FILED
APRIL 11, 2017
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
SETH BURRILL PRODUCTIONS, INC., )
) No. 34401-1-111
Respondent, )
)
V. )
)
REBEL CREEK TACKLE, INC., ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. -Rebel Creek Tackle, Inc. (Rebel) appeals the trial court's order
appointing a receiver at the request of Seth Burrill Productions, Inc. (Burrill), whose now
$100,000-plus judgment against Rebel remains unsatisfied after almost four years. The
trial court did not abuse its discretion in granting Burrill's motion to appoint a receiver
authorized to engage in an orderly sale of Rebel's intellectual property-the only
significant asset it revealed in supplemental proceedings.
No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
We affirm the order appointing the receiver, affirm the trial court's refusal to
entertain Rebel's postjudgment claim to setoffs, award Burrill reasonable fees and costs
on appeal, and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Rebel granted Burrill an exclusive license to produce and distribute a patented
fishing lure, "Bud's Diver," in exchange for royalties on each sale. When Rebel later
attempted to alter the nature of the licensing agreement from exclusive to nonexclusive,
Burrill demanded arbitration, which is required by the parties' license agreement. The
arbitrator found Rebel had breached the license agreement, awarded Burrill $66,367.62 in
damages, and ordered Rebel to deliver to Burrill the patented molds needed to produce
the fishing lure.
This action was commenced to confirm the arbitration award. A judgment and
order confirming the award and order to deliver the molds was entered in June 2013.
When Rebel refused to deliver the molds as ordered, the trial court found Rebel in
contempt. Rebel appealed, and in an unpublished opinion, this court affirmed the trial
court and awarded Burrill costs and attorney fees, finding the appeal "completely without
merit." Seth Burrill Prods., Inc. v. Rebel Creek Tackle, Inc., No. 32119-3-111, slip op. at
1, 5-6 (Wash. Ct. App. July 7, 2015) (unpublished), https://www.courts.wa.gov/opinions
/pdf/321193.unp.pdf.
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No. 34401-1-III
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In addition to encountering difficulty obtaining the molds, Burrill was unable to
collect its judgment. Shortly after the judgment was entered, Burrill offered to forgo a
portion of the judgment amount and release other claims against Rebel in exchange for
partial payment of the judgment and assignment of the molds, the Bud's Diver Patent No.
7,654,031, and Patent Application 12/641,291 (Publication No. 2010/0223834). It also
stated it wanted to conduct a debtor's exam and, if necessary, would travel to Benton
County (where we assume Rebel's shareholders, Allen and Dorothy Osborne reside).
Rebel, which contends the patent alone is worth over $12 million, had no interest in the
offer, so in late July 2013, Burrill filed an abstract of its judgment in Benton County
Superior Court.
In late October 2013, Burrill reiterated its July offer, this time indicating it would
accept two-thirds of the judgment amount along with an assignment of the molds, the
patent, and the patent application in full settlement of all claims. Again, Rebel expressed
no interest.
In November 2013, Burrill moved in Benton County for an order authorizing
supplemental proceedings to determine the extent of Rebel's nonexempt property
available to satisfy the judgment. An order authorizing discovery, including a debtor's
exam, was entered in December. Examinations of Mr. Osborne were scheduled three
times (twice in January and once in February 2014) but were repeatedly postponed and
never occurred due to Mr. Osborne's medical condition.
3
No. 34401-1-III
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Meanwhile, in late December 2013, Burrill served Rebel with written discovery
authorized by the Benton County court. Rebel's responses indicated it did not have a
I current bank account, an insurance policy, a corporate minute book, or financial
I
I statements and had not filed income tax returns or made a profit between 2010 and 2013.
I Rebel reported that its only assets were the Bud's Diver molds, the associated patent and
i patent application, its license agreement with Burrill and an application for rights in
!
I Canada and the European Union.
I
Burrill became concerned during 2014 and 2015 that Rebel was not taking steps to
t
preserve the value of the patent and patent application. In July 2013, Burrill learned that
f
lI Rebel received a notice of abandonment of its Patent Application 12/641,291 from the
I U.S. Patent and Trade Office for failure to respond to a letter from that office. Although
both parties recognized the abandoned application could be revived, Burrill was less
sanguine than Rebel about prospects for revival as time passed without action being
taken.
On January 2, 2014, lawyers for Rebel and Burrill exchanged e-mails in which
Rebel confirmed there was no money in Rebel's account and stated that Burrill was
"going to not get any money" and would have to "hire attorneys who know how to
continue the patent and application." Clerk's Papers (CP) at 67. During the same time
frame, mandatory maintenance fees became due to the Patent and Trade Office. Rebel's
lawyer notified Burrill's lawyers that his client had "no motivation to protect [intellectual
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No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
property]" as things stood, and suggested that Burrill' s lawyers "devine [sic] an offer that
would put [Rebel] in the mode of securing [intellectual property] protection." CP at 60.
Concerned that the $880 maintenance fee would not be paid by Rebel, Burrill paid it. In
June 2014, Rebel notified Burrill that payment was due the Patent and Trade Office to
continue Rebel's patent application in the European Union; Burrill declined to pay those
fees.
Thereafter, and into 2015, Burrill's lawyers periodically corresponded with
Rebel's lawyer about obtaining assignment through the Patent and Trade Office of the
Bud's Diver patent and patent application as a form of execution, using a process about
whose particulars the parties disagree. When Rebel took the position that assignment of
the patent would trigger litigation to determine the extent by which the patent's value
exceeded the amount of Burrill's judgment, Burrill's lawyer responded that Burrill would
proceed, instead, "via the court." CP at 82.
On April 15, 2016, Burrill moved the trial court to appoint a general receiver for
Rebel and order Rebel to assign the patent and molds to the receiver. It supported its
motion with declarations recounting what it learned in supplemental proceedings about
the limits of Rebel's assets, its unsuccessful efforts to negotiate satisfaction of its
judgment, and its concern about Rebel's failure to take steps required to preserve the
patent and application.
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No. 34401-1-III
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
In response, Rebel demonstrated that after receiving Burrill's motion it made
payments to the Patent and Trade Office and successfully revived the patent application.
It also took the position that by seeking appointment of a receiver, Burrill opened the
door to litigation to determine "the differential between Judgment and Set-Offs." CP at
223. According to Rebel, it is entitled to a setoff against Burrill's judgment not only for
royalties Burrill has withheld but also for "capital investments" Burrill was required to
pay under the license agreement. Id. 1 It asked the court to establish a schedule for
discovery and for a hearing to resolve its setoff claim.
At the hearing on Burrill's motion that took place on April 29, Rebel's lawyer told
the court that "the financial abilities of Rebel Creek have changed dramatically" and that
Rebel "is prepared now to tender an amount to satisfy the judgment." Report of
Proceedings at 8. Burrill questioned whether the offer to satisfy the judgment was bona
fide. As to Rebel's proposal to embark on a discovery process and litigation over setoffs,
Burrill pointed out that under the parties' license agreement, Rebel was required to
1
The parties' license agreement provides in pertinent part:
LICENSEE, in consideration of the grant of a license under U.S.
Patent Application No. 11,290,391 and United States Patent Application
No. 12,641,291, will pay royalties, make all necessary capital investments,
and achieve PRACTICAL APPLICATION of the invention.
CP at 14 7. "Capital investments" is not defined by the agreement and the parties disagree
about what it includes.
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provide a notice of default, after which Burrill would have 30 days to cure, and that any
remaining dispute would be subject to contractually required arbitration. The court
granted Burrill's motion for a receivership at the conclusion of the April 29 hearing.
On May 12, Rebel moved in the trial court for a stay of the court's order. On the
afternoon before the hearing on its request for a stay, Rebel paid $103,000 into court and
filed a notice of supersedeas. The trial court denied the motion and Rebel immediately
moved this court for discretionary review. Our commissioner found the appointment of
the receiver to be appealable of right under RAP 2.2(a)(13) and granted Rebel's motion
to stay the receivership order since Rebel had posted the $103,000 cash in lieu of a
supersedeas bond.
Rebel appeals the trial court's order appointing a receiver and its order denying
Rebel's motion for stay.
ANALYSIS
Rebel makes four assignments of error. It assigns error to ( 1) the appointment of a
receiver; (2) the trial court's reliance on this court's earlier unpublished opinion as a basis
for receivership; (3) the trial court's failure, when ruling on the receivership, to consider
Rebel's lawyer's tender of the amount of the judgment less setoffs; and (4) the failure to
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No. 34401-1-III
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
stay appointment of a receiver. We address the issues in the order stated. 2
1. The trial court did not abuse its discretion in appointing a receiver
A receiver is "a person appointed by the court as the court's agent, and subject to
the court's direction, to take possession of, manage, or dispose of property of a person."
RCW 7.60.005(10). Washington statutes identify 40 circumstances in which a receiver
may be appointed; in almost all, the trial court must additionally determine that the
appointment of a receiver "is reasonably necessary and that other available remedies are
not available or are inadequate." RCW 7.60.025(1). A trial court's appointment of a
2
A March 2, 2017 motion to supplement the record, filed by Rebel, was referred
to the panel for decision. It sought to supplement the record on appeal pursuant to RAP
9.10 with documents included as Exhibits A-D of Rebel's reply brief.
Exhibit B to the reply brief is a single page document appearing at CP at 53, and is
already a part of the record.
Exhibit A, consisting of an e-mail chain, does not shed light on Rebel's apparent
disagreement with the sworn declaration of Mr. Smith that the debtor examination of Mr.
Osborne "was rescheduled several times ... but never taken (at RCTI's counsel's
request) because of Mr. Allen's [sic] medical condition." CP at 8. The document is not
needed to permit a decision on the merits of the issues presented for review.
Exhibits C and D postdate the orders challenged on appeal. Rebel's motion does
not mention RAP 9 .11 and comes nowhere near the showing required before this court
will direct the taking of additional evidence.
The motion is denied.
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No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
receiver is reviewed for abuse of discretion. 3 Roberts v. Wash. Nat'! Bank, 9 Wash. 12,
13, 37 P. 26 (1894); Union Boom Co. v. Samish Boom Co., 33 Wash. 144, 152, 74 P. 53
(1903) ("The court's discretion is not absolute or arbitrary, but a sound judicial
discretion, in view of all the facts and circumstances of the particular case, exercised for
the promotion of justice and the protection of rights, where no other adequate remedy
exists.") (internal quotation marks omitted); Many Life Ins. Co. v. Cissne Family LLC,
135 Wn. App. 948, 952, 148 P.3d 1065 (2006).
Burrill argued that this case presented four circumstances in which receiverships
are authorized by RCW 7.60.025(1):
(c) After judgment, in order to give effect to the judgment;
(e) To the extent that property is not exempt from execution, at the
instance of a judgment creditor either before or after the issuance of any
execution, to preserve or protect it, or prevent its transfer;
3
Rebel contends that our review is de novo because the trial court based its
decision on written evidence alone, and made no credibility determinations. Br. of
Appellant at 3 & n.74, citing State v. Graciano, 176 Wn.2d 531, 551-52, 295 P.3d 219
(2013) (Chambers, J., concurring in dissent). Graciano discussed contexts in which the
trial court is ordinarily a factfinder; hence, when there is no dispute in the facts, some
case law holds that appellate courts are in as good a position to make a decision as the
trial court.
In this case, the nature of the trial court's discretion was not, primarily, to assess
credibility, weigh evidence, and make a factual determination. It was, primarily, to
assess Burrill's asserted need for the relief and determine whether, because other
remedies were inadequate, the appointment of a receiver was reasonably necessary to
secure ample justice to the parties. Graciano and the cases it cites do not apply.
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No. 34401-1-III
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(g) Upon an attachment of real or personal property when the
property attached is of a perishable nature or is otherwise in danger of
waste, impairment, or destruction, or where the abandoned property's
owner has absconded with, secreted, or abandoned the property, and it is
necessary to collect, conserve, manage, control, or protect it, or to dispose
of it promptly, or when the court determines that the nature of the property
or the exigency of the case otherwise provides cause for the appointment of
a receiver; [or]
(nn) In such other cases as may be provided for by law, or when, in
the discretion of the court, it may be necessary to secure ample justice to
the parties.
RCW 7.60.025(1)(c), (e), (g), (nn). Burrill's declarations in support of its motion
demonstrated its unsuccessful efforts to collect its years-old judgment and that the patent
and molds were Rebel's only significant assets.
Very similar facts were presented in a case in western Washington that was
resolved through the federal courts, relying on Washington receivership law. The law
firm of Hendricks & Lewis PLLC became embroiled in a dispute with its former client,
musician George Clinton. The dispute was arbitrated and resulted in an award of over
$1.6 million to the law firm that was confirmed in federal court and reduced to judgment
in 2010. Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 993 (9th Cir. 2014).
In 2012, the law firm sought appointment of a receiver and an order directing
Clinton to assign to the receiver master recordings of Clinton's performances with the
group "Funkadelic." Id. at 994. The district court found that"' [d]espite numerous
efforts to enforce [the subject] judgments in this and other district[s], plaintiff has
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No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
recovered less than $340,000.'" Id. (alterations in original). It appointed a receiver,
specifying in its order that the receiver had all rights, authority, and control over the
master recordings under applicable Washington law"' in order to maximize the value of
the sound recordings for the benefit of the parties and to make whole the judgment
creditor, [H & L]."' Id. at 995 (alteration in original). Although the court's order
expressed a preference that the receiver satisfy the law firm's judgment with income from
the master recordings, it included in the receiver's authority "' the authority to sell or
permanently dispose of any or all of the master sound recordings.'" Id. (emphasis
omitted).
Mr. Clinton appealed to the Ninth Circuit Court of Appeals, which held that the
district court did not abuse its discretion by appointing a receiver to manage or sell
ownership of Clinton's copyrights. Id. at 999. It identified the same four sections of
RCW 7.60.025(1) on which Burrill relies as relevant to the district court's authority to
appoint a receiver. Id. at 999. We need not defer to a federal court's construction of
Washington law, of course, but we find the federal court's reasons for affirming
appointment of a receiver at the law firm's request to be the same as our reasons for
affirming the trial court here: the federal district court recognized that the law firm had a
valid judgment that it had not been able to recover; it was concerned that Mr. Clinton
would not be able to satisfy the judgment in a reasonable period of time; and it was aware
that the parties had discussed proposals for satisfying the judgment against Mr. Clinton,
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No. 34401-1-III
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
but "after years of fighting over the debt ... they had failed to come to such an
agreement." Id. at 1000. As the Ninth Circuit observed, "[T]he district court balanced
the equities and did not abuse its discretion in determining that appointing a receiver was
'necessary to secure ample justice to the parties."' Id. (citing RCW 7.60.025 (l)(nn)).
Rebel nonetheless argues that where a judgment creditor requests appointment of a
receiver, it is a "condition precedent" that the judgment creditor has taken action in court
to execute on the judgment. It cites RCW 7.60.025(l)(f), which authorizes a receivership
"when an execution has been returned unsatisfied." Burrill never relied on RCW
7.60.025(l)(f) as a basis for appointing a receiver for Rebel.
Rebel also argues that it revived the patent application whose notice of
abandonment was received in 2013. But it did so only after the receivership motion was
filed, and revival of the application did not change the fact that a sale of Rebel's
intellectual property appears to be the only way to pay Burrill's longstanding and wholly
unsatisfied judgment. A commercially reasonable sale by a qualified receiver best
protects the interests of all parties.
The trial court did not abuse its discretion in appointing the receiver.
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No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
2. The trial court did not err in considering Rebel's prior contempt in
deciding whether to appoint a receiver
Rebel next argues the trial court improperly went outside the parties' submissions
when it considered this court's decision affirming the order finding Rebel in contempt in
deciding whether to appoint a receiver. Its argument is factually and legally unsupported.
Rebel's failure to comply with the arbitration order and judgment requiring it to
deliver the molds was relied on by Burrill as a relevant part of the parties' history when it
moved for appointment of the receiver. See, e.g., CP at 12. Moreover, the trial court was
entitled to take judicial notice of the prior contempt proceeding and appeal. Spokane
Research & Def Fund v. City ofSpokane, 155 Wn.2d 89, 98, 117 P.3d 1117, (2005)
(court may take judicial notice of the record in the case before it or in proceedings
engrafted, ancillary, or supplementary to it).
The appointment of a receiver depends on "all [of] the facts and circumstance of
the particular case." Union Boom, 33 Wash. at 152. Rebel's earlier disregard of the
court's order to deliver the molds could be considered by the trial court when determining
the appropriateness of a receivership.
3. The trial court did not err in rejecting Rebel's lawyer's tender of the
"differential" between the judgment and setoffs
In its written opposition to Burrill's motion for appointment of a receiver, Rebel
offered to tender "the differential [between the judgment and the set-offs owed to
Defendant by Plaintiff] if the balance is in favor of the Plaintiff." CP at 129. At the
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No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
hearing on April 29, 2016, its lawyer repeated its offer. Rebel assigns error to the trial
court's alleged failure to consider the tender.
Presumably, the trial court did consider the tender; Rebel offers no evidence it did
not. But the court was not required to go along with Rebel's proposal for litigation over
setoffs that would further delay Burrill' s collection of its longstanding judgment. And we
find no legal basis for Rebel's proposed procedure for determining the "differential" or,
as it later requested, for entertaining a declaratory judgment claim. We may affirm the
trial court on any ground supported by the record whether or not the court considered that
ground. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
Rebel likens this case to Sherry v. Financial Indemnity Co., 160 Wn.2d 611, 160
P .3d 31 (2007), but that case presented a very different situation. In Sherry, an insured
commenced an action to confirm an arbitration award against its insurer, and the insurer
asked that the same court determine its right of offset for payments it had previously
made to its insured. Before proceeding to any judgment, the parties agreed, without the
insurer filing a counterclaim, that the matters would be resolved in the same proceeding.
On appeal, the Washington Supreme Court observed that it "would have been better
practice" for the insurer to formally plead a declaratory judgment counterclaim or bring a
separate action, but it was willing to treat the case "as if' the parties had amended their
initial pleadings to reflect the insurer's counterclaim. Id. at 617-18.
14
No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
Reich/in v. First National Bank, 184 Wash. 304, 51 P.2d 380 (1935), another case
relied on by Rebel, is also distinguishable. In that case, the setoff that was allowed was a
final judgment that had been pleaded as a setoff in answering the complaint. Id. at 306.
As the court observed, the setoffwas "a solemn judgment establishing finally an
indebtedness certain in amount. . . . [T]here is nothing left to litigate, and it is beyond the
power of a jury or of the court itself ... to deny or defeat the right of a judgment creditor
to receive the sum due him from the judgment debtor." Id. at 313.
There is no regular procedure that we can pretend permits what Rebel was asking
the trial court to do here. Claims asserted in the complaint and answer were resolved by a
final judgment in 2013. It is too late to amend Rebel's answer or treat it as if it was
amended. Burrill's request for appointment of the receiver is not a new action; it is in the
nature of a postjudgment remedy. See CR 66, "Receivership Proceedings," which has
been reserved, with citation to chapter 7 .60 RCW.
Rebel does not explain how asserting a new claim for relief in the case below,
three years after final judgment, was legally possible. And of course unlike in Sherry,
Burrill never agreed to resolve setoffs in the case below. It insisted that Rebel give notice
of default, as required by the parties' license agreement, and arbitrate, if the matter could
not be resolved by agreement.
Contrary to Rebel's argument, Burrill has not waived arbitration by seeking
appointment of a receiver. The arbitration provisions of the parties' license agreement
15
No. 34401-1-111
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
apply only to "a BREACH of any provision of this AGREEMENT" that is not cured. See
CP at 151 (License Agreement, ,r,r 8.2-8.5). Rebel's claim for nonpayment of royalties
and alleged capital investments is subject to the license agreement's arbitration
provisions, but Burrill's request for a receivership in aid of collecting a judgment was
not. Since the request for a receiver was not covered by any contractual agreement to
arbitrate, Burrill did not act inconsistently with a right to arbitrate by moving in the trial
court for appointment of a receiver.
4. The trial court did not err by refusing to stay appointment of the receiver
Finally, Rebel argues that the trial court erred in refusing to stay its order
appointing a receiver. A trial court's decision to deny a motion for stay of proceedings is
reviewed for abuse of discretion. State v. Music, 79 Wn.2d 699, 716, 489 P.2d 159
(1971), vacated in part on other grounds, 408 U.S. 933, 940 (1972) (table decision).
Rebel's motion asked the court to stay its order until the parties (1) disclosed
amounts they claimed as setoffs, (2) engaged in discovery, and (3) proceeded to hearings
on any dispute over setoffs. See CP at 395-96. The court did not abuse its discretion in
refusing to order a procedure that would have further delayed Burrill's collection of its
judgment and that we have already observed was not a lawful procedure.
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No. 34401-1-III
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
Requests for sanctions and attorney fees
Rebel seeks an award of sanctions against Burrill under CR 11. Both sides request
an award of fees and costs on appeal.
As to Rebel's requests, assuming without deciding that CR 11 is a basis for an
award of sanctions on appeal, we find no sanctionable conduct and deny the request.
Rebel fails to identify applicable law that would entitle it to an award of fees and costs.
See RAP 18.l(a) (party may recover attorney fees if authorized by applicable law).
Burrill also requests an award of fees and costs, citing RAP 18.l(a) and 18.9(a).
RAP 18.9(a) authorizes this court to "order a party ... who ... files a frivolous appeal
... to pay terms or compensatory damages to any other party who has been harmed ... to
pay sanctions to the court." We agree with Burrill that Rebel challenged the court's
receivership order without addressing any provision ofRCW 7.60.025(1) on which
Burrill relied, did not attempt to identify an abuse of discretion by the trial court, and
made arguments unsupported by law. We award Burrill reasonable attorney fees and
costs on appeal subject to its timely compliance with RAP 18.l(d). 4
Clarification ofstay
Burrill asks that we clarify the duration of our commissioner's order staying the
trial court's order and that we order release of the cash on deposit with the court.
4
"Reasonable" fees should exclude work performed on the threshold issue of
appealability.
17
No. 34401-1-III
Seth Burrill Productions, Inc., v. Rebel Creek Tackle, Inc.
Our commissioner ruled:
Under RAP 8.l(b )(1), "a party may stay enforcement of a money
judgment by filing in the trial court a supersedeas bond or cash." Under
RAP 8.l(c)(l), "[t]he supersedeas amount shall be the amount of the
judgment, plus interest likely to accrue during the pendency of the appeal
and attorney fees, costs, and expenses likely to be awarded on appeal."
The record reflects that on May 26, 2016, Rebel Creek's attorney
deposited$ I 03,000.00 with the Spokane County Superior Court Clerk,
which is an amount adequate to cover the amounts of both the judgment
and the contempt judgment earlier entered against Rebel Creek and which
the appointment of the receiver and the sale of the patent and molds (the
subject of the current appeal) is intended to satisfy.
Comm'r's Am. Ruling (June 7, 2016) at 2-3. The commissioner's order further states
that Rebel Creek "has filed a sufficient cash amount with the superior court clerk to stay
execution on the amount of the judgments pending appeal." Id. at 3.
Rebel's cash deposit posted in lieu of supersedeas bond is available to satisfy
Burrill's judgments against Rebel. Brooke v. Robinson, 125 Wn. App. 253, 258, 104
P.3d 674 (2004). This is so notwithstanding Rebel's reference to making the deposit
"with awareness that Plaintiff acknowledges that set-offs are owed by Plaintiff to
Defendant." CP at 349. Rebel's notice of supersedeas states that its deposit "is made
pursuant to RAP 8.l(c)." Rebel was aware that the trial court had refused to order
discovery and hearing on the amount of a "differential," and our commissioner accepted
Rebel's argument that the cash deposit was supersedeas for the money judgments. Had
Rebel not posted the cash deposit, the court's order would not have been stayed by our
comm1ss10ner.
18
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i
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No. 34401-1-III
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RAP 8.6 makes it clear that the issuance of the mandate as provided in RAP 12.5
terminates any delay of enforcement of a trial court decision obtained pursuant to RAP
8.1 and terminates orders entered pursuant to RAP 8.3.
We affirm the order appointing the receiver, affirm the trial court's refusal to
entertain Rebel's postjudgment claim to setoffs, award Burrill reasonable attorney fees
and costs on appeal subject to timely compliance with RAP 18.1, and remand for further
proceedings.
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.
2]_ u
doway,J.
l(_)
~
'lf
I
WE CONCUR:
Pennell, J.
19