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Kosarek v. Kosarekmarkwardt

April 28, 1997

RUDOLPH M. KOSAREK AND ROXANNE KOSAREK, HUSBAND AND WIFE, AND THEIR MARITAL COMMUNITY, APPELLANTS,
v.
STEFANIE M. KOSAREKMARKWARDT, AND EDWARD MARKWARDT, HUSBAND AND WIFE, AND THEIR MARITAL COMMUNITY, FRANCIS ZEVENBERGEN AND BETTY J. ZEVENBERGEN, HUSBAND AND WIFE, AND THEIR MARITAL COMMUNITY; AND BRIAN T. COMFORT AND JANE DOE COMFORT, HUSBAND AND WIFE, AND THEIR MARITAL COMMUNITY, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-20671-1. Date filed: 09/29/95. Judge signing: Hon. Nancy A. Holman.

Authored by Ann L. Ellington. Concurring: H. Joseph Coleman, Mary K. Becker.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- This case requires us to decide whether the trial court properly dismissed claims of fraud and abuse of process that Rudolph Kosarek made against his former wife, Stefanie Markwardt. These claims are premised on an assertion that the decree dissolving Kosarek and Markwardt's marriage was void for lack of personal jurisdiction over Kosarek. The crux of Kosarek's argument is that Markwardt defrauded the court by knowingly seeking to enforce this "void decree." Kosarek concedes, however, that this decree is not entirely void because he has relied upon its existence to remarry. Nevertheless, he maintains that the portion of the decree ordering the sale of Kosarek and Markwardt's house was void for lack of personal jurisdiction. We find this argument frivolous and impose sanctions. We also remand for reconsideration of whether sanctions should be imposed for the proceedings below.

Facts

Kosarek and Markwardt were married in 1983. Approximately one year later, they purchased a house with the aid of Markwardt's parents, the Zevenbergens, who were listed as purchasers for financing purposes. In 1986, Markwardt petitioned to dissolve the marriage. Kosarek did not respond, and a default dissolution decree was entered by which the parties were to sell the house and distribute the equity equally.

As of 1992, Kosarek had not sold the house, and after failed negotiations, Markwardt and the Zevenbergens brought an action to force the sale. In his answer, Kosarek admitted that the 1986 decree ordered the sale of the house, but resisted the sale on grounds of laches and waiver.

In light of Kosarek's admission, Markwardt and the Zevenbergens moved for summary judgment, asking the court to establish the parties' respective property interests. Kosarek opposed this motion, arguing there were disputed issues of fact concerning money Kosarek spent in repairs, upkeep, and maintenance of the property. In making his arguments, Kosarek relied on the "records and files of the dissolution proceeding."

The court granted the summary judgment motion in December, 1993, citing the dissolution decree for the proposition that Markwardt was entitled to half the equity in the house. Kosarek did not appeal this summary judgment order. Instead, the parties engaged in settlement negotiations that culminated with Kosarek paying $26,500 in exchange for quit claim deeds from Markwardt and the Zevenbergens. Kosarek now claims that he never authorized this settlement, nor understood why he had to pay $26,500. However, he does not dispute that he paid the settlement or that quit claim deeds were executed. In light of the settlement, the parties stipulated to dismiss all claims with prejudice in January, 1994. Kosarek received a copy of the stipulated dismissal, but claims that he did not authorize it.

On the same day the stipulation was filed, Kosarek wrote a letter to Brian Comfort, attorney for Markwardt and the Zevenbergens. In that letter, Kosarek threatened to file an additional lawsuit to recover various expenditures for the house between 1985 and 1993. Kosarek also referred to the dissolution decree as the one "entered into by Ms. Markwardt and myself."

Wishing to void the settlement and dismissal, Kosarek conducted research at a local library. During this process, he overhead someone speaking about "notice" and "proper service." After a brief Discussion with another library patron, Kosarek determined he was never properly served in the dissolution proceeding. He verified this by inspecting the court file, in which he found an affidavit of service by the late Harold Binder. Kosarek claims the contents of this affidavit are false because he was on vacation at the time of alleged service and because he never received any documents relating to the divorce from anyone other than Markwardt.

Kosarek discovered the Binder affidavit in January, 1994. Approximately eight months later, with the aid of counsel David Hemmelgarn, he filed this action, alleging that Markwardt, her husband, the Zevenbergens, and Comfort (hereinafter "Defendants") committed fraud and abuse of process in procuring the settlement. He therefore asked the court to vacate the 1986 dissolution decree and 1993 summary judgment order, claiming that Defendants had deceived the court by knowingly seeking to enforce a void decree. Kosarek is now remarried, *fn1 however, and indicated in oral argument he believes his marriage to Markwardt was dissolved by the decree.

The Defendants' attorney outlined the procedural history of the case to Hemmelgarn, advised Hemmelgarn to speak with the attorney who had represented Kosarek in the settlement negotiations, and repeatedly requested voluntary dismissal. Kosarek refused. Defendants answered the complaint and later moved for summary judgment, arguing that the doctrines of res judicata, collateral estoppel, and accord and satisfaction barred the suit. They also argued that Kosarek could not demonstrate prima facie claims of fraudulent concealment or abuse of process, and requested CR 11 sanctions.

The court granted summary judgment, ruling that Kosarek had had "plenty of opportunity to bring up whatever issue[s he was bringing up here]." Defendants asked the court for $6,500 as a CR 11 sanction. The court declined to award sanctions, stating that it was "gun shy" from a recent reversal and further stating that it "[did not] think that [it could] say that it is that clear that there's absolutely no, no, no, no, chance of ...


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