Biggs v. Vail

• Decision Date: 07 July 1994
• Docket Number: No. 59938-6,59938-6
• Court: Washington Supreme Court
• Parties: Patrick BIGGS, Appellant, v. David B. VAIL, dba David B. Vail & Associates, Respondents.

Page 193

124 Wn.2d 193

876 P.2d 448

Patrick BIGGS, Appellant, v. David B. VAIL, dba David B. Vail & Associates, Respondents.

No. 59938-6.

Supreme Court of Washington En Banc.

July 7, 1994.

Christopher M. Constantine, Tacoma, for appellant

Bertha B. Fitzer and William J. Rush, Tacoma, for respondents.

DURHAM, Justice.

Attorney Patrick Biggs challenges the imposition of civil rule (CR) 11 sanctions by the trial court following the issuance of this court's mandate in Biggs v. Vail, 119 Wash.2d 129, 830 P.2d 350 (1992) (Biggs I). His arguments rest primarily on the assumption that the trial court was without jurisdiction to enter such sanctions after the issuance of the mandate. We disagree, and hold that, under the circumstances of this case, the trial court had authority to consider and impose CR 11 sanctions even after the substantive issues had been decided. However, we find that the trial court did not properly enunciate its reasons for imposing the sanction, and failed to limit the amount of the sanction to the fees spent in responding to the sanctionable conduct. Accordingly, we remand for the trial court to reconsider the sanctions imposed in light of this opinion.

This case began as a dispute over who should receive certain attorney fees earned by Biggs while employed by attorney David B. Vail. Biggs sued Vail, alleging four separate claims for relief, including breach of an employment contract. Following a bench trial, the court found in favor of Vail and against Biggs on his breach of contract claim, and found the other three claims to be frivolous. It also awarded Vail $25,000 in attorney fees under the frivolous lawsuit statute, RCW 4.84.185. The Court of Appeals affirmed the judgment. However, this court reversed the award of attorney fees, finding that the action as a whole On June 10, 1992, the mandate in the above case issued. On October 14, 1992, Vail filed a motion in the trial court for sanctions against Biggs for violation of CR 11. Vail also asked for the same amount as was previously granted under RCW 4.84.185. The Superior Court granted Vail's motion and awarded sanctions in the amount of $25,000. The court noted that:

must be frivolous in order for fees to be awarded under RCW 4.84.185. Biggs I.

Well, I was appalled at the frivolity of Mr. Biggs' second, third and fourth claims, and they were shocking to this Court. In fact I was appalled at his initial claim, because it really, common sense would have demonstrated that he was wrong. And the Supreme Court has concurred, and the Court of Appeals concurred in all of my--

I think that there ought to be some compensation paid by Mr. Biggs for his involving the defendant, Vail, in all this litigation. I really do, Counsel, in all fairness, justice. And if I have the authority to grant relief to Mr. Vail, under CR 11, I will do it.

Report of Proceedings, at 12.

In its written order imposing sanctions, the trial court outlined the evidence it considered, but made no mention of the specific conduct which warranted sanctions. Biggs filed a motion for direct review which was accepted.

SCOPE OF CR 11

Before beginning an analysis of the specific issues raised by the parties, it will be helpful to review the contours of CR 11. CR 11 requires attorneys to date and sign all pleadings, motions and legal memoranda. Such signature constitutes the attorney's certification that:

to the best of the ... attorney's knowledge, information, and belief, formed after reasonable inquiry it [the pleading, motion or memoranda] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

CR 11. CR 11 was modeled after the Federal Rule of Civil Procedure (Rule 11), and federal decisions interpreting Rule The standard of appellate review for such sanctions is the abuse of discretion standard. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 338-39, 858 P.2d 1054 (1993). In deciding whether the trial court abused its discretion, we must keep in mind that "[t]he purpose behind CR 11 is to deter baseless filings and to curb abuses of the judicial system". Bryant, 119 Wash.2d at 219, 829 P.2d 1099. CR 11 is not meant to act as a fee shifting mechanism, but rather as a deterrent to frivolous pleadings. Bryant, at 220, 829 P.2d 1099. Courts should employ an objective standard in evaluating an attorney's conduct, and the appropriate level of pre-filing investigation is to be tested by "inquiring what was reasonable to believe at the time the pleading, motion or legal memorandum was submitted". Bryant, at 220, 829 P.2d 1099. In deciding upon a sanction, the trial court should impose the least severe sanction necessary to carry out the purpose of the rule. Bryant, at 225, 829 P.2d 1099. CR 11 sanctions are not appropriate where other court rules more specifically apply. Fisons, 122 Wash.2d at 339-40, 858 P.2d 1054.

11 often provide guidance in interpreting our own rule. Bryant v. Joseph Tree, Inc., 119 Wash.2d 210, 218-19, 829 P.2d 1099 (1992). If it appears that CR 11 has been violated, "the court, upon motion or upon its own initiative, shall impose upon the person ... an appropriate sanction" ¹ which may include reasonable attorney fees and expenses. Former CR 11.

AUTHORITY TO ENTER CR 11

SANCTIONS

Biggs argues that the sanctions were inappropriate because they (1) exceeded the scope of the mandate, (2) violated the law of the case, (3) were untimely under the doctrine of laches, or (4) were waived because not timely brought. Application of either laches or waiver is inappropriate because a CR 11 motion is not a "cause of action" as contemplated by those doctrines. See Shrock v. Altru Nurses Registry, 810 F.2d 658, 662 (7th Cir.1987) (noting that judges can impose sanctions without a motion). The law of the case doctrine is intricately linked to the scope of the mandate; hence, these two issues could be considered Although we do not agree with Bigg's theories regarding this case, his protests are well taken. Normally, such late entry of a CR 11 motion would be impermissible, since without prompt notice regarding a potential violation of the rule, the offending party is given no opportunity to mitigate the sanction by amending or withdrawing the offending paper. See Bryant, 119 Wash.2d at 228, 829 P.2d 1099 (Andersen, J., concurring in part, dissenting in part). Prompt notice of the possibility of sanctions fulfills the primary purpose of the rule, which is to deter litigation abuses.

together. However, the imposition of a CR 11 sanction is not a judgment on the merits of an action. "Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Hence, we do not find it necessary to parse the casual references to CR 11 in Biggs I, nor examine the scope of the mandate, in order to find that the trial court did have authority to enter CR 11 sanctions.

[Deterrence] is not well served by tolerating abuses during the course of an action and then punishing the offender after the trial is at an end. A proper sanction assessed at the time of a transgression will ordinarily have some measure of deterrent effect on subsequent abuses and resultant sanctions.

In re Yagman, 796 F.2d 1165, 1183 (9th Cir.), amended, 803 F.2d 1085 (1986), mandamus granted sub nom. Brown v. Baden, 815 F.2d 575, cert. denied sub nom. Real v. Yagman, 484 U.S. 963, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987). See also William W. Schwarzer, Sanctions Under the New Federal Rule 11--A Closer Look, 104 F.R.D. 181, 197-98 (1985) (Rule 11 sanctions must be brought as soon as possible to avoid waste and delay). Both practitioners and judges who perceive a possible violation of CR 11 must bring it to the offending party's attention as soon as possible. ² Without such notice, CR 11 sanctions are unwarranted. Bryant, 119 Wash.2d at 224, 829 P.2d 1099.

The case at hand, however, differs from the usual situation in two crucial respects. First, Biggs was provided with general notice that sanctions were contemplated under RCW 4.84.185. Although the better practice is to inform counsel specifically of the nature of his or her misconduct and the possibility of CR 11 sanctions, we find that notice in general that sanctions are contemplated is sufficient for the later imposition of CR 11 sanctions. See Lepucki v. Van Wormer, 765 F.2d 86, 88 (7th Cir.), cert. denied sub nom. Hyde v. Van Wormer, 474 U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 71 (1985). See also Shrock v. Altru Nurses Registry, 810 F.2d 658 (7th Cir.1987) (implying that notice of the possibility of sanctions under 42 U.S.C. § 1988 is sufficient for imposition of Rule 11 sanctions). In the case at hand, Biggs had notice that penalties were contemplated, although not the exact penalties ultimately imposed. Had a CR 11 motion been brought in the initial case, we have no doubt that it would have been granted, as it is unchallenged that three of the four causes of action in the underlying complaint were frivolous. The deterrent function of the rule would be vitiated were Biggs allowed to avoid sanctions simply because opposing counsel mislabeled his request.

The second distinguishing factor about this case is that these sanctions are being sought under former CR 11, which made the imposition of sanctions mandatory once a violation of the rule occurred. See former CR 11 (upon violation of the rule "the court ... shall impose ... an appropriate sanction"). The violation of Rule 11 is complete upon the filing of the offending paper; hence, an amendment or withdrawal of the paper, or even a voluntary...