       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                            No. 79393-4-I

                                Respondent,      DIVISION ONE

               v.                                UNPUBLISHED OPINION

 JOEL ZELLMER,

                               Appellant,

 JENNIFER HILLS, MANAGER, KING
 COUNTY DEPARTMENT OF RISK
 MANAGEMENT,

                       Garnishee Defendant.      FILED: March 23, 2020


       CHUN, J.   —   In a separate matter, Joel Zellmer sued King County under the

Public Records Act (PRA). The County agreed to pay Zellmer $36,500 to settle

the lawsuit. Then, in this matter, the State sought to garnish $30,000 of the

settlement funds to satisfy some of Zellmer’s pre-existing legal financial

obligations. Zeilmer claimed that numerous exemptions applied to a portion of

the $30,000, but the trial court rejected his arguments and ordered garnishment.

Zelimer appeals and argues that the trial court erred by (1) failing to determine

that the State acted with unclean hands, (2) declining to award him prejudgment

interest, and (3) not awarding him attorney fees and costs. We affirm.
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                                 I. BACKGROUND

       On December 20, 2010, the King County Superior Court ordered Zellmer

to pay $60,370.67 in restitution as a condition of a criminal sentence.

       In 2017, Zellmer filed a PRA lawsuit against King County in Snohomish

County Superior Court. On April 4, 2018, the King County Department of

Executive Services (KCDES) accepted a settlement offer by Zellmer. In

exchange for $30,000 in penalties, $6,000 in legal fees, and $500 in costs

(totaling $36,500), Zeilmer agreed to dismiss his PRA lawsuit.

       Later that day, after reading KCDES’s proposed settlement agreement,

Zellmer asked the agency whether it would be willing to include a “no

garnishment” provision in the agreement. KCDES refused. KCDES moved to

enforce the settlement agreement on May 15, 2018. Zellmer opposed the

motion. On May 24, 2018, the Snohomish County Superior Court granted

KCDES’s motion.

       On June 18, 2018, in this matter, the State applied for a writ of

garnishment in King County Superior Court. The application names the King

County Department of Risk Management as garnishee. The application indicates

Zelimer owing the State of Washington $75,764.90.

      In the garnishment proceedings, Zellmer filed an exemption claim on

July 3, 2018. He claimed a total exemption of $25,000 related to attorney fees,

costs, “other personal property” under RCW 6.15.010(1)(d)(ii), and loans as

exempt “other property.” The State objected to Zellmer’s exemption claim.




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           On September 5, 2018, the King County Superior Court held a hearing

 regarding Zelimer’s claimed exemptions. The State provided that it sought to

garnish $30,000 from Zelimer’s settlement to pay some of his legal financial

obligations. The court determined none of his claimed exemptions applied. At

the end of the hearing, the court entered its Judgment on Answer and Order to

Pay permitting the garnishment of $30,000 and imposing a 12 percent annual

interest rate on the judgment. The court rejected Zellmer’s request for

prejudgment interest.

           Zellmer moved for reconsideration on September 14, 2018. The court

denied the motion on November 2, 2018. Zellmer appeals.

                                      II. ANALYSIS

    A. Unclean Hands

       Zellmer claims that the “court’s failure to apply the clean hands doctrine

enabled [King County] to breach its duty to pay Zelimer.” The State asserts that

it acted in good faith. We reject Zellmer’s argument.

       We review a lower court’s determination on whether a party comes to

court with unclean hands for an abuse of discretion. See Burt v. De~,’t of Corr.,

191 Wn. App. 194, 199, 361 P.3d 283 (2015) (concluding a trial court did not

abuse its discretion by deciding that a party came into court with unclean hands).

       Zelimer does not properly challenge the trial court’s rejection of his

exemption claim.1 He asserts, however, that the State acted with unclean hands;

       1  Zellmer did appeal the Judgment on Answer and Order to Pay and assigned
error to the court’s rejection of his exemption claims. While his opening brief omits any



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 he claims the County had a conflict of interest, as it owed him money through the

settlement but also sought to collect money from him for restitution. He purports

to bolster this argument by claiming that the County’s promise to pay him in the

settlement was discretionary and therefore illusory.

            Preliminarily, while the State does not so argue, it does not appear the

unclean hands defense even applies to this action at law. “It is well settled that a

party with unclean hands cannot recover in equity.” Burt, 191 Wn. App. at 210

(emphasis added) (citing Miller v. Paul M. Wolff Co., 178 Wn. App. 957, 965, 316

P.3d 1113 (2014)). Because a writ of garnishment constitutes an action for an

ordinary money judgment, it is an action at law. Ingle v. lncile, 183 Wn. 234, 236,

48 P.2d 576 (1935) (noting that a writ of garnishment is an action at law);

Mechanical, Inc. v. Lydig Const., Inc., 89 Wn. App. 893, 902 n.26, 951 P.2d 311

(1998) (‘If the remedy sought is a coercive order, the claim is equitable;                 .   .   .   .   An

action for an ordinary money judgment.             .   .   is an action at law.”) (alteration in

original) (internal quotation marks and citation omitted)). Thus, because a writ of

garnishment is an action of law and the unclean hands defense relates only to

equitable actions, it appears the defense does not apply.

        Even so, Zellmer’s unclean hands argument still fails. “[U}nclean

hands   .   .   .   is a figurative description of a class of suitors to whom a Court of

argument addressing this assignment of error, his reply brief contains a single paragraph
asserting that he is entitled to receive the exempted funds. Assignments of error not
argued or discussed in an opening brief are considered abandoned, even though a party
included argument on that assignment in their reply brief. Dickson v. United States Fid.
& Guar. Co., 77 Wn.2d 785, 787-88, 466 P.2d 515 (1970). As such, we do not address
this claim.



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Equity as a court of conscience will not even listen, because the conduct of such

suitors is unconscionable, i.e. morally reprehensible as to known facts.” J.L.

Cooper & Co. v. Anchor Sec. Co., 9 Wn.2d 45, 72, 113 P.2d 845 (1941) (internal

quotation marks and citation omitted). The party’s “willful misconduct” must

relate to the matter in litigation. J.L. Cooper, 9 Wn.2d at 73.

          Here, Zellmer argues the State acted with unclean hands because it

intentionally made an illusory promise.2 “An ‘illusory promise’ is a purported

promise that actually promises nothing because it leaves to the speaker the

choice of performance or nonperformance.” Interchange Assoc. v. Interchange,

Inc~ 16 Wn. App. 359, 360, 557 P.2d 357 (1976). Here, the State’s promise was

not illusory merely because the money went towards Zellmer’s legal financial

obligations rather than to him directly. Even though Zellmer did not personally

receive the funds, King County still fulfilled its promise to pay through the

garnishment process. Zellmer does not dispute that he owed over $30,000 in

restitution. Thus, Zellmer still benefitted from his settlement with King County by

having his restitution debt reduced.

       Furthermore, the State did not act with unclean hands. First, it is unclear

how coordination between County agents would show unclean hands or bad

faith. And second, the settlement and garnishment proceedings were separate.

While Zellmer filed his PRA lawsuit in Snohomish County against KCDES, the

State initiated the garnishment proceedings in King County. Additionally, the


      2   Zellmer does not challenge the validity of his settlement with King County.



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cases involved different prosecutors. In a declaration, Prosecutor Julie Cook

provided that she has never represented KCDES, was not aware of Zellmer’s

PRA lawsuit prior to it settling, and has never worked with Prosecutor Man

lsaacson. The record does not support Zellmer’s assertions that King County’s

departments are not ‘truly   [] compartmentalized,” that it acted in bad faith by
intentionally negotiating an illusory promise, and that the prosecutors acted with

“coordination and retaliation   .   .   .   to financially deprive and injure Zellmer and his

counsel.”

       Zellmer also asserts King County failed to act with good faith because

(1) it acted with gross negligence, since it sought a 12 percent per annum

interest rate in the application for writ of garnishment but argued to the judge that

the interest rate should be the rate applicable to all civil judgments, (2) it

misrepresented to the court that it served Andrew Corsberg as Zellmer’s attorney

for the garnishment proceedings with the Application and Answer to Writ of

Garnishment after a “review of various records,” (3) it misrepresented the

amount Zellmer owed in legal financial obligations, and (4) its attorney stated that

she represented the State in one instance and King County Clerk’s Office in

another. Zellmer claims that these actions demonstrate that King County

engaged in a “bureaucratic shell game.”

       Here, the record does not suggest that any of these alleged acts

persuaded the court to deny Zelimer’s exemption claim. See Erase v. Johnson,

9 Wn. App. 634, 638-39, 513 P.2d 857 (1973) (rejecting a party’s claim of




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misconduct during a garnishment hearing in part because they did not suffer any

prejudice). Instead, the transcript from the September 5 hearing and the court’s

order demonstrate that the court was aware of the history of the case and

properly relied on relevant facts and applicable case law to reach its decision.

The same is true for its order on reconsideration. We determine that Zellmer’s

claims fail.

    B. Interest

       Zellmer argues that the trial court erred by not awarding him prejudgment

interest on the $36,500 for the time period between May 24, 201 8—the date of

the order enforcing the settlement—and “until all of the funds were appropriately

disbursed to the proper recipients.” The State claims the court properly denied

Zellmer’s request for prejudgment interest. We agree with the State.

       Zellmer requests prejudgment interest pursuant to RCW 19.52.010.~ We

review a trial court’s determination on prejudgment interest for an abuse of

discretion. TJ Landco, LLC v. Harley C. Douglass, Inc., 186 Wn. App. 249, 255,

346 P.3d 777 (2015).

       “Prejudgment interest awards are based on the principle that a defendant

who retains money which [they] ought to pay to another should be charged

interest upon it.” Hill v. Garda CL NW, Inc., 191 Wn.2d 553, 573, 424 P.3d 207


        ~ Zeilmer additionally appears to argue that the $30,000 should have accrued
interest during the garnishment process at a rate of 12 percent pursuant to
RCW 6.27.090(1). But RCW 6.26.090 concerns the amount a garnishee is required to
hold and does not address whether a defendant is entitled to have garnished funds
accrue interest during the garnishment process.



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(2018) (internal quotation marks and citation omitted). Thus, an award of

prejudgment interest under ROW 19.52.010 aims to repay a plaintiff for “use

value.” HiM, 191 Wn.2d at 573 (internal quotation marks and citations omitted).

        Here, the State sought to garnish $30,000 of Zellmer’s settlement funds.

Because we reject Zellmer’s unclean hands argument on appeal, we determine

that the State never wrongfully retained money that it ought to have, paid him.

See TJ Landco, 186 Wn. App. at 256 (“A party is entitled to prejudgment interest

on liquidated claims to compensate them for loss of use on money that is

wrongfully withheld by another party.”). Accordingly, prejudgment interest under

ROW 19.52.010 does not apply to the $30,000 that the State garnished.

       Zellmer also sought prejudgment interest for the $6,500, but these funds

were not before the court as they were not a part of the garnishment action.4

Zellmer does not to make any argument to the contrary. As such, the trial court

did not err by declining to award prejudgment interest on the $6,500.

    0. Attorney Fees

       Zellmer asserts the trial court erred by declining to award him attorney

fees and costs pursuant to ROW 6.27.230. He also asks for attorney fees and

costs on appeal. We decide the trial court did not abuse its discretion by not

awarding Zellmer fees and costs and decline to award any on appeal.




       ~ As stated in the oral ruling, the trial court determined it did not have authority
over the $6,500, because those funds were not at issue in the garnishment action in
King Oounty.



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       We review a trial court’s attorney fee award for an abuse of discretion.

re Recall of Piper, 184 Wn.2d 780, 786, 364 P.3d 113 (2015). A court abuses its

discretion when it makes its decision for untenable reasons or bases it on

untenable grounds. Piper, 184 Wn.2d at 786.

       RCW 6.27.230 provides for fees and costs to the prevailing party in a

garnishment proceeding “[w}here the answer is controverted.” Whether a party

constitutes the “prevailing party” is a mixed question of law and fact that we

review under the error of law standard. Hernandez v. Edmonds Memory Care,

LLC, 10 Wn. App. 2d 869, 874, 450 P.3d 622 (2019). “An error of law is an error

in applying the law to the facts as pleaded and established.” In re Adoption of

M.J.W., 8 Wn. App. 2d 906, 915, 438 P.3d 1244 (2019) (internal quotation marks

and citation omitted).

       Here, the trial court declined to award Zeilmer his fees and costs under

RCW 6.27.230 because it determined that he was not the prevailing party for

purposes of the statute. Zelimer claims that he successfully controverted the

answer “by carving out the $6,500 for costs and fees incurred in connection to

the underlying settled PRA action in Snohomish County.” But the State never

sought to garnish the $6,500 awarded to Zelimer’s attorney for attorney fees and

costs. Accordingly, the trial court did not commit an error of law by determining

Zellmer failed to prevail below.

       Zellmer further contends that, if we determine “that interest applies to [his]

withheld and garnished property, then yet another ground will emerge to consider




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Zelimer the prevailing party.” We, however, decline to award prejudgment

interest to any portion of the settlement funds. Because we reject all of Zellmer’s

claims on appeal, we do not award him any attorney fees or costs.

      Affirmed.


                                                                      47.
WE CONCUR:




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