Lawrence Shandola v. Paula Henry , 198 Wash. App. 889 ( 2017 )


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  •                                                                                              Filed
    Washington State
    Court of Appeals
    Division Two
    May 9, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    LAWRENCE SHANDOLA,                                                   No. 48346-7-II
    Appellant,
    v.                                                     PUBLISHED OPINION
    PAULA HENRY and JOHN DOE HENRY,
    and the marital community thereof; LEW
    COX, individually and in his Official Capacity
    or Executive Director of VIOLENT CRIMES
    VICTIM SERVICES; ANNE NELSON and
    JOHN DOE NELSON, and the marital
    community thereof; LAUREEN NICOLAY
    and JOHN DOE NICOLAY, and the marital
    community thereof,
    Respondents.
    MAXA, A.C.J. – This case involves a party’s ability to vacate final monetary judgments
    under CR 60(b)(11) based on a subsequent Washington Supreme Court decision holding that the
    statute providing the basis for the judgments was unconstitutional.
    Lawrence Shandola filed a lawsuit against Paula Henry, Anna Nelson, Laureen Nicolay,
    and Lew Cox (collectively “Henry defendants”). The trial court dismissed Shandola’s lawsuit
    and entered money judgments against Shandola in favor of each defendant under the Washington
    Act Limiting Strategic Lawsuits Against Public Participation (anti-SLAPP statute), RCW
    4.24.525. Shandola appealed and this court affirmed the judgment. Eight months after the
    No. 48346-7-II
    mandate was issued, the Supreme Court ruled in Davis v. Cox that the anti-SLAPP statute was
    unconstitutional and invalid because it violated the constitutional right to a jury trial. 
    183 Wn.2d 269
    , 288-96, 
    351 P.3d 862
     (2015). Shandola filed a CR 60(b)(11) motion to vacate the
    judgments against him, arguing that there was no valid basis for the judgments because the anti-
    SLAPP statute was unconstitutional.
    Shandola appeals the trial court’s denial of his CR 60(b)(11) motion. We hold that (1)
    CR 60(b)(11) provides a mechanism for vacating a final judgment based on a subsequent court
    decision invalidating the statutory basis of the judgment, (2) Davis’s invalidation of the anti-
    SLAPP statute can be applied retroactively, (3) res judicata does not prevent the application of
    CR 60(b)(11), and (4) there are extraordinary circumstances here justifying relief under CR
    60(b)(11). Accordingly, we reverse the trial court’s denial of Shandola’s CR 60(b)(11) motion
    and remand for the trial court to strike the money judgments entered against him.
    FACTS
    Shandola Lawsuit
    Shandola was convicted of murder and sentenced to prison. He requested a transfer to
    Canada for incarceration because he is a Canadian citizen. The Henry defendants wrote letters to
    the Department of Corrections opposing Shandola’s transfer. After Shandola’s transfer request
    was denied, he sued the Henry defendants, alleging false light invasion of privacy and intentional
    infliction of emotional distress based on those letters. Shandola represented himself.
    Anti-SLAPP Statute and Motion to Dismiss
    Before Davis, the anti-SLAPP statute provided a special procedure for handling lawsuits
    aimed at chilling the exercise of free speech and the right to petition for redress. The statute
    permitted a defendant to file a special motion to strike any claim “based on an action involving
    2
    No. 48346-7-II
    public participation and petition.” RCW 4.24.525(4)(a). In order to defeat the special motion to
    strike, the plaintiff was required to show by “clear and convincing evidence a probability of
    prevailing on the claim.” RCW 4.24.525(4)(b). If a defendant prevailed on the motion to strike,
    the trial court was required to award the defendant $10,000 plus litigation costs and reasonable
    attorney fees. RCW 4.24.525(6)(a)(i)-(ii).
    On March 23, 2013, the Henry defendants filed a motion to dismiss Shandola’s suit under
    CR 12(b)(6), arguing that they were immune from suit under the anti-SLAPP statute. Shandola
    opposed the motion, arguing that the Henry defendants had not followed the procedure mandated
    in the statute. The trial court granted the motion to dismiss. The trial court also entered
    judgments in favor of each defendant against Shandola for $10,000 plus litigation costs and
    reasonable attorney fees under the anti-SLAPP statute.
    Shandola Appeal and Final Judgment
    On April 29, 2013, Shandola appealed the trial court’s dismissal to this court. He
    apparently represented himself in the appeal. He argued that the trial court erred because the
    Henry defendants filed a motion to dismiss under CR 12(b)(6) instead of following the special
    motion procedures in the anti-SLAPP statute. Shandola did not argue that the anti-SLAPP
    statute was unconstitutional.
    A commissioner of this court considered Shandola’s appeal as a motion on the merits and
    affirmed the trial court’s dismissal. The commissioner’s ruling was entered on March 20, 2014.
    We issued a mandate terminating review on September 15.
    3
    No. 48346-7-II
    Davis Decision
    On May 28, 2015, the Supreme Court ruled in Davis that the anti-SLAPP statute was
    unconstitutional. 
    183 Wn.2d at 288-296
    . The court held that because the statute’s special
    motion procedure required the trial court to adjudicate factual questions without a trial, the
    statute violated the right to trial by jury guaranteed in article 1, section 21 of the Washington
    Constitution. 
    Id. at 293-94
    . The court also held that the subsection describing the special motion
    procedure could not be severed from the rest of the statute, rendering the entire anti-SLAPP
    statute invalid. 
    Id. at 294-95
    .
    Motion to Vacate
    On July 30, Shandola filed a motion to vacate the judgment against him under CR
    60(b)(11). He argued that the trial court’s award of $10,000, litigation costs, and attorney fees to
    each of the Henry defendants could no longer stand in light of the Supreme Court’s ruling that
    the anti-SLAPP statute was unconstitutional.
    The trial court noted that the constitutionality of the anti-SLAPP statute was not an issue
    in the initial dismissal or the appeal. The court did not consider whether extraordinary
    circumstances existed that would justify relief under CR 60(b)(11). Instead, the court summarily
    concluded that the principle of finality controlled and it denied Shandola’s motion.
    Shandola appeals.
    ANALYSIS
    This case presents two primary issues. First, does CR 60(b)(11) provide a mechanism for
    vacating a final judgment based on a subsequent Supreme Court decision invalidating the
    statutory basis of the judgment? We hold that relief potentially is available under CR 60(b)(11)
    4
    No. 48346-7-II
    based on a postjudgment court decision. Second, did Shandola show extraordinary
    circumstances that entitled him to CR 60(b)(11) relief under the facts of this case? We hold that
    this case does involve extraordinary circumstances and therefore that the trial court abused its
    discretion in denying Shandola’s CR 60(b)(11) motion.
    A.     LEGAL PRINCIPLES
    CR 60(b) provides that the trial court may relieve a party from a final judgment, order, or
    proceeding for one of 11 stated reasons. Finality of judgments is a central value in the legal
    system, but circumstances can arise where finality must give way to the greater value that justice
    be done. Union Bank, NA v. Vanderhoek Assocs., LLC, 
    191 Wn. App. 836
    , 846, 
    365 P.3d 223
    (2015). CR 60(b) provides a balance between finality and fairness by listing limited
    circumstances under which a judgment may be vacated. 
    Id.
     (quoting Suburban Janitorial Servs.
    v. Clarke Am., 
    72 Wn. App. 302
    , 313, 
    863 P.2d 1377
     (1993)).
    CR 60(b)(11) states that the court may grant relief from a final judgment for “[a]ny other
    reason justifying relief from the operation of the judgment.” This is a catch-all provision
    intended to serve the ends of justice in extreme, unexpected situations and when no other
    subsection of CR 60(b) applies. In re Det. of Ward, 
    125 Wn. App. 374
    , 379, 
    104 P.3d 751
    (2005). The provision applies to extraordinary circumstances involving irregularities extraneous
    to the proceeding. Union Bank, 191 Wn. App. at 845.
    5
    No. 48346-7-II
    A party must file a motion under CR 60(b)(1), (2) and (3) within one year of the
    judgment, but motions under the other subsections must only be filed within a “reasonable time.”
    CR 60(b).1
    The decision to grant or deny a motion to vacate a judgment under CR 60(b) is within the
    trial court’s discretion. Jones v. City of Seattle, 
    179 Wn.2d 322
    , 360, 
    314 P.3d 380
     (2013).
    Therefore, we review CR 60(b) orders for abuse of discretion. Union Bank, 191 Wn. App. at
    842. A trial court abuses its discretion when its decision is based on untenable grounds or is
    made for untenable reasons. Id.
    B.     CR 60(b)(11) RELIEF BASED ON POST-JUDGMENT COURT DECISION
    Shandola argues that the Davis decision invalidating the anti-SLAPP statute, which was
    the sole basis for the monetary judgments against him, provides the basis for CR 60(b)(11) relief.
    The threshold question is whether CR 60(b)(11) can apply in this situation. We hold that CR
    60(b)(11) provides a mechanism for vacating a final judgment based on a postjudgment appellate
    court decision invalidating the statutory basis of the judgment. Further, we hold that Davis can
    be applied retroactively under CR 60(b)(11) and that res judicata does not preclude relief under
    CR 60(b)(11) in this case.
    1.    Applicable Cases
    This court stated in Union Bank that a change in the law can constitute extraordinary
    circumstances to justify relief under CR 60(b)(11). 191 Wn. App. at 845. Three cases have
    addressed when a change in the law supports the grant of relief under CR 60(b)(11): Union Bank,
    1
    Shandola filed his motion approximately nine months after the judgments became final and
    about two months after the Supreme Court’s decision in Davis. The Henry defendants do not
    argue that Shandola failed to file his motion within a reasonable time.
    6
    No. 48346-7-II
    
    191 Wn. App. 836
    ; Estate of Treadwell v. Wright, 
    115 Wn. App. 238
    , 
    61 P.3d 1214
     (2003); and
    In re Marriage of Flannagan, 
    42 Wn. App. 214
    , 
    709 P.2d 1247
     (1985).
    a.    Union Bank
    In Union Bank, the trial court granted summary judgment in favor of the defendants
    based on the only appellate case on point. 191 Wn. App. at 841. However, 18 days later
    Division One of this court issued an opinion that directly contradicted the holding of the case on
    which the trial court relied. Id. During a subsequent hearing before the appeal period had
    expired, the trial court mentioned the new case and indicated its willingness to reverse its
    summary judgment order in light of that case. Id.
    The plaintiff moved under CR 60(b)(11) to vacate the summary judgment order, arguing
    that the new appellate decision constituted a substantial change in the law creating extraordinary
    circumstances that justified relief. Id. The trial court granted the plaintiff’s motion to vacate and
    the defendants appealed. Id. at 842. This court held that the trial court did not abuse its
    discretion in granting the motion to vacate under CR 60(b)(11) because Division One’s decision
    created a conflict between the divisions that constituted a post-judgment change in the
    controlling law. Id. at 847-48. The court stated that the “timing and attendant circumstances” of
    the Division One decision “constituted extraordinary circumstances allowing the trial court to
    vacate its judgment.” Id. at 846-47.
    b.    Treadwell
    In Treadwell, the trial court granted summary judgment in favor of the defendant in an
    attorney malpractice case. 115 Wn. App. at 241. The summary judgment was based on the
    court’s ruling that an attorney creating a guardianship at the request of a guardian did not owe a
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    No. 48346-7-II
    duty to the ward of the guardianship. Id. at 242-43. However, a few months later an appellate
    court held that an attorney retained to create a guardianship does owe a duty to the nonclient
    ward. Id. at 243-44.
    The plaintiff moved to vacate the judgment under CR 60(b)(11) on the basis that the
    appellate court decision was a change in the law justifying relief. Id. at 243, 249. The trial court
    denied the estate’s motion, agreeing with the defendant that she either did not have a duty to the
    plaintiff under the new appellate court decision or that she had properly discharged that duty. Id.
    at 243, 249-50. The plaintiff appealed both the summary judgment order and the denial of the
    CR 60(b)(11) motion. Id. at 243. On appeal, Division One held that the trial court abused its
    discretion when it denied the estate’s motion to vacate under CR 60(b)(11). Id. at 251.
    c.   Flannagan
    In Flannagan, this court considered in two consolidated cases whether CR 60(b)(11)
    could be used as a mechanism to reopen final divorce decrees that were rendered during a 20
    month period between the United States Supreme Court’s decision in McCarty,2 which held that
    military retirement benefits could not be distributed as community property, and Congress’s
    passage of retroactive legislation providing that military retirement benefits should be distributed
    as community property. 
    42 Wn. App. at 215-16
    . In one of the consolidated cases the trial court
    granted relief, and in the other case the trial court denied relief. Id. at 216-17.
    This court considered what other jurisdictions had done in this situation and concluded
    that most had allowed the reopening of final decrees “when a procedural mechanism existed for
    2
    McCarty v. McCarty, 
    453 U.S. 210
    , 
    101 S. Ct. 2728
    , 
    69 L. Ed. 2d 589
     (1981).
    8
    No. 48346-7-II
    such reopening.” 
    Id. at 220
    . The two jurisdictions that refused to reopen decrees relied on
    principles of finality, but they also did not have a rule similar to CR 60(b)(11) available in their
    jurisdiction. 
    Id.
    The court concluded “[w]e have found no cases where the doctrine of finality prevailed
    over the inequity of denying retroactivity, so long as a procedural mechanism such as CR
    60(b)(11) existed for retroactive application.” 
    Id.
     The court held that CR 60(b)(11) was a
    mechanism that could allow for the reopening of the final divorce decrees and concluded that
    there were extraordinary circumstances requiring relief under CR 60(b)(11). 
    Id. at 222
    . As a
    result, the court held that the trial court that denied the CR 60(b)(11) motion under these
    circumstances abused its discretion. 
    Id. at 223
    .
    2.    Analysis
    Union Bank and Treadwell are factually different from this case because in both cases the
    party seeking CR 60(b)(11) was contemplating appeal or had actually appealed the challenged
    summary judgment order, and the appeal was still pending when the new appellate case that
    formed the basis for the CR 60(b)(11) motion was issued. As the court noted in Union Bank, this
    made the importance of finality less compelling. 191 Wn. App. at 847. But both cases clearly
    support the rule that a trial court can vacate a final judgment under CR 60(b)(11) based on a
    post-judgment appellate court decision under certain circumstances.
    Flannagan is much more similar to this case. As in this case, the judgments at issue in
    Flannagan were final when the legislation invalidating existing law took effect.3 This court
    3
    One difference between Flanagan and this case is that the moving parties in Flanagan did not
    appeal their judgments, while Shandola appealed and lost. However, this is not a meaningful
    distinction.
    9
    No. 48346-7-II
    clearly held in Flannagan that a trial court can vacate a final judgment under CR 60(b)(11) based
    on a post-judgment change in the law if extraordinary circumstances are present. 
    42 Wn. App. at 222
    .
    Union Bank and Flannagan, both decisions from this court, are controlling authority. We
    hold that CR 60(b)(11) provides a mechanism for vacating a final judgment based on a
    postjudgment appellate court decision.
    3.   Retroactive Application of Davis Under CR 60(b)(11)
    The Henry defendants argue that the Davis decision cannot be applied retroactively to
    this case under CR 60(b)(11) because this case was final when Davis was issued. We disagree.
    a.     Retroactive Application of Changes in the Law
    Generally, a new civil decision applies retroactively. McDevitt v. Harborview Med. Ctr.,
    
    179 Wn.2d 59
    , 75, 
    316 P.3d 469
     (2013). “The default of retroactive application is
    overwhelmingly the norm.” Jackowski v. Borchelt, 
    174 Wn.2d 720
    , 731, 
    278 P.3d 1100
     (2012)
    (internal quotation marks omitted). Only in rare instances will we override the presumption of
    retroactive application and choose to give a decision prospective-only application. McDevitt,
    
    179 Wn.2d at 75
    .
    We will not apply a new decision retroactively if (1) the decision established a new rule
    of law that either overruled clear precedent upon which the parties relied or was not clearly
    foreshadowed, (2) retroactive application would tend to impede the policy objectives of the new
    rule, and (3) retroactive application would produce a substantially inequitable result. 
    Id.
     The
    Henry defendants do not argue that any of those factors are met regarding the Davis decision.
    10
    No. 48346-7-II
    Nothing in Davis indicates that the Supreme Court intended it to only apply
    prospectively. And the court has applied its ruling in Davis in two cases that were pending on
    appeal when Davis was decided. In Akrie v. Grant and Worthington v. City of Bremerton, the
    court applied the Davis decision to vacate the award of statutory damages, attorney fees, and
    costs under the anti-SLAPP statute. Akrie, 
    183 Wn.2d 665
    , 668, 
    355 P.3d 1087
     (2015);
    Worthington, 
    187 Wn.2d 184
    , 187, 
    385 P.3d 133
     (2016). The court in Akrie noted that “basic
    fairness demands that we not sustain a penalty imposed pursuant to a statute we have held
    unconstitutional.” 183 Wn.2d at 668; see also Worthington, 
    187 Wn.2d at 187
    .
    The Henry defendants argue that Davis cannot be applied retroactively by citing to
    retroactivity cases that are distinguishable and inapplicable here. For example, they cite Samson
    v. City of Bainbridge Island for the rule that courts “do not apply statutes retroactively unless
    they are merely procedural or remedial.” 
    149 Wn. App. 33
    , 45, 
    202 P.3d 334
     (2009) (emphasis
    added). However, this case does not involve the retroactive application of a statute. It involves
    application of a Supreme Court ruling that the statute forming the basis of the judgment was
    unconstitutional.
    We hold that the Davis decision holding that the anti-SLAPP statute is unconstitutional
    generally applies retroactively.
    b.      Retroactive Application of Law to Final Judgments
    The Henry defendants argue that even if Davis generally applies retroactively, it cannot
    apply retroactively to this case because retroactive application is limited to cases pending on
    review or not yet final. They cite two United States Supreme Court cases for support.
    11
    No. 48346-7-II
    In James B. Beam Distilling Co. v. Georgia, the Court stated that “retroactivity in civil
    cases must be limited by the need for finality; once suit is barred by res judicata or by statutes of
    limitation or repose, a new rule cannot reopen the door already closed.” 
    501 U.S. 529
    , 541, 
    111 S. Ct. 2439
    , 
    115 L. Ed. 2d 481
     (1991) (citation omitted). The Court similarly stated in
    Reynoldsville Casket Co. v. Hyde that “[n]ew legal principles, even when applied retroactively,
    do not apply to cases already closed.” 
    514 U.S. 749
    , 758, 
    115 S. Ct. 1745
    , 
    131 L. Ed. 2d 820
    (1995). The Henry defendants argue that under the language in Beam Distilling and
    Reynoldsville, Davis cannot apply retroactively here because the case was closed before Davis
    was issued.
    However, neither Beam Distilling nor Reynoldsville addressed a rule similar to CR
    60(b)(11). Therefore, neither case compels the conclusion that a new appellate case cannot be
    applied retroactively in the context of a CR 60(b)(11) motion.
    The language of CR 60(b) makes it clear that the rule applies to closed cases. CR 60(b)
    expressly states that the court may relieve a party from a “final judgment.” Therefore even when
    there is a final judgment, CR 60(b)(11) creates a mechanism for reopening the case. Flannagan,
    
    42 Wn. App. at 218
     (“[F]inal decrees may be reopened under CR 60(b)(11).”).
    We hold that Davis can be applied retroactively in the context of a CR 60(b)(11) motion
    even after the case has been closed.
    4.     Res Judicata Inapplicable Under CR 60(b)(11)
    The Henry defendants argue that the doctrine of res judicata precludes application of CR
    60(b)(11) under the facts of this case. We disagree.
    12
    No. 48346-7-II
    Res judicata, also called claim preclusion, applies when a plaintiff’s claim against a party
    has been dismissed by final judgment in one action and the plaintiff asserts the same claim
    against the same party in a subsequent action. Emeson v. Dep’t of Corr., 
    194 Wn. App. 617
    ,
    626, 
    376 P.3d 430
     (2016). In other words, res judicata applies when a previous claim for which
    there was a final judgment on the merits and the current claim are so similar that the current
    claim could have been litigated in the former action. Storti v. Univ. of Wash., 
    181 Wn.2d 28
    , 40,
    
    330 P.3d 159
     (2014). We review de novo whether res judicata applies. Emeson, 194 Wn. App.
    at 626.
    Here, there was a final judgment, but Shandola has not filed a subsequent action – there is
    no second claim. Shandola filed a CR 60(b)(11) motion in the same action. Therefore, an
    essential element of res judicata is missing. In addition, the Henry defendants do not cite any
    cases indicating that CR 60(b) must yield to res judicata. While res judicata is meant to ensure
    the finality of judgments, CR 60(b) is concerned with when finality must give way in order for
    justice to be done. Union Bank, 191 Wn. App. at 846. This court expressly rejected the
    argument that res judicata precluded application of CR 60(b)(11) in both Union Bank, 191 Wn.
    App. at 846, and Flannagan, 42 Wn. App at 223-24.
    Accordingly, we hold that the doctrine of res judicata does not prevent the application of
    CR 60(b)(11).
    C.        EXTRAORDINARY CIRCUMSTANCES JUSTIFYING RELIEF UNDER CR 60(b)(11)
    That relief potentially is available under CR 60(b)(11) based on a postjudgment court
    decision does not resolve this case. Shandola must show that under the specific facts of this case
    extraordinary circumstances exist that entitled him to CR 60(b)(11) relief. We hold that the
    13
    No. 48346-7-II
    Davis decision and other extraordinary circumstances exist in this case that compel relief under
    CR 60(b)(11).
    1.    Davis Decision
    Shandola argues that the Davis decision, standing alone, compels relief under CR
    60(b)(11). Union Bank provides some support for this position because after stating that CR
    60(b)(11) required extraordinary circumstances, this court stated that “[a] change in the law may
    constitute such extraordinary circumstances.” 191 Wn. App. at 845. This statement suggests
    that a trial court has discretion to grant relief under CR 60(b)(11) based solely on a postjudgment
    appellate decision that changes the law.
    However, here the trial court denied CR 60(b)(11) relief. Facing a similar ruling in one
    of its consolidated cases, this court in Flannagan focused on extraordinary circumstances other
    than the change in the law:
    Those [extraordinary] circumstances are as follows: first, the clear congressional
    desire of removing all ill effects of McCarty; second, the alacrity with which the
    Congress moved in passing the USFSPA [Uniformed Services Former Spouses
    Protection Act]; third, the anomaly of allowing division of the military retirement
    pay before McCarty and after USFSPA, but not during the 20-month period in
    between; and fourth, the limited number of decrees that were final and not appealed
    during that period.
    Flannagan, 
    42 Wn. App. at 222
     (footnote omitted). The court stated that these extraordinary
    circumstances allowed for the retroactive application of new legislation “without eroding the
    doctrine of finality.” 
    Id.
     Therefore, the court held that the trial court abused its discretion in
    denying a CR 60(b)(11) motion given these circumstances. Id. at 222-23.
    14
    No. 48346-7-II
    Consistent with Flannigan, we consider whether extraordinary circumstances exist other
    than the Davis decision itself to determine whether the trial court abused its discretion in denying
    Shandola’s CR 60(b)(11) motion.
    2.    CR 60(b)(11) Analysis
    Five factors support a finding of extraordinary circumstances in this case. First, Davis
    did not merely change the law – it enforced a strong right under the Washington Constitution.
    Article I, section 21 states that “[t]he right of trial by jury shall remain inviolate.” (Emphasis
    added.) The term “inviolate” means that the right of trial by jury deserves the highest protection.
    Davis, 
    183 Wn.2d at 288
    . There is no question under Davis that the trial court’s judgment here
    violated Shandola’s right to trial by jury. Therefore, if relief is not granted under CR 60(b)(11),
    Shandola’s right would not remain inviolate.
    Second, in applying Davis to cases pending at the time of that decision, the Supreme
    Court emphasized that “basic fairness demands that we not sustain a penalty imposed pursuant to
    a statute we have held unconstitutional.” Akrie, 
    183 Wn.2d at 668
    ; see also Worthington, 
    187 Wn.2d at 187
    . The court’s clear desire not to enforce unconstitutional judgments is similar to
    Congress’s desire to remove the effects of McCarty, which the court in Flannagan listed as an
    exceptional circumstance. 
    42 Wn. App. at 222
    .
    Third, Shandola only seeks to vacate the monetary judgment against him, not the
    dismissal of his lawsuit. That means that granting his CR 60(b)(11) motion will not reopen his
    case in the same sense as Union Bank, Treadwell, and Flannagan. Implementing Shandola’s
    requested relief would be straightforward – the trial court would simply strike the damages,
    15
    No. 48346-7-II
    attorney fees, and costs from its judgment. The trial court will not have to place the case back on
    the trial calendar or address the merits of the lawsuit.
    Fourth, the anti-SLAPP statute was in effect for only five years.4 Although the five year
    period is longer than the 20 month period in Flannagan, it still is a relatively short, finite period.
    The disruptive effect of granting Shandola’s CR 60(b)(11) motion would be limited to other
    monetary judgments imposed pursuant to successful anti-SLAPP special motions to strike during
    that five year window.
    Fifth, the anti-SLAPP statute provided the entire basis for the judgment against Shandola.
    This is not a situation where a change in the law affects only one of many issues in a case or is
    collateral to resolution of the case. As in Treadwell, application of the post-judgment decision
    would reverse the entire outcome of the case.5
    We hold that these extraordinary circumstances, in addition to the Davis decision itself,
    compel relief under CR 60(b)(11). And the Henry defendants do not claim that Shandola did not
    file his motion within a reasonable time as required under CR 60(b). Therefore, we hold that the
    trial court abused its discretion in denying Shandola’s CR 60(b)(11) motion.
    4
    The anti-SLAPP statute became effective on June 10, 2010 and was held unconstitutional by
    the Supreme Court on May 28, 2015. LAWS OF 2010, ch. 118, § 2; Davis, 
    183 Wn.2d at 269
    .
    That represents a five year window during which monetary judgments could have been entered
    pursuant to the anti-SLAPP statute’s provision allowing for an award of $10,000, attorney fees
    and litigation costs to the party asserting the statute. RCW 4.24.525(6)(a)(i)-(ii).
    5
    The only factor that the trial court mentioned in denying Shandola’s motion is that Shandola
    did not challenge the constitutionality of the anti-SLAPP statute in opposing the original anti-
    SLAPP motion. But the Henry defendants do not argue that the failure to raise a constitutional
    issue precludes relief under CR 60(b)(11) when the statute supporting the trial court’s judgment
    subsequently is declared unconstitutional. Therefore, we do not address this issue.
    16
    No. 48346-7-II
    D.      ATTORNEY FEES ON APPEAL
    Both parties request reasonable attorney fees on appeal. But Shandola does not provide
    any basis for the award of attorney fees, and therefore we decline to award attorney fees to him.
    And the Henry defendants are not the prevailing parties and therefore are not entitled to attorney
    fees.
    CONCLUSION
    We reverse the trial court’s denial of Shandola’s CR 60(b)(11) motion to vacate the
    money judgments against him, and remand for the trial court to strike those money judgments.
    MAXA, A.C.J.
    We concur:
    WORSWICK, J.
    SUTTON, J.
    17