Dan Young v. Rayan

• Docket Number: 84426-1-I
• Decision Date: 24 July 2023
• Parties: DAN YOUNG, an individual, Appellant, v. TODD S. RAYAN and JANE DOE RAYAN, husband and wife; SAMUEL WILKENS and JANE DOE WILKENS, husband and wife; PENNY ROHR and JOHN DOE ROHR, wife and husband; and ALTHAUSER RAYAN ABBARNO, a Washington Limited Liability Partnership, Respondents.
• Court: Washington Court of Appeals

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DAN YOUNG, an individual, Appellant, v. TODD S. RAYAN and JANE DOE RAYAN, husband and wife; SAMUEL WILKENS and JANE DOE WILKENS, husband and wife; PENNY ROHR and JOHN DOE ROHR, wife and husband; and ALTHAUSER RAYAN ABBARNO, a Washington Limited Liability Partnership, Respondents.

No. 84426-1-I

Court of Appeals of Washington, Division 1

July 24, 2023

ORDER GRANTING MOTION FOR RECONSIDERATION, WITHDRAWING OPINION, AND SUBSTITUTING OPINION

Respondents Todd Rayan, Samuel Wilkens, Penny Rohr, and the law firm Althauser Rayan Abbarno, LLP, moved for reconsideration of the published opinion filed on June 26, 2023. The court has determined that respondents' motion for reconsideration should be granted, the opinion should be withdrawn, and a substitute opinion be filed.

Now therefore, it is hereby

ORDERED that the Respondents' motion for reconsideration is granted; and it is further

ORDERED that the published opinion filed on June 26, 2023, is withdrawn; and it is further ORDERED that a substitute published opinion be filed.

SMITH C.J.

The litigation privilege immunizes participants in legal proceedings from civil liability based on statements they make during litigation. Litigants often strongly and passionately express their position over the course of a case. The privilege exists to encourage frank and open testimony and argument despite this turbulent emotional atmosphere. It protects participants from retaliatory derivative lawsuits-regardless of the merit of those suits- instead relying on checks by the trial court such as sanctions to address false testimony. The privilege embodies a compromise. It acknowledges that litigants may at times abuse its protection, while recognizing that our legal system depends on reducing the threat that every statement or argument may lead to further litigation.

Dan Young, an attorney, sued Todd Rayan, Samuel Wilkens, Penny Rohr, and the law firm that employs them based on statements they made during court proceedings. Their statements accused Young of acquiring documents from them through misrepresentation. Young insists that the statements were perjured. He asks us to identify an exception to the litigation privilege for statements made in an attempt to abuse and weaponize the legal process. We decline to do so and affirm, concluding that the trial court properly dismissed Young's claims at summary judgment.

FACTS

In 2018, Elizabeth Bartlett, formerly Elizabeth Parman, sued her exhusband Shawn Parman and his mother Ruth Parman in Thurston County Superior Court over the ownership of a property in Olympia, Washington. She alleged that she had purchased the property in 1997 using a "gift of early inheritance" from her parents and, through the application of much of her own money, time, and effort transformed it into both a home and a working horse farm. In 2000, she transferred the property to Ruth^[1] and her husband Robert via quitclaim deed, trusting that with their names on the title it would be easier to take out a loan to build a house. The transfer, she claimed, was based on the understanding that she and Shawn were entering into a partnership with Ruth and Robert, a condition of which was that Ruth and Robert would convey half of the property to Shawn and the other half to Elizabeth on their deaths. According to Elizabeth, Robert and Ruth included parallel provisions in their wills to effect this testamentary transfer.

The inheritance did not come to pass. Robert died in 2005. In 2015, Shawn and Elizabeth divorced. Concerned about her eventual ownership of the property, Elizabeth sought and apparently received assurances from Ruth about the contents of her will. But in 2017, allegedly at Shawn's urging, Ruth altered her will to exclude transfer of the property to Elizabeth.

Litigation ensued. Ruth's estate, represented by Shawn, was substituted for Ruth after her death in 2019. In 2020, Shawn petitioned for his father's intestate probate, claiming that Robert had not left a will. Initially filed in King County and then challenged by Elizabeth, the probate matter was transferred to Thurston County to be consolidated with Elizabeth's first lawsuit. Elizabeth's challenge to the probate matter was dismissed as untimely.^[2]

Litigation continued undeterred and with increasing intensity. Seeking to introduce Robert's will into the record to persuade the court to reconsider its dismissal, Dan Young, Elizabeth's attorney, phoned the offices of the law firm Althauser Rayan Abbarno, which, along with several of its employees, is the respondent in this case. Young had learned that an attorney, John Turner, had drafted Ruth and Robert's wills, and that Turner's papers had been held by Althauser Rayan Abbarno since his retirement.

The details of Young's contact with individuals at Althauser Rayan Abbarno are disputed. Young admits that he mentioned he was an attorney but denies ever saying that he represented Robert Parman's estate. Young claims that he spoke with Penny Rohr, the firm's receptionist, who indicated that attorney Samuel Wilkens had inherited Turner's matters. He reports that Rohr said Wilkens would return his call, that Wilkens did not, and that Young followed up several weeks later. During that call, Rohr apparently spoke with Wilkens while Young was on hold and, when she returned to the phone, indicated that she would send him a copy of the will^[3] by e-mail, which she did.

Rohr describes matters similarly in most respects. She acknowledges receiving a call from Young. She says that she inquired with Wilkens about whether she should send Young a copy of the will, and that Wilkens approved. But contrary to Young's narrative, she asserts that Young "indicated" that he represented Robert Parman's estate and it was based on this understanding, which she had shared with Wilkens, that Wilkens authorized the release of Robert's will.

Wilkens, on the other hand, reports that "[t]o the best of my recollection," he spoke directly with Young. He says that during that conversation, Young stated that he represented Robert Parman's estate. On that basis, Wilkens reports authorizing Rohr to send Young a copy of the will.

Regardless of precisely what words were exchanged, Young obtained the will. He introduced it into the underlying litigation via a motion to reconsider the dismissal of the probate matter and opposing a motion from Shawn for attorney fees. Young also issued a subpoena directing Althauser Rayan Abbarno to turn over the same materials he had just received. Shawn's attorney, Mark Owen Gabrielson, responded by issuing his own subpoena to Althauser Rayan Abbarno, seeking Ruth and Robert's estate planning records. Todd Rayan, the firm's managing partner, reached out to Gabrielson and, following a discussion, directed Wilkens and Rohr to write down their recollections of the events leading to Rohr sending Young the will. He then supplied their recollections to Gabrielson as sworn declarations. And he objected to Young's subpoena in a letter because "[t]he prior disclosure and emailing of one document was based on a misrepresentation to my staff . . . [which means that the will was] obtained through fraudulent means."^[4]

Two motions, a police investigation, a bar grievance, and the initiation of the present lawsuit followed. First, Gabrielson moved to strike the will from the record in the underlying actions and seal it. Young then moved to compel production of the will from Althauser Rayan Abbarno. Escalating the dispute beyond the courtroom, Gabrielson called the Centralia Police Department about Young, complaining about the manner in which he acquired the will. Detective Timothy O'Dell investigated and referred the case to the Lewis County Prosecuting Attorney's Office, having concluded that probable cause existed to arrest Young for criminal impersonation in the first degree. Young submitted a bar grievance against Wilkens accusing him of perjuring himself in his declaration. Finally, on January 18, 2022, Young filed the complaint in this lawsuit in King County Superior Court.

Ten days later, the trial court heard the motions to strike, seal, and compel. It struck and sealed the will in the probate proceeding. It sealed but did not strike the will in Elizabeth's first lawsuit, preserving for another day questions about its admissibility. It denied Young's motion to compel. Throughout its oral ruling, the court expressed concern that RPC 1.6-which governs confidentiality of client files but is not an evidentiary rule and does not create a privilege-was implicated.

Meanwhile, the present lawsuit moved rapidly from its initiation to its dismissal. Young sued Rohr, Wilkens, Rayan, and Althauser Rayan Abbarno, bringing claims of defamation, false light, and civil conspiracy. The defendants moved for summary judgment, arguing that Young's claims were based on statements made during the course of litigation, were protected by the litigation privilege doctrine, and therefore could not stand. The trial court agreed and dismissed the case in August 2022.

Young appeals.

ANALYSIS

This appeal asks whether three causes of action-defamation, false light, and civil conspiracy-may be sustained when they are based on statements made during court proceedings. Young contends that they can be. He attempts to identify a number of exceptions to the application of litigation privilege which normally prohibits liability for statements made in court. As a general matter, he professes that his claims may be sustained because the statements on which they are based abused the court process itself to do further harm. But his arguments are not grounded in Washington case law, which applies the litigation privilege broadly. We affirm the trial court's dismissal...