Edward M. Goodman And Bernice S. Goodman, Res. v. Mary F. Goodman, App. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
EDWARD M. GOODMAN and
BERNICE S. GOODMAN, No. 72711-7-1
husband and wife,
DIVISION ONE
Respondents,
UNPUBLISHED OPINION
v.
MICHAEL J. GOODMAN and MARY F. cm
GOODMAN, husband and wife,
rn
Appellants,
and
v,0
CHANCE GOODMAN, a single man; CO
and TYSON GOODMAN, a single man,
FILED: December 14, 2015
Defendants.
Trickey, J. — "'[Questions determined on appeal, or which might have
been determined had they been presented, will not again be considered on a
subsequent appeal if there is no substantial change in the evidence at a second
determination of the cause."' State v. Clark, 143 Wn.2d 731, 745, 24 P.3d 1006(2001) (internal quotation marks omitted) (quoting Folsom v. County of Spokane,
111 Wn.2d 256, 263, 759 P.2d 1196 (1988)). Mary Goodman appeals from
proceedings involving a dispute over property in Skagit County. This court
previously rejected the claim that she presents in this appeal. Additionally, Mary
could have raised this claim in the first appeal. The law of the case doctrine
precludes review. We affirm.
No. 72711-7-1/2
FACTS
Michael Goodman and Edward Goodman are brothers who own adjoining
land in Skagit County. Edward1 and Michael and their families peacefully
coexisted until March 2010, when a dispute arose regarding easements on
Michael's property. Edward and his wife Bernice filed a quiet title action in Skagit
County Superior Court against Michael, Mary, and their two sons, Chance and
Tyson.
Prior to trial, Tyson filed an affidavit of prejudice alleging that the trial judge
was prejudiced against him and moving for her disqualification. On June 3, 2010,
the trial judge denied this motion on the ground that she had previously made a
discretionary ruling inthe case after all four defendants had been served, and thus,
the affidavit of prejudice was not timely.
The case proceeded to a bench trial. In January 2012, the court ruled in
favor of Edward and Bernice. The court determined that Edward had established
implied easements for use, quieted title to the easements, and enjoined Michael
from interfering with Edward's use of the easements. It entered findings of fact,
conclusions of law, and an order. Michael appealed that order to this court. Mary
is listed as a party to that appeal.
While their appeal was pending, Michael filed in this court a motion to
reverse the trial court's June 3, 2010 order denying Tyson's affidavit of prejudice.
This court denied the motion, and Michael sought discretionary review. The
Supreme Court denied review stating, "A party simply cannot, as partofan ongoing
1Due to the similarity in names, we use first names for clarity. We mean no disrespect to
the parties.
2
No. 72711-7-1/3
appeal, file separate motions disputing trial court rulings not challenged by
assignment of error on appeal."2
In November 2013, this court issued its decision affirming the trial court.
Goodman v. Goodman, No. 68416-7-1, noted at 178 Wn. App. 1003 (2013), review
denied. 180 Wn.2d 1018, 327 P.3d 55 (2014). The Supreme Court denied review.
A mandate issued in September 2014. Following these decisions, Michael and his
family members filed a number of ancillary proceedings and appeals in this court.
On October 8, 2014, the trial court entered judgment for $21,128.66 in favor
of Edward and Bernice. Mary now appeals that judgment.
ANALYSIS
Mary assigns error only to the trial court's June 3, 2010 denial of Tyson's
affidavit of prejudice. She contends that the trial judge erred because no
discretionary rulings had yet been made. Mary argues that the denial of the
affidavit of prejudice was a violation of her right to due process.
As an initial matter, we question whether Mary can properly raise this issue
in this appeal. While RAP 2.4(b)(2) allows a party to timely appeal a trial court's
attorney fee decision, it "does not bring up for review a decision previously entered
in the action that is otherwise appealable under 2.2(a) unless a timely notice of
appeal has been filed to seek review of the previous decision." Edward and
Bernice assert that the October 8, 2014 judgment was for attorney fees and costs.
Mary does not dispute this characterization. And she fails to cite any authority that
2 Ruling Denying Review, Goodman v. Goodman, No. 88811-6, at 3 (Wash. June 25,
2013).
3
No. 72711-7-1/4
we should review the 2010 order in light of the fact that she did not timely seek
review that order.
Nonetheless, even if Mary can properly bring this claim, we decline to
consider it.
The law of the case doctrine generally precludes this court from reviewing
issues that a party raised, or could have raised, in a prior appeal from the same
case. State v. Worl, 129 Wn.2d 416, 424-25, 918 P.2d 905 (1996). As our
Supreme Court has explained:
Where there has been a determination of the applicable law in a prior
appeal, the law of the case doctrine ordinarily precludes redeciding
the same legal issues in a subsequent appeal.
"It is also the rule that questions determined on appeal, or which
might have been determined had they been presented, will notagain
be considered on a subsequent appeal if there is no substantial
change in the evidence at a second determination ofthe cause."
Folsom, 111 Wn.2d at 263 (quoting Adamson v. Travlor, 66 Wn.2d 338, 339, 402
P.2d 499 (1965)).
"The doctrine serves to 'promote[] the finality and efficiency of the judicial
process by protecting against the agitation of settled issues."' State v. Harrison,
148Wn.2d 550, 562, 61 P.3d 1104 (2003) (alteration in original) (internal quotation
marks omitted) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
816, 108 S. Ct. 2166, 100 L Ed. 2d 811 (1988)).
Application of the doctrine is discretionary, not mandatory. Folsom, 111
Wn.2d at 264. We will reconsider an identical legal issue in a subsequent appeal
ofthe same case when the holding ofthe prior appeal is clearly erroneous and the
No. 72711-7-1/5
application of the doctrine would result in manifest injustice. Folsom, 111 Wn.2d
at 264.
This court previously considered this issue when it denied Michael's motion
to reverse the order denying the affidavit of prejudice. Mary fails to persuasively
explain why this court should revisit our prior decision on this issue.
Even if we were to accept Mary's argument that we did not previously
decide this issue on the merits, Mary did not challenge the trial court's denial of the
affidavit of prejudice in the first appeal. Mary could have properly raised the issue
at that time. Her failure to do so precludes her from making the argument in this
later appeal. This is so even where the issue is constitutional. State v. Corrado,
94 Wn. App. 228, 236, 972 P.2d 515 (1999).
In short, because this court has already rejected this claim, and because
Mary could have raised this issue in the first appeal, we do not consider it.
In view of our resolution of this issue, we need not reach Edward and
Bernice's arguments that this appeal is untimely and that the October 8, 2014 is
not a final judgment under RAP 2.2(a)(1). We also deem it unnecessary to address
Edward and Bernice's motion to strike portions of Mary's brief and the October 8,
2014 report of proceedings.
Both parties request attorney fees pursuant to RAP 18.9 for a frivolous
appeal. An appeal is frivolous "if the appellate court is convinced that the appeal
presents no debatable issues upon which reasonable minds could differ and is so
lacking in merit that there is no possibility of reversal." In re Marriage of Foley, 84
Wn. App. 839, 847, 930 P.2d 929 (1997).
No. 72711-7-1/6
Although Mary has not prevailed, we decline to characterize her action as
frivolous. We likewise reject Mary's contention that Edward and Bernice's brief is
meritless. We deny both parties' requests for attorney fees.
Affirmed.
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WE CONCUR:
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