IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
ANDREW KO, AS TRUSTEE FOR No. 85939-1-I THE ANDREW KO LIVING TRUST, (consolidated with No. 86008-9-I)
Appellant/Cross Respondent,
v. UNPUBLISHED OPINION DARIN and LISA CHESTNUT, a marital community, and STRANDVIK HOMEOWNERS ASSOICATION,
Respondents/Cross Appellants.
BOWMAN, A.C.J. — Andrew Ko and Darin and Lisa Chestnut are neighbors
and members of the Strandvik Homeowners Association. Strandvik is a
dominant easement holder of a strip of land over Ko’s property. The easement
serves all Strandvik members. Ko installed a chain link fence and unlocked gate
on the easement, and Darin1 removed the fencing and gate. Ko sued the
Chestnuts for trespass and Strandvik for violating its bylaws. The Chestnuts and
Strandvik both moved for summary judgment, arguing the claims were untimely
and meritless, and asked for sanctions. The trial court granted the summary
judgment motions but did not award sanctions. Ko appeals summary judgment
dismissal of his lawsuit. The Chestnuts and Strandvik cross appeal the denial of
sanctions. We reverse summary judgment for the Chestnuts, affirm summary
1 We refer to Darin Chestnut by his first name when necessary for clarity and mean no disrespect by doing so. No. 85939-1-I (consol. with No. 86008-9-I)/2
judgment for Strandvik, and affirm the trial court’s denial of sanctions. We deny
attorney fees on appeal.
FACTS
Ko and the Chestnuts own neighboring homes with direct access to Lake
Sammamish. Both properties are located within the Strandvik community. Ko
bought his property subject to a 1926 easement that Strandvik reserved for its
members. The easement provides:
Saving and reserving from said description a strip of land ten (10) feet wide over and across the same, which strip is to be used for a walk or roadway, and the grantee, his heirs and assigns, shall have the right and privilege of using the same in common with others.
When Ko purchased the property (labeled “plaintiff’s property” below) in
1997, the easement, or “disputed area,” was paved and used as a driveway.
The Chestnuts bought their home in 2014. They used the driveway
easement adjoining the two properties to access their backyard because their
predecessor had installed a retaining wall along the west property line that
blocked any other backyard access from that side of their home. In mid-2015, Ko
asked Strandvik to agree to terminate the easement on his property, but
Strandvik declined. In response, Ko expressed his intent to erect a fence.
2 No. 85939-1-I (consol. with No. 86008-9-I)/3
In May 2016, Darin was elected to serve on the board of directors. On
August 17, 2016, Strandvik held a board of directors meeting at Strandvik
president Karl Lindor’s home to again discuss the easement and Ko’s plans to
install fencing.2 Later that month, Ko installed a chain link fence on the
easement. The fence ran along his eastern property line next to the Chestnuts
and connected to a seven-foot-high gate across the entry to the paved
easement.3
The Chestnuts asked Ko to remove the fence because it prevented them
from accessing the easement from their property. Ko refused. Strandvik also
told Ko to remove the fencing because it interfered with Strandvik members’
rights to use the easement. Ko still refused.
In August 2017, the homeowners voted unanimously to remove Ko’s
fence. Darin volunteered to remove the fencing. Lindor authorized him to do so,
provided the Chestnuts agreed to be responsible for any associated legal fees.
On August 16, 2017, Darin and his construction crew removed Ko’s fence and
gate. They placed the fence materials in Ko’s yard.
2 The record does not show that the board members took any action at the meeting. 3 While the gate could be closed and locked, Ko later claimed that it was always unlocked.
3 No. 85939-1-I (consol. with No. 86008-9-I)/4
On October 20, 2017, Ko sued the Chestnuts, alleging trespass and
seeking a declaratory judgment that the Chestnuts do not have a prescriptive
easement over his land. The Chestnuts sued Strandvik as a third-party
defendant, seeking an order and judgment quieting title to the disputed strip of
land in favor of Strandvik.4
The Chestnuts moved for summary judgment and Strandvik joined their
motion. The trial court granted partial summary judgment for the Chestnuts and
Strandvik, quieting title to the easement in favor of Strandvik and its members “for
ingress and egress from the northern edge of SE 40th Place over and across the
Ko Property heading in a generally northerly direction to the shoreline of Lake
Sammamish.” Further, the court determined that the easement “immediately
borders the west boundary of the Chestnut property and the Chestnuts[ ] and
their successors and assigns may freely pass to and from the Road and Walkway
Easement from any portion of the Chestnut Property.” The trial court did not rule
on Ko’s trespass claims.
Ko appealed the court’s summary judgment ruling. While Ko’s appeal was
pending, the parties entered a stipulation and agreed order to dismiss without
prejudice all remaining claims. They also agreed that “any associated statutes of
limitation in regards to the pending claims and causes of action shall be tolled
subject to the above-referenced appeal and the tolling shall cease upon the
completion of the appeal.”
4 The Chestnuts also sought a declaratory judgment that Strandvik must keep the easement area free from any blockage.
4 No. 85939-1-I (consol. with No. 86008-9-I)/5
A commissioner from our court treated Ko’s notice of appeal as a motion
for discretionary review and issued a ruling denying the motion on December 16,
2019. We then issued a certificate of finality certifying that the ruling became
final on February 28, 2020.
On November 4, 2022, Ko filed another lawsuit against the Chestnuts and
Strandvik.5 He alleged the Chestnuts committed common law and statutory
trespass. And he sought a declaratory judgment that Strandvik held a special
meeting to discuss the easement on August 17, 2016 in violation of its bylaws,
depriving him of his due process rights.
Strandvik answered the complaint, generally denying the allegations and
asserting that Ko’s claims were untimely. The Chestnuts also answered,
asserting that Ko’s claims were barred by the statute of limitations and that an
express easement exists, giving them legal access to the walkway on Ko’s
property.
In August 2023, the Chestnuts moved for summary judgment and CR 11
sanctions. They argued that the statute of limitations barred Ko’s claims for
common law and statutory trespass and that, in any event, the claims failed on
their merits because the Chestnuts had lawful access to Strandvik’s easement as
Strandvik members. And they asked for CR 11 sanctions, arguing Ko’s lawsuit
was baseless. Ko responded, focusing on the August 16, 2017 fence removal as
the event amounting to trespass and arguing he timely filed his lawsuit following
the February 28, 2020 certificate of finality.
5 Ko filed his complaint as trustee for the Andrew Ko Living Trust.
5 No. 85939-1-I (consol. with No. 86008-9-I)/6
Strandvik also moved for summary judgment, arguing no evidence
supported the claim that Strandvik violated its bylaws and, even so, no
“justiciable controversy” existed.6 In support of its motion, Strandvik submitted a
declaration from Lindor explaining that while Darin called for a “special meeting”
in August 2016 to discuss the easement, the board instead decided to hold a
board of directors meeting. And Lindor attested that Strandvik held the meeting
in compliance with its bylaws.
Ko responded to Strandvik’s motion7 but filed no declaration in support of
his opposition. And he argued for the first time that Strandvik’s August 2016
meeting also violated RCW 64.38.035(4) because the statute requires an
affirmative vote “in an open meeting to assemble in closed session.”
Alternatively, Ko moved to amend his complaint “to add additional claims.”
The trial court denied Ko’s motion to amend his complaint, granted
Strandvik’s summary judgment motion, and dismissed Ko’s claims against
Strandvik with prejudice. Strandvik moved for CR 11 sanctions and attorney fees
under RCW 4.84.185, which the trial court denied.
Later, the trial court granted the Chestnuts’ summary judgment motion,
finding Ko did not timely file his lawsuit within the statute of limitations and could
not prove common law or statutory trespass. The court denied the Chestnuts’
motion for CR 11 sanctions.
6 Strandvik also argued that Ko’s due process claim failed because there was no state action. 7 Ko responded on September 12, 2023, 10 days before the summary judgment hearing, which Strandvik argued was untimely under CR 56(c) and (e) and entitled Strandvik to summary judgment in its favor. But the trial court heard oral argument and decided the motion on its merits.
6 No. 85939-1-I (consol. with No. 86008-9-I)/7
Ko appeals. Strandvik and the Chestnuts cross appeal.
ANALYSIS
Ko argues the trial court erred by granting summary judgment for the
Chestnuts and Strandvik. The Chestnuts and Strandvik cross appeal, arguing
the court erred by denying their motions for sanctions. Each party requests
attorney fees and costs on appeal.
1. Summary Judgment
We review de novo an order granting summary judgment. Ofuasia v.
Smurr, 198 Wn. App. 133, 141, 392 P.3d 1148 (2017).
Summary judgment is appropriate if there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. CR
56(c); Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 182, 401
P.3d 468 (2017). The moving party “has the initial burden to show there is no
genuine issue of material fact.” Zonnebloem, 200 Wn. App. at 183. A moving
defendant can satisfy this burden by establishing there is a lack of evidence to
support the plaintiff’s claims. Id. Once the defendant makes that showing, the
burden shifts to the plaintiff to show that evidence supports each element of its
claims. Id.
We examine the record in the light most favorable to the nonmoving party
and draw all reasonable inferences in the nonmoving party’s favor. Landstar
Inway Inc. v. Samrow, 181 Wn. App. 109, 120, 325 P.3d 327 (2014). Summary
judgment is proper “only if reasonable minds could reach but one conclusion from
the evidence presented.” Ofuasia, 198 Wn. App. at 141.
7 No. 85939-1-I (consol. with No. 86008-9-I)/8
A. Summary Judgment for the Chestnuts
Ko argues the trial court erred by granting summary judgment for the
Chestnuts. We agree.
I. Timeliness
As an initial matter, the Chestnuts argue Ko’s trespass claims are barred
by the three-year statute of limitations under RCW 4.16.080(1).8 We disagree.
Ko alleges that Darin trespassed on August 16, 2017 when he removed
the chain link fence and gate. So, Ko had three years, or 1,095 days, from that
date to file his lawsuit. Ko filed his first lawsuit on October 20, 2017, 65 days
after the statute began to run. The parties then agreed to dismiss Ko’s lawsuit
without prejudice and toll the statute of limitations until “the completion of the
appeal.” We determined in the certificate of finality that Ko’s appeal became final
on February 28, 2020. So, Ko had 1,030 days to refile his claims, which was
December 24, 2022. Ko refiled his claims on November 4, 2022, 50 days before
the statute of limitations expired.
The Chestnuts argue Ko’s lawsuit is untimely because the commissioner’s
December 16, 2019 ruling triggered the statute of limitations to run again, making
the filing deadline October 11, 2022. So, according to the Chestnuts, Ko refiled
his claims more than 20 days late. But Ko’s appeal was not complete when the
commissioner issued her ruling. Generally, we do not lose the power to change
or modify our decisions until the issuance of a certificate of finality. See RAP
Under RCW 4.16.080(1), an action alleging trespass on real property “shall be 8
commenced within three years.”
8 No. 85939-1-I (consol. with No. 86008-9-I)/9
12.7(a)(3). And the certificate of finality established February 28, 2020 as the
date Ko’s appeal became final.
Ko’s trespass claims are timely.
II. Trespass Claims
Ko argues the trial court erred by determining as a matter of law that Darin
did not trespass when he entered Ko’s property to remove his fencing. The
Chestnuts argue Ko cannot show trespass because Darin was lawfully on Ko’s
property as a beneficiary of Strandvik’s easement. Because reasonable minds
could differ about whether Darin was lawfully on Ko’s property when he removed
the fencing, we agree with Ko.
A party commits trespass if they intentionally intrude onto another’s
property. Olympic Pipe Line Co. v. Thoeny, 124 Wn. App. 381, 393, 101 P.3d
430 (2004). A plaintiff proves common law trespass by showing “(1) an invasion
of property affecting an interest in exclusive possession; (2) an intentional act; (3)
reasonable foreseeability that the act would disturb the plaintiff’s possessory
interest; and (4) actual and substantial damages.” Wallace v. Lewis County, 134
Wn. App. 1, 15, 137 P.3d 101 (2006). And a party commits statutory trespass
under RCW 4.24.630(1) if the party
goes onto the land of another and . . . removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvement to real estate on the land.
A person acts “wrongfully” under the statute if they intentionally and unreasonably
commit the act while knowing, or having reason to know, that they lack
authorization to do so. Id. Both common law trespass and statutory trespass
9 No. 85939-1-I (consol. with No. 86008-9-I)/10
turn on whether the party had a lawful right to be on and use the other’s property
in the manner they did. See Olympic Pipe Line, 124 Wn. App. at 393; RCW
4.24.630(1).
Here, Ko established that Darin entered his property without his
authorization and removed his chain link fencing and gate. And he claimed the
removal caused him damages, as he paid $5,194.08 to install the fence and
$2,600.00 for reinstallation. As a result, Ko provides some evidence supporting
the elements of his trespass claims.
Still, the Chestnuts argue they are entitled to summary judgment because
Darin entered Ko’s property lawfully as a beneficiary of Strandvik’s easement.
But reasonable minds could differ about whether Darin’s actions exceeded the
scope of the easement.
“An easement is a property right separate from ownership that allows the
use of another’s land without compensation.” M.K.K.I., Inc. v. Krueger, 135 Wn.
App. 647, 654, 145 P.3d 411 (2006). Still, the property right has limitations—“[a]
party is privileged to use another’s land only to the extent expressly allowed by
the easement.” Sanders v. City of Seattle, 160 Wn.2d 198, 215, 156 P.3d 874
(2007). A party commits trespass on an easement “if he or she misuses,
overburdens, or deviates from an existing easement.” Olympic Pipe Line, 124
Wn. App. at 393. That is because a party may use the other’s land only as much
as the easement allows. See Sanders, 160 Wn.2d at 215.
10 No. 85939-1-I (consol. with No. 86008-9-I)/11
Here, the 1926 easement granted Strandvik members the right to use the
10-foot-wide strip of land across Ko’s property as “a walk or roadway.”9 But the
evidence shows Darin entered the easement to remove Ko’s fence, not to walk
across his property. So, reasonable finders of fact could differ as to whether
Darin exceeded the scope of the easement when he entered Ko’s property to
remove the fencing.
Even so, the Chestnuts contend they could lawfully enter Ko’s property to
remove the fence because it interfered with their access to the easement. They
cite Standing Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 23 P.3d 520
(2001), and Littlefair v. Schulze, 169 Wn. App. 659, 278 P.3d 218 (2012), in
support of their argument. But those cases are inapt.
In Standing Rock, owners in a development called Ponderosa Pines had a
road easement running through Standing Rock, an adjacent development. 106
Wn. App. at 235. James Misich owned property in Ponderosa Pines. Id. After
incidents of trespass and vandalism, Standing Rock homeowners erected gates
on the easement. Id. at 236. Later, Standing Rock alleged that Misich helped
remove the gates and sued him for injunctive relief and trespass. Id. The trial
court determined the gates were reasonable restraints on the easement and
entered judgment against Misich. Id. at 237. Division Three of this court affirmed
that the gates were reasonable burdens on the easement and upheld the trial
9 In its July 2019 order on summary judgment, the trial court interpreted the easement to also provide the Chestnuts access to and from their property. But the court made that determination after Darin removed the fence in 2017.
11 No. 85939-1-I (consol. with No. 86008-9-I)/12
court’s conclusion of law that Misich was liable under RCW 4.24.630(1) for
statutory trespass for removing the gates. Id. at 242, 246-47.
The Chestnuts acknowledge that “the Standing Rock court upheld the
damages for wrongfully removing the gates.” But they suggest that if the court
had instead determined the gates were improper, the gates would be
“removable.” Even if that were so, Standing Rock does not support the
Chestnuts’ argument that someone other than the court could determine that the
gates were an unlawful obstruction and authorize removal.10
The Chestnuts’ reliance on Littlefair is also misplaced. In that case, two
property owners, Littlefair and Schulze, accessed their properties by an
easement road. Littlefair, 169 Wn. App. at 662. When Schulze erected a fence
on his property within the easement area, Littlefair sued, asking the trial court to
order that Schulze remove the fence. Id. at 662-63. The court denied relief but
Division Two of this court reversed. Id. at 663, 668. The Chestnuts again assert
that this case shows “the law supports removal.” But again, Littlefair does not
give a party leave to determine the legality of an obstruction and remove it at will.
To the contrary, the appellant there sought a determination by the court that the
fence was an unreasonable restriction on the easement and asked for a court
10 We note that RCW 7.40.030 provides injunctive relief to restrain the malicious erection of a structure “intended to spite, injure or annoy an adjoining proprietor.” The Chestnuts sought a declaratory judgment that Ko’s fence was removable under this statute. But they brought the claim after Darin removed Ko’s fence.
12 No. 85939-1-I (consol. with No. 86008-9-I)/13
order authorizing removal.11 Id. at 663.
Because reasonable finders of fact could differ about whether Darin
exceeded the scope of the easement when he removed Ko’s fencing and gate,
the Chestnuts are not entitled to summary judgment.12
B. Summary Judgment for Strandvik
Ko argues the trial court erred by granting summary judgment for
Strandvik. We disagree.
I. Evidence of Bylaws Violation
Ko sought a declaratory judgment that Strandvik violated its bylaws on
August 17, 2016 when it held “a special meeting without an order of the board or
by written demand by at least ten (10) [Strandvik] members and [without] the
requisite ten (10) days’ written notice.”
Article 2 of Strandvik’s bylaws govern its procedures for holding special
meetings. Article 2 provides, in relevant part:
Section 3 Special meetings of the corporation may be called and held on any part of Strandvik Unrecorded Plat at any time by order of the board of trustees, or shall be called and held whenever ten (10) members shall make application in writing to the board of trustees stating the object of the meeting. The business
11 The Chestnuts argue they had a right to remove the fence because it was “supported by a proper, unanimous vote of the [Strandvik] members.” But they cite no authority supporting that Strandvik could unilaterally make that decision. And Strandvik seemed to acknowledge its own lack of authority when it told Darin he would be “responsible for any legal fees associated with the fence removal.” When “a party cites no authorities supporting its argument, we may assume that counsel searched diligently and found none.” Carter v. Dep’t of Soc. & Health Servs., 26 Wn. App. 2d 299, 317, 526 P.3d 874 (2023). 12 Ko argues on appeal that we should grant summary judgment in his favor. But Ko did not move for summary judgment below. And, as discussed above, questions of fact remain about whether Ko’s fence was a lawful obstruction on Strandvik’s easement and whether Darin lawfully entered Ko’s property to remove the fence.
13 No. 85939-1-I (consol. with No. 86008-9-I)/14
transacted at such meetings shall be confined to the objects stated in the call.
Section 4 Notice of the time and place of each annual or special meeting shall be mailed to each member to his last known address at least ten (10) days before the date set for each meeting.
In support of its summary judgment motion, Strandvik submitted a
declaration from Lindor acknowledging that Darin called for a “special meeting” to
discuss the easement issues. But he explained that rather than hold a special
meeting of the members, “we instead held a meeting of the board of directors.”
And Lindor pointed out that under article 3, section 5 of the bylaws, board
meetings do not require an application, board order, or 10-day notice. Instead,
that article provides that board meetings
may be held at such time and place as the board itself may elect, and may be called at any time by the president or by two (2) members of the board on such notice as may be deemed advisable by those calling the meeting.
Ko offered no evidence contradicting Lindor’s declaration. As a result,
Strandvik is entitled to summary judgment dismissal of that claim. See
Weatherbee v. Gustafson, 64 Wn. App. 128, 131, 822 P.2d 1257 (1992)
(“summary judgment is proper if the non-moving party . . . fails to establish any
facts which would support an essential element of its claim”).
Ko now asserts, as he first did in his opposition to summary judgment
below, that Strandvik’s August 17 meeting was unlawful under RCW 64.38.035.
Subsection (4) of that statute provides, in relevant part:
[A]ll meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. . . . Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider [certain matters]. . . . No motion, or other action adopted,
14 No. 85939-1-I (consol. with No. 86008-9-I)/15
passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified.
But Ko did not allege a violation of RCW 64.38.035 in his complaint. And
“[c]omplaints that fail to give the opposing party fair notice of the claim asserted
are insufficient.” Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d
342, 352, 144 P.3d 276 (2006); see CR 8(a).
In any event, Ko provides no evidence that the August 17 meeting violated
RCW 64.38.035(4). In support of Ko’s argument, he cites only to Lindor’s
declaration, which attests the meeting was a board meeting held at Lindor’s
home. It does not describe the meeting as a closed executive session. And Ko
provides no evidence otherwise. Nor does Ko show that the board did not openly
vote in compliance with the statute or that it took any action at the meeting that
would violate the statute.13
The trial court properly granted summary judgment for Strandvik.
II. Leave to Amend
Alternatively, Ko argues that the court should have granted leave to
amend his complaint to “add additional causes of action.” We disagree.
We review a trial court’s denial of leave to amend a complaint for abuse of
discretion. Watson v. Emard, 165 Wn. App. 691, 697, 267 P.3d 1048 (2011). A
court abuses its discretion when it bases its decision on untenable grounds or
13 Because we conclude there is no evidence that Strandvik violated its bylaws, we need not address Ko’s claim that Strandvik’s failure to comply with the bylaws deprived him of due process or Strandvik’s argument that the statute of limitations barred Ko’s new claim under RCW 64.38.035.
15 No. 85939-1-I (consol. with No. 86008-9-I)/16
reasons. Id. at 697-98.
Under CR 15(a), a party may move to amend its pleading by leave of the
court. When a party moves to amend, it “shall” attach a copy of the proposed
amended pleading to the motion. Id; see also Crown Cascade, Inc. v. O’Neal,
100 Wn.2d 256, 261, 668 P.2d 585 (1983) (the word “shall” is presumptively
imperative and creates a duty). On a proper motion, the trial court should freely
grant leave to amend “when justice so requires.” CR 15(a); Watson, 165 Wn.
App. at 697. A court’s failure to explain its reasons for denying leave to amend is
not an abuse of discretion if the reasons “are apparent in light of circumstances
shown in the record.” See Watson, 165 Wn. App. at 698; Rodriquez v. Loudeye
Corp., 144 Wn. App. 709, 730, 189 P.3d 168 (2008) (we can “affirm without an
explicit explanation for the denial [of leave to amend] in some circumstances”).
While the court did not explain its reason for denying Ko’s motion for leave
to amend, we can readily discern the reason from the record. Ko failed to move
to amend his complaint under CR 15(a) and, instead, requested leave to amend
in his response to Strandvik’s summary judgment motion. As part of that request,
Ko failed to attach a copy of a proposed amended pleading. Both the opposing
party and the court have a legitimate need to see the proposed amended
pleading to assess issues of prejudice and futility. See Hook v. Lincoln County
Noxious Bd., 166 Wn. App. 145, 160, 269 P.3d 1056 (2012). So, “failure to
provide the amended complaint required by CR 15(a) [is] a sufficient basis” to
deny a motion to amend. Id.
The trial court did not abuse its discretion by denying Ko leave to amend
his complaint.
16 No. 85939-1-I (consol. with No. 86008-9-I)/17
2. Sanctions
The Chestnuts and Strandvik both cross appeal, arguing the trial court
erred by denying their motions for sanctions. We disagree.
We review a trial court’s decision to grant or deny sanctions for abuse of
discretion. Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122
Wn.2d 299, 338, 858 P.2d 1054 (1993). The sanction rules are meant to give the
trial judge “ ‘wide latitude and discretion’ ” to determine the proper sanctions in a
given case. Id. at 339 (quoting Cooper v. Viking Ventures, 53 Wn. App. 739, 742,
770 P.2d 659 (1989)).
The purpose of CR 11 sanctions is to deter baseless filings and to curb
abuses of the judicial system. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219,
829 P.2d 1099 (1992). A court can impose CR 11 sanctions when it finds both
that the complaint lacks a factual or legal basis and that the attorney who filed the
complaint failed to conduct a reasonable inquiry into the claim. Id. at 220. “If a
sufficient factual and legal basis exists for the complaint, we do not reach the
question of whether counsel made a reasonable investigation before filing.”
Clare v. Telquist McMillen Clare PLLC, 20 Wn. App. 2d 671, 686, 501 P.3d 167
(2021). And the fact that a party does not prevail on the merits of its complaint
does not resolve whether CR 11 sanctions are warranted. Bryant, 119 Wn.2d at
220.
RCW 4.84.185 authorizes a trial court to award a prevailing party attorney
fees for opposing a frivolous action. Before awarding fees under the statute, “the
court must make written findings that the entire lawsuit is frivolous and advanced
without reasonable cause.” Subcontracting Concepts CT, Inc. v. Manzi, 26 Wn.
17 No. 85939-1-I (consol. with No. 86008-9-I)/18
App. 2d 707, 717, 529 P.3d 440 (2023). A lawsuit is frivolous when it cannot be
supported by a rational argument on the law or facts. Stiles v. Kearney, 168 Wn.
App. 250, 260, 277 P.3d 9 (2012).
A. Denial of CR 11 Sanctions for the Chestnuts
The Chestnuts argue the trial court abused its discretion by denying CR 11
sanctions because Ko’s litigation is “baseless and vexatious,” his counsel “failed
to conduct a reasonably inquiry,” and “Ko’s continued abuse of the judicial
system” warrants sanctions. We disagree.
The trial court denied the Chestnuts’ motion for CR 11 sanctions, finding
they “are not warranted in this case” because the court should impose them “only
when it is patently clear that a claim has absolutely no chance of success.” The
record supports this ruling because the trespass issues Ko raised are debatable.
Specifically, there is a material question about whether Darin trespassed by
exceeding the scope of Strandvik’s easement.
Because Ko’s claims against the Chestnuts are not baseless, the court did
not abuse its discretion by denying sanctions. See Bryant, 119 Wn.2d at 220
(claims that are not “ ‘baseless’ ” are “not the proper subject of CR 11 sanctions”).
B. Denial of Sanctions for Strandvik under CR 11 and RCW 4.84.185
Strandvik argues that the court erred by denying its request for sanctions
under CR 11 and attorney fees under RCW 4.84.185 because Ko’s claims were
baseless and frivolous. Again, we disagree.
Ko sued Strandvik for violating its bylaws’ special meeting requirements.
Although his claim fails, it was tenable for the court to conclude that Ko’s
allegation was not baseless or frivolous. For example, the record includes an e-
18 No. 85939-1-I (consol. with No. 86008-9-I)/19
mail from Darin to Lindor requesting Strandvik hold a “special meeting.” While
Lindor later attested that Strandvik held a board meeting instead of a special
meeting, Ko’s original allegation was supported by a rational argument on the
facts. So, the court’s denial of sanctions was not an abuse of discretion. See
Stiles, 168 Wn. App. at 263 (“CR 11 and RCW 4.84.185 sanctions are not
mandatory” and “reasonable minds might differ on whether to exercise the
discretion to impose sanctions in a particular case”).
3. Attorney Fees and Costs on Appeal
Each party requests attorney fees on appeal. We deny each request.
A “prevailing party may recover attorney fees authorized by statute,
equitable principles, or agreement between the parties.” Thompson v. Lennox,
151 Wn. App. 479, 484, 212 P.3d 597 (2009). Generally, if those fees are
allowable at trial, the prevailing party may also recover fees on appeal. Id.; see
also RAP 18.1(a) (we may award attorney fees on appeal if “applicable law
grants to a party the right to recover reasonable attorney fees”).
Ko requests attorney fees under RCW 4.24.630(1) (the trespass statute)
and RCW 64.38.050 (the statute governing homeowners’ associations). Under
RCW 4.24.630(1), a party found liable of statutory trespass is also “liable for
reimbursing the injured party for the party’s reasonable costs, including . . .
reasonable attorneys’ fees.” Because the Chestnuts have not been found liable
of statutory trespass, Ko is not entitled to attorney fees under the statute. He
also is not entitled to fees under RCW 64.38.050 because he failed to bring a
claim under chapter 64.38 RCW.
19 No. 85939-1-I (consol. with No. 86008-9-I)/20
The Chestnuts request attorney fees but fail to cite an applicable law
granting them the right to recover fees on appeal. See RAP 18.1(a), (b). So, we
deny the request.
Strandvik requests attorney fees under RCW 64.38.050 or CR 11. RCW
64.38.050 provides that for any “violation of the provisions of this chapter,” the
court may award reasonable attorney fees to the prevailing party. But Strandvik
successfully argued that Ko brought no claim under chapter 64.38 RCW, so
Strandvik could not have prevailed on any such claim. As for CR 11 sanctions on
appeal, Strandvik does not “devote a section of its opening brief” to this request.
See RAP 18.1(b). So, we deny Strandvik’s requests for attorney fees.
We reverse summary judgment for the Chestnuts but affirm summary
judgment for Strandvik and affirm the trial court’s denial of sanctions. And we
deny all parties’ requests for attorney fees on appeal.
WE CONCUR: