THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SARA MAYNARD, No. 82527-5-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
JOHN MAYNARD JR., and MARY MALEY MAYNARD, and ATTORNEY JOHN R. HOLMES, and ATTORNEY JAMES A. JACKSON, and ESTATE OF HELEN B. MAYNARD by and through Andrew Pollock McConnell III in his capacity as Personal Representative of the Estate of Helen B. Maynard, Jr.,
Respondents.
ANDRUS, C.J. — Sara Maynard appeals the dismissal of her claims against
her brother, John Maynard Jr., who served as personal representative of their
parents’ estates, and John Holmes, an attorney who assisted their parents in
setting up and administering several family trusts, provided legal advice to John
Jr. in his role as trustee of these trusts, and represented John Jr. as personal
representative of their mother’s estate. She also challenges the trial court’s award
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82527-5-I/2
of attorney fees and costs against her as sanctions under CR 11 and RCW
4.84.185. 1 We affirm in part and reverse in part.
FACTS
This appeal arises out of a dispute between Sara Maynard and her brother,
John Maynard Jr. (John Jr.), regarding the handling of the estates of their parents,
Helen Sr. and John Maynard Sr. (John Sr.), and his management of several family
trusts that their parents established.
John Sr. and Helen Sr. had five children: Carey Maynard Moody, Sara,
Helen Jr., John Jr. and Jared Maynard Lawson. According to Sara, her parents
retained John Holmes to prepare their wills and to create several testamentary
trusts. In July 2000, Holmes witnessed John Sr. execute his will. John Sr. passed
away in August 2000. At that time, John Sr.’s will created several trusts, the
primary of which being the John C. Maynard Credit Trust (JCM Trust), to which
Helen Sr. was appointed trustee. Holmes represented Helen Sr. in her role as
personal representative of John Sr.’s estate in 2000, and allegedly represented
her in her role as trustee of the JCM Trust.
In 2006, Helen Sr. signed her last will and testament. Holmes also
witnessed the execution of the will. In it, Helen Sr. appointed John Jr. to be her
personal representative and the successor trustee to the JCM Trust. In 2011,
Helen resigned as trustee of the JCM Trust, at which time John Jr. became the
1 Because Sara and John have the same last name, we will refer to them by their first names for
clarity. Because Sara’s mother and sister are both named Helen, the parties refer to them as Helen Sr. and Helen Jr. We do the same for clarity. Sara, in her notice of appeal, identified trial court rulings relating to defendants James A. Jackson, and the Estate of Helen B. Maynard Jr. (the Helen Jr. Estate). But she subsequently assigned no error to any ruling relating to these defendants. We interpret her failure to do so to constitute an abandonment of any appeal regarding the dismissal of her claims against Jackson and the Helen Jr. Estate. -2- No. 82527-5-I/3
successor trustee. Holmes advised John Jr. in his role as trustee of the trust and,
Sara alleges, continues to do so to this day.
Helen Sr. passed away in 2016. John Jr. filed a petition to probate her
estate in King County Superior Court No. 16-4-05205-1 (Probate Litigation) in
August of that year. The court appointed John Jr. as the personal representative
of her estate and, according to Sara, was represented by Holmes through at least
December 2018.
Sara filed a creditor’s claim in December 2016. After John Jr. rejected the
claim, Sara filed a lawsuit against John Jr. in March 2018, under King County
Superior Court No. 18-2-06779-1 (Creditor Claim Litigation). The court granted
John Jr.’s motion for summary judgment and dismissed Sara’s claims against him
personally and as personal representative of Helen Sr.’s estate in October 2018
because her claims were time-barred under RCW 11.40.100(1).
In the Probate Litigation, Sara contested John Jr.’s proposed distribution of
property under Helen Sr.’s will and alleged that her siblings, along with John Jr.’s
attorneys—Holmes and James Jackson—conspired to deprive her of personal
property her mother bequeathed to her. Sara also claimed that Holmes had
received this personal property from her mother’s safety deposit box in 2017, and
refused to give it to her. Sara signed a receipt on June 30, 2017, acknowledging
receipt of certain family jewelry distributed to her from her mother’s safe deposit
box. But she continued to maintain that Holmes was withholding additional
personal property to which she was entitled.
Meanwhile, in November 2017, John Jr. notified Sara and his other siblings
of his desire to make a partial distribution from Helen Sr.’s estate and from the -3- No. 82527-5-I/4
JCM Trust. He sent proposed distribution agreements for the siblings to sign,
which included releases of liability and indemnification provisions to which Sara
objected.
In April 2018, the probate court approved John Jr.’s petition to approve his
final report and the plan of distribution of Helen Sr.’s estate and denied Sara’s
request for an accounting. It did order the estate to provide Sara with tax records
for 2016 and 2017 and required Sara to identify within 30 days the personal
property she claimed she remained entitled to receive from the estate.
Shortly after the probate court entered this order, John Jr., as trustee of the
JCM Credit Trust, filed a petition seeking court approval of his activities in
managing that trust through April 30, 2018, under King County Cause No. 18-4-
03455-5 (JCM Trust Litigation). At a July 10, 2018 hearing, the court informed
John Jr. that he had no authority to require Sara to execute a release of liability as
a condition of receiving what she was entitled to receive from the trust. The court
“declined to use its authority under RCW 11.96A.020 to essentially bless the
actions of the trustee for the past 8 years. Further, the trustee’s demand that
beneficiaries waive any and all claims and indemnify the trustee (and possibly each
other) in order to receive a distribution to which they are entitled . . . is improper
and [was] rightfully refused by Sara Maynard.” 2
According to Mary Maley, John Jr.’s wife, Sara filed a new lawsuit against
John Jr. in July 2018 under King County No. 18-2-16613-6 but Sara subsequently
2 The record in this appeal does not indicate the current status of the JCM Trust Litigation. Sara supplied a December 2019 court order under which Jackson, John Jr.’s attorney, was ordered to provide Sara with copies of all trust documentation from 2011 to 2019. We have no further information before us regarding the claims, if any, pending before the court in that litigation. -4- No. 82527-5-I/5
dismissed that action voluntarily before effectuating service of process. We have
no record of the claims Sara raised in that lawsuit.
In June 2019, the probate court entered an order approving the final decree
of distribution of Helen Sr.’s estate and ordered Sara to pay $7,000 in attorney fees
to the estate for bringing baseless claims. Sara appealed that ruling to this court
in In re Estate of Helen Maynard, No. 80179-1, an appeal Sara voluntarily
dismissed in February 2020.
Sara then filed this lawsuit against John Jr., Mary Maley, and John Holmes
in August 2019. In an October 22, 2020 first amended complaint, Sara added as
defendants Jackson and the estate of her sister, Helen B. Maynard Jr. Her
complaint alleged 19 causes of action related to the handling of the estates of her
parents and the family trusts.
All of the defendants filed motions to dismiss under CR 12(b)(6). In their
motions, the siblings explained Sara’s long history of forcing her family to endure
“acrimonious litigation.” The defendants argued that her claims were time barred,
barred by res judicata, barred by litigation immunity, improperly pleaded, not
causes of action recognized under Washington law, or claims belonging to her
parents’ estates or the family trusts, which Sara lacked standing to prosecute. The
defendants also requested sanctions and attorney fees under RCW 4.84.185 and
CR 11.
The trial court granted each motion to dismiss with prejudice. The court
also concluded the claims were frivolous in violation of CR 11 and RCW 4.84.185
and awarded each defendant attorney fees. Sara appeals.
-5- No. 82527-5-I/6
ANALYSIS
Sara’s appeal consists of convoluted and often repetitive assignments of
error related to the trial court’s dismissal of her claims against only two of the
named defendants, John Jr. and Holmes. She also argues that the trial court
denied her due process, the trial court was biased against her, and the trial court
erred in awarding attorney fees under CR 11 and RCW 4.84.185. We affirm in part
and reverse in part.
Standard of Review
We review a trial court's ruling to dismiss a claim under CR 12 (b)(6) de
novo. Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104
(1998). Dismissal is warranted only if the court concludes, beyond a reasonable
doubt, the plaintiff cannot prove “any set of facts which would justify recovery.” Id.
The court presumes all facts alleged in the plaintiff's complaint are true and may
consider hypothetical facts supporting the plaintiff's claims. Id. at 330.
Deficiencies in Sara’s Appeal Briefing
Sara alleges 21 separate assignments of error on appeal. Holmes asks this
court to deem all of Sara’s assignments of error waived based on deficiencies in
her appellate briefs. We agree that Sara has failed to preserve many—but not
all—of the errors she now raises in this court.
Under RAP 10.3(a)(6), an appellant must provide “argument in support of
the issues presented for review, together with citations to legal authority and
references to relevant parts of the record.” “We do not consider conclusory
arguments that are unsupported by citation to authority. Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial consideration.” -6- No. 82527-5-I/7
Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014)
(citations omitted). Arguments that are not supported by references to the record,
meaningful analysis, or citation to pertinent authority need not be considered.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992). “It is not the responsibility of this court to attempt to discern what it is
appellant may have intended to assert that might somehow have merit.” Port
Susan Chapel of the Woods v. Port Susan Camping Club, 50 Wn. App. 176, 188,
746 P.2d 816 (1987).
Sara pleaded multiple claims against John Jr. and Holmes in her first
amended complaint, many of which she fails to address in her briefing to this court.
We will not review the dismissal of any claims other than her claims for breach of
fiduciary duty against John Jr. and Holmes and the claim of legal malpractice
against Holmes, as she has failed to provide any argument to support her other
claims, has not cited to the record with regard to most of her arguments, and has
provided us with no meaningful analysis of these claims.
As to Sara’s assignment of error no. 15, in which she contends the trial court
denied her rights to due process, and assignment of error no. 14, relating to the
trial court’s denial of her motion to amend her complaint, neither claim warrants
our consideration under RAP 10.3(a)(6) because Sara does not provide any
citation to authority or legal argument to support them. 3 The same is true
regarding assignment of error no. 4; Sara assigns error to the trial court’s dismissal
3 Sara also raises this due process argument for the first time on appeal and makes no argument
that the trial court committed manifest error affecting a constitutional right, as required for review of the issue under RAP 2.5(a)(3). “ ‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual prejudice.” State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). Sara has made no such showing. The claim is therefore also waived under RAP 2.5(a). -7- No. 82527-5-I/8
of her claims with prejudice on the grounds that the court did not specify that it was
dismissing with prejudice in its oral ruling and that the written order conflicts with
the oral ruling. But she does not cite authority for her argument that when a trial
court dismisses with prejudice, it needs to specify as much in its oral ruling, nor
does she devote any argument to this assignment of error. It is therefore also
waived under RAP 10.3(a)(6).
Finally, Sara alleges for the first time on appeal that the trial court judge
“demonstrated a predisposition of prejudice” against her and did not spend enough
time considering her allegations. An argument neither pleaded nor argued to the
trial court cannot be raised for the first time on appeal. Sourakli v. Kyriakos,
Inc., 144 Wn. App. 501, 509, 182 P.3d 985 (2008). We thus decline to consider
this argument under RAP 2.5(a). Additionally, Sara did not assign error or cite any
authority in support of this argument. Her failure to do so under RAP 10.3(a)(6)
precludes appellate consideration of this alleged error. Escude ex rel. Escude v.
King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190 n.4, 69 P.3d 895
(2003). 4
Assignment of Error Nos. 1, 2 and 18 (Statute of Limitations)
Sara first argues the trial court erred in dismissing claims against John Jr.
and Holmes as time barred by applicable statutes of limitations. She claims that
4 Additionally, at least three of Sara’s assignments of error (nos. 6, 7, and 8) address the trial court’s
dismissal of her claims on standing grounds. But these assignments of error are based on a misunderstanding of the trial court’s order. The only time the defendants argued lack of standing below was with regard to Sara’s claim of “breach of duty to Estate of Helen B. Maynard.” Holmes argues on appeal that, to the extent that Sara is suing on behalf of a particular trust or estate, she lacks standing to do so. Sara argues on appeal, seemingly contrary to her claims below, that she is only suing on behalf of herself. The trial court never held that she does not have standing to sue Holmes and John Jr. for breach of duties they owed Sara as her counsel and trustee. Because Sara no longer argues she has standing to sue on behalf of Helen Sr.’s estate, her assignments of error regarding standing are moot. -8- No. 82527-5-I/9
the court applied “the wrong date of tolling the statute of limitations,” that her
“claims are based upon [her] point of discovery of the damages,” and that “[t]he
commencement, running, and tolling of the statute of limitations are factual
determinations inappropriate to a dismissal under Rule 12(b)(6).”
Sara appears to make two arguments. First, she contends the limitations
period for her claims against John Jr. should be tolled while he continues to serve
as trustee of the JCM Credit Trust, or for the period of time he served as personal
representative of their mother’s estate. Second, she maintains that any claims
against Holmes should be tolled by the “continuous representation rule.” She cites
two cases to support these general arguments, Janicki Logging & Constr. Co. v.
Schwabe, Williamson & Wyatt, 109 Wn. App. 655, 661-61, 37 P.3d 309 (2001),
and Giraud v. Quincy Farm & Chem., 102 Wn. App. 443, 452, 6 P.3d 104 (2000).
In Giraud, this court set out the law on the discovery rule: the limitations
period for certain tort claims begins to run when the plaintiff’s cause of action
accrues. 102 Wn. App. at 449. For negligence claims, the cause of action accrues
when the plaintiff suffers injury or damage. Id. When there is a delay between an
injury and a plaintiff’s discovery of it, the court may apply the discovery rule,
provided the delay was not caused by a plaintiff sleeping on her rights. Id. “The
discovery rule operates to toll the date of accrual until the plaintiff knows or, through
the exercise of due diligence, should have known all the facts necessary to
establish a legal claim.” Id. But to invoke the discovery rule, the plaintiff must
show that she could not have discovered the relevant facts earlier. Id.
Sara provides no analysis as to how the discovery rule applies to her breach
of fiduciary duty or legal malpractice claims and has not identified the date on which -9- No. 82527-5-I/10
she discovered her alleged damages. From what we can discern from the
amended complaint, Sara alleges her brother, John Jr., cheated her out of money
she believes she should have inherited from her parents, or he diverted funds from
family trusts to which she claims she was or is a beneficiary. Sara also alleges
that Holmes, as attorney for the family trusts, somehow participated in this
diversion of assets.
But many of the events Sara alleges date back to 2000, 2009 and 2013.
Sara fails to explain what statute of limitations applies to each of her claims against
John Jr. and Holmes, or why the applicable limitations period should be tolled for
any particular period of time. We thus cannot determine how the discovery rule as
laid out in Giraud applies to Sara’s dismissed claims.
Sara’s reliance on Janicki is similarly difficult to understand. In that case,
this court held that under the continuous representation rule, a statute of limitations
for a claim of legal malpractice is tolled until the end of an attorney’s representation
of a client in the matter in which the alleged malpractice occurred. 109 Wn. App.
at 663-64. While Sara did plead a legal malpractice claim against Holmes in her
amended complaint, she did not allege below that Holmes committed malpractice
in any legal proceeding in which he represented her.
As a result, any claims arising out of alleged events before August 26, 2016
(three years before she filed this action) are time-barred under RCW 4.16.080
(three-year statute of limitations applies to claims of negligence), or RCW
11.96A.070 (three-year statute of limitations applies to claim against trustee for
breach of fiduciary duty). The trial court did not err in concluding that any breach
- 10 - No. 82527-5-I/11
of fiduciary duty or legal malpractice claims arising prior to August 26, 2016 are
barred by the statute of limitations.
However, Sara also alleges that John Jr. and Holmes violated duties owing
to her during the course of the Probate Litigation, the Credit Claim Litigation, and
the JCM Trust Litigation, all of which occurred during the relevant three-year
window. We must thus address the other bases on which the trial court dismissed
her claims against these two defendants.
Assignment of Error Nos. 2, 5, 11, 16, 19, 20, and 21 (Res Judicata)
Sara contends the trial court erred in dismissing her fiduciary duty and legal
malpractice claims under the doctrine of res judicata. We disagree as to claims
Sara raised or could have raised in the Probate Litigation, but agree as to claims
she has yet to prosecute relating to the JCM Trust.
Res judicata prohibits the relitigation of claims and issues that were litigated
or could have been litigated in a prior action. Pederson v. Potter, 103 Wn. App.
62, 67, 11 P.3d 833 (2000). A threshold requirement of res judicata is a final
judgment on the merits in the prior suit. Matter of Rights to Use of Surface Waters
of Yakima River Drainage Basin, 198 Wn.2d 687, 706, 498 P.3d 911 (2021). We
review whether res judicata applies de novo. Matter of Recall of Fortney, 199
Wn.2d 109, 124, 503 P.3d 556 (2022).
Sara contends there was no final judgment on the merits of any of her claims
against John Jr. or Holmes in the Probate Litigation. We disagree. The probate
court issued a final judgment on the merits of Sara’s probate-related claims when
that court issued an order approving John Jr.’s administration of the estate and
rejecting Sara’s claims. Sara attempted on three separate occasions to appeal - 11 - No. 82527-5-I/12
rulings of the probate court. See In re Estate of Helen B. Maynard, No. 76464-1-I
(Sara sought discretionary review of probate court orders; review denied); In re the
Estate of Helen B. Maynard, No. 80179-1-I (Sara filed notice of appeal from various
probate orders; voluntarily dismissed appeal in 2020); In re Estate of Helen B.
Maynard, No. 81270-0-I (Sara again filed and later voluntarily dismissed appeal
from probate rulings). The June 14, 2019 order became a final judgment on the
merits of any claim that Sara raised or could have raised regarding Sara’s right to
receive property from the estate, John Jr.’s administration of the estate or Holmes’s
involvement in, or conduct during, the Probate Litigation, when she dismissed her
last appeal.
Sara also contends that her claims here are different from the claims she
asserted in the Probate Litigation. Res judicata applies when the two actions have
identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4)
the quality of the persons for or against whom the claim is made. Hadley v. Cowan,
60 Wn. App. 433, 441, 804 P.2d 1271 (1991). A probate action can have res
judicata effect in a later tort action. Id. at 440.
Although not clear from Sara’s complaint and her appeal, she appears to
be raising two different types of claims—claims relating to her right to inherit from
her mother and John Jr.’s management of the probate estate as the personal
representative of that estate, and claims relating to her right to receive trust funds
from the JCM Trust and John Jr.’s management of the JCM Trust as its trustee.
As to her inheritance-related claims, the subject matter of the Probate
Litigation and this new lawsuit are the same and the people involved in both
lawsuits are the same. John Jr. was personal representative of the estate and is - 12 - No. 82527-5-I/13
a defendant here. Although Holmes was not a party in the Probate Litigation, he
was actively involved as counsel for John Jr.
To determine if there is identity of causes of action, we consider whether
the rights or interests established in the prior judgment would be destroyed or
impaired by prosecution of the second action, whether substantially the same
evidence is presented in the two actions, whether the two suits involve an
infringement of the same right, and whether the two suits arise out of the same
transactional nucleus of facts. Id. at 441-42 (quoting Constantini v. Trans World
Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087 (1982)).
We conclude that under these factors, Sara is precluded from raising a breach of
fiduciary duty claim against either John Jr. or Holmes as to their administration of
the probate estate, as that claim was one she did raise or could have raised in the
Probate Litigation. To permit Sara to reopen the administration of her mother’s
estate through this type of collateral attack would impair the rights of the other
beneficiaries.
Sara appears to contend that newly discovered evidence would establish
that “the Estate [of] Helen Maynard Sr. probate was incorrectly closed in June
2019.” But once a judgment is final, a court may reopen it only when specifically
authorized by statute or court rule. In re Marriage of Shoemaker, 128 Wn.2d 116,
120, 904 P.2d 1150 (1995). Sara presents no argument that a statute or court rule
- 13 - No. 82527-5-I/14
allows her to collaterally attack the finality of a judgment in a new lawsuit based on
allegations of newly discovered evidence. 5
The report of proceedings from the June 14, 2019 probate hearing and the
pleadings Sara presented below demonstrate that she litigated or had the
opportunity to litigate her inheritance-related claims in the Probate Litigation. Sara
is barred by res judicata from relitigating these claims in this new lawsuit.
We cannot, based on the record before us, reach the same conclusion as
to claims relating to her right to receive trust funds from the JCM Trust and John
Jr.’s management of the JCM Trust as its trustee. According to a November 2017
letter from John Jr. to his siblings, as trustee of the JCM Trust, he was obligated
to disburse its assets within a reasonable time following the death of their mother.
At the time of this letter, the trust assets were valued at $763,891. He proposed
disbursing $142,000 to each of the five beneficiaries and reserving $53,891 for
future tax preparation and legal fee expenses. These assets were not within Helen
Sr.’s probate estate and thus were not within the scope of the probate court’s final
order of distribution. Sara raised allegations of mismanagement of the JCM Trust
at various stages of the Probate Litigation, but it is not clear that the probate court
had the authority to rule on any such allegations because they did not affect the
distribution of assets from Helen Sr.’s estate.
While it is possible that Sara has raised or could have raised claims about
John Jr.’s management of the JCM Trust in the JCM Trust Litigation, we have no
5 CR 60(b)(3) would have allowed Sara to file a motion to vacate the final order based on newly
discovered evidence within a year of the final order. There is no indication in the record before us that she ever sought such relief from the probate court. - 14 - No. 82527-5-I/15
indication that a final judgment on the merits has been entered in that proceeding.
Res judicata thus does not bar Sara’s claims against John Jr. or Holmes to the
extent they relate to their management of the JCM Trust after August 26, 2016. 6
Assignment of Error No. 13 (Litigation Immunity)
Next, Sara argues that the trial court erred in dismissing her claims against
Holmes on the basis of litigation immunity. She contends the doctrine does not
apply because Holmes did not file a notice of appearance in the JCM Trust
Litigation. While Sara misunderstands the doctrine, as no notice of appearance
was required for the doctrine to apply, we also do not see how it applies to her
claims against Holmes.
It is an absolute defense to a claim of defamation that the allegedly libelous
statements were made in the course of judicial proceedings. Twelker v. Shannon
& Wilson, 88 Wn.2d 473, 475, 564 P.2d 1131 (1977). Such statements are
privileged, even if false or defamatory. Id. This defense applies to lawyers who
make statements in the course of representing their clients and to witnesses alike.
Id. (doctrine applied to engineering expert who was retained to investigate cause
of landslide). Thus, the fact that Holmes did not appear as counsel for John Jr. in
the JCM Trust Litigation is not dispositive.
But the doctrine nevertheless does not apply here because Sara has not
sued Holmes for defamation. Although Sara pleaded a claim of defamation in her
6 To the extent that the trial court dismissed any of Sara’s claims regarding John Jr.’s or Holmes’s management of the JCM Trust after August 2016 based on inadequate or defective pleading, we do not agree. A plaintiff claiming negligence or breach of fiduciary duty must establish duty, breach, causation, and injury. Miller v. U.S. Bank of Wash., N.A., 72 Wn. App. 416, 426, 865 P.2d 536 (1994). She alleged these elements in her first amended complaint. - 15 - No. 82527-5-I/16
first amended complaint, she did so only as to John Jr. and the Estate of Helen Jr.,
the dismissal of which she has not raised on appeal.
Assignment of Error Nos. 3, 9, 10, 12 (Sanctions and Attorney Fees)
Sara finally challenges the trial court’s award of attorney fees to Holmes and
John Jr. under RCW 4.84.185 and CR 11.
RCW 4.84.185 authorizes a trial court to award reasonable attorney fees
incurred in opposing an action deemed “frivolous and advanced without
reasonable cause.” The statute requires that a lawsuit, in its entirety, must be
frivolous. Biggs v. Vail, 119 Wn.2d 129, 133, 830 P.2d 350 (1992). The trial court
is not empowered to sort through a lawsuit, search for abandoned or frivolous
claims and then award attorney fees based solely on isolated claims. Id. at 136.
If one claim advances to trial, the lawsuit cannot be frivolous in its entirety and fees
under RCW 4.84.185 are not appropriate. State ex rel. Quick-Ruben v. Ver, 136
Wn.2d 888, 904, 969 P.2d 64 (1998).
CR 11 allows sanctions in the form of an award of attorney fees when a
litigant “fil[es] a claim for an improper purpose, or if the claim is not grounded in
fact or law and the signing litigant failed to conduct a reasonable inquiry.” In re
Recall of Piper, 184 Wn.2d 780, 787, 364 P.3d 113 (2015). CR 11 differs from
RCW 4.84.185 in that the court rule does not require the court to find that the entire
lawsuit is frivolous. CR 11 is not a fee shifting mechanism but rather a deterrent
to frivolous pleadings. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994).
We review sanctions awarded for frivolous actions or defenses or for
pleadings filed for improper purpose for abuse of discretion. Kilduff v. San Juan
County, 194 Wn.2d 859, 874, 453 P.3d 719 (2019). - 16 - No. 82527-5-I/17
The trial court awarded attorney fees to the Estate of Helen Jr., to Jackson,
and to Holmes. Although the trial court entered an order that awarded reasonable
attorney fees and costs to “[a]ll other [d]efendants” under CR 11 and RCW
4.84.185, there is no separate monetary judgment in John Jr.’s favor in the record
before us. Because there was no monetary award to John Jr. under either the
statute or court rule, there is nothing for us to reverse on appeal.
As to the award of attorney fees and costs to Holmes, the court found that
the complaint violated CR 11 and the action as a whole was frivolous under RCW
4.84.185. Because we reverse the CR 12(b)(6) dismissal of Sara’s legal
malpractice claim as to Holmes’ actions after August 2016, we must also reverse
the award of attorney fees under RCW 4.84.185. Although a trial court may on
remand determine that the case against Holmes is frivolous in its entirety, we
cannot make that determination at this stage. As for the imposition of sanctions
under CR 11, we do not reverse the trial court’s finding that many of Sara’s
allegations against Holmes are frivolous as they are clearly barred by the statute
of limitations. But we reverse the award of CR 11 sanctions to allow the trial court
to determine whether the amount of attorney fees awarded remains reasonable in
light of this court’s decision.
Attorney Fees on Appeal
Both John Jr. and Holmes seek attorney fees under RAP 18.9(a), which
permits an appellate court to award a party attorney fees as sanctions, terms, or
compensatory damages when the opposing party files a frivolous appellate action
or fails to comply with the RAPs. Reid v. Dalton, 124 Wn. App. 113, 128, 100 P.3d
349 (2004); RAP 18.9(a). An appeal is frivolous if, considering the entire record, - 17 - No. 82527-5-I/18
the court is convinced that the appeal presents no debatable issues upon which
reasonable minds might differ, and that the appeal is so devoid of merit that there
is no possibility of reversal. Advocates for Responsible Devt v. W. Wash. Growth
Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). Sara’s appeal was
not so devoid of merit to warrant an imposition of attorney fees.
To be clear, we do not conclude that Sara’s claim against John Jr. arising
out of his management of the JCM Trust after August 26, 2016 is factually well-
founded. Nor do we so conclude with regard to her legal malpractice claim against
Holmes. Our ruling is narrow and based solely on the fact that these claims were
erroneously dismissed under CR 12(b)(6). Sara must still produce evidence on
remand to substantiate her allegations and her failure to do so may expose her
once again to an assessment of legal fees and costs.
Affirmed in part; reversed in part.
WE CONCUR:
- 18 -