§ 13.2 Acceptance of Benefits

• Jurisdiction: Washington

§13.2 ACCEPTANCE OF BENEFITS

A party that accepts the benefit of a trial court decision may lose the right to seek review.

(1) General rule

Under case law predating the current appellate rules, a party who accepted the benefits of a trial court decision lost the right to seek review of that decision. E.g., Anderson v. Port of Seattle,66 Wn.2d 457, 459, 403 P.2d 368 (1965); Potter v. Potter,46 Wn.2d 526, 527, 282 P.2d 1052 (1955); Maxham v. Berne,88 Wash. 158, 160, 152 P. 673 (1915). This traditional rule, called the "acceptance of benefits doctrine," has been substantially modified by RAP 2.5(b).

Subject to four significant exceptions stated in RAP 2.5(b), a party who accepts the benefits of a trial court decision is barred from seeking review of that decision. This rule applies only to the party who accepts the benefits, not to the party who pays the benefits. LaRue v. Harris,128 Wn. App. 460, 464, 115 P.3d 1077 (2005). Thus, satisfaction of a judgment does not preclude review.

The acceptance of benefits doctrine often comes into play when one party is ordered to do something in exchange for the performance or payment of money by another. For instance, a party cannot appeal a decree ordering specific performance of a purchase and sale agreement while accepting payment of the sums necessary to perform the contract. As another example, a party cannot appeal a decision enforcing a settlement while at the same time accepting the sums paid in conjunction of the settlement. Generally speaking, if a party will receive some benefit from the trial court's decision that is different in character from the benefit the party would receive if the trial court's decision were reversed, the party cannot both accept the benefit of the decision and appeal the judgment conferring it.

The primary purpose of the acceptance of benefits doctrine is "to ensure that a party seeking review will be able to make restitution if a decision is reversed or modified on appeal." Kruse v. Hemp,121 Wn.2d 715, 720, 853 P.2d 1373 (1993) (quoting Scott v. Cascade Structures,100 Wn.2d 537, 541, 673 P.2d 179 (1983)). RAP 2.5(b) codifies the basic rule of the acceptance of benefits doctrine but subjects it to four significant exceptions. RAP 2.5(b)(1) provides:

A party may accept the benefits of a trial court decision without losing the right to obtain review of that decision only (i) if the decision is one which is subject to modification by the court making the decision or (ii) if the party gives security as provided in [RAP 2.5](b)(2), or (iii) if, regardless of the result of the review based solely on the issues raised by the party accepting benefits, the party will be entitled to at least the benefits of the trial court decision or (iv) if the decision is one which divides property in connection with a dissolution of marriage, a legal separation, a declaration of invalidity of marriage, or the dissolution of a meretricious relationship.

Application of the acceptance of benefits doctrine to deny review on the merits has been quite rare since the promulgation of RAP 2.5(b) in 1976. A notable published example is Buckley v. Snapper Power Equipment Co.,61 Wn. App. 932, 941-42, 813 P.2d 125, review denied,118 Wn.2d 1002 (1991), in which a minor was precluded from challenging a personal injury settlement because her guardian had withdrawn settlement funds from the court registry. Even the Buckley court's very limited use of the acceptance of benefits doctrine to foreclose review has arguably been abrogated by subsequent amendments to RAP 2.5(b), as discussed below.

Caveat: This does not mean, however, that the rule is never applied. An acceptance of benefits dismissal of most or all the issues on review is likely to result in either an unpublished commissioner's ruling or an unpublished disposition under RAP 12.3(d). Several unpublished decisions deny review due to acceptance of benefits (these cases are instructive, but under the dictates of RAP 10.4(h) they should not be cited as authority) Allen v. Univ. of Wash. School of Med., 108 Wn. App. 1015 2001 WL 1085338 (Sept. 17, 2001) (Div. I); Strand Hunt Constr Inc. v. Kaplan McLaughlin Diaz, 97 Wn. App. 1046, 1999 WL 760250 (Sept. 27, 1999) (Div. I). But see Trustee's Sale of Real Prop. of Garross v. Pipkin, 113 Wn. App. 1027, 2002 WL 2006332, at *2 (Sept. 3, 2002) (Div. I) (holding acceptance of benefits doctrine inapplicable when appellant entitled to at least the amount received regardless of outcome of appeal). See §13.2(4), below.

In a compelling case, the appellate court may review a matter even though appellant accepted the benefits of the decision by waiving RAP 2.5(b) under RAP 1.2 and 18.8. Review may also be preserved if the parties agree that accepting benefits will not affect the right to seek review. City of Seattle v. Liberman,9 Wash. 276, 285, 37 P. 433 (1894) (pre-RAP case).

Practice Tip: Counsel opposing application of the acceptance of benefits doctrine can add weight to the argument by reminding the

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