Redwine v. Redwine, 091421 WACA, 36551-4-III

CourtCourt of Appeals of Washington
JudgeWE CONCUR: Lawrence-Berrey, J., Pennell, C.J.
Writing for the CourtSTAAB, J.
Docket Number36551-4-III




No. 36551-4-III

Court of Appeals of Washington, Division 3

September 14, 2021



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.1Following 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 an express or constructive trust for property known as Unit 45. We affirm the superior court's decision.


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 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 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 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 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 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...

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