In re Sanction Order against Critchlow
| Decision Date | 25 February 2021 |
| Docket Number | No. 36774-6-III,36774-6-III |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Sanction Order Against Attorney ROBERT W. CRITCHLOW. |
SIDDOWAY, J. — Robert W. Critchlow appeals CR 11 sanctions that were imposed on him personally in this guardianship proceeding in which he represented Jerome Green. Mr. Green is the son of Mary Green, the alleged incapacitated party.
We disapprove of the guardian ad litem's (GAL's) choice to seek CR 11 sanctions against Mr. Critchlow without first giving him notice of the legal and factual problems with his challenge to the filing of the guardianship petition and her appointment. His persistence in advancing his baseless arguments demonstrates that for the GAL to have provided notice would not have made a difference, however. We affirm the fees and costs that were awarded at her request to herself and Mary Green's court-appointed lawyer.1
We have no criticism of the conduct of the Department of Health and Social Services (Department), but find that the trial court abused its discretion in awarding sanctions to it. The Department did not allege a CR 11 violation or file a motion for sanctions. The GAL's rationale for awarding fees as the sanction (to protect expense from being borne by Ms. Green's estate) does not apply to the Department. We reverse the award of fees and costs in favor of the Department.
The prior vulnerable protection order proceeding
In re Vulnerable Adult Pet. for Green, No. 36856-4-III, slip op. at 1-2 (Wash. Ct. Appeals Feb. 9, 2021) (unpublished).3
Mr. Green professed not to know what his mother could or could not eat, which the Commissioner found inexcusable given the signs placed around the home. She ruled that upon demonstrating an understanding of his mother's dietary needs, Mr. Green could petition to remove restrictions placed on his contact with her.
Mr. Green has a sister who lives nearby and the two were often in conflict over their mother; the two had obtained five alternating powers of attorney over a six month period. Commissioner High-Edwards revoked Mr. Green's power of attorney, observing that she could not take the same action against the sister, since she was not a party to the VAPO proceeding. The Department had revealed during the hearing that it planned to petition for appointment of a guardian for Mary Green, and the commissioner observedthat the GAL appointed in the guardianship action could petition the court to revoke the sister's power of attorney.
After the commissioner announced her ruling, Mr. Critchlow, who represented Mr. Green at the hearing, expressed concern that one of Mr. Green's sisters might seek to be appointed as Mary Green's guardian. Commissioner High-Edwards responded:
The guardianship process has procedure for people who want to be appointed guardians to intervene. Mr. Green certainly will be entitled to do that, as well as the sisters, and then the Court in that hearing would be able to determine who's going to be the guardian.
Clerk's Papers (CP) at 189-90.
When Mr. Critchlow asked if the guardianship case would be filed that day, the Department's lawyer responded, "Probably tomorrow since it's 4 already." CP at 193. Then, recalling it was Friday, the lawyer corrected herself and said, "Monday." Id. Mr. Critchlow asked if filing on Monday could be in the order, and the commissioner responded, "Sure." Id. In marginal modifications to the form VAPO, the commissioner wrote, "The guardianship petition regarding Mary Green shall be filed on Monday, 2/25/19." CP at 201. The VAPO hearing concluded at 4:10 p.m.
The present guardianship proceeding: events occurring in 2019
Either that afternoon (February 22) or the following Monday (February 25), the Department submitted its petition for a full guardianship of Mary Green's person and estate and obtained, ex parte, an order appointing a GAL. Both were filed on February25, commencing this action. Mr. Green believes the order was obtained on the afternoon of February 22, since that is the handwritten date entered by Commissioner Tony Rugel, who signed it. The order is date-stamped as filed on February 25, however, as is the petition. The Department contends that Commissioner Rugel simply wrote in the wrong date.
A few days later, Mr. Green, acting pro se, filed a request for special notice of his mother's guardianship proceeding. A couple of weeks after that, Mr. Green filed several handwritten pro se motions, including a motion to intervene in the proceeding.
On March 22, Mr. Critchlow appeared as counsel for Mr. Green in this proceeding and filed additional motions that led to the sanctions at issue in this appeal: motions to strike the order appointing the GAL, to dismiss the guardianship case, and to impose CR 11 sanctions on the Department's lawyer and the GAL. Central to Mr. Critchlow's motions was his belief that there should have been a hearing, with notice to Mary Green, before the guardianship petition could be filed and the order appointing a GAL could be entered. He argued that Mary Green or Mr. Green, as her attorney-in-fact, was entitled to participate in that hearing and contest a finding of incapacity and appointment of the GAL. In requesting CR 11 sanctions he argued it should have been "abundantly clear" to the Department's lawyer and the GAL that Mary Green was entitled to a hearing, with advance notice. CP at 44.
On March 29, the Department responded to Mr. Critchlow's motions. It explained, with citation to relevant statutes, that the petition had been properly filed, that it had been properly served thereafter on Mary Green, and that a hearing to determine whether a guardianship should be established would not take place until April. It observed that "Mr. Green seems to confuse appointment of a guardian with appointment of a guardian ad litem." CP at 60. The Department did not request CR 11 sanctions.
The GAL also filed her opposition on March 29. She pointed out that under RCW 11.88.090, an opportunity to object to her service as GAL arose after her appointment, and the time for objection had passed. Most of her argument was devoted to a request for sanctions under CR 11. She argued that Mr. Critchlow had violated a "duty to give written notice" of a perceived violation before filing a CR 11 motion, a duty she argued was imposed by Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994). CP at 64. She did not demonstrate that she fulfilled the duty imposed by Biggs by giving notice to Mr. Critchlow before making her own request for CR 11 sanctions.
The pro se motions filed by Mr. Green were heard on March 29 by Commissioner Steven Grovdahl. Having appeared for Mr. Green, Mr. Critchlow presented the motions on his client's behalf. Mr. Green's motion to intervene was denied, so he did not become a party to the guardianship proceeding. The disposition of the motions Mr. Green filed pro se is not the subject matter of this appeal.
Mr. Critchlow does raise as germane the fact he was under the impression on March 29 that Grovdahl was serving as a pro tem judge, since Grovdahl was identified as such by a sign outside his courtroom that day. Grovdahl signed orders on March 29 as "Court Commissioner," however, and Mr. Critchlow says this prompted him to start looking into Grovdahl's status. Mr. Critchlow eventually learned that Grovdahl had served as a pro tem judge for a time.4 In a reply brief filed on April 3, Mr. Critchlow argued that if Grovdahl had been a pro tem judge on March 29, then the orders on Mr. Green's pro se motions entered that day were void because Mr. Green had not consented to having them heard by a pro tem judge.
The motions filed by Mr. Critchlow were heard on April 5. At the outset of the hearing, Mr. Critchlow argued that if Grovdahl was a pro tem commissioner, he lacked authority to hear the motions set for hearing that day. Commissioner Grovdahl, confident he was authorized, proceeded to hear argument from the parties. He denied Mr. Critchlow's motions. He agreed with the GAL that the motions were frivolous, and imposed, as sanctions, attorney fees and costs incurred by the GAL, Mary Green's court-appointed lawyer, and the Department. The commissioner granted the GAL's request that the fees be imposed on Mr. Critchlow personally.
The written order entered thereafter found that Mr. Green's filings brought through Mr. Critchlow were "frivolous" and "legally [and] factually without merit." CP at 114-15. It directed the lawyers and the GAL to submit their fee requests and stated the court would "allow five days for Robert Critchlow to respond to the fees requested prior to this court issuing an order approving the fees." CP at 115.
The Department's lawyer and the GAL submitted fee declarations in April that were based on hourly rates exceeding a county rate of $60 per hour. Mary Green's court-appointed lawyer initially requested a...
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