.150(1). We review an award of

attorney fees for abuse of discretion. Brand v. Dep't of Labor & Indus., 139




          7 Leonard also asserts that Luke's motion for attorney fees was untimely. This argument
is without merit. Luke requested attorney fees in his response to Leonard's TEDRA petition and
the trial court's order dismissing the petition includes the grant of attorney fees to Luke.


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75577-3-1/10

Wn.2d 659, 665, 989 P.2d 1111 (1999). We will not reverse unless the award is

manifestly unreasonable or based on untenable grounds. Id.

      In this case, the trial court found that an award of reasonable attorney fees

was appropriate because Leonard's petition was unreasonable. The court found

that the fees were reasonable because they were based on necessary work

performed at a customary rate. There was no abuse of discretion.

      Affirmed.




WE CONCUR:



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