Eller v. East Sprague Motors & R.V.'s, Inc.

159 Wash. App. 180
CourtCourt of Appeals of Washington
DecidedDecember 28, 2010
DocketNo. 28659-2-III
StatusPublished
Cited by13 cases

This text of 159 Wash. App. 180 (Eller v. East Sprague Motors & R.V.'s, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eller v. East Sprague Motors & R.V.'s, Inc., 159 Wash. App. 180 (Wash. Ct. App. 2010).

Opinion

Siddoway, J.

¶1 — Whether a trial court awards attorney fees as a sanction for a frivolous action is a matter entrusted to its discretion. In this case, the trial court entered findings that would tend to support an award of fees to defendant B.L. DeWitt under CR 11 and RCW 4.84.185 but nonetheless declined to award them, on a record that suggests the applicable legal standards were not applied and where an award under RCW 4.84.185 was complicated by the presence of viable claims against other defendants. We affirm the trial court’s findings that the claim asserted against Mr. DeWitt was not well grounded in fact or warranted by law and hold that the trial court may award him sanctions and fees under CR 11 and RCW 4.84.185 regardless of the plaintiffs’ assertion of colorable claims against other parties. We reverse the trial court’s denial of sanctions and fees to Mr. DeWitt and remand for further consideration by the trial court.

FACTS AND PROCEDURAL BACKGROUND

¶2 In October 2005, Gale and Hollie Eller purchased a sport utility vehicle (SUV) from East Sprague Motors & [185]*185R.V.’s Inc. (Executive Auto). Following the purchase, they complied with a request from Executive Auto employees that they sign additional paperwork, only later discovering that the “additional paperwork” was a different contract, materially increasing their interest rate. The Ellers’ attorney wrote a letter of complaint on their behalf and made a prelitigation demand for a copy of Executive Auto’s documentation of the SUV sale. The Ellers concluded from the copy provided in response that someone had forged Gale Eller’s signature on one document and altered others. Efforts to resolve the dispute were unsuccessful, and in October 2008, facing the statute of limitations, the Ellers filed suit against Executive Auto and others. The Ellers amended their complaint a week later, naming as an additional defendant Mr. DeWitt, the notary public who certified the copy of Executive Auto’s documentation of the SUV sale provided to the Ellers’ attorney. Defendants other than Mr. DeWitt eventually agreed to settle the Ellers’ claims for over $12,000.

¶3 Mr. DeWitt consistently resisted the claim against him. Upon being served with a summons and complaint, he informed the Ellers that he was not employed by Executive Auto at the time they purchased their SUV and completed the additional paperwork and that his only involvement had been to copy documents from the Ellers’ file at the request of his supervisor. Mr. DeWitt’s attorney thereafter wrote to the Ellers’ attorney, reiterating that Mr. DeWitt had no involvement in the sales transaction and demanded that the claims against Mr. DeWitt be dismissed, stating he would seek sanctions under CR 11 and RCW 4.84.185 if they were not. In answering the complaint, Mr. DeWitt requested sanctions and attorney fees under CR 11 and RCW 4.84.185. The Ellers declined to dismiss their claim against him.

¶4 Through written discovery, Mr. DeWitt’s attorney asked the Ellers to identify the Executive Auto employees with whom they had dealt and to state any factual basis for some of their allegations against Mr. DeWitt. The Ellers’ [186]*186responses suggested that the sole basis for their claim against Mr. DeWitt was his notarial certification of the copies of the SUV sale documentation, which they treated as his vouching that the allegedly forged and altered documents were identical to the documents as originally signed by the Ellers.

¶5 In May 2009, Mr. DeWitt moved for summary judgment dismissing the Ellers’ claim against him, arguing that in certifying the documents as a notary his “only obligation was to certify that he provided an accurate copy of the documents at the time of copying, not to certify that the documents were the original agreements of the parties,” and pointing out that “[i]t would be impossible for Mr. DeWitt to provide copies of unaltered documents after they had (allegedly) been altered.” Clerk’s Papers (CP) at 37. In his supporting affidavit, Mr. DeWitt stated that he was hired as a finance manager for Executive Auto in January 2006 and within his first weeks of employment was directed by his supervisor to copy sale documents from the Ellers’ file and certify them for the Ellers’ attorney. Mr. DeWitt stated, “I pulled the original documents from the file, made copies of the documents, and notarized them as ‘Certified Original.’ I had no further involvement with the Eller transaction.” CP at 32.

¶6 The Ellers opposed the motion, contending there was an issue of fact as to whether Mr. DeWitt assisted Executive Auto in covering up the commission of unlawful acts. They identified no evidence suggesting he had participated in a cover-up but maintained that his failure to investigate the authenticity of the documents before certifying copies violated RCW 42.44.080, the notary statute.

¶7 The trial court granted Mr. DeWitt’s motion for summary judgment. Mr. DeWitt then moved for sanctions and fees under CR 11 and RCW 4.84.185, arguing that the facts were never in dispute and the notary statute clearly and unambiguously requires only that the notary attest to having proffered a full, true, and accurate transcription of that which was copied.

[187]*187¶8 The trial court denied Mr. DeWitt’s motion, explaining in its oral ruling:

CR 11 creates a pretty substantial standard here. There are four parts to this. It has to be ... a violation of these four aspects in prder to impose CR 11 sanctions: That the matter is well grounded in fact; that it is warranted by existing law or good faith argument; that it is not interposed for any improper purpose; that denials of factual contentions are warranted on the evidence or . . . reasonably based on a lack of information or belief.

CP at 383. The court went on to observe, “I think it was a slender [reed] that pushed this forward____I think that the theory under which it was advanced was not warranted by existing law or by a good faith argument.” CP at 384. However, he found that the real question was whether the lawsuit was interposed for an improper purpose, determining that this was a “close call” but concluding:

I am not prepared to say that it was interposed for an improper purpose. I will be blunt here. I think it was a dumb theory and a dumb idea to bring Mr. DeWitt on the case. But I am not prepared to say that it was brought for an improper purpose such as to harass or to cause unnecessary delay.

CP at 385.

¶9 The judge also declined to award fees under RCW 4.84.185, noting that it paralleled CR 11. CP at 386.

¶10 The court’s written findings of fact provided:

1.

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Bluebook (online)
159 Wash. App. 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eller-v-east-sprague-motors-rvs-inc-washctapp-2010.