Bonita Kelleher v. Chad A. Pierce

• Court: Court of Appeals of Washington
• Decided: February 27, 2025
• Docket: 39952-4
• Status: Unpublished

Opinion

FILED FEBRUARY 27, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Domestic Violence ) No. 39952-4-III Protection Order for: ) (consolidated with ) No. 39953-2-III) BONITA KELLEHER. ) __________________________________ ) ) BONITA KELLEHER, ) ) Respondent, ) UNPUBLISHED OPINION ) v. ) ) CHAD A. PIERCE, ) ) Appellant, ) ) CITY OF QUINCY, a Washington ) municipal corporation, ) ) Defendant. )

PER CURIAM — Chad Pierce attempts to appeal several rulings and orders in his

long-standing dispute with his neighbor. We conclude that several rulings and orders are

not properly before us, address the few that are, and affirm. No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

FACTS

To understand why the proper scope of appeal is narrow, it is necessary to review

the lengthy factual and procedural history of the neighbors’ dispute.

In April 2021, Bonita Kelleher refused Chad Pierce’s requests to remove the

arborvitae shrubs growing along their shared property line. Kelleher’s refusal enraged

Pierce, who responded by threatening to destroy the shrubs.

Three months later, Kelleher asked Jenny Snider, Pierce’s girlfriend, to remove the

garbage that had accumulated on Snider’s and Pierce’s side of the arborvitaes. Snider

agreed, but, in turn, asked Kelleher to recalibrate her sprinklers, which Snider complained

were spraying across the property line into hers and Pierce’s yard. Kelleher complied

with Snider’s request.

When garbage again accumulated on Snider’s and Pierce’s side of the arborvitaes,

Kelleher approached Snider in her yard. Before the two could speak, Pierce charged out

of the couple’s house and began threatening Kelleher, demanding that she not step foot on

his property. The interaction was hostile enough that Kelleher called the police.

One month later, Snider and Pierce left a handwritten letter in Kelleher’s mailbox

again demanding that she remove the arborvitaes, which, the couple argued, encroached

over the property line. The letter gave Kelleher two days to remove the shrubs before

2 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

Pierce himself would cut them down and charge Kelleher for his work. The letter ended,

“Do Not set foot on my land again . . . last warning.” Clerk’s Papers (CP) at 11. Around

this time, Pierce angled his home’s security cameras toward Kelleher’s front door and

informed her that he was recording her movements.

After receiving the letter, Kelleher hired a surveyor to place stakes along the

property line separating the properties. The survey determined that the arborvitaes grew

along the property line. While the surveyor worked, Pierce ranted and yelled at him.

The survey also revealed that Kelleher’s sprinklers encroached into Snider’s and

Pierce’s property. With the help of her brother, Kelleher attempted to remove the part of

her sprinkler system that was over her boundary. While they were working, Pierce

threatened to kill Kelleher’s brother and stated that he had killed before. Kelleher

reported the incident to the police.

One month after leaving the letter in Kelleher’s mailbox, Pierce again accosted

Kelleher. On this occasion, Kelleher’s neighbor heard Pierce shouting “F-bombs” from

two lots away. CP at 12. When the neighbor investigated, he saw Pierce shouting at

Kelleher that he would “beat the shit out of [her].” CP at 12.

Two weeks later, Kelleher petitioned the trial court for a protection order against

Pierce.

3 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

Procedural history: original order

In her petition, Kelleher alleged the above facts and asked the trial court to restrain

Pierce from (1) contacting her, (2) surveilling her, or (3) entering her property. She also

asked the court to award attorney fees and costs to her and to order Pierce to surrender his

firearms.

The trial court heard Kelleher’s petition on October 12, 2021. Ahead of the

hearing, Pierce, acting pro se,1 filed a response in which he denied threatening Kelleher,

claiming he threatened only to “kick her ass in court.” CP at 22. Pierce claimed the

surveyor Kelleher had hired, Matt Walters, had heard him issue this threat and

remembered it the way he remembered it. Pierce further claimed that Kelleher’s attorney

had interviewed Walters and concealed Walters’ corroborative statements. As to

surveillance, Pierce claimed his security cameras were intended only to detect trespassers

on his property. Also, although Pierce denied threatening to kill Kelleher’s brother, he

admitted threatening to “kick his ass” if he did not get off his property. CP at 23.

At the October 12, 2021 hearing, Kelleher offered no evidence and instead rested

on her sworn petition and declarations. While Pierce also did not call witnesses or offer

evidence, he did ask the court itself to seek testimony from Matt Walters, who Pierce

1 At all phases of this litigation, Pierce has acted pro se.

4 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

claimed would exonerate him with respect to any threats he had allegedly made against

Kelleher. In response, Kelleher argued that Walters had not been present when Pierce

had threatened to hurt her. Walters did not testify at the hearing.

In its oral ruling, the trial court noted that the protection order request was a close

call because “there weren’t any direct threats made directly to [Kelleher].” Rep. of Proc.

(Oct. 12, 2021) (RP) at 35. Nevertheless, the court found that Pierce’s conduct—and in

particular his “swearing”—had interfered with Kelleher’s quiet enjoyment of her

property. RP at 35. Although the court granted the protection order, it prohibited Pierce

only from entering Kelleher’s property. The court did not order Pierce to discontinue or

alter his surveillance activities, surrender his firearms, or pay Kelleher’s attorney fees and

costs. Pierce did not appeal the original protection order.

Procedural history: renewed order

One year later, Kelleher petitioned the trial court to renew the protection order.

In her petition, she alleged new hostilities from Pierce, including:

• an incident in March 2022 when Pierce had called the police on

Kelleher for walking down the alley behind his house and then submitted a

public records request for the bodycam footage of the police response;

5 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

an incident when Pierce had harassed the technicians Kelleher had hired to

install security cameras at her home;

• several incidents where Pierce, or else Snider at Pierce’s direction,

had photographed visitors to Kelleher’s home, and

• an incident when Pierce and Snider had shouted obscenities out their

window at Kelleher as she had walked into her house.

See CP at 46-47.

In response, Pierce filed “Respondent’s Reply Motion to Dismiss Based Upon

Newely [sic] Discovered Evidence and Actual Innocence.” CP at 51 (some capitalization

omitted). In that motion, Pierce admitted photographing Kelleher and her visitors but

claimed he did so only to prove that Kelleher was not scared of him. Pierce insisted he

had never violated the protection order.

In addition to his motion to dismiss, Pierce filed motions seeking subpoenas for

Matt Walters and fire marshal Jim Kling. As already noted, Pierce believed Walters

could refute Kelleher’s claim that he had threatened to kick Kelleher’s ass. Pierce

believed Kling would also refute one of Kelleher’s claims.

On October 11, 2022, the trial court heard Kelleher’s motion to renew the

protective order. Pierce did not appear, and the court granted Kelleher’s motion. Pierce

6 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

later moved to vacate the order on the grounds that technical difficulties had prevented

him from attending the October 11 hearing.2

On November 4, 2022, the trial court heard Pierce’s motion to vacate. Ahead of

that hearing, at 8:16 a.m., Pierce disqualified Judge Tyson Hill. At the hearing itself,

Judge Anna Gigliotti granted Pierce’s motion to vacate and reset the renewal motion for a

November 21, 2022 hearing. However, Judge Gigliotti at the motion-to-vacate hearing

also denied Pierce’s motions for subpoenas for Matt Walters and Jim Kling. After a tense

exchange with the bench, Pierce insulted Judge Gigliotti. After the hearing, Pierce filed a

withdrawal of his notice of disqualification against Judge Hill and contemporaneously

filed a notice of disqualification against Judge Gigliotti. Judge Gigliotti later denied this

request and was the trial judge on the later orders.

At the November 21, 2022 hearing to decide Kelleher’s motion to renew, Pierce

continued to object to the court’s refusal to issue subpoenas for Walters and Kling. In

response, the court reminded Pierce that the only matter before it was the renewal of the

protection order and not the merits of the order itself. The court stated that renewal arose

under RCW 7.105.405 and invited Pierce to address Kelleher’s renewal motion.

2 Concurrent with his motion to vacate, Pierce also appealed the renewed order to this court. Our court later terminated review of that appeal, citing Pierce’s failure to pay the filing fee or else move for an order of indigency.

7 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

Pierce did not meaningfully address Kelleher’s claims about his actions over the

past year, except to insist he never violated the protection order. Pierce repeatedly

accused Kelleher and her counsel of perjury and misrepresentation.

The trial court found that Pierce had failed to carry his burden under

RCW 7.105.405 and renewed the protection order for two years. Pierce did not appeal

that order.

Procedural history: motion to modify renewed order

In August 2023, Kelleher sought modification of the renewed order on the grounds

that Pierce, through public records requests, was seeking body camera footage showing

the inside of her house. Kelleher asked the court to prohibit Pierce from making such

requests and to convert the two-year protection order into a permanent order. Kelleher

also asked the court to prohibit Pierce from filing building code violations against her.

The trial court heard Kelleher’s motion to modify on September 1, 2023, having

consolidated the motion with a separate matter in which Kelleher sought to enjoin the

city of Quincy from complying with Pierce’s records requests. Pierce did not respond to

Kelleher’s motion to modify and did not appear at the September 1, 2023 hearing.

In one September 1, 2023 order, the trial court granted Kelleher’s motion to bar

Pierce from making intrusive public records requests and further agreed to convert the

8 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

two-year protection order into a permanent order. In a separate September 1, 2023 order,

the court enjoined the city of Quincy from releasing body camera footage showing the

inside of Kelleher’s house.

On September 7, 2023, Pierce filed a notice of appeal, designating and attaching

both September 1, 2023 orders. Also, on that date, Pierce filed a 34-page motion for

reconsideration, containing 88 separately numbered paragraphs of “facts.” CP at 203-47.

The “facts” were not in the form of a sworn affidavit or an unsworn declaration in the

form required by GR 13.

In his motion, Pierce argued (1) the “facts” as described in his motion establish

that the court lacked a basis to enter or renew the protection order, (2) the court

improperly allowed Kelleher’s lawyer to seek relief on shortened time, giving Pierce only

three to five days to respond, which was a prejudicial error of constitutional magnitude,

(3) Kelleher’s motion to restrain the city of Quincy from releasing body camera footage,

she failed to comply with chapter 42.56 RCW, and (4) the court lacked jurisdiction to rule

on the two August 21, 2023 motions.

The trial court, finding no merit in Pierce’s reconsideration motion, denied the

motion without requesting oral argument or briefing.

9 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

ANALYSIS

To his credit, Pierce organizes his numerous lengthy arguments by first providing a

clear description of his seven claims of error, together with numerous subparts. Before

we address his arguments, we first set forth general rules that assist in determining which

of Pierce’s arguments are properly before us:

In general, an appeal must be filed within 30 days after entry of the decision the

appellant seeks to have reviewed. RAP 5.2(a).

Also, subject to three exceptions, an appellate court will not consider a claim of

error that was not first raised to the trial court. RAP 2.5(a). “The purpose of this rule is

to allow the trial court to correct any error called to its attention, avoiding unnecessary

appeals and retrials, and encouraging the efficient use of judicial resources.” R.K. v.

United States Bowling Congress, 27 Wn. App. 2d 187, 201, 531 P.3d 901 (2023) (citing

State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). One exception to this rule is

that we will review an unpreserved claim of manifest constitutional error. RAP 2.5(a)(3).

Finally, the factual grounds of a motion must be supported by an affidavit or an

unsworn declaration meeting the requirements of GR 13. See CR 7(b)(4) (affidavits used

in motion practice); Wilkerson v. Wegner, 58 Wn. App. 404, 408 n.3, 793 P.2d 983 (1990)

10 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

(certifications considered by trial court were not signed under penalty of perjury and so

were not competent proof of facts).

With the above rules in mind, the following claims of error are not reviewable

because:

* They involve orders entered more than 30 days before Pierce’s notice of

appeal: claim of error 1, including all subparts except 1.vi, and claim of error 2.

* The evidence relied on was not supported by an affidavit or an unsworn

declaration meeting the requirements of GR 13: claim of error 3B.

* The argument was not first raised to the trial court and does not concern a

claim of manifest constitutional error: claim of error 1.vi, and claims of error 5 & 6.

We conclude that the following claims of error are properly before us: (1) claim of

error 3A, (2) claim of error 4, and (3) claim of error 7. We now discuss these claims of

error:

1. Claim of error 3A: Uncontested reconsideration motion

Pierce argues the trial court abused its discretion by not granting his

reconsideration motion because Kelleher’s failure to deny his pleading causes his

assertions to be deemed admitted. His argument is based on a misreading of CR 8(d).

11 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

CR 8(a) clarifies that the rule applies to a narrow set of pleadings, such as

complaints, counterclaims, cross claims, and third party claims. CR 8(d) states,

“Averments in a pleading to which a responsive pleading is required . . . are admitted

when not denied in the responsive pleading.” CR 8(d) continues, “Averments in a

pleading to which no responsive pleading is required or permitted shall be taken as denied

or avoided.” Pierce’s reconsideration motion was not the type of pleading to which

CR 8(d) applies. That is, Pierce’s motion was not a complaint, counterclaim, cross claim,

or a third party claim.

2. Claim of error 4: Judge Gigliotti was disqualified from ruling on the September 1, 2023 consolidated motions

Pierce next argues that Judge Gigliotti erred by ruling on Kelleher’s consolidated

motions because he had properly disqualified her from hearing further matters. We

disagree.

As noted above, early on November 4, 2022, Pierce filed a notice of

disqualification against Judge Tyson Hill. Later that morning, Judge Anna Gigliotti

granted Pierce’s motion to vacate the renewed order, and denied his request to issue

subpoenas for two witnesses. Hours later, Pierce moved to withdraw his earlier-filed

notice of disqualification against Judge Hill and contemporaneously filed a notice of

disqualification against Judge Gigliotti.

12 No. 39952-4-III; No. 39953-2-III Kelleher v. Pierce

RCW 4.12.050(1)(a) prohibits a party from disqualifying a judge who has

previously made a discretionary ruling. Judge Gigliotti made discretionary rulings when

she granted Pierce’s motion to vacate the renewed order and denied his request to issue

subpoenas for two witnesses. Under RCW 4.12.050(1)(a), Pierce’s notice of

disqualification was therefore ineffective.

Moreover, RCW 4.12.050(1)(d) prohibits a party from filing more than one notice

of disqualification. Pierce’s second notice of disqualification, filed against Judge

Gigliotti, was ineffective for this additional reason.

3. Claim of error 7: The trial court’s injunction is unlawful and Kelleher failed to follow proper procedures when seeking to enjoin him from obtaining public records

Kelleher first argues the trial court’s order enjoining the city of Quincy from

answering his request for body camera footage is unlawful because it interferes

with his constitutional right to file a public records request. We disagree. There

is no constitutional right to file a public records request. The right is statutory.

RCW 42.56.080(2).

Kelleher next argues that RCW 42.56.540 requires a person to file a new

civil case when seeking to enjoin disclosure of a public records request. We disagree.

13 No. 39952-4-111; No. 39953-2-111 Kelleher v. Pierce

RCW 42.56.540 expressly permits a person to seek to enjoin disclosure by "motion and

affidavit," which was done here. 3

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

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3 Although Kelleher filed an unswom declaration rather than an affidavit, as described by RCW 42.56.540, the two are treated the same. RCW 5.50.030.