James Young, Appellant V. Sei Private Trust Et Al, Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES YOUNG,

No. 70922-4-
Appellant,

DIVISION ONE
V.

UNPUBLISHED OPINION
SEI PRIVATE TRUST COMPANY, a

foreign corporation and R. AUGUST
KEMPF, dba Kempf and Company,
Respondents,

and

T.D. AMERITRADE, a corporation,

ag: HY 22 das hile

FILED: September 22, 2014
Defendant.

Ne Nee Nana Nae nee Nee Sie Sone ee Nene ee Ne ee Nee” eee” See” eee”

TRICKEY, J. — In order to defeat a supported motion for summary judgment, the
nonmoving party must demonstrate a genuine factual issue as to every element of the
case. Appellant James Young failed to make any showing that respondent R. August
Kempf improperly disbursed funds from an investment account. Consequently, the trial
court properly dismissed Young’s claims against Kempf on summary judgment.
Because Kempf was the prevailing party in an action alleging damages of $10,000 or
less, the trial court did not err in awarding reasonable attorney fees under RCW
4.84.250. We affirm.

FACTS
The material facts are not disputed. James Young and Billi Dunning dissolved

their marriage on March 23, 2012.1 The dissolution decree awarded Dunning’s

' Clerk’s Papers (CP) at 67.

No. 70922-4-1 / 2
individual retirement account (IRA) to Young.2 	SEI Private Trust Company (SEI) was
the IRA plan administrator. 	R. August Kempf is the president of Kempf & Company
(collectively Kempf), which managed Dunning's IRA account.3
Young alleges that at some unspecified date after the dissolution, he provided
SEI with a copy of the decree and "personally notified Kempf of [the award of the IRA]
and asked that it be transferred directly to me so that no further trades could be made
by my wife."4 	Young also requested a detailed accounting of the transactions for the
year2012.5
On 	September 	10, 	2012, 	Dunning 	withdrew 	$3,500 	from 	the 	IRA.6 	On
September 19, 2012, the dissolution court entered a qualified domestic relations order
(QDRO) granting Young, as the alternate payee, "the right to receive 100% of the
Participant! Dunning's] account under the Plan as of the date of distribution (date it is
transferred to the Alternate Payee)."7 	The QDRO directed that payment be made to
Young "as soon as practicable" after service of the order on SEI.8 	On September 25,
2012, SEI distributed the balance of the IRA, $46,778.72, to Young and closed the
account.9
2 CP at 118.
3 CP at 20.
4 CP at 118.
5 CP at 119.
6 CP at 27.
7 CP at 85.
8 CP at 85.
9 CP at 28-29.

No. 70922-4-1 / 3
On March 26, 2013, Young filed 	a complaint for account disclosure against
Kempf, requesting an accounting for the IRA.10 	Kempf provided Young with a complete
accounting in April 2013.11
On May 24, 2013, Young filed 	an amended complaint, alleging that he was
entitled to an additional $3,903.00 from the IRA because Kempf and SEI had disbursed
the amount even though they had "actual and constructive knowledge that the particular
account was the property of Plaintiff." 	Young asked for the entry of a judgment in this
amount against Kempf and for an award of reasonable attorney fees and costs.12
Kempf moved for summary judgment.13 	During the course ofthe motion hearing
on August 9, 2013, Young suggested that Kempf had improperly disbursed $3,500 to
Dunning 	because 	he 	had 	already 	received 	notice of the 	QDRO.14 	The trial court
continued the hearing to permit the parties to provide the details about the QDRO,
which was not in the record before the court.15
When the hearing resumed on August 23, 2013, neither Young nor his counsel
appeared.16 	The trial court granted summary judgment, dismissed all of Young's claims
10 CP at 1. 	The complaint also named "Ameritrade" as a defendant. 	Young's claims against
Ameritrade are not part of this appeal.
11 CP at 46.
12 CP at 3-4.
13 CP at 15.
14 Report of Proceedings (RP) at 22.
15 RP at 25.
16 CP at 81.
3

No. 70922-4-1 / 4
against Kempf, and awarded Kempf attorney fees and costs totaling $9,271.38.17 	The
court denied Young's motion for reconsideration on September 3, 2013.18
ANALYSIS
Standard of Review
We review an order of summary judgment de novo and determine whether the
supporting 	materials, 	viewed 	in 	the light 	most favorable 	to the nonmoving 	party,
demonstrate "that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State, 103 Wn.2d
768, 774, 698 P.2d 77 (1985). 	The moving party under CR 56 can satisfy its initial
burden by demonstrating the absence of evidence supporting the nonmoving party's
case. 	Young v. Key Pharms.. Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989). The
burden then shifts to the nonmoving party to set forth specific facts demonstrating a
genuine issue for trial. 	Kendall v. Public Hosp. Dist. No. 6, 118 Wn.2d 1, 8-9, 820 P.2d
497 	(1991). 	A "'complete failure 	of proof concerning 	an 	essential element of the
nonmoving party's case necessarily renders all other facts immaterial.'" 	Young, 112
Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,
91 L.Ed. 2d 265 (1986)).
Young contends that Kempf had a duty to transfer the IRA account to him on
request because his interest in the account "vested" 	upon entry of the dissolution
17 CP at 116-17.
18 CP at 105.

No. 70922-4-1 / 5
decree.19 	He relies on the general principle that a dissolution decree "operates not only
to vest in the spouse designated the property awarded to him or her, but to divest the
other spouse of all interest in the property so awarded, except as the decree may
otherwise designate." 	United Benefit Life Ins. Co. v. Price. 46 Wn.2d 587, 589, 283
P.2d 119 (1955), overruled on other grounds by Aetna Life Ins. Co. v. Wadsworth, 102
Wn.2d 652, 689 P.2d 46 (1984).
But contrary to Young's contentions, the trial court correctly recognized that the
general principle set forth in Price addresses only the respective property rights of the
parties before the court in the dissolution proceeding. 	See Price, 46 Wn.2d at 588-89.
Neither 	below 	nor 	on 	appeal 	has Young 	identified 	any 	authority 	or legal 	theory
suggesting that the dissolution decree imposed an obligation on third parties to transfer
property before entry of the QDRO. 	Because the challenged withdrawal occurred
before entry of the QDRO, Young failed to demonstrate that Kempfs actions were
improper. 	The trial court properly entered 	summary judgment dismissing 	Young's
claims against Kempf.
For the first time on appeal, Young contends that there are material factual
issues as to whether Kempf supplied "false information"20 under a theory of negligent
misrepresentation. 	Because Young neither pleaded nor argued this claim to the trial
court, we decline to consider it for the first time on appeal. 	See Sourakli v. Kyriakos,
Inc., 144 Wn. App. 501, 509, 182 P.3d 985 (2008); see ajso RAP 9.12 ("On review of an
19 Br. of Appellant at 6.
20 Br. of Appellant at 8.

No. 70922-4-1 / 6
order granting or denying 	a motion for summary judgment the appellate court will
consider only evidence and issues called to the attention of the trial court.").
Young also contends that the trial court erred in awarding Kempf attorney fees.
RCW 4.84.250 authorizes an award of attorney fees in actions in which "the amount
pleaded" is $10,000 or less. 	A defendant is the "prevailing party" under RCW 4.84.250
if the plaintiff "recovers nothing." 	RCW 4.84.270; see AllianceOne Receivables Mqmt.,
Inc. v. Lewis, 180 Wn.2d 389, 395, 325 P.3d 904 (2014).
Young 	asserts that he "prevailed" 	on his 	separate cause of action 	for 	an
accounting because Kempf supplied an accounting and that Kempf prevailed on the
action for a money judgment. 	Because both parties prevailed, Young maintains that
neither party was entitled to an award of attorney fees.
Young initially filed a complaint for account disclosure and sought a judgment
compelling a written accounting. 	The court made no ruling on the allegations in the
complaint. 	Young amended the complaint to request only a monetary judgment for
Kempf s alleged mishandling of the funds in the IRA account. 	The trial court dismissed
all of Young's claims against Kempf and entered a judgment solely in Kempf s favor.
Young did not prevail in a separate cause of action, and he recovered nothing. 	The trial
court properly awarded attorney fees under RCW 4.84.250.
As the prevailing party, Kempf is also entitled to an award of attorney fees on
appeal. 	RCW 4.84.290; see RCW 4.84.250. 	We grant Kempfs request and award
reasonable attorney fees on appeal, subject to compliance with RAP 18.1(d).

No. 70922-4-1 / 7
Affirmed.
Trickey, J
WE CONCUR:
Spearna, S.J.
7