Washington

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Mountain Meadows Mining Corp. v. Bolt,
1999.WA.43208 (Wash.App.Div.3 07/13/1999)

Washington Court of Appeals

No. 17072-1-III

1999.WA.43208

July 13, 1999

MOUNTAIN MEADOWS MINING CORPORATION, A WASHINGTON CORPORATION, RESPONDENT,

v.

EVELYN BOLT, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS ARTHUR BOLT, ALSO KNOWN AS ART BOLT, AND EVELYN BOLT, HUSBAND AND WIFE; GARY ARTHUR BOLT AND JANE DOE BOLT, HUSBAND AND WIFE; TERRY BOLT AND TRONLIE BOLT, HUSBAND AND WIFE; AND JOHN DOE AND JANE DOE, HUSBAND AND WIFE, DEFENDANTS, DARRELL MONTGOMERY AND MURIEL EILEEN MONTGOMERY, HUSBAND AND WIFE, APPELLANTS.

Source of Appeal: Appeal from Superior Court of Stevens County Docket No: 94-2-00325-7 Judgement or order under review Date filed: 10/30/1997 Judge signing: Hon. Larry M. Kristianson

Counsel: Counsel for Appellant(s) Timothy C. Krsul Plaza Vii Ste 3400 45 S Seventh St Minneapolis, MN 55402-1609 Counsel for Defendant(s) Timothy C. Krsul Plaza Vii Ste 3400 45 S Seventh St Minneapolis, MN 55402-1609 Counsel for Respondent(s) Robert Drummond Attorney At Law S 140 Arthur Ste 600 Spokane, WA 99202 Counsel for Other Parties Julie Lane (Appearing Pro Se) Court Administrator PO Box 350 Colville, WA 99114

The opinion of the court was delivered by: Sweeney, J.

Judges: Authored by Dennis J. Sweeney

Concurring: Frank L. Kurtz Stephen M. Brown

Panel Eight

[Editor's note: originally released as an unpublished opinion]

- A Judgement creditor can execute on a Judgement debtor's interest in a tenancy in common in land by forcing partition and sale. In seeking to execute on a $500,000 Judgement against Arthur Bolt, Mountain Meadows Mining Corporation brought this action for fraudulent transfer of Mr. Bolt's half-interest in a farm that Mr. Bolt co-owned with Murial Montgomery. The court voided the transfer and permitted Mountain Meadows to execute against Mr. Bolt's interest. The court's written findings included the fact that Mr. Bolt and Ms. Montgomery owned the land as tenants in common. Ms. Montgomery asks us to reverse the order authorizing execution, contending it rests on the erroneous finding of a tenancy in common. Because we hold that the finding is superfluous, we affirm the order.

FACTS

After several years of litigation, Mountain Meadows Mining Corporation won a half million dollar Judgement against Arthur Bolt. Around the time of the Judgement, Mr. Bolt transferred several pieces of property to family members. Mountain Meadows sued to void the transfers. The court agreed that the transfers were fraudulent and voided them.

One of those transfers involved a 275-acre farm that Mr. Bolt owned with his sister, Murial Montgomery. Mr. Bolt had quitclaimed his interest to Ms. Montgomery.

During the trial, considerable evidence was introduced concerning the history of this piece of property after Mr. Bolt and Ms. Montgomery and another sibling inherited it from their father. The parties explored the nature and extent of the farming operations at length. Counsel and the court inquired extensively into the amounts invested by Mr. Bolt and Ms. Montgomery relative to the share of profits and losses each took. The focus of this inquiry was to establish the value of Mr. Bolt's share so the court could determine whether Ms. Montgomery had paid Mr. Bolt a fair price for his interest. But the precise nature of the ownership relationship, whether partnership or tenancy in common, was never directly litigated. The property was referred to throughout the trial as a "farm operation." The court personally questioned Ms. Montgomery at length about facts bearing on the legitimacy of the transfer and the extent of her interest. The court did not, however, ask her about a partnership.*fn1 Ms. Montgomery testified that she viewed the relationship as a partnership, and that an official document had been drawn up many years prior. Ms. Montgomery introduced several exhibits consistent with the existence of a partnership, including a notice of dissolution of partnership and tax returns for 1989 through 1993 showing partnership activity, including a partnership name and registration number.

However, when the court asked whether Mountain Meadows was seeking any relief beyond setting aside the conveyances, counsel replied: "No, Your Honor. That's what we would ask for for today. We did ask for and would request authority to execute on the property once it's restored, but I think step one is to restore title to where it rested beforehand." Report of Proceedings, Vol. III, at 50. The court thereafter characterized the question before it narrowly. "This case is about this court being asked to decide if these deeds constitute a fraudulent transfer under the facts and the law, and I say, 'Yes.' Now what? Well, nothing as far as I'm concerned. The question before me is relatively limited." Report of Proceedings, Vol. III, at 74.

The court ultimately decided that, although Mr. Bolt and Ms. Montgomery may have had honest intentions, Mountain Meadows had established the elements of fraudulent transfer, and the interest must be restored to Mr. Bolt.*fn2 The court so ruled from the bench and asked Mountain Meadows, as prevailing party, to prepare findings and Conclusions. The bench ruling did not touch on the nature of the property interest. But the written findings stated the interest was a tenancy in common. Besides voiding the transfer, the Judgement authorized execution on the property. Ms. Montgomery assigns error to the court's finding of a tenancy in common. And she asks us to reverse that part of the order authorizing execution on the prior Judgement.

DISCUSSION

Ms. Montgomery is concerned that the written finding of a tenancy in common is not supported by the record and, if unchallenged, might substantially prejudice her rights in the future. She contends that the facts and the law support a finding of a tenancy in partnership, not a tenancy in common.*fn3 However, because the tenancy in common finding is not material to the limited question before the court, it is superfluous to the Judgement.

The Uniform Fraudulent Transfer Act contemplates that the court will authorize the prevailing creditor to bring an action to execute on the fraudulently transferred asset. RCW 19.40.071(b). The order authorizing Mountain Meadows to bring an action to execute rests on the court's Conclusion that the asset was fraudulently transferred. Ms. Montgomery does not assign error to this Conclusion, which is amply supported by the findings. The precise nature of the interest transferred was not material to the legitimacy of the transfer transaction.

Whether Mr. Bolt and Ms. Montgomery were tenants in common or partners will become material if, and when, Mountain Meadows files a partition action. That is when the rights of the parties must be proved. RCW 7.52.010; RCW 7.52.070. The finding that is being challenged was not actually litigated, is not essential to the Judgement, and would have no preclusive effect in a subsequent cause of action between the parties. Beagles v. Seattle-First Nat'l Bank, 25 Wn. App. 925, 931, 610 P.2d 962 (1980).

Until the issue is put into actual controversy, this court's opinion would be merely advisory. We do not give advisory opinions. Walker v. Munro, 124 Wn.2d 402, 411-12, 879 P.2d 920 (1994); Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 747, 935 P.2d 628 (1997), review denied, 133 Wn.2d 1033 (1998).

Ms. Montgomery does not challenge the ultimate Judgement voiding the transfer. She only challenges the superfluous finding about the tenancy in common. The authorization to execute does not rely on the finding of a tenancy in common. The action before the court was a fraudulent transfer. It was not necessary for Mountain Meadows to prove its partition rights. This may, or may not, happen in a subsequent proceeding.

The authorization to bring an action to execute on the asset will therefore not be disturbed. The order of the court is affirmed.

A majority of the panel has determined that 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.

WE CONCUR: Kurtz, A.C.J., Brown, J.

Opinion Footnotes

*fn1 Report of Proceedings, Vol. III, at 18-31.

*fn2 Actually to Mr. Bolt's estate. Mr. Bolt died between the transfer and the trial.

*fn3 Mountain Meadows asks us to disregard Ms. Montgomery's brief for misrepresenting the record and failing to sufficiently identify the assignments of error. We find the complaint to be without merit.

The legal opinions are a matter of public record (that's how we got them), and as such there can be no defamation for republishing them. Sometimes, however, legal opinions are reversed, vacated, or significantly modified, etc., and we do not discover this fact until somebody points it out to us. As we do not desire to publish inaccurate or outdated information, if a legal opinion has been reversed, vacated, or significantly modified, please advise us of this fact immediately, by fax to (877) 698-0678 or you may also send regular postal correspondence to Riser Adkisson LLP at 1827 Powers Ferry Road, Building One, Suite 200, Atlanta GA 30339.