FILED
SEPTEMBER 14, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JERRY LEE REDWINE AND )
DAVID JAMES REDWINE, ) No. 36551-4-III
)
Appellants, )
)
v. )
) UNPUBLISHED OPINION
VIRGIL DALE REDWINE AND )
TERA REDWINE, )
)
Respondents. )
STAAB, J. —Jerry Redwine sued his brother and sister-in-law, Virgil and Tara
Redwine, claiming they violated two trust agreements to convey real property to Jerry. 1
Following a bench trial, the superior court dismissed Jerry’s complaint. Jerry appeals,
raising more than 50 assignments of errors and no identifiable legal issues. We decline to
review most of these assignments. After reviewing the record and briefs, we are satisfied
that the trial court’s findings are supported by substantial evidence and those findings
support the court’s conclusion. Jerry’s claim for a constructive trust for property known
as Unit 120 was filed beyond the statute of limitations. At trial, he failed to prove either
1
Since the appellant and respondent share the same last name, we refer to them
using their first names. No disrespect is intended.
No. 36551-4-III
Redwine v. Redwine
an express or constructive trust for property known as Unit 45. We affirm the superior
court’s decision.
FACTS
The following facts are taken primarily from the trial court’s memorandum
decision and findings of fact.
A. UNIT 45
Jerry Redwine purchased agriculture property known as Water Delivery Unit 45
(Unit 45) in 1973. In 1987, the bank foreclosed on his mortgage. The following year, the
bank informed Jerry that it would sell Unit 45 to a friendly buyer if Jerry would waive his
right of redemption.
At trial, Jerry testified that he discussed repurchasing Unit 45 with his brother,
Virgil, at a family dinner. The parties disagree on what was said or agreed. Jerry
testified that Virgil promised to be a strawman buyer and purchase Unit 45 for Jerry with
the understanding that once Jerry paid all costs and expenses, Virgil would transfer the
property back to Jerry. Virgil disputed making such a promise, but the trial court found
an oral promise to transfer Unit 45 back to Jerry upon payment to Virgil of all expenses
related to the purchase and maintenance of Unit 45. The court also noted that “[a]s with
most oral promises between family members, however, the parties never discussed
specific details about what would happen if Jerry failed to reimburse Virgil for all funds
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and expenses related to Unit 45 or what would happen if Virgil paid off Unit 45 earlier
than expected.” Clerk’s Papers (CP) at 94.
Virgil purchased Unit 45 from the bank in 1989. From 1989 to 2004, Jerry farmed
Unit 45 and invested money into his farming operation on the property. Jerry made
improvements to Unit 45, including planting an orchard, installing an irrigation system,
and installing a couple of mobile homes. Starting in 1998, he leased out the crop circle to
various third parties to farm. According to Jerry, from 1989 to 2003, he made regular
payments to Virgil each fall that covered all Virgil’s expenses for Unit 45 according to
their agreement. Virgil maintains that any payments he received from Jerry were under a
lease agreement between the two from 1989 to 2002. Virgil stated that the lease
agreement ended in 2002 when Jerry failed to make payments.
In 2004, Virgil stopped allowing Jerry to farm Unit 45 and began leasing the
property directly to various third parties. During that time, he would sometimes send
Jerry a portion of the rent as a management fee. According to Virgil, starting two years
after he purchased Unit 45, Jerry would frequently approach him, requesting that Virgil
deed Unit 45 to a friend or Jerry himself. Virgil maintains that he never agreed to such a
transfer and that Jerry never reimbursed him for any expenses incurred in the real estate
contract. Virgil states that Jerry was served with a notice of eviction sometime around
2013 but failed to leave the property and continued to live there without paying rent.
Jerry admits that in 2004 he was unable to make a payment to Virgil and has not made a
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payment to him since. Jerry said he arranged for third parties to sublease the crop circle
and make payments directly to Virgil in place of his payment. Jerry sent a letter to Virgil
proposing the change, but Virgil never responded. Jerry also sent letters to Virgil
requesting the property be deeded to his daughter without response. Jerry made multiple
attempts to agree with Virgil about the payment for Unit 45, but there was never any
conversation between the two about how future payments would be made. Jerry
continued to farm the orchard portion of the property until 2008, when he leased that
portion to Seth Weeks. Weeks paid Jerry under the lease until 2015, when he started
making payments directly to Virgil. From 2007 to 2012, Jerry received payments from
Virgil in random and oddly specific amounts. Jerry assumed these payments were his
share of the rent paid by the third parties leasing the property from Virgil. Virgil stated
that these were management fees paid to Jerry for supervision of and improvements to
Unit 45. Virgil paid off the amount due on Unit 45 in 2004. Before paying off the bank
loan, Virgil made all the loan payments, tax payments, and insurance on the property.
Jerry did not learn that Virgil had paid off the loan on Unit 45 until 2011. After learning
that the property had been paid off, Jerry mailed Virgil a letter containing a deed to
transfer the property back to Jerry. Virgil did not respond. Jerry brought a claim against
Virgil for a constructive trust against Unit 45 in 2013. Since Jerry was claiming there
was an agreement to hold the property in trust and return it upon payment of all expenses,
the trial court felt that an express trust might be a more appropriate claim and thus
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addressed that as well in its decision. Regardless, the trial court rejected Jerry’s claim for
an express or constructive trust because there was no fraud in the creation of the trust and
no unjust enrichment. The trial court found that Jerry discussed Unit 45 with Virgil, and
Virgil made an oral promise to purchase Unit 45 and transfer the property back to Jerry,
provided that Jerry reimburse him for all payments and expenses. However, there was no
agreement about what would happen if Jerry failed to reimburse Virgil for expenses or if
Virgil paid off the property early. Virgil made all loan, insurance, and tax payments for
Unit 45 and remained solely liable for the expenses of the property. The trial court did
not find credible Jerry’s argument that there was an agreement that the rental payments
from third parties substituted as payments. After 2005, Jerry continued living on the
property without making payments to Virgil, received payments from his lease of the
orchard, and received money from Virgil from 2007 to 2012. Thus, the court found that
Virgil had not been unjustly enriched.
B. UNIT 120
In 1993, brothers Jerry, Virgil, and David Redwine created a trust naming
themselves as trustees using a document drafted by Jerry. In this trust, the brothers
placed four acres of family land where their mother lived (Unit 120) with the
understanding that it would be distributed among the three of them when their mother
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died. In 1998, the brothers transferred Unit 120 to Virgil at Virgil’s request.2 Virgil
orally agreed to transfer Unit 120 back to the trust once their mother passed away.
According to both Jerry and David, the understanding was that the transfer would take
place as soon as their mother passed away.
Their mother died in April 2006. About two weeks after their mother’s passing,
Jerry and David called Virgil requesting he divide up the property. About the same time,
Jerry sent a letter to Virgil demanding that he “act in a righteous and honorable way”
concerning Unit 120 and claiming an interest in the property. CP at 103. He also
asserted that Virgil had wrongfully taken ownership of the property. Jerry stated that
Virgil “had no lawful and righteous authority” to move others onto the property and
demanded that Virgil “do what is right.” CP at 103. He asked Virgil to sell the property
and deposit the proceeds into the trust. Virgil refused to speak with his brothers and
called them vultures. He later told David that he needed time to make arrangements. In
2007, Virgil also sent Jerry a letter saying, “Despite what you think, I cannot sell a house
overnight.” Report of Proceedings at 242. Jerry could not recall if he had any
conversations with Virgil regarding Unit 120 after receiving the letter. In April 2012,
Jerry received a check for $15,000 from Virgil, which Jerry believed was a partial
payment for his interest in the property. Payment on the check was later stopped when
2
Virgil told his brothers that he needed the property in his name to obtain a loan.
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Tara, Virgil’s wife, found out about it. In 2012, Virgil also made payments to David for
the property, although it is not clear whether Jerry was aware of those payments. In
2013, Jerry filed suit against Virgil and Tara, seeking the declaration of a constructive
trust against Unit 120.3 After Jerry presented his case, the defendants moved to dismiss
the case as barred by the statute of limitations.
The trial court found the document Jerry drafted in 1993 created a trust holding
their mother’s property, Unit 120, with Jerry, Virgil, and David as trustees. In January
1998, Jerry and David as trustees signed a deed transferring Unit 120 to Virgil at Virgil’s
request in exchange for an oral agreement from Virgil that he would hold Unit 120 as if it
were still part of the trust and transfer the property back to the trust after their mother
died. However, the trial court determined that the constructive trust claim was subject to
a three-year statute of limitations that starts running when a beneficiary discovers or
should have discovered that the trust has been terminated or repudiated by the trustee.
The court found that Jerry discovered or should have discovered that the trust was
terminated or repudiated by Virgil in April 2006 when Virgil refused to place Unit 120
back into the trust. Thus, the court concluded that the statute of limitations for the
constructive trust claim began to run in April 2006, and the claim was barred.
3
The initial filing was a petition to foreclose. However, it was later amended to a
claim for a constructive trust.
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ANALYSIS
A. COMPLIANCE WITH RULES OF APPELLATE PROCEDURE (RAPS)
As a preliminary matter, we address the briefing and arguments raised by the
appellant, Jerry Redwine. Jerry is representing himself and is not an attorney. While we
respect his efforts, as a pro se appellant, he is held to the same standard as an attorney.
State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).
Under RAP 10.3(a)(4), an appellant shall set forth a concise statement for each
error alleged by the trial court. Mr. Redwine identifies at least 50 assignments of error,
essentially going through each paragraph of the trial court’s memorandum decision,
findings of fact and conclusions of law, judgment, and trial exhibits, while briefly
discussing whether and to what extent he agrees with them. Throughout his brief, he
disputes facts but does not identify any legal issues. In the 42 pages of his brief, Jerry
cites one case, and that is only to disagree with the trial court’s analysis of that case.
Jerry misunderstands our role on appeal. During a bench trial, the judge sits as the
finder of fact. “An essential function of the fact finder is to discount theories which it
determines unreasonable because the finder of fact is the sole and exclusive judge of the
evidence, the weight to be given thereto, and the credibility of witnesses.” State v.
Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999) (citing State v. Snider, 70 Wn.2d
326, 327, 422 P.2d 816 (1967)). The Court of Appeals is not a trial court and we do not
provide a second opportunity to argue and decide disputed facts. “The power of this
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court is appellate only, which does not include a retrial here but is limited to ascertaining
whether the findings are supported by substantial evidence or not.” Stringfellow v.
Stringfellow, 56 Wn.2d 957, 959, 350 P.2d 1003 (1960), opinion amended on denial of
reh’g, 56 Wn.2d 957, 353 P.2d 671 (1960).
As an appellate court, we do not reweigh the evidence. Harrison Mem’l Hosp. v.
Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002). Instead, following a bench trial,
we review the record in a light most favorable to the prevailing party to determine if
substantial evidence supports the trial court’s findings of fact and, if so, whether the
findings support the conclusions of law. Id. at 484-85. We consider specific issues
raised in the briefs that include citation to legal authority and references to the relevant
portions of the record. RAP 10.3(a)(6). We need not consider arguments that are
unsupported by meaningful analysis or authority. Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
While Jerry assigns error to almost every finding made by the trial court, he fails
to identify any legal issues pertaining to those assignments of error or cite to any legal
authority. We decline to address the bulk of his assignments of errors.
B. UNIT 120
To the extent that Jerry challenges the trial court’s conclusion that the statute of
limitations barred his claim for a constructive trust of Unit 120, we find no error. At trial,
Jerry alleged that his brother Virgil took their mother’s property in constructive trust and
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then refused to convey it back to the trust upon her death. The trial court found that even
if a constructive trust was proved, it was barred by the statute of limitations.
The statute of limitations for a constructive trust is three years. Goodman v.
Goodman, 128 Wn.2d 366, 373, 907 P.2d 290 (1995). The statute begins to run when a
“beneficiary discovers or should have discovered the wrongful act which gave rise to the
constructive trust.” Id. n.2.
Here, the testimony at trial from both Jerry and David was that their understanding
of their agreement with Virgil was that he would convey the property back to the trust
upon their mother’s death. Their mother died in 2006. Two weeks later, they both called
Virgil about Unit 120, and he refused to speak with them. Jerry also wrote a letter to
Virgil demanding that he behave “righteously” concerning the property and saying that
Virgil had wrongfully taken possession of it, indicating that he was aware Virgil had
violated the agreement. Thus, the statute of limitations began to run in 2006. Jerry’s
lawsuit was filed in 2013, seven years later. Although conversations, payments, and
attempts to negotiate a settlement allegedly occurred between Virgil and the brothers for
the property in 2007 and 2012, Jerry’s 2006 letter clearly indicated that he believed Virgil
violated the agreement. The trial court found that Jerry knew or should have known in
2006 that Virgil was terminating or repudiating the trust holding of Unit 120. The trial
court did not err in concluding that the statute of limitations barred Jerry’s claim for
constructive trust holding of Unit 120.
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C. UNIT 45.
While not articulated by Jerry in his briefing, we also review the trial court’s
finding that Jerry failed to meet his burden of proving that Virgil held Unit 45 in a
constructive or express trust for the benefit of Jerry.
The trial court concluded that Jerry’s claim pertaining to Unit 45 was for an
express trust, not a constructive trust. At trial, Jerry testified that he and Virgil had an
express agreement that Virgil would buy Unit 45 in trust for Jerry. An express trust is
defined as “‘a fiduciary relationship with respect to property, subjecting the person by
whom the title to property is held to equitable duties to deal with the property for the
benefit of another person, which arises as a result of a manifestation of an intention to
create it.’” In re Marriage of Lutz, 74 Wn. App. 356, 365, 873 P.2d 566 (1994) (quoting
1 William F. Fratcher, Scott on Trusts Sec. 2.3, at 41 (4th ed. 1987).
An express trust involving a real estate transfer cannot be established by parol
evidence unless actual or constructive fraud is involved in the original transaction.
Dowgialla v. Knevage, 48 Wn.2d 326, 335-36, 294 P.2d 393 (1956); Lutz, 74 Wn. App.
at 365; Arnold v. Hall, 72 Wash. 50, 53, 129 P. 914 (1913). The subsequent failure of the
trustee to return the trust property does not prove bad faith in the original transaction.
Lutz, 74 Wn. App. at 365-66.
Here, because Jerry claims an express manifestation of intent to form a trust, a
claim for express trust suits his case better than a constructive trust. However, Jerry’s
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express trust claim rests on parol evidence. Although some written communications were
presented at trial, the communications were unilateral from Jerry to Virgil and did not
establish a mutual agreement between the two parties. And while Jerry claimed Virgil
was acting in bad faith for not conveying the property after the loan was paid, he failed to
present any evidence of actual or constructive fraud or bad faith on the part of Virgil at
the time of entering into the agreement. The trial court found that parol evidence was
inadmissible to show an express trust to transfer real property because there was no
evidence of actual or constructive fraud on the part of Virgil when he entered into the
transaction.
In his pleadings, Jerry also claimed that Virgil held Unit 45 in constructive trust.
A court typically imposes a constructive trust when there is clear, cogent, and convincing
evidence of an equitable duty to convey a piece of property to another. Baker v. Leonard,
120 Wn.2d 538, 547, 843 P.2d 1050 (1993). Constructive trusts are generally imposed in
cases of fraud or unjust enrichment. “A constructive trust is an equitable remedy that
‘compel[s] restoration, where one through actual fraud, abuse of confidence reposed and
accepted, or through other questionable means, gains something for himself which, in
equity and good conscience, he should not be permitted to hold.’” Consulting Overseas
Mgmt., Ltd. v. Shtikel, 105 Wn. App. 80, 86-87, 18 P.3d 1144 (2001) (quoting Scymanski
v. Dufault, 80 Wn.2d 77, 88, 491 P.2d 1050 (1971)).
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Constructive trusts may be found when an oral promise to hold real estate in
express trust is made in bad faith. Lutz, 74 Wn. App. at 367. Parol evidence is
admissible to establish the existence of a constructive trust. Id. at 366. Similar to an
express trust, actual or constructive fraud must be demonstrated before a constructive
trust involving real property can be established by parol evidence. Id. at 364-65. The
fraud must be present at the inception of the transaction. Id. A breach of an oral
agreement does not itself establish fraud in the original agreement. Dowgialla v.
Knevage, 48 Wn.2d at 334.
Constructive trusts may also be imposed “where the retention of the property
would result in the unjust enrichment of the person retaining it.” Consulting Overseas
Mgmt., Ltd., 105 Wn. App. at 87 (internal quotation marks omitted) (internal citations
omitted). For example, “[a] constructive trust may arise if consideration for the
acquisition of property is furnished by one party and title is taken in the name of another
so that retention of the property would result in an unjust enrichment. The deciding
factor is whether the party who possesses the property has been unjustly enriched.” Yates
v. Taylor, 58 Wn. App. 187, 190-91, 791 P.2d 924 (citations and footnotes omitted).
Where the statute of frauds prevents Jerry from proving an express trust through
parol evidence, he may prove a constructive trust if he can show that Virgil’s agreement
to hold Unit 45 was made in bad faith. Similar to his claim for an express trust, however,
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Jerry has not presented any evidence of actual or constructive fraud at the inception of the
transaction in 1987.
Nor did Jerry prove unjust enrichment. The trial court found that Jerry failed to
prove that he paid Virgil for all of the expenses related to Unit 45. Virgil was solely
responsible for the loan payments, taxes, and insurance. While Jerry initially made
payments to Virgil, those payments ended in 2004 while Jerry has continued to live on
the property. Jerry accepted rental payments from third parties without paying Virgil and
even received financial assistance from Virgil for several years. Although Jerry believes
that Virgil accepted payments from third parties leasing the crop circle in lieu of
payments from Jerry, he presented no evidence that such an agreement was reached.
The evidence or lack of evidence introduced at trial supports the trial court’s
conclusion that Jerry failed to prove that Virgil held Unit 45 in either a constructive or
express trust for Jerry’s benefit.
D. ATTORNEY FEES
Jerry requests that he be awarded about $100,000 in attorney fees and that the
court fine Virgil and Tera $1,000,000 in punitive damages. As the respondent, Virgil is
also requesting attorney fees under RAP 18.9.
RAP 18.1 provides a process whereby eligible parties may request the court grant
their attorney fees. “RAP 18.1(b) requires a party to devote a separate section of the
appellate brief to the fee issue.” Lakes v. von der Mehden, 117 Wn. App. 212, 220, 70
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P.3d 154 (2003). This section must contain more than simply citations to the RAP and
statutory provisions. Id.
Attorney fees may also be imposed under RAP 18.9. “The appellate court on its
own initiative or on motion of a party may order a party or counsel, or a court reporter or
authorized transcriptionist preparing a verbatim report of proceedings, who uses these
rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules
to pay terms or compensatory damages to any other party who has been harmed by the
delay or the failure to comply or to pay sanctions to the court.” RAP 18.9(a).
“Appropriate sanctions may include, as compensatory damages, an award of attorney fees
and costs to the opposing party.” Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849
(2008).
“A frivolous action is one that cannot be supported by any rational argument on
the law or facts.” Id. at 697. An appeal is not frivolous if it presents debatable issues
upon which reasonable minds might differ. Holiday v. City of Moses Lake, 157 Wn. App.
347, 236 P.3d 981 (2010). Raising one meritorious issue will not result in a finding of
frivolousness, even if the outcome of other issues are not debatable. Green River Cmty.
Col. Dist. No. 10 v. Higher Ed. Personnel Bd., 107 Wn.2d 427, 730 P.2d 653 (1986).
Courts resolve all doubts as to whether an appeal is frivolous in favor of the appellant.
Wood v. Thurston County, 117 Wn. App. 22, 68 P.3d 1084 (2003).
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Here, Jerry fails to provide any support for his request for attorney fees.
Therefore, the court will not consider his request. Although there is little merit to Jerry’s
appeal, it is not utterly devoid of merit. He appeals the court’s dismissal of the Unit 120
claim, referring to evidence he presented at trial that he still hoped, up until 2012, that
Virgil would pay him his fair share of the property. This argument is not entirely
baseless. Moreover, although some of his arguments are baseless, he presented evidence
at trial to support some of the findings of fact he contested on appeal in regard to Unit 45.
Thus, we likewise deny Virgil’s request for attorney fees under RAP 18.9.
Affirm.
A majority of the panel has determined 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.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Pennell, C.J.
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