§ 7.5 Authority of Trial Court After Review Accepted

• Jurisdiction: Washington

§7.5 AUTHORITY OF TRIAL COURT AFTER REVIEW ACCEPTED

RAP 7.2 governs the authority of the trial court after review has been accepted by the appellate court—i.e., after a notice of appeal has been timely filed or a motion for discretionary review has been granted.

(1) Generally

RAP 7.2(a) sets forth the general rule that the trial court can act only as specifically permitted by the other provisions of RAP 7.2. See In re the Marriage of Hughes, 128 Wn. App. 650, 654 n.2, 116 P.3d 1042 (2005) (memorandum opinion filed by trial court after review accepted stricken because beyond trial court's authority under RAP 7.2(a)), review denied, 156 Wn.2d 1031 (2006); Pearl v. Greenlee, 76 Wn. App. 338, 342, 887 P.2d 405 (counterclaim for foreclosure of lien filed in trial court after appeal was filed was ineffective), review denied, 126 Wn.2d 1026 (1995). But RAP 7.2(a) further states that the appellate court can limit or expand the trial court's authority as provided in RAP 8.3, which grants the appellate court broad discretion to issue orders that will "insure effective and equitable review." See Stokes v. Bally's Pacwest, Inc., 113 Wn. App. 442, 444, 54 P.3d 161 (2002) (granting appellant permission to renew its motion for summary judgment so trial court could consider effect of appellate opinion issued after trial court's order denying summary judgment, from which review was sought), review denied, 149 Wn.2d 1007 (2003). RAP 7.3 (discussed in §7.7 below), which is not referenced in RAP 7.2(a), also grants the appellate court authority "to perform all acts necessary or appropriate to secure the fair and orderly review of a case."

Once review is accepted, RAP 7.2 grants the appellate court full authority over a case, with the trial court exercising authority only to the extent its exercise of authority (1) will not affect the issues before the appellate court or (2) will aid the appellate court's orderly review, as permitted or requested by the appellate court. The following subsections address the limited authority of the trial court under RAP 7.2.

(2) Settlement of record

RAP 7.2(b) authorizes the trial court to settle the record on appeal. Clearly, the trial court is in the better position to decide issues relating to the record generated in that court. See State v. Perala, 132 Wn. App. 98, 107, 130 P.3d 852 (trial court, which mistakenly believed its authority to act was limited by RAP 7.2(e), was expressly authorized by RAP 7.2(b) to supplement or expand record on appeal), review denied, 158 Wn.2d 1018 (2006).

(3) Enforcement of trial court decision in civil cases

Acceptance of review does not automatically stay the enforcement of a decision or judgment, and a trial court accordingly retains authority to enforce its decisions. RAP 7.2(c) provides that the trial court has authority to enforce any decision, and that a party may execute on any judgment, unless the judgment or decision has been stayed as provided by RAP 8.1 (supersedeas procedure) or RAP 8.3 (appellate court's discretion to ensure effective review). See, e.g., State v. A.N.W. Seed Corp., 116 Wn.2d 39, 44, 47, 802 P.2d 1353 (1991) (state executed upon a default judgment against defendants after they appealed without filing supersedeas bond). See Chapter 8 of this deskbook, discussing enforcement as well as supersedeas, stays, and bonds.

It may sometimes be difficult to determine whether activity in the trial court constitutes enforcement of a decision or a judgment under RAP 7.2(c). In Burrill v. Burrill, 113 Wn. App. 863, 56 P.3d 993 (2002), review denied, 149 Wn.2d 1007 (2003), the court awarded the family home to the husband as part of the parenting plan. The wife appealed and, while the appeal was pending, damaged the home as she vacated it. The trial court then awarded the husband damages. The wife argued on appeal that the trial court did not have jurisdiction to award damages after the notice of appeal was filed. The Court of Appeals held that "[t]he award of damages because of these problems with the home upon transfer to [the husband] is an enforcement of the decree, over which the trial court had jurisdiction [under RAP 7.2(c)]." 113 Wn. App. at 874; see also In re the Irrevocable Trust of McKean, 144 Wn. App. 333, 340, 183 P.3d 317 (2008) (trial court had authority under RAP 7.2(c) to "enforce its ruling" that trust should be established in dissolution action by appointing trustee after decree was appealed); Clallam Cnty. Deputy Sheriff's Guild v. Bd. of Clallam Cnty. Comm'rs, 92 Wn.2d 844, 853, 601 P.2d 943 (1979) (order compelling binding arbitration, issued by trial court after appeal of earlier declaratory judgment that ordinance governing personnel system was invalid, did not enforce earlier judgment, and was beyond trial court's authority).

The trial court also has authority to enforce its decisions after review is accepted by orders of contempt. Allen v. Am. Land Research, 95 Wn.2d 841, 849-50, 631 P.2d 930 (1981) (trial court had jurisdiction to enter order of contempt, after appeal was filed, for defendant's failure to appear for postjudgment supplemental proceedings).

Comment: RCW 7.21.070 provides in part, "Appellate review [of a proceeding or action pertaining to contempt sanctions] does not stay the proceedings in any other action, suit, or proceeding or any judgment, decree, or order in the action, suit, or proceeding to which the contempt relates." Arguably, the statute grants the trial court authority over an action in which contempt was ordered even after appellate review has been accepted, contrary to RAP 7.2. Courts are likely to reconcile the statute to the rule, however, and the statute will, and should, be read to mean that appellate review does not stay enforcement of the judgment, decree, or order below by contempt or otherwise, consistent with RAP 7.2(c). Enforcement of the judgment can be stayed, and orders of contempt thereby avoided, pursuant to RAP 8.1. See Allen, 95 Wn.2d at 850 ("A supersedeas bond would have stayed further proceedings in the superior court [that entered contempt order].").

If a judgment has been enforced and then is later reversed on appeal, the judgment debtor is entitled to restitution. RAP 12.8. Issues arising in that context are discussed in §20.10(1) of this deskbook.

A lis pendens may as a practical matter prevent enforcement of a decision affecting real property, despite the provision in RAP 7.2(c) authorizing enforcement of a judgment or decision "until enforcement of the judgment or decision is stayed as provided in rules 8.1 or 8.3." Under RAP 8.1(b)(2), enforcement of a decision affecting property is stayed by filing a supersedeas bond or by providing other security. In United Sav. & Loan Bank v. Pallis, 107 Wn. App. 398, 27 P.3d 629 (2001), the judgment debtor did neither. The Court of Appeals nevertheless held that a lis pendens filed in that action prevented foreclosure pending resolution of the appeal because (among other reasons) the lis pendens precluded a purchaser from being a "good faith" purchaser. Id. at 405-08. Stays of decisions affecting real property are discussed in §8.7 of this deskbook.

(4) Attorney fees and litigation expenses on appeal

RAP 7.2(d) provides, in its entirety:

The trial court has authority to award...