IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARIE-CLAIRE HARPER PAGH, Respondent,

v. WILLARD GIBSON,Appellant. NO. 68731-0- DIVISION ONE

UNPUBLISHED OPINION FILED: March 17,2014 f>» o o f> o
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• * en o en zz~ <r Lau, J. — In this appeal from garnishment and controversion proceedings, Willard Gibson challenges the trial court's $5,000judgment infavor ofMarie-Claire Pagh 

### against the garnishee lawfirm and the court's award ofattorney fees in favor ofPagh against Gibson. Because this court vacated thejudgment underlying the garnishment proceedings, no valid basis exists to support those proceedings or the resulting 

### monetary awards. We vacate thejudgment and attorney fee award in Pagh's favor and remand with instructions to the trial court to dismiss the garnishment proceedings.
FACTS February 2011 Judgment 

### Inearly 2010, Marie-Claire Pagh filed a domestic violence protection order and parenting plan action againstWillard Gibson. The underlying facts ofthat case are fully68731-0-1/2


### discussed in our unpublished opinion on direct appeal (case 66833-1). See In re Gibson, noted at 172 Wn. App. 1012, 2012 WL 5992104, review denied. 177 Wn.2d 1018 (2013). Trial occurred on February 1, 2011. On February 15, 2011, the trial court 

### ruled in Pagh's favor on the protection order and parenting plan issues and granted Pagh a moneyjudgment against Gibson inthe principal amount of $45,876.48 representing her attorney fees and costs inthe underlying litigation. Gibson appealed 

### thejudgmentto thiscourt in case 66833-1. He posted nosupersedeas bond.1 Gibson's Fee Agreement with Garnishee Gibson retained the Law Offices of Michael W. Bugni &Associates, PLLC (garnishee) on an hourly basis to represent him in his appeal ofthe February 15, 2011 

### judgment.2 Gibson's fee agreementwith garnisheerequired him togive garnishee a $5,000 "advance deposit (retainer)." The fee agreement further explains that this $5,000 advance "will be deposited into our trust account and withdrawn as fees are earned and expenditures made." The fee agreement also indicates that Gibson will receive a "monthly statementfor fees and costs which unless otherwise agreed, must 

### be paid infull within 20 days ofreceipt." Billing statements generated for Gibson's

account indicate: Please be advised that 15 days from the date of [each statement] your trustfund balance (ifapplicable) will be adjusted to pay the balance due on your account. 

### 1Atrial courtdecision may be enforced pending appeal orreview unless a party stays enforcement ofthejudgment by filing a supersedeas bond or cash inthe trial court. RAP 8.1(b)(1). 

### 2Gibson contacted garnishee "in May 2011 to seek representation for his appeal ofthe trial court's decision." Pagh raised a conflict of interest challenge regarding 

### garnishee's representation ofGibson, which the court resolved inGibson's favor in September 2011. -2-68731-0-1/3
Ifthere are insufficientfunds in your accountto pay the current balance, please 

### remit any amounts still owing within 20 days or less of your receipt of this invoice. On November 21, 2011, Gibson's trust account balance was $5,000. Also on 

### November 21, garnishee sent Gibson a bill for $2,919.11 for attorney fees and costs through November 21. The bill contained the language quoted above, indicating that Gibson's trust account balance would be used to pay the $2,919.11 bill "15 days from the date of this statement," i.e., 15 days after November 21, 2011. Garnishment and Controversion Proceedings On November 28, 2011—before 15 days had passed—King County Superior 

### Court issued a writ ofgarnishment in favor ofjudgment creditor Pagh for the full amount 

### of her February 15, 2011 judgment, plus interest. The writwas issued against 

## garnishee and named Gibson as respondent.3 Garnishee received service ofthe writ

on November 29. The writ stated in part: YOU ARE HEREBY COMMANDED, unless otherwise directed by this 

### court, by the attorney of record for the petitioner, or by this writ, not to . .. deliver, sell, or transfer, or recognize any sale ortransfer of, any personal property or 

### effects of the respondent in your possession or control at the time when this writ was served.
. . . YOU ARE FURTHER COMMANDED to answer this writ by filling in the 

### attached form according to the instructions in this writand in the answer forms
.... IF YOU FAIL TO ANSWER THIS WRIT AS COMMANDED, A JUDGMENT MAY BE ENTERED AGAINST YOU FOR THE FULL AMOUNT OF THE PETITIONER'S CLAIM AGAINST THE RESPONDENT WITH ACCRUING


### 3Agarnishmentproceeding "is essentially an ancillary action to the principal suit between a creditor and a debtor." Watkins v. Peterson Enters.. Inc.. 137 Wn.2d 632, 

### 638, 973 P.2d 1037 (1999). It is "adversarial inthe sense that a creditortakes action 

### against a garnishee, butonly to satisfy an underlying claim against a debtor. The proceeding is also ancillary in that the court's subject matterjurisdiction is based on the validity of the principal action against the debtor." Watkins. 137Wn.2d at 639 (citation omitted). -3-68731-0-1/4 INTEREST, ATTORNEY FEES, AND COSTS WHETHER OR NOT YOU OWE ANYTHING TO THE RESPONDENT.
. . . On December 19, garnishee answered the writ of garnishment and attached a letter responding to several ofthe writ's directives. The letter stated in part: Any funds received or held by [garnishee] were advance fee deposits (commonly referred to as retainers) paid pursuant to agreement to coverthe costs and legal services related to his appeal. As such, title to these funds lies with [garnishee], notWillard Gibson (unless he should request a refund or other disposition). Advanced fee deposits are held in a common or pooled IOLTA [Interest on 

### Lawyers' TrustAccounts] trust account. Our firm's IOLTA account, as inferred above, is a "pooled account" and contains deposits from or on behalfof numerous other clients to which Mr. Gibson has no particular right. Mr. Gibson 

### has made no requestfor disbursal offunds such that he would be "entitled" to that disbursement, which might trigger a potential obligation to withhold such funds and deposit same into the registry ofthe Court. 

### The letter also stated that "[garnishee's] trust account is not subjectto a Writ of Garnishment as requested" and claimed, "Prosecution ofsuch a Writ is not appropriate, legally or ethically." 

### In trial court proceedings following its answer and also on appeal, garnishee 

### admitted that at the time the writ ofgarnishment was served, (1) garnishee held $5,000 in its IOLTA trust accountfor Gibson and (2) without Pagh's or the trial court's approval 

### and despite service of the writ ofgarnishment, it withdrew and paid itself the $5,000 it
was holding inthe IOLTA trust accountfor Gibson. 

### On January 5, 2012, Pagh filed an "Affidavit Controverting Answer to Writ of Garnishment" under RCW6.27.210.4 CP 20-24. Under RCW 6.27.220, garnishee had



### 4RCW 6.27.210 providesin relevantpart: "Ifthe garnishee files an answer, either the plaintiffor the defendant, ifnot satisfiedwith the answer of the garnishee, may controvertwithin twenty days after the filing of the answer, byfiling an affidavit in writing 

### signed bythe controverting party or attorney or agent, stating that the affianthas good68731-0-1/5
the right to respond to the controversion "by affidavit ofthe garnishee, the garnishee's attorney or agent" within 20 days. RCW 6.27.220 further provides: Upon the expiration ofthe time for garnishee's response, the matter may be noted by any party for hearing before a commissioner or presidingjudge for a determination whether an issue is presented that requires a trial. If a trial is required, itshall be noted as in other cases, but no pleadings shall be necessary on such issue otherthan the affidavit ofthe plaintiff, the answer ofthe garnishee and the reply ofthe plaintiffor defendant controverting such answer, unless otherwise ordered by the court. 

### Although garnishee failed to file its own affidavit or other sworn statement under RCW 6.27.220 in response to Pagh's controversion, defendant Gibson filed "Father's Reply Memorandum Re Writ of Garnishment." In this document Gibson claimed that upon receipt offunds "deposited on behalfof Mr. Gibson to [garnishee]," such funds "became 

### the property of[garnishee], not Mr. Gibson" and would be subjectto garnishment only if deposited intothe IOLTAtrust account "forsome purpose otherthan payment of our legal fees . . . ." Gibson submitted as exhibit 2 to his reply a billing summary statement intended to show that garnishee had "earned" more money than was ingarnishee's IOLTA trust account for Gibson on November 29, 2011. Exhibit 2 confirms that 

### garnishee withdrew $5,000 from "trust" after being served with the court's writ of garnishment. 

### On February 3, 2012, Pagh filed a motion on controversion ofanswer of 

### garnishee under RCW6.27.220. Pagh requested the court to enterjudgment on 

### garnishee's answer or set a summaryjudgment hearing to decide whetherthe $5,000 in garnishee's IOLTA trust account when the writ ofgarnishmentwas served belonged to

reason to believe and does believe that the answer ofthe garnishee is incorrect, stating 

### inwhat particulars the affiant believes the same is incorrect."68731-0-1/6 

### garnishee or Gibson. Gibson filed a response claiming garnishee had earned the funds by the time the writ ofgarnishmentwas served. In her reply supporting the motion, 

### Pagh noted that Gibson had paid nothing to date toward satisfaction of the February 15, 2011 judgment, that Gibson failed to file a supersedeas bond as part of his appeal of thatjudgment, and that Gibson's position on the IOLTA trust account was contrary to RPC 1.15A and otherwise contrary to law. On March 2, the trial court ruled on Pagh's controversion motion. The court 

### ordered that Pagh "shall havejudgment on the Writ ofGarnishment" and "shall be awarded attorney fees . . . ." The court reasoned: Funds ofclient Gibson were placed in his attorney's trust account as an advance 

### fee deposit. The attorney performed work for the client. A writ ofgarnishment 

### stemming from ajudgment againstthe client was served on the lawfirm. At the time the writwas served, the billing forthe attorney's work would have been 

### equal to or greaterthan the amount of the funds on deposit. However, no bill had been produced, nor had the funds been removed from the account pursuantto the procedures set out by RPC 1.15A. 

### Byway ofanswerto the writ and attached letterdated December 16, 2011, 

### Gibson's counse[l] argued the funds, as an advance fee deposit, gave title of the funds to the lawfirm upon deposit. That legal position is unsupportable, and 

### appears to have been abandoned in the February 10, 2012 Response inwhich Gibson's counsel asserts the funds had been "earned" at the time ofthe writ. 

### RCW60.40.010 gives attorneys liens priority inlimited situations: when (d) and 

### (e) of60.40.010 applies. Neithersubsection of that statute is applicable to the facts at hand. Rather, (b) applies (..money inthe attorney's hands belonging to 

### the client). The funds remained presumptively the clients so longas they remained in the firm's trust account. The court finds that the funds that remained in the IOLTA trust account at the time the writ was served are subject to garnishment. Gibson moved for reconsideration ofthe court's March 2 order. He referred to the IOLTA funds as "advance consideration" and "advance payment." He attached to 

### his motion a partiallyredacted fee agreement withgarnishee and billing statements
-6-68731-0-1/7 showing the value offees Gibson claimed garnishee had "earned" through the date the writ of garnishment was served. Each statement contains the language quoted above, indicating that the trust account funds would not be used to pay Gibson's bill until 15 days afterthe date ofthe bill. Consistent with the trial court's March 2 order, Pagh filed a declaration of counsel regarding attorney fees. Gibson and garnishee filed their response on March 14, 

### claiming that Pagh was not entitled to costs as the plaintiffcontroverting the garnishee's answer, that attorney fees for garnishment are statutorily capped, and that Pagh's 

### requested fees were unsupported and excessive. On March 19, the trial court denied Gibson's motion for reconsideration and 

### granted Pagh ajudgment on answer and orderto pay. The court granted Pagh a 

### $5,000 judgment against garnishee (forthe amount it held in its trust accountfor Gibson 

### when the writ of garnishment was served) and further awarded Pagh $4,164 in attorney fees against Gibson. Gibson timelyfiled a notice ofappeal designating the trial court's 

### March 2 and March 19,2012 ordersfor review (thecurrent appeal).5 Vacation of Underlying Judgment On December 3, 2012, we issued our unpublished decision in case 66833-1. We 

### affirmed the trial court's February 15, 2011 orders relating to the domestic violence 

### protection order and parenting plan actions but vacated the court's $45,876.48 fees and costs award against Gibson and remanded for factual findings supporting the court's intransigence conclusion. Thus, we vacated the award upon which the current

Garnishee filed no separate notice ofappeal.

-7-68731-0-1/8 garnishment appeal is based. The Supreme Courtdenied review, and we issued our 

### mandatein case 66833-1 onJuly 31, 2013.6
ANALYSIS Garnishment and Controversion Proceedings Gibson's arguments inthe current appeal fall into two categories: (1) the trial 

### court erred in awarding a $5,000judgment against garnishee and (2) the court erred in awarding attorney fees against Gibson for the controversion proceedings. 

### In urging this court to address the merits of his arguments, Gibson fails to account for the effect of our decision in case 66833-1 vacating the moneyjudgment 

### attorney fee award on which Pagh's garnishment action was based. Avacated 

### judgment "is of no force or effect and the rights of the parties are leftas though no such 

### judgment had ever been entered." In re Estate of Couch. 45 Wn.App. 631, 634, 726 P.2d 1007 (1986): see also Johnson v. Berg, 147 Wn. 57, 66, 265 P. 473 (1928) ("A 

### voidjudgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless initself, allproceedings founded upon itare eguallv worthless. Itneither binds nor bars anyone.") (emphasis added). The 

### judgment, in essence, never existed. Ifa courtvacates a judgment after a defendant has paid thejudgment, the court can, on motion or on its own initiative, direct that restitution be made. Inre Marriage of Hardt, 39 Wn. App. 493, 499, 693 P.2d 1386 (1985).



### 6Consistentwith ouropinion, the trial court on remand entered amended findings of fact regarding its fees and costs award. Gibson's appeal of that ruling iscurrently pending inthis court as case 70995-0. -8-68731-0-1/9
In case 66833-1, we vacated the moneyjudgment awarding Pagh attorney fees because itlacked appropriate factual findings. We remanded to the trial court to "for entry ofappropriate findings of fact" to support the award. Gibson. 2012 WL 5992104 at *19. Our decision left the door open for the trial court to subsequently make a proper fee award supported by appropriate findings. However, vacation ofthe initialfee award left the parties as if no fee award had yet been made. No valid judgment exists on which to base the garnishment proceedings at issue inthis appeal. Underthe well-settled principles discussed above, the garnishment proceedings 

### here—while arguably lawfulunderthe garnishment statute at the time they occurred— cannot stand because no valid judgment exists to support them. Accordingly, we 

### vacate thejudgment in Pagh's favor and direct the trial courtto dismiss this garnishment proceeding. And because the attorney fees awarded in Pagh's favor against Gibson in the controversion matter were similarly premised on the subsequently vacated 

### judgment, no lawful basis exists forthataward.7 Similarly, we rejectGibson's argument that he is entitled to attorney fees incurred at the trial court level.


### 7While we do not decide the issue, we also question the fee award on other grounds. Under RCW6.27.230, "Where the answer [tothe writ ofgarnishment] is controverted, the costs ofthe proceeding, including a reasonable compensation for 

### attorney's fees, shall be awarded to the prevailing party: PROVIDED. That no costs or attorney's fees in such contest shall be taxable to the defendant.
. . ." (Emphasis 

### added). Garnishment actions involvethree parties: a plaintiffcreditor (here, Pagh), a defendant debtor (here, Gibson), and a garnishee. Hinote's Home Furnishings. Inc. v. Olnev &Pederson. Inc.. 40 Wn. App. 879, 886-87, 700 P.2d 1208 (1985). RCW 

### 6.27.230's proviso clearly states that "the defendant. . . shall not be taxed for costs or 

### attorney fees should the plaintiffsuccessfully controvertthe answer." Hinote's Home Furnishings. 40 Wn. App. at 887 (discussing former RCW 7.33.290 (1969), recodified as 

### RCW6.27.230). Thus, even ingarnishment proceedings based on validjudgments, assessment ofattorney fees against a defendant likeGibson under RCW6.27.230 is improper.68731-0-1/10 Appellate Attorney Fees Each party requests appellate attorney fees as the prevailing party on appeal. Given our decision, we decline to award appellate attorney fees. CONCLUSION For the reasons discussed above, no valid basis exists to support the 

### garnishment and controversion proceedings orthe resulting monetary awards at issue in this appeal. We vacate thejudgment and attorney fee award in Pagh's favor and 

### remand with instructions to thetrial courttodismiss thegarnishmentproceedings.8

WE CONCUR: 

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8Given our decision, we decline to address Gibson's claim that equity requires us to address "the propriety of [Pagh's] actions in pursuing the garnishment, 

### controverting itonce an answerwas received, and the resulting costto Gibson to file this appeal for appropriate redress." Appellant's Reply Br. at 1-2. Gibson cites no 

### authorityallowing us to considerequity inthese circumstances, and such a notion is contrary to the law, facts, and logic in this case. -10-