No. 46615-1-I.The Court of Appeals of Washington, Division One.
Filed: July 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 99-2-02829-5, Hon. Robert J. Wesley, April 12, 2000, Judgment or order under review.
Counsel for Appellant(s), Shirl Firchau (Appearing Pro Se), 415 Healy Ave., #4, North Bend, WA 98045.
Counsel for Respondent(s), Craig W. Miller, Davis Wright Tremaine, 2600 Century Square, 1501 4th Ave., Seattle, WA 98101-1688.
Kristin E. Sweeney, Davis Wright Tremaine, 2600 Century Square, 1501 4th Ave, Seattle, WA 98101-1688.
H. JOSEPH COLEMAN, J.
Shirl Firchau appeals the dismissal of her claim against respondent Bank of America for numerous alleged breaches of the Bank’s fiduciary duty in the administration of her mother’s estate. The Bank argues that Shirl’s claim is barred under the theories of res judicata and accord and satisfaction and is also barred by the statute of limitations. In support of its position, the Bank points to a 1993 settlement agreement between Shirl and the Bank in which Shirl agreed to settle all claims against the Bank relating to the administration of her mother’s estate. The settlement agreement also revived a 1985 stipulation that discharged the Bank as administrator of the estate and released the Bank from all claims relating to the estate.
Shirl argues that the 1985 stipulation preserved her ability to bring claims against the Bank for criminal violations in its administration of the estate. As the Bank points out, however, private parties cannot bring criminal charges against other private parties absent specific statutory authorization. Furthermore, both the 1993 settlement and the 1985 stipulation released the Bank from all liability relating to its administration of the estate. On these bases, we affirm the trial court’s dismissal of Shirl’s claim, the imposition of sanctions, and the denial of her motion for reconsideration.
FACTS
This dispute has its roots in the 1976 death of Bobbie Firchau. Her will directed that her share of the estate be put in a trust for discretionary distribution to her husband, Albert Firchau, and their seven children (including appellant Shirl Firchau). Albert served as administrator of the estate until 1981 when the court removed him in response to a petition from the children’s guardian ad litem. Rainier National Bank was appointed to replace Albert as administrator.
In 1985, Albert proposed settling the estate. Albert and the Firchau children entered into a stipulation with the Bank, discharging it as administrator of the estate and releasing it `from any and all past, present or future, known or unknown claims or liabilities (except criminal actions), of creditors, trustees, Firchau family members, or any other person, entity or governmental agency, relating directly or indirectly to or arising out of the Estate [or] its administration[.]’ In early 1986, Albert and the children entered into an agreement wherein Albert agreed to pay each of them $95,000 in exchange for their interests in the estate. Shirl received $10,000 in cash and a promissory note for $85,000.
Thereafter, Shirl received only one payment for $2,000 on the note.
Later in 1986, Shirl and Leslie Firchau filed a motion to vacate the stipulation with the Bank and the settlement agreement with Albert. After the trial court denied the motion, this court reversed on the ground that Albert had coerced Shirl and Leslie into signing the agreement. Before the case went to trial on remand in 1993, Shirl and Leslie agreed to settle all claims against the Bank in exchange for $135,000. Under the agreement, the Firchaus also reaffirmed the 1985 stipulation and release. In July 1999, Shirl and Leslie Firchau filed an amended complaint against the Bank, alleging numerous fiduciary breaches in the administration of Bobbie Firchau’s estate. Upon the Bank’s motions, the trial court dismissed the Firchaus’ claims and imposed CR 11 sanctions against them. After their motion for reconsideration was denied, the Firchaus filed this appeal.[1]
DISCUSSION
This court reviews orders of summary judgment de novo and engages in the same inquiry as the trial court, `treating all facts and reasonable inferences from the facts in a light most favorable to the nonmoving party.’ Enterprise Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988 P.2d 961 (1999). Summary judgment should be granted when there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Kuhlman v. Thomas, 78 Wn. App. 115, 119, 897 P.2d 365 (1995).
1. Res Judicata
In 1993 Shirl and the Bank agreed to settle `any and all claims against [the Bank] related to the administration of the Estate of Bobbie J. Firchau[.]’ In addition, Shirl agreed to reaffirm the 1985 stipulation and release and to dismiss their motion to set them aside. Under the terms of the 1985 release, the Bank was discharged as administrator of the estate and released from liability. [I]n consideration of the settlement and mutual release described in said Stipulation, [the Firchaus] do each hereby forever release and discharge [the Bank] . . . from any and all past, present or future, known or unknown claims or liabilities, relating directly or indirectly to or arising out of the administration of the Estate of Bobbie J. Firchau, the administration of assets of any kind, name or description . . . whether inside or outside the State of Washington.
The release and discharge is full, final and complete, without any restrictions or reservations . . . provided, however, that this release shall not include release of liability for any criminal act of the releasee[.]
The Bank argues that Shirl’s claims are barred by the doctrine of res judicata. Under this doctrine, `a plaintiff is barred from litigating claims that either were, or should have been, litigated in a former action.’ Kuhlman, 78 Wn. App. at 120. `For the doctrine to apply, substantial identity must exist between the successive proceedings, including settlement agreements.’ Hadley v. Cowan, 60 Wn. App. 433, 441, 804 P.2d 1271 (1991) (footnote omitted). The party moving for dismissal on the basis of res judicata must prove a concurrence of identity between the two proceedings in (1) persons and parties, (2) cause of action, (3) subject matter, and (4) the quality of the persons for or against whom the claim is made. Kuhlman, 78 Wn. App. at 120.
Shirl argues that dismissal on the basis of res judicata is improper in this case because the Bank has failed to prove a concurrence of identity between the causes of action in the two proceedings. While there is no specific test for determining identity of causes of action, the following criteria should be considered:
(1) [w]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action;
(2) whether substantially the same evidence is presented at the two actions;
(3) whether the two suits involve infringement of the same right; and
(4) whether the two suits arise out of the same transactional nucleus of facts.
Kuhlman, 78 Wn. App. at 122 (quoting Rains v. State, 100 Wn.2d 660, 664, 674 P.2d 165 (1983)).
Shirl concedes that the 1993 settlement agreement and the present action involve the same nucleus of fact and infringement of the same right (parts 3 and 4). However, she maintains that the Bank has failed to demonstrate that its rights under the settlement agreement would be impaired by the present action or that the same evidence would be presented. Shirl argues that the 1985 stipulation `specifically reserved the right to bring a civil claim for criminal actions’ and thus, `[the Bank’s] rights will not be impaired because its rights [under the 1993 settlement agreement] did not include immunity from any civil claims based on violation of criminal statutes.’ Reply Brief of Appellant, at 3. Similarly, Shirl contends that because these claims were not brought against the Bank at the time of the settlement agreement, the present action will not involve presentation of the same evidence.
Shirl’s complaint alleges numerous fiduciary breaches described as `criminal acts, part of a racketeering scheme, enterprise and conspiracy to defraud the estate and plaintiffs[.]’ In an attempt to sidestep the 1993 settlement agreement and the 1985 stipulation and release, Shirl presents her claims as `civil claims based on violation of criminal statutes.’ Reply Brief of Appellant, at 3. Despite this characterization, we conclude that the release clauses in the stipulation and release operate to bar Shirl’s claims in this case. The language excepting `criminal actions’ and `liability for any criminal act of the releasee’ from the release and stipulation refers to criminal liability on charges brought by a prosecuting authority and cannot be read to maintain the possibility of private civil liability as Shirl suggests. Logic demands such an interpretation, as it makes no sense that the Bank would agree to be released from `any and all past, present or future, known or unknown claims or liabilities’ according to the plain language of the documents, only to leave itself exposed to the same liability through civil claims predicated upon criminal misconduct. The language of the release and stipulation clearly preserves Shirl’s right to participate as a witness or complaining party in any criminal actions, but it does not operate to revive civil claims against the Bank based on its administration of the estate. Accordingly, we hold that Shirl’s claims are barred under the doctrine of res judicata and affirm the trial court’s grant of summary judgment on that basis.
2. Accord and Satisfaction
The Bank argues that Shirl’s claims in the present action are barred under the doctrine of accord and satisfaction. `Discharge by accord and satisfaction means a discharge by the rendering of some performance different from that which was claimed as due and the acceptance of such substituted performance by the claimant as full satisfaction of his claim. . . .’ 6 Arthur Linton Corbin, Contracts § 1276, at 115 (1962); see also Northwest Motors, Ltd. v. James, 118 Wn.2d 294, 303, 822 P.2d 280
(1992).
In the 1993 settlement agreement, Shirl accepted $135,000 from the Bank in exchange for her agreement to release the Bank from all claims relating to the administration of Bobbie Firchau’s estate. The settlement agreement also revived the 1985 stipulation and release. Shirl argues that by virtue of the 1985 stipulation and release and its exception for criminal claims against the Bank, `the 1993 Settlement Agreement did not resolve by accord and satisfaction any claims involving criminal actions.’ Reply Brief of Appellant, at 4-5. While this statement may be true, it has no bearing on the present action, as Shirl’s claims are civil in nature (despite her focus on alleged criminal violations).
In light of the 1993 settlement agreement, it is clear that Shirl’s claims against the Bank in the present action are barred under the doctrine of accord and satisfaction. We therefore affirm the trial court’s grant of summary judgment on that basis.
3. Statute of Limitations
In addition to its contention that Shirl’s claims are barred under the doctrines of res judicata and accord and satisfaction, the Bank argues that any claims that might have survived the 1985 stipulation and release or the 1993 settlement agreement are barred by the statute of limitations. RCW 11.96.060(2) states that `[a]ny action by an heir, legatee, or other interested party, to whom proper notice was given if required, against a personal representative for alleged breach of fiduciary duty must be brought prior to discharge of the personal representative.’[2] In this case, the Bank was discharged as administrator of Bobbie Firchau’s estate in 1985 under the terms of the stipulation and release. Although the stipulation and release were vacated pursuant to this court’s decision in 1989, both documents were revived as part of the 1993 settlement agreement, thus reaffirming the Bank’s discharge as administrator of the estate.
Because Shirl failed to bring her claims against the Bank prior to its discharge in either 1985 or 1993, we also affirm the trial court’s grant of summary judgment on the basis that her claims are now barred by the statute of limitations.
4. Attorney Fees
The Bank requests fees on appeal. RAP 18.9(a) states that `[t]he appellate court on its own initiative or on motion of a party may order a party . . . who . . . files a frivolous appeal . . . to pay terms or compensatory damages to any other party who has been harmed[.]’ `An appeal is frivolous if, considering the entire record, it has so little merit that there is no reasonable possibility of reversal and reasonable minds could not differ about the issues raised.’ Johnson v. Mermis, 91 Wn. App. 127, 137, 955 P.2d 826 (1998) (footnote omitted).
The trial court imposed CR 11 sanctions against Shirl in the amount of $2,500.[3] Because Shirl’s appeal is similarly without merit, the Bank’s request for fees is granted.
Affirmed.
WE CONCUR: BAKER, J., BECKER, J.