Opinion
No. 57208-3-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-38211-6, Laura C. Inveen, J., entered November 8, 2005.
Counsel for Appellant(s), Max Jeffrey Meyers, Scott McDonald Assoc, Kirkland, WA.
Scott Allen Mcdonald, Scott Mcdonald Associates PLLC, Kirkland, WA.
Counsel for Respondent(s), Jason Foshee (Appearing Pro Se), Kirkland, WA.
Affirmed by unpublished per curiam opinion.
Mark Jennings appeals the trial court's decision denying his motion for sanctions against Jason Foshee following the summary judgment dismissal of Foshee's suit against Jennings. Because Jennings fails to establish that the trial court abused its discretion in denying his motion, we affirm.
FACTS
Jason Foshee and Jennifer Swift are the parents of a child born in 1996. 57208-3-I/2 Foshee and Swift share residential time with the child subject to a parenting plan. Pursuant to the parenting plan and a protection order Swift obtained against Foshee, the two routinely met to transfer the child at the Bellevue Police Department. At some point in 2001, Swift began a friendship or dating relationship with Mark Jennings. Jennings accompanied Swift to several child exchanges and family court hearings involving Foshee.
On October 19, 2001, Jennings and Swift each called 911 to report that Foshee had violated the protection order by driving by Swift's house. Police arrested Foshee, and the City of Kirkland charged Foshee with one count of violating a protection order and two counts of reckless endangerment. Following a trial, a jury acquitted Foshee of the charges.
In 2003, Foshee filed a complaint against Swift, Jennings, and the City of Kirkland, alleging claims for (1) a civil rights violation under 42 U.S.C. section 1983, (2) false arrest, (3) malicious prosecution, (4) invasion of privacy — public disclosure of private facts, (5) intentional infliction of emotional distress, and (6) invasion of privacy — false light. Jennings moved to dismiss the claims under CR 12(b)(6). The trial court granted Jennings' motion to dismiss under CR 12(b)(6) with respect to the false arrest claim only and later granted Jennings' summary judgment motion, dismissing all remaining claims with prejudice.
Jennings is the only defendant involved in this appeal.
Jennings moved for sanctions against Foshee under CR 11 and RCW 4.84.185.
The trial court denied the motion, stating it was "not able to find" that Foshee's complaint was "filed without factual support," "advanced without reasonable cause," "frivolous," or "outrageous." The trial court also stated it was not able to find that Foshee's allegations were not well grounded in fact, not warranted by law, or that Foshee failed to conduct a reasonable inquiry into the factual and legal basis of the action before filing his complaint.
Specifically, the findings of fact provide:
"The Court is not able to find:
"2. Plaintiff's complaint was filed without factual support for his causes of action against Mr. Jennings.
"3. Plaintiff's complaint was advanced without reasonable cause to support his alleged causes of action against Mr. Jennings.
"4. Plaintiff's complaint was frivolous because it was filed without facts to support his alleged causes of action against Mr. Jennings.
"5. Plaintiff's complaint was frivolous because reasonable cause to support his alleged causes of action against Mr. Jennings [sic].
"6. Plaintiff's complaint is outrageous and subjects Mr. Jennings to unfair criticism, ridicule, and skepticism.
"7. The allegations of actionable conduct asserted by plaintiff against Mr. Jennings were not well grounded in fact, and were not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.
"8. Plaintiff failed to conduct a reasonable inquiry into the factual and legal basis of the action." Clerk's Papers, at 237 — 38.
Jennings appeals, claiming that Foshee's suit was frivolous, violating CR 11 and justifying an award of attorney fees and costs under RCW 4.84.185.
DISCUSSION
"A pro se plaintiff may be subject to CR 11 sanctions if three conditions are met: (1) the action is not well grounded in fact, (2) it is not warranted by existing law, and (3) the party signing the pleading has failed to conduct a reasonable inquiry into the factual or legal basis of the action." Harrington v. Pailthorp, 67 Wn. App. 901, 910, 841 P.2d 1258 (1992) (citing CR 11; Lockhart v. Greive, 66 Wn. App. 735, 743-44, 834 P.2d 64 (1992); Doe v. Spokane Inland Empire Blood Bank, 55 Wn. App. 106, 110, 780 P.2d 853 (1989)). RCW 4.84.185 provides:
In any civil action, the court . . . may, upon written findings . . . that the action . . . was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense. . . .
Under RCW 4.84.185, a court may award attorney fees and expenses to a prevailing party if the claim brought against it was frivolous. A claim is frivolous only if, viewed in its entirety, it is frivolous as a whole and no one claim has merit. Biggs v. Vail, 119 Wn.2d 129, 133-37, 830 P.2d 350 (1992).
We review the trial court's denial of fees under RCW 4.84.185 and sanctions under CR 11 for an abuse of discretion. Biggs, 119 Wn.2d at 137; Washington State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993). Under the abuse of discretion standard, we must decide whether the trial court was manifestly unreasonable or based its decision on untenable grounds. Fisons, 122 Wn.2d at 339. Reversal is not appropriate unless no judge acting reasonably would have reached the same conclusion. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711 (1989).
In his motion for sanctions, Jennings argued that the first condition for imposing CR 11 sanctions was satisfied because the trial court's decision granting summary judgment demonstrated that Foshee's causes of action were not well grounded in fact. Similarly, Jennings argued that Foshee's failure to establish a prima facie case of each of his causes of action, as demonstrated in Jennings' memorandum in support of summary judgment and the trial court's summary judgment dismissal, satisfied the second condition of the test regarding a basis in law. As to the question of whether Foshee conducted a reasonable inquiry before filing his complaint, Jennings again referred to his motion for summary judgment and contended that counsel had requested that Foshee dismiss his frivolous lawsuit on numerous occasions. Finally, Jennings contended that because Foshee had no facts to support a rational argument or articulate a legal basis for any of his causes of action and filed his complaint merely out of spite and to harass Jennings, the trial court should award fees and costs under RCW 4.84.185.
But CR 11 does not provide for sanctions "merely because an action's factual basis proves deficient or a party's view of the law proves incorrect[.]" Doe, 55 Wn. App. at 111. Indeed, "[t]he fact that a complaint does not prevail on its merits is by no means dispositive of the question of CR 11 sanctions." Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).
Regarding the factual basis of the complaint, all of Foshee's claims hinge on his allegation that Jennings, in cooperation with Swift, knowingly and maliciously lied to police about the incidents of October 19. To support this allegation, Foshee presented his own declaration denying that he drove by Swift's house and claiming that he had been buying dinner at Teriyaki Madness at the time Swift and Jennings claimed he was violating the order. Foshee also presented the following circumstantial evidence in an attempt to demonstrate that Jennings acted with malice: (1) Jennings had been attending family court hearings with Swift for months and knew that Swift had been unsuccessful in her attempts to have the parenting plan modified; (2) Swift stated in a declaration for bankruptcy court that Jennings persuaded her to make the report to police on October 19; (3) Jennings was a real estate agent and was present when Swift filed a lien against Foshee's house; (4) when Jennings reported vandalism and hang-up calls to police, he repeatedly suggested that Foshee was involved, which Foshee denied; (5) Jennings was present when Swift reported to police that her child had told her that Foshee had a gun, which Foshee also denied; (6) Foshee's brother Bill stated in a declaration that upon Foshee's arrival at a courthouse, Jennings said to Swift, "[L]et's stand here and laugh at him when he comes in;" and (7) Foshee was acquitted of the criminal charges against him based on the events of October 19 as alleged by Swift and Jennings.
Although these facts proved deficient to create a genuine issue of material fact as to whether Jennings knowingly or maliciously lied to police, we cannot say that the trial court abused its broad discretion in determining that it was "not able to find" that "Plaintiff's complaint was filed without factual support for his causes of action against Mr. Jennings."
Although it would have been more helpful to have the reasons why the trial court determined Foshee's complaint did not violate CR 11, given the circumstances of this case, the trial court did not abuse its broad discretion by only stating the facts it was "not able to find."
As to the legal basis for the complaint, Foshee asserted facts in the complaint that, if proven, could have presented some legally cognizable claims. For example, contrary to Jennings's argument that he enjoyed absolute or qualified immunity to prevent Foshee's claims of malicious prosecution as a matter of law, a complaining witness who instigates or continues a criminal proceeding against another is not immune from liability for a complaint that the witness made maliciously or without probable cause. Malley v. Briggs, 475 U.S. 335, 340-41, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). See also Creelman v. Svenning, 67 Wn.2d 882, 883, 410 P.2d 606 (1966) (noting in dicta that the private citizens who swore out complaint for criminal trespass were proper parties "as the instigators of the criminal prosecution against Creelman"). Had Foshee been able to prove his allegations that Jennings maliciously lied about the events of October 19 and persuaded Swift to do the same, Jennings would not have been necessarily immune from liability.
The third condition under CR 11 prevents the imposition of sanctions unless the trial court finds that the party "who signed and filed the complaint failed to conduct a reasonable inquiry into the factual and legal basis of the claim." Bryant, 119 Wn.2d at 220. The reasonableness of the inquiry is evaluated by an objective standard rather than the wisdom of hindsight, and the court should test the signer's conduct by inquiring what was reasonable to believe at the time the complaint was filed. Bryant, 119 Wn.2d at 220. The question is whether a reasonable person in like circumstances could believe his actions to be factually and legally justified. Bryant, 119 Wn.2d at 220. Because it is debatable whether a reasonable person in Foshee's circumstances could believe his actions to be factually and legally justified, we cannot say that the trial court abused its wide discretion by stating that it was "not able to find" that "Plaintiff failed to conduct a reasonable inquiry into the factual and legal basis of the action."
Given the circumstances of this case, the parties' arguments to the trial court, and the debatable issues involved, we cannot say that the trial court abused its discretion in denying the motion for CR 11 sanctions. Similarly, because the trial court did not abuse its discretion by finding that the malicious prosecution claim was not wholly without merit, it did not err by denying fees under RCW 4.84.185.
Foshee requests fees on appeal under RAP 18.9(a), providing that an appellate court may impose sanctions for a frivolous appeal. An appeal is frivolous if, considering the entire record and resolving all doubts in favor of the appellant, the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ, and that it is so devoid of merit that there is no possibility of reversal. See Layne v. Hyde, 54 Wn. App. 125, 135, 773 P.2d 83 (1989). Because Jennings' appeal presents debatable issues, we deny Foshee's request for fees.
Affirmed.
FOR THE COURT: