Skimming v. Boxer

• Decision Date: 15 January 2004
• Docket Number: No. 21434-6-III.,21434-6-III.
• Citation: 119 Wash.App. 748,82 P.3d 707
• Court: Washington Court of Appeals
• Parties: Allen SKIMMING and Patty Skimming, husband and wife, and their marital community, Respondents, v. Francine BOXER and John Doe Boxer, wife and husband, individually and their marital community; and Spokane County, Appellants.

82 P.3d 707

119 Wash.App. 748

Allen SKIMMING and Patty Skimming, husband and wife, and their marital community, Respondents, v. Francine BOXER and John Doe Boxer, wife and husband, individually and their marital community; and Spokane County, Appellants.

No. 21434-6-III.

Court of Appeals of Washington, Division 3. Panel Eight.

January 15, 2004.

Hugh T. Lackie, Heather Yakely, Evans, Craven & Lackie, Timothy M. Durkin, Deputy Prosecuting Attorney, Spokane, WA, for Appellants.

Steven L. Jones, Eymann, Allison, Fennessy, Hunter, Jones PS, Dustin D. Deissner, Deissner Law Firm PLLC, Spokane, WA, for Respondents.

SWEENEY, J.

This is an appeal from the denial of an award of attorney fees to the defendant Spokane County and its chief executive officer, Francine Boxer. The claim for fees followed the dismissal of the plaintiffs' civil suit against them. We find no abuse of discretion in the trial judge's refusal to award fees and costs based on a frivolous lawsuit or one otherwise made for any improper purpose. And the defendants are not entitled to an award based on their assertion of immunity under former RCW 4.24.510 (1999). We therefore affirm the decision of the trial court denying fees.

FACTS

Spokane County citizen Lisa O'Kelly complained to Spokane County that she did not sign a warranty deed conveying a right of way to the county. Spokane County Commissioner Kate McCaslin asked Francine Boxer, Spokane County chief executive officer, to investigate. Ms. Boxer concluded that someone "possibly" forged Ms. O'Kelly's signature.

Allen Skimming is a Spokane County right of way agent. He was responsible for this transaction. He notarized a signature as Ms. O'Kelly's. Mr. Skimming denied anything improper.

Sheriff's Detective Mark Stewart investigated Ms. O'Kelly's complaint. Forensic handwriting specialists reviewed the records and exemplars of Ms. O'Kelly's signature. Both concluded that Ms. O'Kelly's signature had been traced and was not genuine.

In June of 2000, the State charged Mr. Skimming with one felony offense (altering a public record) and one misdemeanor offense (official misconduct (notary)). The County placed Mr. Skimming on administrative leave with pay and benefits while the criminal case was pending. A jury acquitted him in February of 2001. He remained on administrative leave until March 27, 2001.

A newspaper article reported the jury's verdict and included a statement from Ms. Boxer that "[w]e're disappointed with the verdict." Clerk's Papers (CP) at 96. The International Federation for Professional and Technical Engineers, Local 17, Mr. Skimming's union, signed a petition demanding an apology from Ms. Boxer for her comments. Ms. Boxer called the union's demand for an apology "nothing short of ludicrous." CP at 245. And she said her earlier statement "more than accurately reflects [her] opinion of the jury's verdict." CP at 245. The union renewed its demand for an apology in a separate press release. Ms. Boxer responded that "[i]t'll be a cold day in hell" before she would apologize. CP at 245.

Mr. Skimming hired lawyer, Russell Van Camp, and filed a tort claim with Spokane County. The County denied the claim as "not well grounded in fact or in law, [and] completely devoid of any merit." CP at 357. Mr. Skimming sued Spokane County and Francine Boxer nonetheless. He claimed three causes of action: (1) defamation; (2) infliction of emotional distress (either intentionally or negligently); and (3) violation of certain civil rights. CP at 4-5. Spokane County raised a number of affirmative defenses, including immunity under former RCW 4.24.510.

The County asked Mr. Skimming's counsel to Sign a stipulated order of dismissal. He refused. The County and Ms. Boxer moved for summary judgment. Mr. Skimming requested a continuance. The court denied the request for a continuance and dismissed his complaint.

The County and Ms. Boxer asked for attorney fees and costs as the prevailing party, pursuant to CR 11 and CR 54, and pursuant to former RCW 4.24.510 and RCW 4.84.185. The trial court awarded defendants' only costs as prevailing party on summary judgment under CR 54. But the court denied attorney fees under CR 11, RCW 4.84.185, and former RCW 4.24.510.

The County and Ms. Boxer both appeal the denial of reasonable attorney fees and costs under CR 11, RCW 4.84.185, and former RCW 4.24.510.

DISCUSSION

CR 11 FEES

Attorney fees under either CR 11 or RCW 4.84.185 are discretionary with the trial judge. Tiger Oil Corp. v. Dep't of Licensing, 88 Wash.App. 925, 937-38, 946 P.2d 1235 (1997). Our inquiry is "whether the court's conclusion was the product of an exercise of discretion that was manifestly unreasonable or based on untenable grounds or reasons." Id. at 938, 946 P.2d 1235. Our deference accounts for the trial judge's personal and sometimes exhaustive contact with the case.¹

CR 11² permits reasonable attorney fees and costs incurred because of a bad faith filing of pleadings for an improper purpose or by filing pleadings that are not grounded in fact or warranted by law. Wood v. Battle Ground Sch. Dist., 107 Wash.App. 550, 574, 27 P.3d 1208 (2001). We apply an objective standard to determine whether sanctions are merited. The question is whether a reasonable attorney in a like circumstance could believe his or her actions to be factually and legally justified. Bryant v. Joseph Tree, Inc., 119 Wash.2d 210, 220, 829 P.2d 1099 (1992).

The purpose of the rule is to deter baseless filings and curb abuses of the judicial system. Biggs v. Vail, 124 Wash.2d 193, 197, 876 P.2d 448 (1994). And a filing is baseless if it is not well grounded in fact, or not warranted by existing law or a good faith argument for altering existing law. Blair v. GIM Corp., 88 Wash.App. 475, 482-83, 945 P.2d 1149 (1997). "The burden is on the movant to justify the request for sanctions." Biggs, 124 Wash.2d at 202, 876 P.2d 448. CR 11 sanctions have a potential chilling effect. And so the trial court should impose sanctions only when it is patently clear that a claim has absolutely no chance of success. In re Cooke, 93 Wash.App. 526, 529, 969 P.2d 127 (1999). The fact that a complaint does not prevail on its merits is not enough. Bryant, 119 Wash.2d at 220, 829 P.2d 1099.

The County invites us to independently review this record since the court did not enter findings. This we will not do.

First, a court need not enter findings when the request for CR 11 sanctions is rejected. It is the decision to impose the sanction that must be supported by the record.³ Second, the threshold for imposition of these sanctions is high.⁴

The County and Ms. Boxer direct us to extensive findings of fact and conclusions of law filed as part of the summary judgment to support their argument for sanctions. Those findings, like any findings in an order granting summary judgment, are gratuitous, superfluous, and of no consequence here on appeal. Chelan County Deputy Sheriffs' Ass'n v. County of Chelan, 109 Wash.2d 282, 294 n. 6, 745 P.2d 1 (1987).

Nothing in this record suggests Mr. Skimming's lawsuit was filed for the purpose of harassment, delay, nuisance, or spite. Mr. Skimming and others thought that the County's, and particularly Ms. Boxer's, reaction was hostile and incriminating. The fact that the trial judge dismissed Mr. Skimming's complaint does not mean that the trial judge abused his discretion in refusing to impose CR 11 terms.

We cannot say that the trial court's denial of CR 11 sanctions was unreasonable or based on untenable grounds here. See Cooke, 93 Wash.App. at 529, 969 P.2d 127.

RCW 4.84.185 FEES

RCW 4.84.185⁵ authorizes the trial court to award to the prevailing party "the reasonable expenses, including fees of attorneys, incurred in opposing" a frivolous action. Sanctions against a party, not that party's attorney, are available under RCW 4.84.185. Havsy v. Flynn, 88 Wash.App. 514, 521, 945 P.2d 221 (1997).

The statute is designed to discourage abuses of the legal system by providing for an award of expenses and legal fees to any party forced to defend against meritless claims advanced for harassment, delay, nuisance, or spite. Suarez v. Newquist, 70 Wash.App. 827, 832-33, 855 P.2d 1200 (1993). It is not, however, a substitute for more appropriate pretrial motions, CR 11 sanctions, or complaints to the bar association. Biggs v. Vail, 119 Wash.2d 129, 137, 830 P.2d 350 (1992).

"A lawsuit is frivolous when it cannot be supported by any rational argument on the law or facts." Tiger Oil, 88 Wash.App. at 938, 946 P.2d 1235. It must be frivolous in its entirety; if any of the asserted claims are not frivolous, the action is not frivolous. Biggs, 119 Wash.2d at 136-37, 830 P.2d 350; Forster v. Pierce County, 99 Wash. App. 168, 183-84, 991 P.2d 687 (2000). Here, the trial court concluded that even the claim it perceived to be the weakest was not frivolous. The issues were, at least, then debatable on balance.

Mr. Skimming faced serious criminal charges related to his activities at work. His employer placed him on leave for almost a year pending the outcome. He was acquitted by a jury. Then his employer made a statement to the media suggesting it had knowledge that the acquittal was erroneous. Mr. Skimming believed he was wronged and his lawyers asserted an assortment of legal theories in an attempt to recompense that wrong.

The court did not abuse its discretion by refusing fees and costs pursuant to RCW 4.85.185 for an action it specifically found not to be frivolous. See also Bill of Rights Legal Found. v. Evergreen State Coll., 44 Wash. App. 690, 697, 723 P.2d 483 (1986).

FORMER RCW 4.24.510 FEES

First, the County and Ms. Boxer raised former RCW 4.24.510 (immunity from civil liability for communications to a government agency) as an independent basis for fees only in their reply brief at the trial court. This probably comes too late.⁶ We nonetheless review the assignment of error. Our review is de novo.⁷

Forme...