In re Disciplinary Proceeding Against David Carl Cottingham
| Decision Date | 16 August 2018 |
| Docket Number | No. 201,704-5,201,704-5 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Disciplinary Proceeding Against DAVID CARL COTTINGHAM, an Attorney at Law. |
En Banc
WIGGINS, J.—Attorney David C. Cottingham embarked on a five-year boundary line dispute against his neighbor. His pursuit involved two lawsuits, four judicial appeals, two administrative appeals, countless motions, years of delay, unnecessary and wasteful expenditure of judicial resources, injury to his neighbors, and nearly $60,000 in sanctions for CR 11 violations. As a result, the Office of Disciplinary Counsel (ODC) charged Cottingham with violating the Rules of Professional Conduct (RPC). At the conclusion of the proceedings, the Washington State Bar Association (WSBA) Disciplinary Board (Board) recommended that Cottingham be suspended for 18 months. Cottingham appealed. We affirm the Board and suspend Cottingham for 18 months.
FACTS
David Cottingham has practiced law since he was admitted to the bar in 1979 and has had no record of prior discipline. Cottingham and his wife own two lots on Lake Whatcom, where they have lived since 1989. In 2006, Ronald J. and Kaye L. Morgan purchased a lot that shared a property boundary with the Cottinghams' land. When the Morgans purchased the lot, laurel bushes were growing near the boundary line, planted there by Cottingham before 1995. In 2007, the Morgans removed eight laurel bushes along the common boundary.
The First Lawsuit and the Trial
In June 2009, Cottingham and his wife filed a lawsuit against the Morgans, seeking title by adverse possession to a portion of the Morgans' property where the laurel bushes had been. The Morgans filed counterclaims, seeking to quiet title consistent with the platted boundary lines. The case went to trial in late 2010. Cottingham represented himself pro se and appeared as counsel for his wife. The trial judge held that Cottingham had adversely possessed 292.3 square feet of the Morgans' property and that the Morgans had wrongfully removed the laurel bushes.
The judge also found that the adversely possessed land was necessary to the Morgans' use and enjoyment of their lot and comparatively insignificant and unnecessary to the Cottinghams' use and enjoyment of their land. The judge condemned the land in favor of the Morgans and ordered the Morgans to pay the Cottinghams the fair market value of the land as well as trebled damages for the laurel bushes. The Morgans attempted to pay but Cottingham declined, so the Morgans deposited the full amount into the court registry.
After trial, Cottingham initiated and pursued repetitive and baseless legal challenges in an attempt to change the trial court's decision and to interfere with theMorgans' use and enjoyment of their home. Cottingham's "court filings were often, but not always, unintelligible, rife with typographic and grammatical errors . . . ." Hr'g Officer's Findings of Fact, Conclusions of Law, Mitigating Facts & Recommended Sanction (Recommendation) at 15.
The Appeals
In early 2012, after the trial court entered its decision, Cottingham appealed to the Court of Appeals. Before the first appeal had been completed, Cottingham filed a separate motion for discretionary review in the Court of Appeals, challenging a trial court order that required Cottingham to release a lis pendens on the Morgans' property. The Court of Appeals denied discretionary review, noting that the appeal was untimely and challenged issues not properly before the court. Cottingham filed a motion to modify, which the Court of Appeals held to be untimely and frivolous. The Court of Appeals sanctioned Cottingham $500.
While the first and second appeals were pending, Cottingham filed two administrative appeals, challenging Whatcom County's 2006 decision to issue the Morgans a building permit and its 2012 decision to issue a final occupancy certificate.
The Second Lawsuit and Another Appeal
While the first, second, and administrative appeals were pending, Cottingham filed a second lawsuit against the Morgans under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The trial court dismissed the LUPA lawsuit with prejudice and held that the lawsuit was frivolous, was "not supported by any fact or law or reasonable argument for any extension of existing law," and was "filed at least in part to harassand/or annoy [the] Morgans." The trial court noted that Cottingham's pleadings were "chaotic, convoluted" and "required a substantial amount of time to understand and thoughtfully respond." Accordingly, the court held that Cottingham had violated CR 11, sanctioning him just over $25,000 in attorney fees and costs for the violation. Cottingham appealed the dismissal of the LUPA petition to the Court of Appeals.
The LUPA lawsuit served as the basis for ODC's count 2, a violation of RPC 3.1, against Cottingham. The hearing officer found that the LUPA lawsuit "was frivolous and filed to harass the Morgans." Recommendation at 7-8. In support, the hearing officer noted that LUPA review "is limited to judicial review of the 'final determination by a local jurisdiction's body or officer with the highest level of authority to hear [land use] appeals.'" Id. (alteration in original) (quoting RCW 36.70C.020(2)). Cottingham "was aware that there had been no such determination." Id.
Court of Appeals Decisions and a Return to the Administrative Appeals
In 2013, the Court of Appeals affirmed the trial court on all grounds in the first appeal. Cottingham filed a petition for review with this court. We denied review.
In 2014, the Court of Appeals affirmed the decision of the LUPA trial court on all grounds, including the trial court's decision to award fees for the CR 11 violation. The Court of Appeals also sanctioned Cottingham an additional $16,683 for filing a frivolous appeal. The court noted that "[a]n appeal is frivolous if it is so totally devoid of merit that there is no reasonable possibility of reversal" and held that the filing was frivolous because "this appeal presents no debatable issues." Cottingham v. Morgan,No. 70218-1-I, slip op. at 13 (Wash. Ct. App. Apr. 28, 2014) (unpublished), http://courts.wa.gov/opinions/pdf/702181.pdf.
The disciplinary hearing officer also found that the appeal was frivolous and was pursued to harass the Morgans, noting that the arguments Cottingham put forth were "without legal authority or good faith basis." Recommendation at 11.
In its decision upholding the dismissal of Cottingham's LUPA petition, the Court of Appeals also declared that Cottingham had abandoned his administrative appeals. Two days later, Cottingham attempted to resurrect the administrative appeals. After a series of proceedings, a hearing examiner dismissed the administrative appeals with prejudice. The attempted resurrection of the administrative appeals served, at least in part, as the basis for ODC's count 4 against Cottingham. The hearing officer noted that Cottingham's attempt to resurrect the administrative appeals falsely stated that the land-use issues remained unresolved and that the Court of Appeals had remanded the case to the superior court. Recommendation at 11-12. The hearing officer found that the "filing and pursuit of the administrative appeal after the Superior Court had determined the issues and the Court of Appeals had affirmed was legally and factually unsupported and was made with the conscious objective of interfering with the Morgans' use and enjoyment of their premises." Recommendation at 17 (Conclusion of Law (CL) D).
More Motions
Less than two months later, Cottingham again attempted to challenge the boundary line decision. He sought leave to file a CR 60(b) motion alleging that theMorgans' trial testimony was false. The trial court denied the motion and found that the "motion and allegations contained therein are not supported in law or fact." The trial court found that Cottingham violated CR 11 and sanctioned him $7,500. This motion served as the basis for ODC's count 1, a violation of RPC 3.1, against Cottingham. The hearing officer found that "[t]he motion was frivolous and was filed to perpetuate inconvenience and harassment of the Morgans" because "[f]actual support, legal support and relevance were almost entirely lacking." Recommendation at 12.
In December 2014, the trial court quieted title in the Morgans and removed the cloud on the title. Despite his lack of success and the sanctions against him, Cottingham continued the campaign. In December 2014, he filed a motion for reconsideration of the Supplemental Order Quieting Title. The trial court found that the motion violated CR 11 and sanctioned Cottingham $2,500. This motion served as the basis for count 3, a violation of RPC 3.1, against Cottingham. The hearing officer agreed, quoting the largely unintelligible language of the motion and noting that it "was frivolous and was intended to harass the Morgans." Recommendation at 13.
In February 2015, Cottingham filed a notice of appeal with the Court of Appeals, seeking to reverse the Supplemental Order Quieting Title and the order denying reconsideration. In March 2015, Cottingham moved to recall the mandate issued one year earlier. The court denied the motion, found that the motion was frivolous and ordered Cottingham to pay $1,500 to the Morgans "'for having to respond to a frivolous motion.'" Recommendation at 15.
In August 2015, Cottingham finally moved for the release of the funds that the Morgans had paid into the court registry, and the trial court released the funds to him.
Disciplinary Proceedings
Cottingham's five-year pursuit to change the trial court's decision regarding the boundary line resulted in over 700 filings and sanctions totaling $58,115.80. These sanctions were not imposed at the outset; in fact, Cottingham's initial lawsuit was not frivolous. Rather, the judges and hearing officers found violations and imposed sanctions only as each stage of the litigation progressed. Cottingham had ample warning...
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