                                                                                 d LEo
                                                                       OCILP,T OF APPEALS

                                        2014 JUN
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                      STATE OF WASHINGTON
                                           DIVISION II
                                                                                      TY
FIRST        CITIZENS     BANK &          TRUST                      No. 43451 -2 -II
COMPANY,
                                                                      Consolidated with)
        Respondent /Cross -
                          Appellant                                  43751 - 1 - II


        v.




ROBERT         RANDALL        HARRISON         and               PUBLISHED OPINION
TIFFANY HARRISON, husband and wife and
the marital community comprised thereof,

        Appellants /Cross -Respondents



        MAXA, J. — 25 U. S. C. §   41,0 provides that money accruing from any lease of Indian land

the United States holds in trust for a Native American is not liable for the payment of any debt or

claim against that Native American. The issue here is whether the statute applies when lease

payments from Indian trust land are distributed to a Native American and placed in a private

bank account.


        Tiffany and Robert Harrison appealed the trial court' s summary judgment award to First -

Citizens Bank &     Trust Company for its breach of contract lawsuit based on the Harrisons' failure

to pay on a promissory note. First -Citizens cross -appealed on the trial court' s ruling that Native

American Tiffany Harrison' s personal bank accounts containing proceeds from the lease of her

Indian trust land   were exempt under   25 U.S. C. § 410 from garnishment to collect First -
                                                                                           Citizens'


judgment against the Harrisons. After the initial briefs were filed in this court, the Harrisons


voluntarily withdrew their appeal.

        We address First -Citizens' cross -appeal, holding that ( 1) First -
                                                                           Citizens is judicially

estopped     from contesting that the money in the Harrisons' bank   accounts   derived solely from the
No. 43451 -2 -II Consolidated with 43751 - 1 - II


lease   of   Indian trust land,   and ( 2)   the 25 U. S. C. §   410 exemption extends to money accruing

from the lease of Indian trust land even after the money is placed in a Native American' s

personal bank account. Accordingly, we affirm. We also award First -Citizens its reasonable

attorney fees and costs incurred in responding to the Harrisons' voluntarily dismissed appeal.
                                                         FACTS •


         First- Citizens filed a breach of contract lawsuit against the Harrisons for failure to pay a

promissory note based on a line of credit. The trial court entered an order granting summary

judgment in favor of First -Citizens on its claim, and awarded First -
                                                                     Citizens its reasonable


attorney fees based on a contractual provision in the promissory note. This order resulted in a
 161, 831. 97 judgment against the Harrisons


         First -Citizens sought to satisfy its judgment by garnishing the Harrisons' personal bank

accounts at Banner Bank, Fife Commercial Bank, and Key Bank. Tiffany Harrison is an enrolled

member of the Puyallup Tribe. The Harrisons claimed that the funds in their Banner Bank and

Fife Commercial Bank accounts contained money only from the lease of Indian trust lands, and

therefore were exempt-from garnishment                under   25 U. S. C: §   410. First- Citizens objected to and


moved to strike the Harrisons' exemption claims, arguing that the Harrisons did not specifically

identify the     nature of   the funds in the     accounts and    that 25   U. S. C. § 410 is not applicable to


money deposited into a Native American' s personal bank account.

             During oral argument on First -Citizens' motion to strike the Harrisons' claimed

exemptions, First -
                  Citizens assured the trial court that an evidentiary hearing regarding the source

of the funds in the Harrisons' bank accounts was unnecessary because it was not disputing that

the funds derived      directly    from Indian trust land. Based        on    the understanding that the parties'
No. 43451 -2 -II Consolidated with 43751 -1 - II



dispute was purely a legal one, the trial court heard argument on whether funds derived from

Indian trust land deposited into a personal account were exempt from garnishment under 25

U.S. C. §   410. The trial court agreed with the Harrisons that the money in the bank accounts was

exempt under     25 U. S. C. § 410, and it denied First -
                                                        Citizens' motion to strike the Harrisons'


exemption claims.




        The Harrisons appealed the entry of judgment against them in favor of First -Citizens.

First -Citizens cross -appealed on the exemption claims. After initial briefing, the Harrisons

dismissed their appeal. We address First -Citizens' cross -appeal, and its request for attorney fees

incurred in responding to the Harrisons' appeal.

                                                   ANALYSIS


A.      SOURCE OF FUNDS UNDER RCW 6. 27. 160


        First -
              Citizens argues that the Harrisons' exemption claims must be stricken because they

failed to   prove   the factual basis for the   exemption —i.e.,     that the funds in the bank accounts


derived from leases of Indian trust land. However, we hold that First -Citizens cannot dispute the

source of the funds because it previously stipulated that they derived from the lease of Indian

trust land.


            In support of their exemption claims, the Harrisons filed declarations of themselves, a


manager of one of their businesses, and their attorney asserting that the funds contained in the

bank accounts were from leases of Indian trust land. The Harrisons urged the trial court to


schedule an evidentiary hearing to allow them to satisfy their burden of proof under RCW

6. 27. 160 to   prove   the   claimed exemption,   including   the   source and   the   amount of   the   exempt
No. 43451 -2 -I1 Consolidated with 43751 -1 - 11


funds. However, First -Citizens repeatedly assured the trial court that it was not disputing that the

funds derived directly from Indian trust land and that an evidentiary hearing was unnecessary.

               Citizens'
         First -             argument on appeal —        that the Harrisons failed to prove the source of the


funds in the   accounts was      traceable to   leases   of   Indian trust land —is inconsistent with its


position   in the trial   court proceedings. "    Judicial estoppel is an equitable doctrine that precludes a


party from asserting one position in a court proceeding and later seeking an advantage by taking

a   clearly inconsistent     position."   Bartley- Williams v. Kendall, 134 Wn. App. 95, 98, 138 P. 3d

1103 ( 2006).    Courts consider whether the earlier position was accepted by the court, and

whether assertion of the inconsistent position results in an unfair advantage or detriment to the


opposing party. Arkison         v.   Ethan Allen, Inc., 160 Wn.2d 535, 538 -39, 160 P. 3d 13 ( 2007).


          Here, the trial court clearly relied on First -Citizens' representation that the parties'

dispute about the source of the bank account funds was purely a legal one, because the court did

not hold an evidentiary hearing and instead proceeded to hear argument on whether funds

derived from Indian trust land deposited into a personal account were exempt from garnishment

under 25 U.S. C. §        410. And in its oral ruling, the trial court reiterated that there was no dispute

between the parties that the funds in the bank accounts were from the lease of Indian trust lands.


Further, allowing First -Citizens to maintain this inconsistent position would result in unfair

detriment to the Harrisons, who were allegedly willing and able to provide such proof regarding

the source of the funds in the accounts but were denied the opportunity to do so based on First -

Citizens' representations to the trial court.


          Accordingly, we hold that First -Citizens is judicially estopped from challenging the

adequacy of the Harrisons' proof that the funds are traceable to leases of Indian trust land.


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No. 43451 -2 -II Consolidated with 43751 -1 - II



B.      25 U.S. C. § 410 EXEMPTION


        Tiffany Harrison received proceeds from the lease of her Indian trust land and placed

them into her      personal   bank   account.   First -Citizens   argues   that the   exemption   in 25 U.S. C. § 410


did not apply once lease proceeds arising from Harrison' s trust land were distributed directly to

her and she placed them in her personal bank account. We disagree, and hold that 25 U. S. C. §

410 continues to protect any money accruing from the lease of Indian trust, land, even after it has

been distributed to a Native American and placed in a personal bank account.

         1.       Jurisdiction


              When a federal statute is silent on the question of jurisdiction, state and federal courts

have   concurrent     jurisdiction."   Law Offices of Vincent Vitale, P: C. v. Tabbytite, 942 P. 2d 1141,

1147 ( Alaska 1997) (      citing Charles Dowd Box. Co. v. Courtney, 368 U.S. 502, 506 -08, 82 S: Ct.

519, 7 L. Ed. 2d 483 ( 1962)).         Because 25 U.S. C. § 410 does not purport to impose exclusive


federal jurisdiction, Washington courts have subject matter jurisdiction to determine whether 25

U. S. C. § 410 bars garnishment of the funds in the Harrisons' bank accounts. See Vitale, 942


P. 2d at 1147 ( holding that Alaska state courts had jurisdiction to determine application of 25

U. S. C. § 410 to     proceeds of condemnation action on          Indian trust land).     Accordingly, the trial

court had jurisdiction to resolve this issue.


         2.       Statutory Construction

         Construction of a statute is a question of law, which we review de novo. Anthis v.


Copland, 173 Wn.2d 752, 755, 270 P. 3d 574 ( 2012).                Our fundamental objective in interpreting a

federal statute is to ascertain Congress' s intent in enacting it. Parsons v. Comcast of

           Colorado /Washington I,Inc., 150 Wn.
California /                                                   App.   721, 726 -27, 208 P. 3d 1261 ( 2009). The



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No. 43451 -2 -II Consolidated with 43751 -1 - II



traditional rules of statutory interpretation apply. Parsons, 150 Wn. App. at 727; see Western

Radio Servs. Co.        v.   Quest    Corp.,   678 F. 3d 970, 984 ( 9th Cir.), cert. denied, 133 S. Ct. 758


 2012).    If the statute' s meaning is plain on its face, then we give effect to that plain meaning as

an expression of legislative intent. Parsons,. 150 Wn. App. at 727. When determining a statute' s

plain meaning, we look to the language of the statute itself and the context of the statute,

including related statutes. Anthis, 173 Wn.2d at 756. If the statute is susceptible to more than

one reasonable interpretation, then we may resort to statutory construction, legislative history,

and relevant case law for assistance in determining legislative intent. Anthis, 173 Wn.2d at 756.

          Two     key   statutory     construction principles            apply   directly   to 25 U.S. C. § 410. First,



  e] xemption statutes should be liberally construed to give effect to their intent and purpose."

Anthis, 173 Wn. 2d           at   756. 25 U. S. C. § 410 clearly is         an exemption statute.        Second,


   statutes passed       for the benefit       of   dependent Indian tribes ...         are to be liberally construed,

doubtful       expressions        being   resolved   in favor   of   the Indians.' "        Bryan v. Itasca County, 426 U.S.

373, 392, 96 S. Ct. 2102, 48 L. Ed. 2d 710 ( 1976). Also, we construe statutes to effect their


purpose    while avoiding absurd,             strained, or   unlikely      consequences.        Thompson v. Hanson, 168


Wn.2d 738, 750, 239 P. 3d 537 ( 2010). These principles suggest that if the two interpretations of


25 U. S. C. §     410 are equally reasonable, the interpretation that extends the exemption and that is

most favorable to Tiffany Harrison should be adopted.

          3.      Statutory Language

          We first      examine      the statutory language. 25 U. S. C. § 410 provides:



          No money accruing from any lease or sale of lands held in trust by the United
          States for any Indian shall become liable for the payment of any debt of, or claim
          against, such Indian contracted or arising during such trust period, or, in case of a


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No. 43451 -2 -II Consolidated with 43751 - 1 - II



           minor, during his minority, except with the approval and consent of the Secretary
           of the Interior.


Here, the statute does not expressly state that the exemption applies to lease proceeds that are

distributed to a Native American and placed in a personal bank account. However, the statute

protects    money " accruing" from the lease                  of   Indian trust land. "[ A] ccrue" is defined as " to come


by   way   of   increase      or addition: arise as a growth or result.            WEBSTER' S THIRD NEW


INTERNATIONAL DICTIONARY                    at   13 ( 2002) ( definition 2, usually     used with      to   or from).   Under


this definition, in the context of lease proceeds we interpret " accruing" as synonymous with

 paid" or "     distributed."       Stating that money is accruing from the lease of property is the same as

stating that the lessee is making lease payments to the lessor.

           Here, as required in the statute ( 1) the bank accounts First -
                                                                         Citizens attempted to garnish

contained "      money ", (2)       that money had " accrued" to Tiffany Harrison, and (3) that money had

 accrued" from the lease of Tiffany Harrison' s Indian trust lands. As a result, the plain language

of   25 U.S. C. §      410 unambiguously provides protection for the money in the Harrisons' bank

accounts.



           Nevertheless, First- Citizens            argues    that the language    of   25 U. S. C. § 410 must be


interpreted in light of the unique procedure for Indian trust land that allows the government to


collect lease proceeds accruing from that land. Proceeds from Indian trust land usually are paid

to the Department of Interior and held in trust for the individual Native American beneficiary in

an Individual Indian Money (IIM) account. FELIX S. COHEN, COHEN' S HANDBOOK OF FEDERAL

INDIAN LAW, § 16. 04[ 3],            at   1090 ( 2012).   The owner of an unrestricted IIM account may

withdraw        the   funds   at   any time. COHEN'       S   HANDBOOK § 16. 04[ 4],      at   1091.   First- Citizens claims


that 25 U. S. C. §      410 protects only money accruing to an IIM account and not to money accruing

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No. 43451 -2 -II Consolidated with 43751 -1 - II


directly to the Native American. To support its argument, First -Citizens points out that the

statute allows the Secretary of Interior to consent to the use of the otherwise exempt proceeds for

payment of debt, and contends that this provision indicates that the funds contemplated by 25

U. S. C. §   410 would be held in trust by, and therefore under, the control of the Secretary' of the

Interior.


          However, the language of 25 U. S. C. §   410 does not limit the exemption to money

accruing to an IIM account. It broadly refers to any money accruing from Indian trust land.

Further, there is no legislative history or case law that supports this restrictive interpretation of

the broad statutory language. Finally, the reference to the Secretary of the Interior also is

consistent with extending the exemption to money distributed to a Native American. The

Secretary also could consent to using that money for payment of a debt. Accordingly, we reject

First -
      Citizens' interpretation)


           Even if we agreed that First -
                                        Citizens' interpretation was reasonable, we would conclude

that the Harrisons' interpretation also is reasonable. If a statute is subject to two reasonable

interpretations, that statute is ambiguous and it is appropriate to resort to statutory construction

principles. Anthis, 173 Wn.2d at 756. The law requires that we liberally construe both

exemption statutes and statutes enacted for the benefit of Native Americans. As a result, any

ambiguity in 25 U. S. C. §    410 must be resolved in favor of Tiffany Harrison.




 1
     First -Citizens also argues that protecting money from the lease of Indian trust land that is
distributed to a Native American would lead to an absurd expansion of the exemption to items
purchased with the lease payments. But our holding here applies only to money in the
Harrisons' bank accounts, and 25 U. S. C. § 410 clearly applies to money. Whether 25 U.S. C. §
410 would extend protection to items purchased with lease proceeds is not before us, and
therefore we do not address this issue.
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No. 43451 -2 -II Consolidated with 43751 -1 - II


          4.      Washington Supreme Court —Anthis


          First -
                Citizens argues that our Supreme Court' s decision in Anthis, 173 Wn.2d at 765,

requires a     ruling that 25 U. S. C. §      410 does not protect Indian trust land lease proceeds that have

been distributed to a Native American. In Anthis, 173 Wn.2d at 756 -57, the court considered a

similar   issue regarding RCW 41. 26. 053( 1),             the statutory protection from garnishment for pension

benefits    under   the   Law Enforcement Officers'              and   Firefighters' ( LEOFF) Retirement System.


RCW 41. 26. 053( 1) exempted the right of a person to a retirement allowance and the retirement


allowance itself. The court reviewed cases interpreting other state and federal exemptions, and

concluded      that "[   c] ourts in other jurisdictions have generally, but not universally, held that some

unambiguous reference to money actually paid to or in the possession of the pensioner is

necessary in      order   to find that   pension   funds    retain      their exempt status        postdistribution."     Anthis,


173 Wn.2d at 760. The court held that because RCW 41. 26. 053( 1) did not contain explicit


language exempting payments deposited in a personal account, LEOFF pension payments were

not exempt        from   garnishment.    2 Anthis, 173 Wn.2d at 765.

           The court in Anthis noted the general rule that exemption statutes are to be liberally

construed.      Anthis, 173 Wn.2d        at   765. But the       court stated: "          we decline to read into the statute


language the legislature has omitted, whether intentionally or inadvertently, unless it is required

to   make   the   statute rational or    to   effectuate   the   clear      intent   of   the legislature."   Anthis, 173 Wn.2d


at765.




2
    Four justices disagreed. See Anthis, 173 Wn.2d                     at   767, 783 ( Stephens, J.,       dissenting).   The
dissent    argued that cases the court reviewed supported a                     different     rule: "   courts have determined
that pension funds retain their exempt status postdistribution when the language of the statute
shows the exempt status attaches to the benefit itself as opposed to the benefit only while held by
the   government."        Anthis, 173 Wn.2d at 774 ( Stephens, J., dissenting).

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No. 43451 -2 -II Consolidated with 43751 -1 - II


             First -
                   Citizens       argues   that like the   statute addressed          in Anthis, 25 U. S. C. § 410 does not


contain explicit language exempting Indian trust land lease payments deposited in a personal

account. We disagree. As noted above, the term " accruing" as used in the statute includes the

receipt of        lease   payments.     25 U. S. C. § 410. We hold that 25 U. S. C. § 410' s reference to


 money accruing" from the lease of Indian trust land constitutes an " unambiguous reference to
                                                                                                                         3
money actually            paid"   to the Native American          as required    in Anthis, 173 Wn.2d        at   760.


             Our conclusion is bolstered by the interpretation of the exemption provision of the Social

              Act,                federal             containing language that is          similar   to 25 U.S. C. § 410. 42
Security              another               statute




U. S. C. §        407( a) exempts " moneys paid or payable" to a beneficiary. Under this language,

benefits deposited in a personal bank account retain protection as money paid to the beneficiary.

Philpott v. Essex County Welfare Bd., 409 U.S. 413, 415 -17, 93 S. Ct. 590, 34 L. Ed. 2d 608

    1973).    Because " money accruing" is              synonymous with " money paid,"               the same interpretation


applies      to 25 U. S. C. § 410.


             5.      Conclusion


             We conclude that the plain language                 of   25 U. S. C. §   410 supports a holding that money

from the lease of Indian trust land remains protected even after it has been paid to a Native

American and placed in a private bank account, as long as the Native American can show that

the funds in the account are traceable to the lease. Because the funds in the Harrisons' bank

accounts are proceeds of leases on Indian trust land, we hold that the trial court correctly denied

First -
      Citizens' motion to strike the Harrisons' exemption claims.




3
          Citizens
    First -               also refers   to cases   in   other   jurisdictions   discussing     25 U. S. C. § 410. However,

none of these cases directly address the issue here. And because our holding is based on the
 clear statutory language, we need not address them.
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No. 43451 -2 -I1 Consolidated with 43751 - 1 - II


C.       FIRST -CITIZENS ATTORNEY FEES FOR HARRISONS' APPEAL


         The Harrisons appealed from the trial court' s order granting summary judgment in favor

of First -
         Citizens based on the promissory note the Harrisons executed. After the Harrisons'

initial brief and First -Citizens' response brief on both the appeal and cross -appeal were filed, the

Harrisons moved for voluntary withdrawal of review of their appeal. First -
                                                                          Citizens did not

oppose dismissal, but moved for reasonable attorney fees and costs for responding to the appeal

under   the attorney   fee   provision   in the promissory   note.   The Commissioner entered an order


dismissing the Harrisons' appeal but deferring First -Citizens' request for attorney fees.

         When a contract provides for an attorney fee award in the trial court, the party prevailing

before this court may seek reasonable attorney fees incurred on appeal. See RAP 18. 1; First -

Citizens Bank & Trust Co.        v.   Reikow, 177 Wn.   App.   787, 799, 313 P. 3d 1208 ( 2013).   Here, the


promissory note and a related change in terms agreement both contain attorney fee provisions

stating that the borrower will be responsible for the lender' s attorney fees and expenses related to

collecting the debt owed. First -Citizens has a contractual right to recover its attorney fees and

costs under the terms of these provisions. And the Harrisons did not oppose or otherwise


respond to First -Citizens' request for attorney fees, so we need not address whether the




                                                        11
No. 43451 -2 -II Consolidated with 43751 -1 - II


contractual right is inapplicable here. Accordingly, we hold that First -Citizens is entitled to
                                                                                               4
recover   its attorney fees   and costs   incurred in responding to the Harrisons'   appeal.



          We affirm.




We concur:.




4
  First -Citizens also requested appellate attorney fees on its cross -appeal. Because First -Citizens
is not the prevailing party on its cross -appeal, we deny its request for the cross -appeal. The
Harrisons did not request appellate attorney fees.
                                                       12
