Gregory Rose, et ux v. FMS, Inc. ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GREGORY ROSE and CATHERINE
ROSE, and the marital community No. 32284—0—111
composed thereof,
Plaintiffs,
ROBERT MITCHELL, UNPUBLISHED OPINION
Appellant,
V.
FMS, INC, d/b/a OKLAHOMA FMS,
INC, an Oklahoma Corporation,
Vvvvvvvvvvvvvvvv
Respondent.
FEARING, J. —— We review for the second time a challenge to sanctions imposed on
Robert Mitchell, the attorney for plaintiff Catherine and Gregory Rose, for frivolous
pleadings and bad faith and harassing litigation conduct. The trial court granted sanctions
of $66,399.93 in the form of reasonable attorney fees and costs incurred by the Roses’
opponent, FMS, Inc.
Because this case comes to us for a second time and because the trial judge has
No. 32284—0-111
Rose v. FMS, Inc.
been retired for three years, our decision includes an extensive review of the accounting
for attorney fees incurred by FMS. The review is in three appendices. In turn. we issue a
comprehensive ruling about the fees to be awarded to FMS against attorney Robert
Mitchell. Once again, we affirm in part and reverse in part the award. We reduce the
amount of the sanctions to $11,416.80.
FACTS
Appellant, attorney Robert Mitchell, represented plaintiffs Catherine and Gregory
Rose in an unfair debt collection lawsuit against F MS, a debt collection company.
Catherine Rose purchased goods from Kohl’s Department Store with a store credit card.
In early 2010, the Roses filed bankruptcy and stopped making payments to Kohlas.
Kohl’s assigned the debt to FMS. a debt collection agency based in Oklahoma, to collect
on missed payments. In March 2010. FMS initiated dunning calls and letters. FMS’ call
log showed 149 calls made to reach the Roses by telephone. The Roses retained attorney
Robert Mitchell, who represented them in another matter, to demand that FMS cease
calling.
On April 22, 2010, attorney Robert Mitchell addressed and sent a letter to FMS”
headquarters in Tulsa. Enclosed with the letter was a copy of an unfiled summons and
complaint that asserted violations of the federal Fair Debt Collection Practices Act, 15
U.S.C. § 1692, breaches of the Washington Collection Agency Act, eh. 19.16 RCW,
infringements of Washington’s Consumer Protection Act. ch. 19.86 RCW, and tort
No. 32284-0-III
Rose v. FMS, Inc.
. . . In the meantime, ifyou could tell me what the issues are maybe
I can address them so that the conference is unnecessary. Please fill me in,
and I’ll see what I can do.
As for my client’s deposition, I will have to get in touch with them
next week. I note, however, that I have a three week trial starting in Clark
County on September 20th. So it would be almost impossible to do FMS’s
deposition in September. Also, there are no direct flights to Tulsa. So it’s a
three day trip; a day to Tulsa, a day for the dep., then a day to get back. We
can discuss that more later, but just so you are aware.
CI’ (303802) at 42829. Mitchell replied on August 22:
I will telephone your office on Wednesday at 2:00 pm.
The lack of responses and numerous frivolous objections make the
deficiencies too numerous to list in a single email.
Given the history of this case. it appears that the best way to resolve
this situation will be to file a motion to compel and alert the Court to the
discovery difficulties to date.
In the alternative, Plaintiffs offer to settle this case in exchange for a
promise to cease the offending collection practices and payment of $4,900.
Please note that my motion to compel will include a request for
sanctions/terms.
Y our client may want to consider settling this case before it becomes
prohibitively expensive.
CP (303802) at 428 (emphasis added).
In late August, Steven Stolle and Robert Mitchell attempted to negotiate a
settlement through e-mail. FMS, while claiming it would be granted summary judgment,
increased its settlement offer to $1,000. The Roses rejected the offer, and countered with
an offer of $4,900 to settle the case. FMS then served the Roses with interrogatories and
requests for production ol‘documents and requests for admission.
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Rose v. FMS, Inc.
On September I, 2010, Steven Stolle sent Robert Mitchell a proposed stipulated
protective order to allow for FMS’ production of documents it considered confidential
and proprietary. The letter cited a case from this court to support FMS’ refusal to answer
some of the Roses’ requests for admission. Mitchell responded the same day:
Again, you do not have the privilege of citing cases and not
answering discovery. If you wish to avoid answering discovery, your
burden is to conduct a CR26 conference and move the Court for a
protective order. I expect you know that.
I received and reviewed the audio tape of the conversation between
our clients. It is clear from that conversation that Mrs. Rose did not want
your client telephoning her. In fact, I would submit that your client
violated the law by repeatedly asking Mrs. Rose for other contact
information after Mrs. Rose instructed your client to cease workplace
contacts. Instead of terminating the workplace telephone contact when the
debtor demanded, your client continued the collection attempts by
demanding that Mrs. Rose provide other telephone numbers at which your
client could continue the harassment campaign.
Your client’s position that Mrs. Rose invited your client to telephone
her at other telephone numbers is untenable. She clearly refused to provide
other telephone numbers and was openly hostile to the idea ofyour client
telephoning her at all.
I also note that your client placed 249 telephone calls in
approximately a two month period.
Obviously, we will need to know eachand every telephone number
your client called and the reason for the telephone calls.
This looks like a telephone harassment campaign. Despite your
client’s carefully crafted position, it is highly unlikely that your client will
escape liability in this instance. especially if the conversation with Mrs.
Rose is the cornerstone of your client’s defense.
Litigating this case in face ofa fee-shifting strict-liability statute is
not a very wise decision.
Plaintiffs’ offer of $4,900 is still on the table if your client desires an
inexpensive out.
Otherwise, I anticipate receiving your motion for protective order.
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Rose v. FJWS, Inc.
I will also be drafting discovery requests to determine every
telephone number your client called in attempt to collect this debt.
CP (303802) at 464.
On September 7, 2010, FMS filed its answer, asserting ten affirmative defenses
and counterclaiming for attorney fees on the ground that the Roses brought suit in bad
faith. On September 9, 2010, Robert Mitchell sent Steven Stolle another e-mail:
I understand that the attached stip. may have worked in other cases.
However, this is a consumer protection case in which Plaintiffs seek to
obtain injunctive relief to protect the citizens of this state. Plaintiffs have
already forwarded a copy of the complaint to the Attorney General’s Office
and the Department of Licensing.
History proves that those agencies will contact my office and request
evidence and documents to support the State’s independent investigation.
Your client holds a license to collect debts in this state. That is a
public license and this is a public matter. My clients absolutely want any
and every bit of information obtained to be available to the public and
government agencies, which is in keeping with Plaintiffs” quest for
inj unctive relief designed to protect the public.
This is a public matter and we cannot consent to an order limiting
public scrutiny ofyour client’s unfair business practices.
Therefore, we cannot stipulate to the protective order and we intend
to file a motion to compel responses to the discovery requests.
Please provide your dates of availability for a discovery conference
next week.
I am also still awaiting your client’s dates of availability for a CR
30(b)(6) deposition.
CP (303802) at 467.
On October 27 , 2010, Catherine and Gregory Rose responded to PMS” discovery
requests, and moved for partial summary judgment on liability. The Roses filed ajoint
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Rose v. FMS, Inc.
declaration in support of summary judgment. The declaration averred that FMS
telephoned “our home, and our cellular telephones incessantly.” CP (303802) at 42.
On Saturday, October 30, 2010, Steven Stolle wrote to Robert Mitchell:
My client is available for a CR 30(b)(6) deposition in Tulsa
November 9, 10, ll, 12, l6, and 17, Given the plaintiffs” filing for
summary judgment, you may want to wait until after that motion is decided,
since unnecessary costs are not recoverable, but that is your call. If you
decide to put it off to December, let me know and I will obtain additional
dates.
I will need to take your clients’ depositions before FMS’s response
to plaintiffs’ MSJ [motion for summary judgment] is due, particularly in
light of their supporting declaration, to avoid the likelihood of a CR 56(t)
motion. Please provide dates for their depositions from November 8th
through the 16th. I can do both depositions the same day, and I am willing
to set them either somewhere in Stevens County or at your Spokane office,
as you prefer.
CP (303802) at 474. Mitchell responded the same day with an e—mail on which the trial
court would later order sanctions based in part on its content:
“Tulsa.” That is a good one. I thought we had a conversation
regarding gamesmanship early on in this case? It is clear from your
previous written communications that you know very well that your client
needs to appear in Stevens County for the 30(b)(6) deposition.
Based on your response, I will be telephoning your office at 10:00
am. on Monday, Tuesday, and Wednesday of this coming week to engage
in a CR26i conference. I intend to file a motion for discovery sanctions
against you and your client.
It is your right to file a CR 56f motion in response to Plaintiffs”
Summary Judgment Motion. However, such a motion would be vigorously
opposed.
I again remind you and your client that this is a fee-shifting statute
and the more work you and your client force me to do, the more your client
and/or its insurance company will eventually pay my client at the end of the
day. I am willing to litigate this case in perpetuity ifthat is what your
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client chooses. However, doing so will result in your client paying
substantially more costs and fees than it would otherwise pay.
With the above in mind, I again urge your client to be reasonable
and settle this case rather than engaging in vindictive discovery and
needless motion practice.
CP (303802) at 476 (emphasis added).
Attorneys lack a social life. Therefore, Steven Stolle replied on the evening of
Saturday, October 30. Stolle wrote:
I have no intention of producing my client for deposition in
Washington, as you well know. It is well settled that a corporate defendant
is deposed where it is headquartered. l have always referenced making my
client available in Tulsa, and your reference to my acknowledging anything
to the contrary earlier in the case is completely false.
I have given you dates for my client’s deposition in Tulsa, and
requested the same from you for your clients. Your responseuthat you
would oppose a CR 56(t) motion—appears to be a refusal to produce your
clients for deposition. Accordingly, ifI do not receive dates for your
clients’ depositions by the end of the day Tuesday, we will simply note
them up for a date and location in Stevens County ofmy choosing.
l have tried to work with you on at least a professionally courteous
basis from the beginning, but I find your constant belligerence, threats, and
attempts to dictate to and lecture me tiresome, grossly unprofessional, and
flat unacceptable. The suggestion that you can simply dictate when we will
have a discovery conference by harassing me with phone calls is just the
latest example. You can, of course, bring any motion you want, consistent
with CR 11 and the Rules of Professional Conduct, but I will be putting
copies of your emails both to me and my client before the court in response
and in support of a crosswmotion. Judges don’t like this kind of nonsense,
but I’m perfectly willing to let the court in Stevens County decide who is
being unreasonable and violating the Civil Rules and RPCs if that’s What
you want.
CP (303802) at 479.
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No. 322840—111
Rose 1/. FMS, Inc.
On Monday, November 1, 2010, Robert Mitchel} wrote to Steven Stolle:
I intend to telephone you between 3 and 4 pm. on Tuesday for our
CR 26i conference.
It may be helpful for you to provide me with the “well settled”
authority that a corporate defendant is deposed where it is headquartered. It
may also benefit you to be prepared to explain why it took three months for
you to provide dates for your client’s deposition.
My clients cannot be deposed on the same day they have
scheduling conflicts.
Greg Rose is available for a deposition on November 10, 2010.
Catherine Rose can attend a deposition on November 12, 2010.
I am not interested in hosting the depositions at my office. You will
have to arrange for them to occur elsewhere. Please inform us oftimes and
locations for the depositions.
Please provide me with a detailed explanation of why you believe
Plaintiffs’ responses to Defendant’s discovery requests are “grossly
inadequate” so that we may cure any defects.
I again remind you and your client that this is a fee~shifting statute
and the more work you and your client force me to do, the more your client
and/or its insurance company will eventually pay my client at the end of the
day.
CP (303802) at 481.
On November 2, Steven Stolle penned and emailed a three-page letter containing
legal authority to support FMS’ position that it could be deposed only in Tulsa. The
letter acknowledged that: “No Washington appellate court has ruled on the particular
issue of where a corporate defendant is deposed under CR 30(b)(6).” CP (303 802) at
482. In the end, Mitchell, on behalf of the Roses, relented and agreed to depose FMS in
Oklahoma.
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No. 32284—0-111
Rose v. FMS, Inc.
On November 1, 20l0, two months after FMS’ original request, the Roses finally
agreed to FMS’ proposed stipulated protective order. FMS filed a cross motion for
summary judgment, on November 2. The motion asked for dismissal of the Roses?
claims. In a memorandum opposing FMS’ summary judgment motion, Robert Mitchell
wrote that, after Catherine Rose told FMS not to call anymore, FMS left “at least 19 more
voicemail messages” with the Roses. CP (303 802) at 571. Mitchell referred the reader to
Exhibit B attached to a declaration signed by him for support of this factual assertion.
Exhibit B attached to Robert Mitchellis declaration included FMS’ answers to
interrogatories. The answers did not state that FMS left nineteen voicemail messages.
On November 4, 2010, Steven Stolle wrote to Robert Mitchell that he believed
most of the Roses” answers to interrogatories and responses to requests for production
were insufficient, deceptive, incorrectly claimed as privileged, or inconsistent. In
particular, Stolle took issue with the Roses? assertion that they retained neither their
Kohl’s billing statements, nor their telephone records. On November 9, 2010, Mitchell
and Stolle held another CR 26(i) conference in which they agreed:
The only direct supplementation that plaintiffs agreed to and need to
make are: (1) identify their telephone carriers so that defendant can
subpoena the pertinent records, and (2) submit paperwork to Kohl 15' and/or
[Cflzase to obtain records on the debt at issue to produce to defendant.
We agreed that the other discovery issues raised in my letter of
November 4th, can be resolved at Mr. Rose’s deposition on the 12th,
including—without waiving any attorney—client privilegewwhen plaintiffs
first contacted you, the fee arrangement, other lawsuits in which they are
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Rose v. FMS: Inc.
named parties, answers to requests for admission, and their document
retention practices.
CP (303802) at 536 (emphasis added).
On November 12, 2010, Steven Stolle deposed Gregory Rose. During his
testimony, Gregory stated that he usually traveled For work during the week, but he also
operated a window cleaning business with local customers. He declared that Catherine
Rose handled the couple’s finances. He did not believe Catherine had discarded their
phone or Kohl’s billing statements. Gregory Rose admitted that the Roses kept a log of
calls received from FMS after being instructed to do so by their attorney. He testified
that he could not remember Robert Mitchell’s and his signing of a retainer agreement, but
they had not discussed compensation beyond the Roses providing goods or services in
kind.
On November 30, 2010, the trial court entertained oral argument on the cross
motions for summary judgment. The trial court granted summary judgment in favor of
FMS and dismissed the Roses” claims with prejudice.
The Roses Move for Reconsideration
On December l0, 2010, Catherine, and Gregory Rose filed a motion for
reconsideration. The couple argued that newly discovered evidence warranted granting
their motion. In support of the motion for reconsideration, Catherine Rose filed a
declaration, in which she stated that she “was finally able to find my Kohl’s records in an
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No. 32284—0-111
Rose v. Fjl/IS, Inc.
unmarked storage tub in my garage, which was mixed with other storage boxes.” CP
(303802) at 262. The Kohl’s records purportedly demonstrated that the Roses’ account
was in default, a key legal issue at summary judgment. The records also allegedly
showed that the disputed debt qualified as “consumer debt” under the Fair Debt
Collection Practices Act. Robert Mitchell asserted in a separate affidavit that FMS
“never provided Plaintiffs with copies of the original Kohl’s credit card agreement or any
billing statements, despite a proper Request for Production.” CP (303 802) at 250.
Mitchell also asserted that FMS failed to produce any documents in response to the
stipulated protective order it executed with the Roses.
Catherine and Gregory Rose failed to timely serve or schedule the motion for a
hearing on their motion for reconsideration and later withdrew it. FMS, unaware of the
hearing due to lack of service, made no filings in response. The Roses chose not to.
appeal the dismissal of their claims.
FMS Moves for Sanctions Against Robert Mitchell
On February 7, 2011, FMS moved for sanctions against Robert Mitchell under CR
11(a), CR 26(g), and CR 56(g). FMS contended that Mitchell violated CR ll(a) by filing
a frivolous lawsuit and by treating opposing counsel poorly. FMS argued that Mitchell
breached CR 26(g) by serving voluminous and unnecessary discovery requests,
wrongfully insisting on deposing FMS in Spokane, and preparing and signing false and
misleading answers to FMS’ discovery requests. Finally, FMS maintained that Mitchell
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No. 32284—0411
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contravened CR 56(g) by filing blank copies of the Roses” discovery requests to insinuate
that FMS did not answer discovery, by misrepresenting the fact that he possessed a copy
ofKohl’s credit card agreement prior to the trial court’s ruling on summary judgment,
and by filing a joint declaration of Catherine and Gregory Rose that Mitchell knew was
untruthful and conflicted with Gregory’s deposition testimony. FMS also complained
about Mitchell’s reporting the case to the Attorney General’s Office and Department of
Licensing. FMS insisted that the reports to government agencies obliged it to defend the
case more aggressively. FMS stressed that Mitchell’s “considered, willful misconduct"
was for the sole purpose of increasing the cost ot’litigation to FMS, such that it would
settle an otherwise non-meritorious case. Ci) (303802) at 625.
Robert Mitchell filed pleadings opposing the motion for sanctions. On February
15, 201], the trial court heard oral argument on FMS’ motion for sanctions. The trial
court informed the parties that she would isSue a letter ruling at a later date.
On March 4, 2011, before the trial court issued its ruling, Robert Mitchell filed a
“supplemental response to defendant’s motion for sanctions.” CP (303 802) at 665—98. In
the response, Mitchell maintained that he recently received newly discovered evidence
relevant to FMS’ assertion that the Roses” entire lawsuit was frivolous. Mitchell filed
several of Kohl’s internal copies of the Roses’ account statements, which he argued
showed the merit of the Roses’ lawsuit against FMS. A February 22, 201i letter from
Kohl’s accompanied the records and stated: “As this satisfies the terms of the subpoena,
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No. 32284—0—111
Rose v. F MS, Inc.
claims for emotional distress. Mitchell’s letter informed FMS that Catherine and
Gregory Rose had yet to file the lawsuit, but that FMS needed to respond to avoid a
default. Mitchell mentioned the Roses’ desire to resolve the dispute without the need for
prolonged litigation, and he recommended that FMS forward a reasonable proposal to
settle. Mitchell included the following paragraph in his April 22 letter:
If this dispute cannot be resolved, and if it becomes necessary to file
this complaint with the Court, I will be bound by RCW 19.86.095 to file a
copy of the complaint with the Washington State Attorney General’s office.
Harumi T olbert at the Department of Licensing has also requested that I
provide her with copies of all complaints filed with the Attorney General’s
office.
Clerk’s Papers (CF) (303802)l at 315.
Kathryn Martin, FMS’ general counsel, responded on June 15, 2010 via a letter
attached to an email message to Robert Mitchell. The message denied engaging in
harassing debt collection behavior. Martin claimed that Catherine and Gregory Rose’s
debt to Kohl’s was not in “default,” but was instead “outstanding.” CP (303 802) at 320.,
The message did not explain any distinction between an “outstanding” debt and a debt in
“default.” The message informed Mitchell that FMS had returned the account to Kohl’s.
Martin did not offer any settlement of the dispute.
1 For purposes of this appeal we are transferring a copy of the clerk’s papers filed
in case no. 303 80~2~lll into this case. We use “CP (303802) W” when referencing the
first appellate record, and simply “C?” for the second, present appeal.
No. 32284—0—lll
Rose 1). F MS, Inc.
Kohl’s will now consider this matter closed.” CP (303 802) at 672.
FMS complained about the manner in which Robert Mitchell obtained Catherine
and Gregory Rose’s financial records from Kohl‘s. During discovery, Mitchell and
Steven Stolle agreed that the Roses would submit paperwork to Kohl’s to obtain the debt
records. Mitchell would then forward copies of the records to Martens + Associates.
Nevertheless, Mitchell sent the request to Kohl’s accompanied by a power of attorney
from the Roses on December l, 2010, the day after the trial court granted summary
judgment to FMS. In his December 1 letter to Kohl’s, Mitchell asked Kohl’s to notify
him “if you require a subpoena to obtain any of the requested information.” CP (303 802)
at 814. On January 10, 2011, before receiving a response from Kohlis, Mitchell served
Kohl’s registered agent in Washington with a subpoena duces tecum, requesting the same
information as in his December 1 letter.
On March 11, 2011, FMS filed a surreply on its motion for sanctions. The
surreply informed the court that Robert Mitchell failed to serve FMS’ counsel with a
copy of the subpoena duces tecum on Kohl’s, as required by CR 45(b)(2). FMS argued
that Mitchell should be sanctioned for telling the court, at the February 15 sanctions
hearing, that he served a subpoena on Kohl’s “months ago.” when it had only been six
weeks. CP (303802) at 702.
On March 21, 201 1, Robert Mitchell filed two “supplemental declarations,”
regarding FMS’ sanctions motion. Mitchell attached additional documentation to the
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Rose v. FMS, Inc.
declarations that he received from Kohl’s on March 17, 201 1 regarding the Roses’
account and copies of email correspondence between Steven Stolle and him. Mitchell
failed to sign one of the declarations.
On March 24, 2011, FMS filed a second surreply and motion to strike Mitchell’s
second and third declarations as unauthorized by the civil rules, irrelevant to FMS”
motion for sanctions, and an inappropriate attempt to continue discovery after dismissal
of the Roses’ claims. FMS also requested additional attorney fees on the basis that
Mitchell’s declarations relied on evidence obtained through improper use of a subpoena
in violation of CR 45(b)(2).
On April 1 l, 2011, Catherine and Gregory Rose filed a CR 60 motion to vacate
the trial court’s entry of summary judgment. The Roses argued that the order should be
vacated because: (1) the Roses received new evidence from Kohl’s, as a result of the
subpoena duces tecum, after the time to move for reconsideration, (2) FMS fraudulently
asserted the Roses’ account was not in default, which formed the basis of the court’s
decision on summary judgment, and (3) equity dictated vacation in light of this new
evidence. The trial court later determined the motion to vacate the judgment was not
properly before the court and struck it.
Also on April 1 13 Catherine and Gregory Rose moved for CR 1 l sanctions against
FMS. The Roses repeated their assertion that FMS intentionally and falsely claimed the
Roses” Kohl’s account was not in default when FMS began its attempts to collect and that
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Rose 1/. FMS. Inc.
this false representation merited CR ll sanctions. The motion for sanctions included
another declaration from Robert Mitchell with exhibits containing more documents
recovered from Kohl’s as a result of the subpoena duces tecum and yet another copy of
the Roses’ discovery requests to FMS. Finally, on April 11, Mitchell filed his third
“supplemental declaration” regarding FMS” motion for sanctions, to which he again
attached the same Kohl’s account documents. On April 12, 2011, the Roses filed a
motion to compel FMS’ deposition.
On April 18, 201 1, FMS filed an objection and third surreply in response to
Mitchell’s third supplemental declaration. FMS asked the court to strike the offending
declaration and award FMS costs and fees incurred in addressing Mitchell’s numerous
filings. On April 19, 201 l, the trial court entered an order of voluntary dismissal of
FMS” counterclaims.
On July 1 l, 2011, the trial court issued a letter opinion. The opinion struck Robert
Mitchell’s supplemental declarations as an untimely surreply to FMS’ reply materials and
struck pleadings related to records obtained by the subpoena duces tecum on Kohl’s since
Mitchell issued the subpoena in violation of CR 45(b)(2). The opinion also struck the
Kohl’s records on the basis that a declaration of a records custodian did not identify and
authenticate the records. F inally, the July ll letter ruling granted F MS” motion for
sanctions against Robert Mitchell under all three civil rules asserted by FMS. The trial
court wrote:
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Rose v. FMS, Inc.
First: The suit was filed without sufficient inquiry into the facts and
the law as required by CR 1 1(a). Mr. Mitchell filed the suit without
sufficient research, factual or legal, into the question of whether the account
was “in default” as that term of art applies to the various causes of action
sued under.
Second, CR 26(g) would require sanctions, since the discovery
violations defendant has claimed plaintiffs” counsel committed are
established. Mr. Mitchell did not make the efforts required by the
discovery rules but instead answered the interrogatories and requests for
admission and production in an offhand way, in a blatant attempt to thwart
the reasonable discovery efforts of the defendant. And, Mr. Mitchell
promulgated burdensome and unnecessary discovery in an effort to bully
the defendant into a settlement.
Third, CR 56( g) also provides a basis for sanctions with respect to
the materials submitted in regard to the summary judgment issues, for the
reasons stated in the defendant’s motion for this basis.
1 further conclude that there were misrepresentations of fact in Mr,
Mitchell’s oral statements made to the court on February 15, 2011, as
argued in [Second Surreply ot‘Defendantl. Further, Mr. Mitchell’s
incessant filing of declaration after declaration was clearly designed to
delay the inevitable as well as to increase the costs of the litigation for the
defendant.
Thus, the motion for sanctions with respect to each of these four
subject areas should be granted.
CP (303802) at 998.
On July 26, 2011, Martens + Associates, the law firm representing FMS,
submitted a lengthy and detailed accounting of its attorney fees and costs charged in
defending the Roses’ lawsuit and in bringing the motion for sanctions against Robert
Mitchell. FMS requested $31,348.11 in attorney fees and costs. On August 25, 2011,
Robert Mitchell filed a declaration in opposition to FMS” motion for sanctions. The
declaration characterized the fees requested by FMS as outrageous and “not reasonable or
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Rose v. FMS, Inc.
necessary because the issues involved in this case were simple, strait forward, and did not
require substantive legal work.” CP (303 802) at 1084. Mitchell submitted declarations
from Gregory Rose, the Spokane County Bar Association, and legal practitioners
attesting to his professionalism and honesty. On September 2, 2011, FMS filed a reply in
support ofits submission of fees and costs, asking the trial court to strike several of the
declarations filed by Mitchell as lacking in foundation or irrelevant.
On September 22, 2011, the trial court issued a second letter opinion granting
FMS’ request to strike several of the declarations filed by Robert Mitchell, finding all
costs and fees incurred by FMS reasonable in the defense of this case, and setting a
lodestar multiplier of 1.5 times the actual billed rate of $168 per hour to $250 per hour.
The trial court found:
Mr. Mitchell’s hourly rate, as a much less experienced attorney, is
$200; and Mr. Martens and Mr. Stolle’s articulate presentation of these
very complex issues and their impeccably prepared pleadings throughout
these proceedings are ample evidence of their high level of skill. An hourly
rate of$250 is reasonable for these attorneys” time.
CP (303802) at l 135. The trial court also wrote: “In the event ofa motion for
reconsideration, l will continue to handle this case to its conclusion as a pro tem under
the applicable statute allowing retired judges to finish out their assigned eases.” CP
(303802) at l 136. She instructed FMS’ attorneys to draft a proposed order incorporating
her letter ruling and to note presentation without oral argument.
No. 32284—0-111
Rose v. FMS, Inc.
On October 10. 2011, Robert Mitchell filed an objection to FMS’ proposed order.
Mitchell requested that the sanctions be entered against “Robert Mitchell, Attorney at
Law, PLLC,” and not him as an individual. He sought a jury trial in light of the court’s
decision to employ a lodestar multiplier and issue “approximately $20,000 in strictly
punitive contempt sanctions.” Finally, he requested a stay of enforcement of judgment
pending appeal. CP (3 03 802) at l 140. On October 13, 2011, the trial court entered an
order granting FMS sanctions in the amount of$70,546.44. Trial judge Rebecca Baker
retired on October 15. 2011. On October 24. 2011, filed a response to Mitchell’s
objections, informing the trial court that “Robert W. Mitchell, Attorney at Law, PLLC”
dissolved in 2008 and no longer existed as a legal entity in Washington.
Robert Mitchell Appeals the First Entry of Sanctions against Him
On November 8, 2011, Robert Mitchell appealed the trial court’s entry of
sanctions against him. On April 30, 2013, by unpublished opinion, this division of the
Washington Court of Appeals reversed the trial court’s imposition of sanctions on all
grounds and remanded to the trial court. We determined that the trial court abused its
discretion in awarding sanctions under CR 11(a) as the Roses” lawsuit was not frivolous.
We further held that the trial court’s findings of fact and conclusions of law in its order
imposing sanctions under CR 26(g) and CR 56(g) were insufficient to support an award
of sanctions.
26
No. 32284—0-lll
Rose v. FMS, Inc.
We summarized our rulings in three passages Within the April 2013 opinion. On
page 2, we wrote:
We reverse the CR, 1 1 (a) sanctions because we conclude the
underlying litigation was not baseless or frivolous.
CP at 90. On page 9 we declared:
Considering all, we conclude the court lacked tenable grounds to
impose CR 11 sanctions. While arguably applying the correct legal
standard, a matter not on review here, the court adopted an unreasonable
view in sanctioning Mr. Mitchell. . . . The Roses could reasonably believe
from their contract that their account was in default. . . . As noted, Mr.
Mitchell had a good faith basis under CR 11(a) to believe he was justified
in bringing suit to protect his clients. . . .
CP at 97. Finally, on page 11 of the opinion, we wrote:
Without more, we vacate the CR 26(g) and CR 56(g) sanctions
because we cannot meaningfully review them as required in Burma: [v.
Spokane Ambulance, 131 Wash. 2d 484, 933 P.2d 1036 (1997)], and remand
to allow, but do not direct, further proceedings. The trial judge has retired.
A new judge will have to, if asked, review the record and assess anew
whether sanctions are warranted under CR 26(g) and CR 56(g); if sanctions
are warranted they would be limited to violations of CR 26(g) and CR
56(g) without consideration of the CR 11(a) sanctions rejected above.
CP at 99.
FMS filed a motion for reconsideration that asked this court to clarify whether
FMS could seek CR 11 sanctions on remand on grounds other than a frivolous lawsuit.
In its motion, FMS noted that the trial court imposed CR 1 1 sanctions against Robert
Mitchell for frivolous pleadings and harassing conduct in addition to and other than filing
the lawsuit. FMS aptly noted that our April 2013 decision did not directly address
27
No. 32284~0~IH
Rose v. F MS, Inc.
whether the trial court on remand could impose CR 1 l sanctions for conduct other than
filing the suit. On May 23, 2013, this court denied FMS’ motion. This court awarded
$1,158.49 in costs to Mitchell as the prevailing party on appeal.
FMS Renews Its Motion for Sanctions on Remand
On October 31, 2013, FMS moved the trial court for entry of an amended order
granting sanctions against Robert Mitchell. FMS requested that: (1) Judge Rebecca
Baker, who presided over the earlier motions, sit as judge pro temporc and decide FMS”
motion on remand, as allowed under RCW 2.08.180; (2) the trial court find FMS” new
allocation and designation of fees for sanctions reasonable in light of this court’s opinion,
and (3) the trial court enter more specific findings of fact and conclusions of law in order
to re-impose sanctions on all previous grounds, except that Mitchell filed a frivolous case
under CR 1 l. Attorney Steven Stolle included a new, detailed allocation of fees, costs,
and expenses, segregated by the rules the trial court previously found that Mitchell
violated. FMS noted the motion for a hearing before Judge Baker on November 13,
2013.
On November 6, 2013, Robert Mitchell filed a motion for a continuance, stay of
proceedings, assignment of new judge, and recusal of Judge Baker. Mitchell argued that
language from this court’s opinion mandated Judge Baker’s recusal, or, in the alternative,
recusal was appropriate to avoid the appearance of unfairness. Mitchell asked for a
continuance to review and respond to the large number of exhibits filed by FMS in its
28
No. 32284~0—Ill
Rose v. FM’S, Inc.
motion. In the event Judge Baker did not reeuse herself, Mitchell sought a stay of
proceedings in order to allow him to file a RAP 12.9(a) motion with this appeals court to
order the lower court to comply with the mandate.
On November 7, 2013, Judge Baker heard argument on Robert Mitchell’s motions.
F MS responded to Mitchell’s motions on the same day as this hearing. The trial court
denied Mitchell’s motion for recusal and for a stay, but granted his motion for a
continuance. The trial court set a hearing for FMS’ sanctions motion on December 4,
2013.
On November 21, 2013, Robert Mitchell responded to FMS’ motion for sanctions.
He argued that the trial court could not re-impose CR 11 sanctions, FMS’ other bases for
seeking sanctions under CR 26 and CR 56 were unfounded, and no lodestar adjustment
upward was justified because FMS” attorneys were paid on an hourly basis. On
November 22, Mitchell moved this appeals court to recall its mandate in his first appeal
“to assure compliance with its decision rcmanding to allow, but not direct, further
proceedings in front of a new judge.” Rose v. FMS, Inc, No. 303 80—2—HI, Motion to
Recall Mandate (Wash. Ct. App. Nov. 22, 2013). On November 26, 2013, this court
denied Mitchell’s motion for immediate review.
On December 4, 2013, the day of the hearing on FMS’ motion for sanctions,
Robert Mitchell filed a motion and memorandum for judicial notice of adjudicative facts.
29
No. 32284—0—111
Rose v. FMS, Inc.
The trial court heard oral argument on FMS’ motion for sanctions and reserved its ruling.
The trial court entered an order to confirm its previous rulings on November 7.
On February 10, 2014, the trial court granted FMS” requested sanctions in the
amount of $66,3 99.93. The lower court entered thirty-nine findings of fact and twenty—
nine conclusions of law. The trial court awarded FMS sanctions under CR 1 l, 26, and
56. The “amount awarded” includes attorney fees, paralegal fees, and expenses. The
trial court also awarded FMS’ fees incurred in bringing the motion for sanctions in the
amount of $17,209.60. Judge Baker discounted the total amount of fees, costs, and
expenses by $1,158.49, the amount of costs awarded to Mitchell by this court, for a total
judgment of $65,241.44. An excerpt of the relevant findings of fact and conclusions of
law is contained in appendix 1 at the end of this opinion.
LAW AND ANALYSIS
On appeal, Robert Mitchell presents four principal arguments. First, the trial court
erred in denying his motion for Judge Baker to recuse herself from hearing FMS’
renewed motion for sanctions on remand. Second, the trial court erred in re-imposing CR
1 1 sanctions on remand. Third, the trial court failed to enter factual findings sufficient to
award CR 26 and CR 56 sanctions under the Supreme Court’s decision in Burnct v.
Spokane Ambulance, 131 Wash. 2d 484, 933 P.2d 1036 (1997). Fourth, the trial court failed
30
No. 32284—0—III
Rose V. FMS, Inc.
On June 15, 2010, Robert Mitchell replied, by e-mail message, to Kathryn
Martin’s e-mail. Mitchell asked if FMS wished to tender an offer to settle before the
Roses proceeded with discovery and motions. Within minutes, Martin responded that
FMS’ president was out of the country for one week. Martin asked Mitchell for a
demand from the Roses. Mitchell responded ten minutes later:
In cases of this type (too many telephone contacts) my office
typically shoots for damages, costs, and attorney’s fees of $5,000, plus a
letter promising to cease similar Violations in this state.
In exchange, the case will not be filed with the Court, the Attorney
General’s Office, or the Department of Licensing. Plaintiffs will waive all
claims and commit to confidentiality.
I understand if you have to wait until Monday to respond.
CP (303802) at 322.
On June 25, 2010, Kathryn Martin, on behalf ofFMS, offered to settle the claims
of Catherine and Gregory Rose for $500. Martin reiterated that FMS had not violated the
law. Martin ended her settlement offer letter:
If this offer is not acceptable to your client, FMS is prepared to
vigorously defend its position in court.
CP (303802) at 325.
On Sunday, June 27, 2010, Robert Mitchell sent Kathryn Martin, by email, a copy
of a letter to the court clerk requesting tiling ol‘ the summons and complaint, a copy of a
letter to the Washington Attorney General’s Office informing it of the lawsuit against
FMS, a copy of a letter to the state Department of Licensing informing it of the lawsuit,
No. 32284-0—111
Rose v. FMS, Inc.
to properly segregate compensable and noncompensable attorney fees in issuing
sanctions under CR 26(g) and CR 56(g).
We reject Robert Mitchell’s first and second contentions. Because of our
comprehensive review of the trial court‘s findings of fact, we do not directly address
whether the findings were sufficient under Burner. We agree that the trial court failed to
correctly isolate awardable and nonawardable fees. Therefore, we reduce the amount of
the award. We first address a procedural issue raised by FMS.
Challenges to Findings of Fact
Before addressing Robert Mitchell’s assignments of error, we resolve a technical
objection asserted by FMS. Robert Mitchell attached an eighteen page “Appendix
responding to the trial judge’s findings of fact and conclusions of law,” in which he
assigns error to every trial court finding and conclusion, except for the decision to
discount the sanctions against him by the amount of costs this appeals court awarded to
him for substantially prevailing on his first appeal. Br. of Appellant at 24. FMS
contends that an appendix is not the proper way to brief, contest, or argue the validity of a
trial court’s findings of fact and conclusions of law.
RAP 10.3(g) provides, in relevant part:
A separate assignment of error for each finding of fact a party
contends was improperly made must be included with reference to the
finding by number. The appellate court will only review a claimed error
which is included in an assignment of error or clearly disclosed in the
associated issue pertaining thereto.
31
No. 32284-O-Ill
Rose v. Flt/IS, Inc.
liven if a party fails to assign error to each challenged finding, an appellate court may
review such a finding so long as the nature of the challenge is clear and the finding is set
forth in the appellate brief. State v. Estrella, 115 Wash. 2d 350, 355, 798 P.2d 289 (1990).
Nevertheless, this court does not permit litigants to use incorporation by reference as a
means to argue on appeal or to escape the page limits for briefs set forth in RAP 10.4(b).
Diversified Wood Recycling, l'ne. v. Johnson, 161 Wash. App. 859, 890, 251 P.3d 293(2011).
Robert Mitchell’s opening brief, with the appendix, is 41 pages, nine pages shy of
the page limit. RAP 10.4(b). The appendix assists this court to discern which findings of
fact are most relevant to the issues raised by Mitchell. Because the appendix does not
allow Mitchell to avoid compliance with the page limitation and because this court may
discern the nature ol‘Mitchell’s challenge, this court need not and will not strike the
appendix nor consider the challenges to the findings of fact waived.
Reeusal of Judge Baker
Robelt Mitchell contends that the trial court erred in denying his motion that she
recuse herself from hearing FMS’ motion for sanctions on remand. Mitchell argues that
this court’s April 2013 opinion in Rosev. FMS, Ina, no. 303 80—2-11}, directed a new
judge to reassess whether sanctions were appropriate on remand. Mitchell mentions in
passing Judge Baker’s comment that she needed to avoid prejudice and promote the
32
No. 32284—0-111
Rose v. EMS, Inc.
appearance of fairness. Nevertheless, Mitchell does not contend Judge Baker should
have recused herself on either ground.
FMS argues that this court’s earlier opinion recognized Judge Baker’s retirement
and the possibility that another judge would need to hear further motions. Nevertheless,
according to FMS, this court did not order removal of Judge Baker. FMS also, contends
that Judge Baker was statutorily entitled to hear F MS’ motion on remand, pursuant to
RCW 2.08.180. We agree with FMS.
None of the three judges on this panel sat on the panel that issued this court’s
April 30', 2013 decision. During oral argument, we asked whether this panel should seek
input from members of the prior panel concerning the meaning of the earlier decision.
Despite posing this question, we have not sought input from members of the earlier panel.
We consider such an action to be similar to taking evidence outside the presence of the
parties and thus inappropriate.
Typically a party moves for a judge’s recusal by filing an affidavit of prejudice
against the judge before she “shall have made any ruling whatsoever in the case.” RCW
4.12.050. The judge will recuse herself and transfer the case, if the affidavit sufficiently
establishes prejudice. RCW 4.12.040. Ajudge’s decision not to recuse herselfis
reviewed for abuse of discretion. In re .Marriage of Farr, 87 Wash. App. 177, 188, 940
P.2d 679 (1997).
Judge Rebecca Baker retired in October 201 1, before the final order of sanctions
33
No. 32284-0-111
Rose v. FMS, Inc.
was entered on the first occasion. She remained retired during proceedings on remand
from this court‘s April 2013 decision. Nevertheless, she issued several discretionary
decisions before her retirement. She granted FMS” motion for sanctions, although she
reserved the amount of sanctions. RCW 2.08.180(2) provides, in relevant part:
. . . [I]f a previously electedjudge of the superior court retires
leaving a pending case in which the judge has made discretionary rulings,
the judge is entitled to hear the pending case as a judge pro tempore without
any written agreement.
A trial court’s decision to award sanctions under CR 11 or 26 is discretionary. See
Bryant v. Joseph Tree, Inc, 119 Wash. 2d 210, 218. 829 P.2d 1099 (1992); Magana v.
Hyundai MotorAm., 167 Wash. 2d 570, 582, 220 P.3d 191 (2009); Was/1. Slate Physicians
Ins. Exch. & Ass’n v. Fisons Corp, 122 Wash. 2d 299, 338, 858 P.2d 1054 (1993).
Accordingly, under the statute, Judge Baker’s retirement did not exclude her from
deciding FMS” motion for sanctions on remand.
Robert Mitchell maintains that this court’s April 2013 opinion ordered Judge
Baker to reeuse herself. In the opinion, we wrote: “The trial judge has retired. A new
judge will have 10, if asked, review the record and assess anew whether sanctions are
warranted under CR 26(g) and CR 56(g).” CP at 99. (emphasis added).
This court’s April 2013 opinion did not expressly remove Judge Baker from
further hearings. The phrase “will have to” connotes a mandate that another judge hear
any further sanction motions. But that phrase should be read in the context of the history
34
No. 32284—0411
Rose v. FMS, Inc.
of the case and other language in the _opinion. The preceding sentence noted that Judge
Baker had retired. In our 2013 opinion, we assumed, without addressing, that Judge
Baker would be unavailable to hear additional motions. We presupposed that, with Judge
Baker’s retirement, another judge would “have to” appear for further motions.
Reading our April 2013 opinion as a whole, we conclude this court did not remove
Judge Baker from hearing further motions. We incorrectly assumed that Judge Baker
would be unavailable because of retirement. Removal of a trial court judge from
presiding over further hearings in a case is an uncommon decision. Such a ruling would
be expressed in direct words of removal preceded by the reasons for the removal.
CR 11 Sanctions
Robert Mitchell next argues that our April 2013 decision precluded any sanctions
award under CR 11 on remand. We disagree.
The critical passages within our April 2013 opinion fall on pages 2, 9 and l l. The
respective excerpts read:
We reverse the CR 1 l (a) sanctions because we conclude the
underlying litigation was not baseless or frivolous.
CP at 90. On pages 9 and 10, we declared:
Considering all, we conclude the court lacked tenable grounds to
impose CR ll sanctions. While arguably applying the correct legal
standard, a matter not on review here, the court adopted an unreasonable
View in sanctioning Mr. Mitchell. . . . The Roses could reasonably believe
from their contract that their account was in default. As noted, Mr.
Mitchell had a good faith basis under CR ll (a) to believe he was justified
35
No. 32284~0~lll
Rose v. EMS, Inc.
in bringing suit to protect his clients. . . .
CP at 97. Finally, on page 11 of the opinion, we wrote:
Without more, we vacate the CR 26(g) and CR 156(g) sanctions
because we cannot meaningfully review them as required in Burner, and
remand to allow, but do not direct, further proceedings. The trial judge has
retired. A newjudge will have to, it" asked, review the record and assess
anew whether sanctions are warranted under CR 26(g) and CR 56(g); if
sanctions are warranted they would be limited to violations of CR 26(g) and
CR 56(g) without consideration of the CR 11(a) sanctions rejected above.
CP at 99.
A broad reading of the opinion could lead one to the conclusion that the trial court
could impose no CR 11 sanctions on remand. We wrote, among other words, that “the
court lacked tenable grounds to impose CR 1 l sanctions.” CF at 90. Nevertheless, our
mention of CR ll sanctions was within the context of filing a lawsuit. We reversed CR
1 l sanctions because “the underlying litigation was not baseless or frivolous.” CP at 90.
Robert Mitchell had a “good faith” basis “in bringing suit.” The April 2013 opinion did
not analyze whether CR 1 l sanctions could be assessed because of other alleged
misconduct of Mitchell. FMS asked for a clarification of the ruling via a motion for
reconsideration. We summarily denied the motion. We conclude that the trial court was
not prevented from awarding sanctions under CR 11 for reasons other than the lawsuit’s
frivolity.
36
No. 32284—0411
Rose v. FMS, Inc.
Merits of Appeal
We new address the merits of Robert Mitchell’s assignments of error. In doing so,
we review each billing entry of the law firm, Martens + Associates, to determine ifthe
entry qualifies for reimbursement from Robert Mitchell, rather than remanding the case
again for the trial court to assess sanctions consistent with this opinion. We engage in
this detailed assessment from a, desire to bring finality to a case already on appeal once
and to a suit whose trial judge has been retired for three years. Our itemized evaluation is
contained in appendix 2.
In Yousoufian v. Ofiice ofRon Sims, King County Executive, 168 Wash. 2d 444, 229
{3d 735 (2010), our state high court imposed a daily penalty for violation of the Public
Records Act, ch. 42.56 RC W, rather than remanding the suit to the trial court for the
selection of a penalty rate. The Supreme Court noted that the trial court should generally
be afforded discretion in selecting the daily penalty, but the elevated court did not follow
this rule because the case had already been remanded once and the trial court again did
not follow the law in entering a penalty amount. The Supreme Court, in light of the
unique circumstances and procedural history of the ease, established the rate on its own
in order to bring the dispute to closure. The court emphasized that its decision should not
be read as an invitation to trial courts to accede to having penalties set at the appellate
court level. In this appeal, we follow the Supreme Court’s example when reviewing the
accounting provided by Martens + Associates and imposing a definitive sanctions
37
No. 32284-0-111
Rose v. FMS, Inc.
amount.
We review a trial court’s order imposing sanctions for abuse of discretion.
Manteufel v. Safeco Ins. Co. 0fAm., 117 Wash. App. 168, 17576, 68 P.3d 1093 (2003);
State v. SH, 102 Wash. App. 468, 473, 8 P.3d 1058 (2000). A trial court abuses its
discretion when its decision is manifestly unreasonable or based on untenable grounds.
Havens v. C & DPlaslz'cs, Inc, 124 Wash. 2d 158, 168, 876 P.2d 435 (1994); Saldivar v.
Momah, 145 Wash. App. 365, 402, 186 P.3d 1117 (2008).
FMS seeks sanctions against Robert Mitchell under CR 11, CR 26, CR 56, and the
trial court’s inherent authority. We limit our review of the sanctions to violations of the
civil rules and refuse to review the trial courts imposition of sanctions based on the trial
court’s intrinsic authority. When a specific sanction rule applies, the inherent power of
the trial court to sanction does not apply. Wash. State Physicians Ins. Exch. & Ass 71 v.
Fz'sons Corp, 122 Wn.2d at 340 (1993); Saldz‘var v. Momah, 145 Wn. App. at 402.
CR 1 1(a) proscribes, in part:
The signature of . . . an attorney constitutes a certificate by the . . .
attorney that the . . . attorney has read the pleading, motion, or legal
memorandum, and that to the best of the . . . attorney’s knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is well grounded in fact;
(2) it is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law or the establishment of
new law;
(3) it is not interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of litigation.
38
No. 322840—111
Rose v. FMS, Inc.
The rule applies to pleadings in addition to the complaint starting the lawsuit.
CR 1 1 omits any direction to the courts to impose sanctions for its Violation.
Nevertheless, Washington courts may impose appropriate sanctions for violations of the
rule. Conom v. Snohomish County, 155 Wash. 2d 154, 163—64, 118 P.3d 344 (2005); In re
Marriage ofLee, 176 Wash. App. 678, 690-91, 310 P.3d 845 (2013). lfa party violates CR
11, the court may impose an appropriate sanction, which may include reasonable attorney
fees and expenses. Just Dirt, Inc. v. Knight Excavating, Inc, 138 Wash. App. 409, 417,
157 P.3d 431 (2007). The fact that a party’s action fails on the merits is by no means
dispositive of the question of CR ll sanctions. Bryant v. Joseph Tree, Inc, 1 19 Wn.2d at
220; Eller v. E. Sprague Motors & R. V. ’s, Inc, 159 Wash. App. 180, 190, 244 P.3d 447(2010).
CR 26(g) reads:
Signing of Discovery Requests, Responses, and Objections.
Every request for discovery or response or objection thereto made by a
party represented by an attorney shall be signed by at least one attorney of
record in the attorney’s individual name. . . . The signature of the attorney
or party constitutes a certification that the attorney or party has read the
request, response, or objection, and that to the best of their knowledge,
information, and belief formed after a reasonable inquiry it is:
(1) consistent with these rules and warranted by existing law or a
good faith argument for the extension, modification, or reversal of existing
law;
(2) not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation; and
(3) not unreasonable or unduly burdensome or expensive, given the
needs of the case, the discovery already had in the case, the amount in
39
No. 32284—0—lll
Rose v. FMS, Inc.
controversy, and the importance of the issues at stake in the litigation. . . .
If a certification is made in violation of the rule, the court, upon
motion or upon its own initiative, shall impose upon the person who made
the certification, the party on whose behalf the. request, response, or
objection is made, or both, an appropriate sanction, which may include an
order to pay the amount of the reasonable expenses incurred because of the
violation, including a reasonable attorney fee.
Likewise, CR 56(g) provides:
Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits presented
pursuant to this rule are presented in bad faith or solely for the purpose of
delay, the court shall forthwith order the party employing them to pay to the
other party the amount of the reasonable expenses which the filing of the
affidavits caused the other party to incur, including reasonable attorney
fees, and any offending party or attorney may be adjudged guilty of
contempt.
Under the three court rules, the trial court may order an attorney to pay the reasonable
attorney fees and costs incurred by the opponent when the attorney files frivolous
pleadings, acts in bad faith, harasses, or causes needlessly delay.
In our review of the billings of Martens + Associates, we adhere to a bedrock
principle of appellate review. We will not reverse any finding of fact entered by the trial
court when the finding is supported by substantial evidence. Thorndike v. Hesperian
Orchards, Inc, 54 Wash. 2d 570, 575, 343 P.2d 183 (1959). For example, we believe that
the law firm spent excessive time on many tasks. Many tasks were performed by one or
more attorneys, when only one attorney was needed for the project. Nevertheless, since
the trial court found the amount of time reasonable, we do not reverse reimbursement of
40
No. 32284—0—111
Rose v. FMS, Inc.
requests for admission, a corporation deposition notice, interrogatories, and requests for
production of documents. The deposition notice scheduled the corporate deposition for
August 6, 2010, in Spokane. The e-mail message informed Martin that Mitchell intended
to mail the letters and discovery requests on Monday.
Robert Mitchell’s June 27 e-mail message also attached a letter of the same date to
Kathryn Martin. The letter read, in part:
. . . Finally, you should note that your answer to Plaintiffs’
complaint is overdue. Therefore, if I do not receive an answer by the close
of business on Friday, July 2, 2010, l intend to file a motion for default and
default judgment.
Your position that: “Merely dialing a telephone without making
contact or leaving a message does not a communication make” is
untenable. Using that same logic, if a debt collector telephones a. debtors’
home 100 times in one day, but only actually speaks to the Debtor or leaves
a message once, then the collector has not communicated with the debtor in
such a manner as to harass, intimidate, threaten or embarrass. Your logic is
unsound and not based on any published case I am aware of. Moreover, i
am confident that Plaintiff will have absolutely no problem convincing the
Court that 32 telephone calls in a 17 day period is excessive and made for
the sole purpose of harassment, especially where this case involves an out-
of—state collection agency harassing local citizens and illustrating contempt
for this State’s consumer protection laws.
In this case, Defendant telephoned Plaintiffs and discussed the debt
with Plaintiffs. At that time, Plaintiffs noted Defendant’s telephone
number(s). Therefore, each and every one of Defendant’s subsequent
telephone calls “communicated” who was calling (a debt collector), and
why they were calling (to collect a debt). Because Plaintiffs knew that it
was Defendant telephoning to collect a debt, each telephone call made to
Plaintiffs represented a “communication.” Moreover, Defendant’s
communications were excessive where Defendant telephoned Plaintiffs at
least 32 times in a 17 day period.
Plaintiffs were extremely insulted by the fact that Defendant made a
nuisance offer $5 00 after clearly violating Plaintiffs” rights while engaging
No. 32284—0-Hl
Rose v. FMS, Inc.
the task.
Limits apply to our conferring the trial court deference in fact finding. We must
determine whether the trial court’s findings of fact were supported by substantial
evidence in the record. Landmark Dev, Inc. v. City ofRoy, 138 Wash. 2d 561, 573, 980
P.2d 1234 (1999). Substantial evidence is evidence which, viewed in the light most
favorable to the party prevailing below, would persuade a fair-minded, rational person of
the truth ofthe finding. State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 (1994). 1fthe
findings are adequately supported, we must still decide whether those findings of fact
support the trial court’s conclusions of law. Landmark Dev, 138 Wn.2d at 573;
Tegman v. Accident & Med. Investigations, inc, 107 Wash. App. 868, 874, 30 P.3d 8(2001). We must also decide whether the award conforms to Washington law, including
our April 2013 decision, which has become the law of the case. Folsom v. County of
Spokane, 111 Wash. 2d 256, 263, 759 P.2d 1196 (1988); Stale v. War], 129 Wn.2d 416. 425,
918 P.2d 905 (1996).
In addressing the merits of this appeal, we rely on several other principles. If an
attorney fees recovery is authorized for only some of the claims, the attorney fees award
must properly reflect a segregation of the time spent on issues for which attorney fees are
authorized from time spent on other issues. Kaslanz's v. Educ. Emp. Credil Union, 122
Wash. 2d 483, 201—02, 859 P.2d 26, 865 P.2d 507 (1993); Gaglidari v. Denny ’s Rests, Inc,
117 Wash. 2d 426, 450, 815 P.2d 1362 (1991); Travis v. Wash. Horse Breeders Ass ’n, 111
41
No. 32284—0—111
Rose v. FMS, Inc.
Wn.2d 396, 411, 759 P.2d 418 (1988). This must include, on the record. a segregation of
the time allowed for the separate legal theories. Travis v. Wash. Horse Breeders Ass ’11,
111 Wn.2d at 41 l. The burden of segregating is carried by the party requesting the fees.
Kaslam‘s v. Educ. Emp. Credit Union. 122 Wn.2d at 501, 859 P.2d 26 (1993); Loeffelholz
v. Citzehsfor Leaders With Ethics ahdAccouhtabz'Zily Now. 119 Wash. App. 665, 690, 82
P.3d 1199 (2004). We extend this duty to segregate between separate legal theories and
claims to an obligation to segregate between those tasks for which attorney fees may be
awarded and those tasks for which fees may not be awarded when imposing sanctions.
FMS argues that it should be granted essentially all fees and costs incurred
because the bad faith of Robert Mitchell permeates the entire lawsuit. This argument
conflicts with Our earlier decision that the lawsuit was not frivolous.
FMS also argues that frivolous pleadings filed by and bad faith conduct of Robert
Mitchell cannot be segregated from nonfrivolous pleadings and good faith conduct. lt
cites Hume v. American Disposal Co, 124 Wash. 2d 656, 880 P.2d 988 (1994) for the
proposition that segregation is unnecessary if the claims are so related that no reasonable
segregation of successful and unsuccessful claims can be made. we conclude that
segregation is mainly possible. FMS attempted some segregation but often did not
segregate between those tasks specifically responding to abusive litigation action and
those tasks common to nonfriviolous litigation. FMS could and should have performed
such a segregation. The mere fact that billing record entries are couched in general terms
42
No. 32284~O~III
Rose v. EMS Inc.
and are not self—segregating does not excuse segregation. Declarations could and should
have been submitted to the trial court identifying or reasonably estimating any amount of
time within general entries for which attorney fees are recoverable.
We note that, in finding of fact 1, the trial court belittles plaintiff Rose’s claim as
one that “simply could not be established." CP at 664. The trial court’s assessment of
fees on remand was likely influenced by this finding. Whereas the finding is literally
true, the finding is irrelevant. Regardless of whether a lawsuit cannot be established,
sanctions are not warranted unless the suit is frivolous. To repeat, the fact that a party’s
action fails on the merits is by no means dispositive of the question of CR 11 sanctions.
Bryant v. Joseph Tree, Inc, 119 Wn.2d at 220 (1992); Eller v. E. Sprague Motors &
R. V. )5, Inc, 159 Wn. App. at 190 (2010). Finding of fact 1 conflicts with this court’s
ruling on the first appeal that the Roses’ complaint was not frivolous and thus the finding
transgresses the doctrine of the law of the case.
In finding of fact 2, the trial court notes that it struck as untimely Catherine and
Gregory Rose’s supplemental response to FMS’ motion for sanctions, and four
declarations of Robert Mitchell in support of Roses” supplemental response to the motion
for sanctions. The trial court found these five pleadings to be filed in bad faith and
designed to delay. The trial court further found that fees incurred in preparing nine
pleadings filed by FMS in response to the Roses’ live pleadings should be eompensable.
We affirm this ruling.
43
No. 32284—O-lll
Rose v. EMS, Inc.
In findings of fact 4 and 30, the trial court awarded FMS all fees and costs
reasonably incurred in bringing the motion for sanctions. FMS based, in part, its motion
for sanctions on the argument that the lawsuit was frivolous, and thus FMS argued that
substantially all of its fees and costs should be reimbursed by Robert Mitchell. This
argument and the trial court’s finding 4 conflict with our previous ruling that the lawsuit
was not frivolous. Therefore, another ground must exist for FMS to recover its fees and
costs for preparing discrete pleadings in support of its motion for sanctions. The only
other ground stated in the findings of fact is plaintiff Roses” late filing of some of its
pleadings opposing the motion for sanctions. Therefore, FMS should only be reimbursed
those portions of pleadings filed in response to the Roses’ supplemental pleadings, not
the entire cost of the motion for sanctions.
On March 7, 9, 10, 15, 18, 21, 22, and 23, April4, 5, 6, 7,8,9,10,11,12,13,14,
15, 17,20, 21, 26, 27, 28, and 29, May 2, 3, 5, 20, 23, 24, and 25, June 8, and July 8, l4,
and 15, 2011, Martens + Associates accounted for 58.2 hours of time in responding to
Robert Mitchell’s supplemental pleadings opposing sanctions after the hearing on the
motion, addressing Kohl’s records, responding to the Roses’ demand for a deposition,
responding to the Roses’ motion to vacate the summary judgment order, responding to
the Roses” motion for sanctions, preparing FMS’ motion to end discovery,
communicating with FMS, Robert Mitchell, and the superior court clerk regarding the
motions, and reviewing communications from the trial judge with regard to the motions.
44
No. 32284—0—111
Rose v. FMS, Inc.
Pursuant to the trial court’s finding that Mitchell filed those supplemental pleadings in
bad faith, we affirm an award for this work. This award includes time spent on those
pleadings listed by the trial court as being in response to Mitchell’s bad faith conduct.
In finding of fact 5, the trial court impliedly finds that Robert Mitchell filed in bad
faith the records he obtained from Kohl’s because Mitchell did not follow CR 45(b)(2)
when subpoenaing the records. Therefore, the trial court struck the Roses’ supplemental
response to the motion for sanctions and the first of Robert Mitchell’s supplemental
declaration to which he attached the records. The trial court already found the filing of
those pleadings to be untimely and in bad faith. We have affirmed on other grounds the
ruling that FMS should be paid the fees and costs incurred in responding to the
supplemental pleadings.
Robert Mitchell contends that his failure to send FMS’ counsel a copy of the
subpoena on Kohl’s was an honest omission. Mitchell also argues that subpoenaing the
records could not be considered in bad faith because the Kohl’s records helped his
clients. These arguments fail to recognize that Mitchell sought the records only after the
trial court granted FMS summary judgment, and the subpoenaing of the records caused
delay and needless expense to FMS. The trial court was within its discretion when
finding the conduct to be in bad faith.
In findings of fact 6 and 18, the trial court noted that Catherine and Gregory Rose
relied on the documents obtained from Kohl’s to support their April 11, 2011 motion for
45
No. 32284-0-111
Rose v. FMS, Inc.
an order to show cause Why the order on summary judgment should not be set aside,
motion for sanctions against F MS, and motion to compel deposition of FMS. In turn,
F MS responded to these three motions. We affirm the trial court’s ruling that the filing
of these pleadings was in bad faith, and we agree that FMS should be compensated for
attorney time expended in responding to the motions.
In finding of fact 7a, the trial court determined that Robert Mitchell attempted to
seriously inconvenience FMS by scheduling a corporate deposition of the company in
Spokane rather than its headquarters in Tulsa. The trial court impliedly found the
scheduling of the deposition to be in bad faith. We defer to the trial court’s finding.
Robert Mitchell forwards no law that the Roses were entitled to conduct the deposition in
Spokane. Numerous cases stand for the proposition that a corporate defendant should be
deposed in its principal place of business unless it seeks affirmative relief. Salter v.
Upjohn Company, 593 F.2d 649 (5th Cir. 1979); Dan Euser Walerarcnz'teclure, Inc. V.
City osz'amz' Beach, 112 So. 3d 683, 683 (Fla. Dist. Ct. App. 2013); Exparte Armstrong
v. Ala. Power Co, 412 So. 2d 772, 773 (Ala. 1982). FMS filed a counterclaim, but the
counterclaim was simply for an award of attorney fees and costs resulting from harassing
litigation brought in bad faith. We find no case that addresses whether a counterclaim for
a frivolous lawsuit constitutes a request for “affirmative relief” under the situs of
deposition rule. Since the counterclaim asserts no new substantive claims into the suit,
46
No. 32284-0—111
Rose v. F MS, Inc.
we hold in the negative and affirm the trial court’s award for the fees spent in responding
to the corporate deposition notice.
On November 1, 2010, Martens + Associates accounted for 1.3 hours of time spent
in legal research on the proper situs for a corporate deposition. On November 2, 2010,
the law firm charged .8 hours for communicating with Robert Mitchell about the site for a
deposition. On November 2, the law firm also billed .6 hours for preparing for a
discovery conference with Robert Mitchell. Because the preparation was performed on
the same day as discussing the site of the deposition and because correspondence in this
Window of time mentions the dispute about the location of the deposition, we give FMS
the benefit of the doubt that the con fierence would discuss the site. Thus, we hold that
FMS may recover for its attorneys’ resulting from these tasks as related to Mitchell’s bad
faith insistence on a deposition of FMS in Washington State.
On November 9.. 2010, Steven Stolle of the Martens + Associates firm prepared
for and conducted a discovery conference with Robert Mitchell. Time allocated to these
tasks was .9 hours. Because correspondence in this window of time mentions the dispute
about the location of the deposition, we give FMS the benefit of the doubt that the
conference discussed the site. This time should be reimbursed because of Robert
Mitchell’s bad faith insistence on a deposition of FMS in Washington State.
In finding of fact 7b, the trial court finds that the Roses” requests for admission
sent to FMS were propounded for the purpose of harassing FMS and increasing the cost
47
No. 3284—0411
Rose v. FMS, Inc.
oflitigation. The Roses sent sixty eight requests that the trial court found repetitive.
Many requests called for legal conclusions. A party is not required to admit legal
conclusions under CR 36. Santos 12. Dean, 96 Wash. App. 849, 861, 982 P.2d 632 (1999).
We defer to the trial court’s finding of fact 7b and award fees and costs FMS incurred in
responding to the requests.
An August ll, 2010, Martens + Associates’ billing entry of 2.3 hours mentions
drafting and revising written discovery and preparing objections and answers to requests
for admission. We do not know if this labor concerns only responses to the requests for
admission. Since the trial court found most of the requests for admission to be harassing,
we give FMS the benefit of the doubt and allow recovery for this task. We also allow
recovery for this same task performed on August 12, 2010 for 3.5 hours and August 13
for .2 hours, despite the extraordinary amount of time spent on the task.
In finding of fact 70, the trial court discusses the Roses’ request for confidential
and proprietary records of PMS. The trial court notes Robert Mitchell initially refused to
sign a stipulated protective order prepared by FMS to shield the records from disclosure
to other persons. Mitchell insisted on publicizing the records. Sixty days later Mitchell
signed the protective order. According to the trial court, Robert Mitchell engaged in
harassment and needlessly increased the cost of litigation during the sixty days preceding
his signature. We defer to the trial court’s finding of fact 70 and would award fees
attributed to Mitchell’s delay in approving the stipulation to the extent F MS can show
48
No. 32284-0-III‘»
Rose v. FMS, Inc.
any fees. In appendix 2, we conclude that FMS shows no fees incurred because of any
delay.
In finding of fact 8, the trial court finds that Robert Mitchell obstructed the
proceeding by claiming that Gregory Rose and Catherine Rose could not be deposed on
the same date. Later. Gregory Rose testified he is self—employed and had no set schedule.
Therefore, Mitchell’s demand that depositions be taken on different days was in bad faith
and unfairly increased litigation costs. We agree that Mitchell should reimburse FMS for
reasonable attorney fees and costs incurred for any second day of depositions.
Nevertheless, FMS never scheduled or took the deposition of Catherine Rose. Therefore,
we deny any fees for this bad faith.
In finding of fact 9, the trial court finds that Robert Mitchell prepared and signed
the Roses’ discovery responses and that many of the responses were deliberately
deceptive. Mitchell falsely answered that the Roses did not retain any billings or letters
from Kohl’s or telephone bills. The deposition of Gregory Rose proved Mitchell’s
answers to be false. FMS sought the Kohl’s records in its request for production 2 and
the phone bills in request for production 6. To the extent that FMS could identify fees
incurred because of these deceptive answers, FMS should be reimbursed the fees. We
find no billing entry specifically devoted to these two requests for production nor does
the record include other evidence from FMS identifying the fees incurred.
49
No. 32284-0-IU
Rose v. FMS, Inc.
In finding of fact 109 the trial court finds that Robert Mitchell obstructed discovery
in the Roses’ answer to interrogatory 10. The interrogatory asked when the Roses first
contacted Mitchell and Mitchell asserted the attorney client privilege in response.
Nevertheless, the court noted that the date ol‘eontaet is not privileged; The court further
found that the improperly asserted privilege prevented FMS from learning the falseness
to answers to interrogatories l7, 20, 23, and 25. To the extent that FMS could identify
fees incurred because of the assertion of the attorney client privilege and these deceptive
answersa FMS should be reimbursed the fees. We find no billing entry specifically
devoted to these interrogatory answers nor does the record include other evidence from
F MS identifying the fees ineurre .
In finding of fact l l, the trial court finds that Robert Mitchell obstructed discovery
in the Roses” answers to interrogatories 17, 20, 23, and 25, by providing false and
misleading answers. The interrogatories sought information about the Roses’ damages.
The answers hid the fact that the Roses suffered no damages. To the extent that FMS
could identify fees incurred because of the assertion of the attorney client privilege and
these deceptive answers, FMS should be reimbursed the fees. We find no billing entry
specifically devoted to these interrogatory answers nor does the record include other
evidence from FMS identifying the fees incurred.
On November 4, 2010, Martens + Associates prepared a letter outlining the Roses‘
deficiencies in responding to discovery requests and reviewed Robert Mitchell’s
5,0
N0. 32284—0-Hl
Rose 1/. FMS, Inc.
in unfair collection practices in violation of state and federal statute.
Plaintiffs were even more insulted by the defense proffered because it
cemented Plaintiffs’ suspicions that Defendant has absolutely no intention
of ceasing the abusive collection practices in the future, and that Defendant
has no respect for Washington collection laws or Washington consumers.
As a result, Plaintiffs have instructed me to vigorously prosecute this
case and attempt to obtain an injunction preventing Defendant from
blatantly violating our state collection and consumer protection statutes in
the future. To that end, I have filed the complaint with the Court, the
Attorney General’s Office, and the Department of Licensing.
If your client would like to change its position and avoid having to
defend this matter, avoid having to tender the matter to its insurance carrier,
or avoid having to deal with the unintended consequences of this litigation,
Plaintiffs would be willing to settle this matter in exchange for a promise
that Defendant will stop telephoning Washington debtors more than 3 times
in a given week, plus $4,950 damages, costs, and attorney’s fees.
CP (303802) at 379-80.
On Monday, June 28, 2010, FMS general counsel Kathryn Martin responded to
Robert Mitchell’s June 27 message. She stated that she does not accept service on behalf
of her client and Catherine and Gregory Rose would need to serve process on the
company’s registered agent. Mitchell replied:
I do not understand the purpose or intent ofyour email. Service of
process of the summons and complaint was made upon FMS’S registered
agent for service of process in April. If you believe the case needs to be re
served after it is filed with the Court you are mistaken.
You appeared on behalf of PMS through your communications with
my office. Therefore, discovery was mailed and emailed to you. If you do
not consider your communications with my office to represent an
“appearance” in this case (which would be completely contrary to
Washington law) then please inform me immediately and I will default
FMS today for failure to appear. The motion will not require any notice to
you or FMS if you have not “appeared” in this case.
Additionally, you should note that requests for admissions are
No. 32284—O-III
Rose v. Fri/IS, Inc.
responding letter. The time allotted to these tasks was 1.3 hours. We are uncertain of the
specific alleged deficiencies in discovery responses, but will assume the letters mostly
addressed the deficiencies found by the trial court to be in bad faith. We give FMS the
benefit of the doubt and award it reimbursement for this time.
In finding of fact 14, the trial court mentioned that the joint declaration signed by
Catherine and Gregory Rose in opposition to the summary judgment motion falsely
averred that FMS called Catherine’s phone number and called her at work after she told
FMS not to call her work number. In finding of fact 15, the trial court finds that Robert
Mitchell falsely asserted that FMS left “at least l9 more voicemail messages” for the
Roses. CP at 673. The trial court accepted FMS? allocation of l .4 hours of work spent in
responding to these false statements. We affirm recovery for these hours.
In finding of fact 16, the trial court addressed Catherine and Gregory Rose’s
motion for reconsideration of the court’s grant of FMS’ summary judgment motion
dismissing the lawsuit. In support of the motion for reconsideration, the Roses submitted
a declaration from Catherine Rose averting that she found documents that Robert
Mitchell earlier represented as being discarded. In support of the motion, Robert
Mitchell also falsely claimed that FMS had refused to produce Kohl’s records. The trial
court impliedly found that Mitchell uttered these representations in bad faith. To the
extent that FMS could establish tasks performed by its attorneys because of these
representations, we agree with the trial court that Mitchell should reimburse the fees
51
No. 32284-0-111
Rose v. FMS, Inc.
incurred for the tasks. Along these lines, FMS should receive compensation for the time
spent in responding to the motion for reconsideration. FMS agreed that it would not seek
reimbursement for time spent by its attorneys with regard to a second scheduling of the
motion.
On January 28 and 31, 201 l, Martens + Associates spent 2.4 hours in contacting
the superior court clerk regarding the Roses’ motion for reconsideration, communicating
with Robert Mitchell concerning the motion, reviewing the motion for reconsideration,
and preparing an objection to the motion. We affirm an award for this time based on the
trial court’s implied finding that the motion for reconsideration was frivolous.
In finding of fact 17, the trial court mentioned that Robert Mitchell, during the
hearing on the motion for sanctions, represented that the Roses believed they had
discarded the records newly discovered during a move from house to house.
Nevertheless, the Roses never moved during the relevant time. Thus, the trial court
impliedly found Mitchell’s representation to be false and in bad faith. To the extent that
FMS could identify fees incurred because of the false representation, FMS should be
reimbursed the fees. We find no billing entry that isolates any time spent responding to
the false representation nor does the record include other evidence from FMS identifying
the fees incurred.
In findings of fact 19 and 20, the trial court noted that the Robert Mitchell, in
October 2011, filed an objection to the proposed order of sanctions. He argued that the
52
No. 32284-0-111
Rose v. FMS, Inc.
judgment should be entered against “Robert Mitchell, Attorney at Law, PLLC,” and not
him personally. Nevertheless, none of the pleadings filed by Mitchell contain the
“PLLC” designation. The State of Washington dissolved the professional corporation in
2008. Therefore. the trial court found Mitchell’s objection to the sanctions and implied
representation of the existence of a corporation to be false and in bad faith. We agree.
The trial court awarded FMS reimbursement of fees incurred in responding to this
objection to the judgment. The trial court found that Robert Mitchell’s bad faith led to all
filings by FMS after February 15, 201 13 the sanctions hearing date. and Robert Mitchell’s
first notice of appeal. We affirm this ruling in part and reverse in part. We agree that all
time spent with regard to responding to Robert Mitchell’s supplemental filings after
February 15, 2011, with regard to the motion for sanctions, is compensable. Other entries
between February 15, 2011 and the notice of appeal should be reviewed on their own
merits.
On September 27, 2011. Leehwa Kim—McFadden, ot‘Martens + Associates spent
.4 hours researching the issue of a judgment against Robert Mitchell personally. On
October 11, 13, 16, and 17. 2011, the law firm spent 9.6 hours in addressing and
preparing pleadings to oppose Mitchell’s attempt to limit any judgment to his defunct
corporation. We affirm an award for these amounts. The work responded to Robert
Mitchell’s bad faith argument that a judgment could not be entered against him
personally.
No. 32284—0-HI
Rose v. FMS, Inc.
On October 3l, 20l l, Martens r Associates spent .8 hours researching the
perfection of a judgment lien. On November 1, 20l l, Martens + Associates conducted a
.1 hour phone call to the court regarding an abstract of judgment. The entry of the
judgment and the call regarding the abstract of judgment result from the bad. faith
litigation conduct of Robert Mitchell. Whereas, Mitchell has substantially reduced the
amount of the judgment, a judgment would have been entered against him even if FMS
had not sought an excessive amount for the judgment. The work performed on October
31 and November 1 would have been needed regardless of the amount of the judgment.
Therefore, we award FMS reimbursement for these tasks.
in findings of fact 36 through 38, the trial court awarded FMS reasonable attorney
fees and costs incurred in presenting its renewed motion for sanctions following remand
from this reviewing court. We reverse this award. The renewed motion was necessitated
by errors earlier committed by the trial court at the request of FMS, and as a result of
Robert Mitchell prevailing in the first appeal. Mitchell should not pay for FMS’
attorney’s time spent in correcting those errors.
Our detailed analysis of the billings of Martens + Associates is contained in
appendices 2 and 3. Appendix 2 lists those tasks, with their times, for which we award
reimbursement to FMS against Robert Mitchell. Appendix 3 lists those tasks for which
we deny recovery.
Lodestar Multiplier
54
No. 32284—0411
Rose v. FMS, Inc.
Martens + Associates billed $168 per hour for most of its attorney’s work. The
trial court adjusted this hourly rate upward to $210 because of the high level of skill and
experience of Martens + Associates lawyers. In other words, the trial court awarded a
lodestar multiplier. We reverse this upward adjustment. We hold that no adjustments to
the actual fees incurred by the party awarded sanctions is permissible. The award granted
to FMS will be based solely on the fees incurred by FMS on those tasks for which we
grant reimbursement. The amount of the award is $1 1,416.80.
The Washington Supreme Court first discussed the concept of adjusting upward or
downward an attorney’s hourly rate in Bowers v. Transamerica Title Insurance Ca, 100
Wash. 2d 581, 593—601, 675 P.2d 193 (1983). According to the Bowers court, the trial court
could adjust the reasonable hourly rate based on various factors, including the risk
involved in a contingency case, and, in a very rare case, the quality of the work
performed. The adjustment has been allowed in Washington when a plaintiff prevails on
a statutory claim that includes a fee shifting provision. No Washington appellate court
has permitted an adjustment above the hourly rate when sanctions of attorney fees and
costs are granted.
CR 26(g)(3) permits sanctions for bad faith conduct in discovery so long as the
award “include[s] an order to pay the amount of the reasonable expenses incurred
because of the violation, including a reasonable attorney fee.” (Emphasis added.) CR
56(g) allows sanctions for affidavits filed in bad faith and the sanctions may also include
U1
U:
No. 32284~0-lH
Rose v. FMS, Inc.
“the amount of the reasonable expenses which the filing of the affidavits caused the other
party to incur. including reasonable attorney fees.” (Emphasis added.) CR 11 does not
mention what sanctions may be imposed. Nevertheless, its statutory analog for frivolous
lawsuits, RCW 4.84.185, references sanctions for “the reasonable expenses, including
fees of attorneys, incurred” in the defense of the frivolous claim or action. (Emphasis
added.) The plain language of the statute and the court rules strongly imply that an award
of sanctions should be limited to the fees incurred by the party as a result of the
sanctionable conduct.
The purpose of imposing sanctions for bad faith litigation conduct is to
compensate the opposing party for costs incurred as a result of the conduct. Highland
Sch. Disl. N0. 203 v. Racy, 149 Wash. App. 307, 316, 202 P.3d 1024 (2009). An award of
attorney fees beyond the amount actually incurred is not appropriate. Highland Sch. Dist.
N0. 203, 149 Wn. App. at 3l6. Highland School District No. 203 v. Racy involved only a
claim for reasonable attorney fees and costs under RCW 4.84.185. Nevertheless, its
reasoning applies to any award of sanctions for frivolous or bad faith pleadings and
conduct.
Fees and Costs on Appeal
FMS requests attorney fees on appeal under RAP 18.9(a) for a frivolous appeal,
CR 11, CR 26(g), and CR 56(g). Since we substantially reduce the amount of fees
awarded to FMS by the trial court, this appeal is not frivolous. Thus, we deny the request
56
No. 32284~0~IH
Rose v. F MS, Inc.
for reasonable attorney fees.
In his reply brief, Robert Mitchell requests his costs incurred on appeal. Because
he substantially prevails, we award Mitchell costs.
CONCLUSION
We remand to the trial court to enter a judgment in favor of FMS against Robert
Mitchell personally in the sum of $1 l,4l6.80. Mitchell is entitled to an offset against the
judgment for costs awarded him on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, Jfl"
CONCUR:
___?7&[%& we?! Cfir
Siddoway, C.J.
(“w/Kflkg “r {
lawrence-Berrey, J.
57
No. 32284-0-Hl
Rose 12. FMS, Inc.
Appendix 1
Findings of Fact and Conclusions of Law Excerpted from the Trial Court’s February 10,
2014 Ruling
l. The Court duly notes the Court of Appeals’ Unpublished Opinion
holding that the filing of plaintiffs’ complaint was not frivolous and
therefore the Court does not consider or award Defendant any fees or costs
associated with answering plaintiffs’ complaint. The Court also notes
Division 111’s comment that this Court “does not explain what actions
constituted bullying?” Opinion at ll. As an introductory matter, it is
useful to clarify that the term “bullying” was used in the sense of
attempting to force another party to do something when there is no
legitimate reason to expect it; perhaps a better term may have been
“extortion,” i.e., the attempt to obtain money to which one is not entitled,
by claiming something that is untrue but which will take an inordinate toll —
in this case, financially - to defend against. In the context of this case, the
threat was made not only to cause Defendant to lose its licensure but also to
expose Defendant’s proprietary and confidential policies and to litigate the
matter “in perpetuity, ” thereby running up Defendant’s expenses into the
five figures - for a claim that (as the summary judgment demonstrated)
simply could not be established. More important, as can be seen below,
Mr. Mitchell used every tactic available to him to obfuscate the fact that his
clients’ claims could not be established, thereby following through with his
threat to create untold expense to Defendant ~ simply because Defendant
elected to defend and was thereby forced to incur those expenses because of
the discovery abuse and other false representations of Mr. Mitchell, as more
particularly described below.
2. With respect to items 10 through 22, above, this Court previously
granted Defendant’s motions to strike the filings by plaintiffs numbered 10,
11, 16, and 20 as untimely under CR 6 and LCR 6. Mr. Mitchell did not
appeal that ruling. As indicated in the July ll, 2011, letter ruling, the Court
had already found and still finds that plaintiffs’ filings of items 10, ll, 16,
and 20, above, were untimely, and thereby needlessly increased the costs of
the litigation. The Court further finds that Mr. Mitchell”s incessant filing of
declaration after declaration was done in bad faith and was clearly designed
to delay resolution of the motion for sanctions, as well as increase the costs
of the litigation for the Defendant, which was obliged to incur fees and
58
No. 32284—0—111
Rose 12. FMS, Inc.
costs in filing items 12, 13, 14, 15, 17, 18, 19, 21, and 22 in response to Mr.
Mitchell’s improper filings.
The numbered items listed by the court in finding of fact 2 and later findings are
pleadings filed by FMS as earlier identified in the trial court’s finding of fact. Those
referenced in finding of fact 2 are:
1.2. Surreply of Defendant;
13. Supplemental Declaration of Steven A. Stolle in Support of the
motion;
14. Supplemental Declaration of Kathryn L. Martin in Support of
Defendant’s motion for sanctions;
l5. [Defendant’s] Certificate ofService;
17. Second Surrcply of Defendant on the motion for sanctions, and
its Motion to Strike the two declarations in item 16 above;
18. Second Supplemental Declaration ol‘ Mr. Stolle regarding the
motion for sanctions;
l9. Declaration of Shelly Votaw;
21. FMS’s Objection and Third Surreply in Response to item 20
above;
22. Second Declaration of Shelly Votaw;
CP at 661.
The findings of fact continued:
3. The Court previously granted Defendant’s motion to strike item
25.e. above and Mr. Mitchell did not appeal that ruling.
4. Defendant is entitled to an award of its fees and costs reasonably
incurred in bringing the motion for sanctions and in responding to
plaintiffs’ improper filings of items 10, ll, 16, and 20, above. As
supported further below, this necessarily includes all fees and costs
reasonably related to items 1 through 30, above.
59
No. 32284—0—111
Rose v. FMS, Inc.
5. In addition, with respect to items l0 and ll above, this Court
previously struck the portions of those pleadings purporting to explain
items obtained by subpoena duces tecum directed to Kohl’s based on the
Courtis findings, first, that the subpoena was issued in direct violation of
CR 4S(b )(2), and, second, that the materials purportedly obtained pursuant
to the improper subpoena were not accompanied by a declaration of records
custodian properly authenticating them and thus they were and are
inadmissible hearsay. With specific regard to 45(b)(2), Mr. Mitchell
failed to serve Defendant with a copy of the subpoena five days before
serving Kohl’s and, in fact, never served Defendant with a copy of the
subpoena. Mr. Mitchell did not appeal the ruling that he violated CR
45(b)(2) and striking those materials.
6. To the extent Defendant incurred fees and costs due to Mr.
Mitchell’s violation of CR 45(b)(2), in addition to those incurred in
responding to the improperly filed materials identified in Finding of Fact
Nos. 2 and 3, Defendant is entitled to an award of those fees and costs
reasonably incurred because of the violation of CR 45(b)(2). This
necessarily includes fees and, costs incurred as a result of Mr. Mitchell’s
filing of other pleadings in reliance on materials obtained through his
violation of CR 45(b)(2), including the filing on April 1 l, 201 l, ofa motion
for order to show cause why the order on summary judgment should not be
set aside, motion for sanctions against Defendant. and motion to compel
deposition of Defendant, which were supported by his declaration attaching
materials obtained through his improper subpoena to Kohl’s. Each was
filed after all of plaintiffs’ claims were dismissed and Defendant had
moved fer voluntary dismissal of its counterclaim under the Civil Rules.
CR 26(g) Findings
7. Mr. Mitchell promulgated unreasonably burdensome and
unnecessary discovery to Defendant in a bad faith effort to harass and bully
Defendant into a settlement as the term “bully” is defined herein (see
Finding of Fact No. 1). In particular:
a. Mr. Mitchell served a CR 30(b)(6) deposition notice on
Defendant . . . directing it to appear at his office in Spokane, Washington,
for deposition when Defendant is a foreign corporation located in Tulsa,
Oklahoma. Even after being provided authority by Defendant supporting a
deposition in Tulsa, Mr. Mitchell continued to demand the deposition take
place at his office. He finally relented only after Defendant again
confirmed it would not appear in Spokane without a court order. In the
context of the other findings entered herein, and the overall pattern of
60
No. 32284—0-111
Rose v. FMS, Inc.
deemed admitted if not answered within 30 days. Therefore, if you choose
to simply ignore the discovery because it was not mailed to FMS’s
registered agent, a summary judgment motion will be filed against FMS
based upon FMS’s admissions to all relevant facts in this case. Due to the
injunctive relief contained in the prayer for relief, a summary judgment will
likely lead to FMS losing its ability to collect debts in Washington. I
remind you that this case involves fee—shifting statutes. Therefore, the
more games you and your client play, the more costs and attorney’s fees
FMS will pay at the end of the day.
I am more than happy to engage in litigation with FMS. However, it
may behoove you and FMS to seriously consider ceasing the
gamesmanship regarding this case. This is not my first rodeo. I practice in
this state and l understand Washington law and civil procedure. I am
familiar with the Court that will hear this case. FMS missed the deadline to
remove this case to federal court. As a result, this case is not going to turn
out the way you hope.
CP (303802) at 382. Litigation proceeded.
PROCEDURE
The Roses Sue FMS for Unfair Debt Collection Practices
On June 29, 2010, Catherine and Gregory Rose filed their summons and complaint
against FMS in Stevens County. Correspondence from Robert Mitchell declares that
F MS” registered agent in Washington was served with the summons and complaint on
April 27. Our record contains no affidavit of service. On July 12, 2010, the law firm
Martens + Associates, P.S, entered a notice of appearance on behalf of FMS. The same
day, Robert Mitchell e—mailed Richard Martens, at the law firm, the Stevens County case
number and copies of the discovery requests he had previously sent to FMS.
In early August 2010, Robert Mitchell, on behalf of Catherine and Gregory Rose,
'No. 32284—0-Hl
Rose v. FMS, Inc.
misconduct within this case, the Court finds that Mr. Mitchell’s insistence
on the CR 30(b)(6) deposition ofDefendant being located in his office in
Spokane rather than in either Stevens County or in Tulsa, Oklahoma, was
an attempt to seriously inconvenience the Defendant and thereby needlessly
increase the cost of litigation.
b. Mr. Mitchell served 68 Requests for Admission on Defendant . . .
that were unnecessarily burdensome and repetitious, such as Nos. 8 through
44, which, in effect asked “admit you called once, admit you called twice,
admit you called three times” on up to asking Defendant to admit to more
than thirty-five calls; later asking Defendant to admit to making “more than
one hundred collection attempts in Washington State,” then “more than two
hundred” and so on in Nos. 52 through 62 (“more than two thousand”); the
requests were otherwise improper in seeking admissions as to legal
conclusions, including Nos. 1 through 7, 50 & 51, and 63 through 68. This
leaves only Nos. 45 through 49 as arguably proper requests under CR 36.
The Court concludes that Mr. Mitchell's signing and service of the requests
for admissions was for the improper purpose of harassing Defendant and
unnecessarily increasing the costs of the litigation.
c. Plaintiff served a First Set of interrogatories and a separate First
Request for Production (RFP) of Documents on Defendant . . . which
sought the identity and production of Defendant’s internal policies and
procedures, which Defendant considers confidential and proprietary. These
requests include lnterrogatory Nos. 6 through 19, and RFP Nos. 2, 9, and
l 1. On September 1, 2010, Defendant proposed a stipulated protective ’
order to allow for production of the allegedly confidential and proprietary
documents. By email on September 9, 2010, Mr. Mitchell unreasonably
refused any accommodation, instead insisting he wanted to make the
documents public and threatening a motion to compel. Mr. Mitchell never
filed such a motion, but eventually, on November 1, 2010, signed and
returned the same stipulated order proposed by Defendant on September
lst. During that sixty (60) day period, Mr. Mitchell repeatedly used
demands for the documents at issue in an attempt to leverage a settlement
from Defendant and in the interim filed a motion for summary judgment
without the documents. Mr. Mitchell’s actions in this regard cause the
court to conclude, in light of the totality of his actions within the discovery
arena, that he did not consider the documents necessary to his case and
instead used the requests and demands for Defendant’s allegedly
confidential and/ or proprietary documents for the improper purpose of
61
No. 32284—0-lll
Rose v. FMS, Inc.
harassing and/or bullying Defendant into paying a settlement and
needlessly increasing the cost of the litigation.
8. Mr. Mitchell engaged in a pattern of obstruction to prevent
Defendant from obtaining pertinent discovery from plaintiffs and/or to
drive up the cost of obtaining the discovery. This included refusing to
produce his clients for deposition on the same or consecutive days with the
intent to increase the fees and costs of Defendant in making two separate
trips between Seattle and Spokane or to prevent at least one of the
depositions from being taken at all. To avoid that extra expense, Defendant
was obliged to take the deposition of only one of the plaintiffs, Gregory
Rose, and was effectively denied the deposition of plaintiff Catherine Rose.
At Gregory Rose’s deposition, Mr. Rose indicated that he was self—
employed and had no set schedule. . . . The Court therefore finds that the
plaintiffs‘ depositions could have been scheduled for the same day or on
consecutive days, and Mr. Mitchell’s refusal to consent to that arrangement
was made in bad faith and for the purpose of delay and to increase the cost
of the litigation to Defendant. In the context of the violations as outlined
above and below, this also constituted a bad faith attempt by Mr. Mitchell
to avoid deposition of Mrs. Rose altogether.
9. An additional part of Mr. Mitchell’s pattern of obstruction in
discovery was in the answers he provided to Defendant’s written discovery
requests. Defendant served Mr. Mitchell with one set of interrogatories and
requests for production (RF PS) and one set of requests for admission. Mr.
Mitchell prepared and signed the responses for plaintiffs. The Court finds
those responses demonstrate a pattern of deliberate deception and
obfuscation. This includes answers and responses to lnterrogatory No.6
and RFP No.2, which respectively sought information concerning, and
copies of, plaintiffs' records of their Kohl’s credit card account, including
billing statements and correspondence. Mr. Mitchell responded in the
answers and responses that plaintiffs did not retain copies of any responsive
documents. This representation by Mr. Mitchell was false, as Mr. Rose
later testified at deposition . . . that his wife maintained files concerning
their Kohl’s credit card bills. Similarly, in RFP No.6, Defendant sought
copies ofplaintiffs’ telephone records. On behalf of plaintiffs, Mr. Mitchell
responded that plaintiffs did not retain copies of their telephone bills. This
assertion, too, was later refuted by Mr. Rose’s deposition testimony, in
which he stated that his wife maintained a file of their telephone records. . .
. In sum, in response to Defendant’s requests for discovery, plaintiffs
produced zero documents, even though Mr. Rose testified that the requested
62
No. 32284—0—HI
Rose 12. FMS, Inc.
files existed. This was conclusively established by plaintiffs” submission of
some of the responsive documents in support of plaintiffs’ motion for
reconsideration of the order on summary judgment. . . . Since Mr. Rose
was willing to testify truthfully at deposition to the existence of the files at
issue, this Court finds that Mr. Mitchell either knew or should have known
the responsive documents existed when he signed and served the false
answers to Defendant’s discovery. Mr. Mitchell signed and served the false
answers and responses, which were asserted in bad faith and to cause
unnecessary delay and to needlessly increase the costs of the litigation.
And Mr. Mitchell never produced the responsive documents.
10. Other answers to discovery signed by Mr. Mitchell were
improper and intentionally misleading, if not outright false. In response to
Defendant’s Interrogatory No. 10, which sought the date that plaintiffs first
contacted Mr. Mitchell, the answer provided was that the date was
privileged. . . . Given that the date of a privileged communication must be
provided in a privilege log, the date cannot, itself, be privileged. The Court
finds that Mr. Mitchell, as a part of a broad pattern of discovery abuse,
improperly asserted privilege in order to obstruct Defendant’s reasonable
discovery into when he was retained, and that this was for the improper
purpose of preventing Defendant from learning of the falsity of his answers
to other interrogatories, including Nos. 17. 20, 23, and 25, as discussed
below.
ll. Mr. Mitchell responded to other interrogatories from Defendant
seeking information concerning plaintiffs’ alleged damages by providing
false and misleading answers. These included Interrogatory Nos. 17, 20,
23, and 25, all of which inquired into the nature and amount of plaintiffs’
claimed damages. . . . Mr. Mitchell answered all of these interrogatories in
essentially the same misleading manner, asserting generally that plaintiffs
were damaged in having to take time away from other profitable endeavors
to seek out and obtain an attorney to stop Defendant’s telephone calls.
These answers were false and made with knowledge of their falsity because
Mr. Mitchell was already representing plaintiffs in another matter when
Defendant began trying to contact them. This would have been readily
apparent to Defendant if Mr. Mitchell had not improperly asserted privilege
in response to Interrogatory No. 10 and had instead answered the
interrogatory truthfully.
12. Mr. Mitchell’s false and misleading answers to Defendant’s
interrogatories and requests for production and improper assertions of
privilege as described in Findings ofFact Nos. 10 and 11 above, when
63
No. 32284-0-111
Rose v. FMS, Inc.
viewed in light of the totality of Mr. Mitchell’s approach to discovery in the
case, were interposed for the improper purpose of obstructing Defendant’s
reasonable discovery into plaintiffs’ alleged damages and other relevant
issues and to delay and drive up the costs of the litigation to Defendant.
13. Ultimately it became apparent that, even assuming liability,
plaintiffs had no damages, but only after considerable expense was incurred
by the Defendant in ferreting out the facts and being obstructed in its
discovery efforts. ‘
CR 56(g) Findings
14. On the parties’ cross—motions for summary judgment, Mr.
Mitchell filed a joint declaration of plaintiffs, asserting that calls were made
to Mr. Rose’s cell phone and that Defendant called Mrs. Rose at work after
she asked Defendant not to call her work number. Both assertions were
false, as shown by the call log produced by Defendant . . . and the
deposition testimony of Mr. Rose . . . admitting that his cell phone was
never called by Defendant.
Defendant has allocated 1.4 hours to its response to the false
statements in the joint declaration and other false statements on summary
judgment detailed below, which the Court finds reasonable, but the Court
also finds that the violation itself is part of a broader pattern of obfuscation
and obstruction by Mr. Mitchell in this case which is properly sanctioned
under this Court’s inherent authority to control the litigation.
15. in plaintiffs’ opposition to Defendant’s motion for summary
judgment, Mr. Mitchell asserted for the first time in the case, incorrectly,
that Defendant had left “at least 19 more voicemail messages” for plaintiffs.
This assertion of fact was false, as demonstrated by Defendant’s call log in
the record on summary judgment. The false assertion of fact violated CR
56(g) because Mr. Mitchell certainly knew or should have known, whether
from the Roses or a correct reading of the call log, that no additional voice
mail messages were actually left. Defendant spent a portion of its reply
brief addressing Mr. Mitchell’s false statement of fact. Defendant has
allocated 1.4 hours as discussed in Finding of Fact No. 14 above which the
Court finds reasonable.
16. On December 10, 2010, Mr. Mitchell filed a motion for
reconsideration of this Court’s order granting summary judgment to
Defendant based upon alleged “newly discovered evidence.” In support of
that motion, he submitted a declaration from Mrs. Rose asserting that soon
after the hearing on summary judgment she found many of the documents
Mr. Mitchell previously represented to Defendant had been thrown out by
64
No. 32284~0—IH
Rose v. FMS, Inc.
the plaintiffs. . . . Mr. Mitchell also submitted copies of plaintiffs"
discovery requests to Defendant without Defendant's answers, asserting that
plaintiffs had requested the Kohl’s credit card agreement and billing
statements from Defendant, but Defendant refused to produce them. . . .
This was false and misleading because Defendant did not refuse to provide
the responsive documents, but rather did not, and never did, have them.
And, Mr. Mitchell knew that Defendant was, in fact, trying to obtain those
documents from plaintiffs, on whose behalf Mr. Mitchell falsely
represented the documents had been discarded “when they moved. ” . . .
Mr. Mitchell also failed to serve Defendant with the motion for
reconsideration.
17. Oral argument on the motion for sanctions was heard by the
Court on February 15, 2011. At the hearing, Mr. Mitchell represented to
the Court that plaintiffs believed plaintiffs had thrown out documents
responsive to Defendant's discovery “when they moved.” Yet plaintiffs
never moved during the relevant time period, during the entirety of which
Mr. Mitchell was their attorney and certainly know they had not moved.
18. On April 11, 2011, Mr. Mitchell filed a Motion for Order to
Show Cause re: Vacation of Judgment/Order, Motion for Sanctions against
Defendant and its counsel, and a Motion to Compel Deposition of
Defendant . . . . These motions substantially relied upon materials obtained
by the improper subpoena to Kohl’s, which this Court had already ruled
violated CR 45(b)(2) and were also inadmissible hearsay. The next day,
April 12, 2011, Mr. Mitchell filed a response . . . to Defendant’s motion for
an order terminating discovery, also relying upon the improperly obtained
and inadmissible documents. The Court finds that these filings were filed
in bad faith in that they relied on documents previously ruled inadmissible.
The Court did not rule on Mr. Mitchell’s motions because Mr. Mitchell
eventually abandoned them, but Defendant incurred substantial fees and
costs in responding to them.
19. On October 10, 2011, Mr. Mitchell filed objections to the
proposed final order of sanctions submitted by Defendant, stating that
sanctions should be awarded only against “Robert Mitchell, Attorney at
Law, PLLC,” and not against Mr. Mitchell personally, because “each and
every pleading was filed by the firm” and “each and every pleading bears
the firm name,” and plaintiffs allegedly hired “Robert Mitchell, Attorney at
Law, PLLC,” and not Mr. Mitchell personally. Based on these
representations, Mr. Mitchell then asked that “any enforcement orders
should be limited to the firm, not the individual attorney. ” . . . The Court
65
N0. 32284—0411
Rose 1). FMS, Inc.
finds, based on the fact the alleged firm name does not appear on any of
Mr. Mitchell’s filings and based on evidence subsequently submitted by
Defendant on October 24, 2011, establishing that Mr. Mitchell’s business
entity was dissolved in 2008, that Mr. Mitchell’s representations about the
existence of the law firm of “Robert Mitchell, Attorney at Law, PLLC,”
were deliberately false and misleading in an attempt to convince this Court
to limit Defendant’s ability to enforce an award of monetary sanctions to a
non—existent business entity, and not Mr. Mitchell, who operates his law
practice as a sole proprietor.
20. . . . Defendant incurred expense in responding to the claims that
he was a limited liability entity, thereby exposing the falsity of those claims
which might otherwise have resulted in an unenforceable order, to
Defendant's detriment.
21. To the extent not already addressed above, the Court finds that
substantially all of the filings in this case from Mr. Mitchell’s first
supplementary filing after the sanctions hearing on February 15, 2011 . . .
through the last filing entered prior to Mr. Mitchell’s notice of appeal . . .
which was Doc. Sub. No. 91, were either in furtherance of or caused in
whole or in substantial part by Tv/IY. Mitchellis pattern of violations of CR
26( g), and CR 56(g). These were also either in furtherance of or caused in
whole or in substantial part by Mr. Mitchell's CR 11 Violations completely
unrelated to the issue of whether the complaint in this case was frivolous.
23. Defendant’s counsel billed 349.2 total hours in attorneys’ fees
on this case through May 31, 2012. Defendant has requested a
compensatory award of sanctions based on 200.8 hours of total attorney
time billed as a direct and proximate result of Mr. Mitchell’s pattern of
violations ofCR 26(g) and CR 56(g). . . .
24. This Court previously ruled that Defendant’s requested hourly
rate of $250.00 for attorneys’ fees, applying the lodestar multiplier of
approximately 1.5 times the actual billingrate of $168.00 per hour to
$250.00 per hour was appropriate and reasonable under the facts,
circumstances, and pleadings in this case. This Court found that this was
justified by defense counsel’s articulate presentation of very complex issues
in this case and their impeccably prepared pleadings throughout the
proceedings, which are ample evidence of their high level of skill.
However, implicit in those findings was the reality that this Court had
adopted Defendant’s position, later reversed on appeal, that the filing of the
complaint had been frivolous. This Court also took into consideration that
66
No. 32284—0-HI
Rose v. FMS, Inc.
Mr. Mitchell’s rate, as a much less experienced attorney, is $200.00 per
hour. Mr. Mitchell appealed this ruling, but the Court of Appeals let it
stand.
a. It is once again to be noted that the $168 per hour rate was a
discounted contract “insurance” rate and that Mr. Stolle’s normal hourly
rate was $350 per hour and Mr. Martens’s $375 per hour, and that these
normal hourly rates were reasonable and customary for attorneys of their
experience and expertise in the Seattle area, especially on the complex
issues involved in fair debt collection act cases.
b. However, given the reversal of this Court on the issue of the
frivolous claim arguments, and given this Court’s over~reliance on the
quality of the pleadings involved, it seems that the lodestar multiplier
should be adjusted, downward.
0. Mr. Mitchell’s hourly rate was $200 — and he is a less experienced '
attorney and demonstrated less understanding of the Civil Rules both in the
discovery arena and in the summary judgment arena, as evidenced by his
violations in both areas. He makes no argument that his rate would have
been unreasonable for an attorney of even average skill practicing in the
fair debt collection litigation arena, nor that this rate would have been
unreasonable to apply to defense counsel. instead Mr. Mitchell challenges
the ordering of sanctions at all and makes a generalized statement that the
time spent was simply too much or that defense counsel should have
exercised “billing discretion” and reduced its hours for its client. This
Court, however, can find no fault with the approach taken by defense
counsel in allocating its fees to the limited areas for which sanctions have
been sought. Any time spent in review and consultation by Mr. Martens in
addition to that of Mr. Stolle is reasonable given the complexity of the case
and the seriousness of the consequences of the litigation, ifplaintiffs had
been successful. I
d. Under all the circumstances of this case, this Court finds that the
lodestar increase from the $168 discounted rate billed to Defendant by its
counsel should be to $210 per hour —- $10 per hour more than Mr. Mitchell
charges, in partial recognition of defense counsel’s superior experience
level ——
25. Defense counsel reasonably, necessarily and actually expended
a total of 21 .9 hours in attorneys’ fees as a direct and consequential result
of Mr. Mitchell's violations of CR 26(g) in the discovery he served on
Defendant, including interrogatories, requests for production, requests for
67
N0. 32284-0—111
Rose v. EMS, Inc.
admission and the CR 30(h)(6) notice . . . for a total of $4,599.00 in
attorney fees based on the rate of $210.00 per hour times 21.9 hours for
those violations.
26. Defense counsel reasonably, necessarily and actually expended
a total of 10.5 hours in paralegal fees as a direct and consequential result of
Mr. Mitchell’s violations of CR 26(g) in the discovery he served on
Defendant, including interrogatories, requests for production, requests for
admission, and the CR 30(b)(6) notice . . . for a total of $714.00 based on
the rate of $68.00 per hour times 10.5 hours.
27. Defense counsel reasonably, necessarily and actually expended
21.0 hours in attorneys’ time as a direct and consequential result of Mr.
Mitchell's violations of Civil Rule 26(g) in answering Defendant’s
discovery requests, including interrogatories, requests for production, and
requests to depose plaintiffs . . . for a total of $4,410.00.
29. Defense counsel reasonably, necessarily and actually expended
$827.34 in out—of—pocket costs and expenses as a direct and consequential
result of Mr. Mitchell’s violations of CR 26(g) in answering Defendant's
discovery requests, including interrogatories, requests for production, and
request to depose plaintiffs. . . .
30. Defense counsel reasonably, necessarily and actually expended
a total of 156.5 hours in attorneys’ time on the motion for sanctions,
including responding to Mr. Mitchell’s numerous supplemental filing after
the hearing, and his violations of CR 45(b )(2) which were included in
many ofhis filings. . . . This totals $32,865.00, representing the hourly rate
of $210 times 156.6 hours.
32. Defense counsel reasonably, necessarily and actually expended
a total of $1,575.83 in out-of—pocket costs and expenses related to the
motion for sanctions, including responding to Mr. Mitchell’s numerous
‘ supplemental filings and motions after the hearing. . . .
33. While the bulk of Mr. Mitchell’s improper filings and false
statements are subsumed in the discovery violations and motion for
sanctions, defense counsel separately, reasonably, necessarily and actually
expended at least 1.4 hours of additional attorneys’ time dealing with Mr.
Mitchell’s motion for reconsideration of the Court’s order on summary
judgment . . ., for a total of $294.00 representing 1.4 hours times the hourly
rate of $210. It is to be noted that defense counsel does not seek any
sanctions related to Mr. Mitchell's remote of the motion for reconsideration,
68
No. 32284—0411
Rose v. FMS, Inc.
since he had stipulated that he would not do so if the renotea’ hearing was
stricken? and it was. Thus no time has been included with respect to the
remote of the motion for reconsideration.
36. Defense counsel has reasonably estimated from unbilled time
entries that an additional 58 attorney hours were incurred in preparing
Defendant’s motion for the present amended order, including time
preparing the fee and cost allocation, motion, proposed order with findings
of fact and conclusions of law, and supporting declaration of Mr. Stolle
with exhibits thereto. The Court. finds this attorney time reasonable and
that it has been reasonably incurred at a reasonable hourly rate of $210.00
per hour for a total of$12,180.00.
69
No. 32284-0411
Rose 12. FMS, Inc.
Appendix 2
Compensable Billing Entries
Professional Service
5 Hours
Amount 1
08/11/2010
Review plaintiffs’ first request for
admission and draft objections and answers ‘
thereto; Review documents received from
client.
1
l
2.30
"156.40
08/12/2010
“08/12/2010
Review and revise answers to plaintiffs?
first requests for admission. “WW
Review and revise FMS’s objections and
answers to plaintiffs” first requests for
admission.
0.40
0.40
’ 27.20
27.20
“08/12/2010
4....
Prepare FMS’s answers to plaintiffs ’ first
requests for admission.“
2.70
453.60
08/13/2010
Review letter from Robert Mitchell re
discovery due date confirmation.
11/01/2010:
Research authorities for holding CR
30(1))(6) deposition of corporate defendant
_ at principle place ofbusiness for letter to
plaintiffs” counsel.
1’1/02/2010
Review and revise correspondence to
plaintiffs” counsel regarding plaintiffs" CR
30(b)(6) deposition of FMS.
1 11/02/2010
1
1
l
<
0.20
1.30
13.60
0.20
Prepare letter to plaintiffs’ counsel R.
Mitchell regarding location of corporate
defendant’s deposition.
’ 0.40
13.60
67.20
11/02/2010
Plan and prepare for CR 261 conference
with plaintiffs’ counsel R. Mitchell.
060
100.80 “
1 1/02/2010
Review e-mail from plaintiffs’ counsel R.
Mitchell regarding deposition ofFMS and
cancellation of CR 26(1) conference;
forward to client.
0.20
33.60
11/04/2010 ‘
Prepare four page letter to plaintiffs”
counsel detailing deficiencies in plaintiffs”
answers and responses and requesting CR
26(i) conference.
70
1.20
201.60
No. 32284—0—111
Rose v. FMS, Inc.
and Martens + Associates attorney Steven Stolle, on behalf of FMS, exchanged didactic
e—mail regarding whether the Roses’ summons, complaint, and discovery requests had
been properly served. On August 3, Mitchell wrote to Richard Martens and inquired
about receiving discovery responses. On August 5, Steven Stolle, rather than Richard
Martens, responded:
Richard Martens forwarded your email of August 3, 2010, inquiring
about discovery. Neither Mr. Martens nor 1 are aware of this office
receiving any discovery from plaintiffs in this case. Can you confirm that
discovery was served and, if so, how?
Also, it is unclear when the complaint was served. Can you forward
a copy of the proofof service?
Thank you.
C? (303 802) at 418. Robert Mitchell replied the following day:
Unless Mr. Martens has completely failed to communicate with his
client since appearing in this case nearly 1 month ago, and unless he also
intends to deny receiving my responsive email on July 9, 2010, then he
knows very well that this case was served upon the registered agent on
April 27, 2010, more than 3 months ago. He also has electronic copies of
Plaintiffs’ discovery requests, in addition to the actual discovery requests
he should have requested and received from his client.
In the future, it may behoove Mr. Martens to exhibit a higher level of
candor when dealing with my office. He might also be mindful of his
ethical duties as well as his duties under the civil rules regarding
intentionally delaying litigation, intentionally and unnecessarily increasing
the costs of litigation, and his duty ofcandor. Finally, the more
gamesmanship played in this litigation, the more it will ultimately cost
FMS, because this case involves fee—shifting statutes which only inure to
the benefit of the Plaintiffs.
CP (303802) at 420.
No. 322840—111
Rose v. FMS, Inc.
11/04/2010
V Review e—mail from plaintiffs’ counsel R.
Mitchell regarding CR 26(i) conference
concerning plaintiffs’ answers to F MS’s
discovery requests.
0.10
16.80
11/09/2010
" iii/“6920 1 0
Prepare for and conduct CR 26(i)
conference with plaintiffs’ counsel R.
Mitchell. w
Prepare e-mail to plaintiffs’ counsel R.
Mitchell confirming agreements reached
during CR 26(i) conference.
11/20/2010
Receive, review, modify and revise FMS,
lnc.’s reply on its cross motion for
summary judgment.
1.40
235.20
01/28/2011
Send/Receive e—mail transmission to
Stevens County Clerk regarding plaintiffs’
motion for reconsideration of court’s order
dismissing plaintiffs” claims.
0.10
01/28/2011
l
l
1
1
Prepare e—mail to K. Martin re plaintiffs’
filing of unserved motion for
reconsideration; review response.
1 01/31/2011
-—«»—4
Receive and review note for hearing on
motion for reconsideration.
6.80
33.60
16.80
01731/2011
01/31/2011’
Telephone conference (x3) with court
regarding plaintiffs’ motion for
reconsideration. ____ _‘
Send/Receive e—mail transmission
(multiple) from/to court regarding
plaintiffs” unserved motion for
reconsideration documents and Receive,
review and analyze reconsideration motion
documents.
20.40
34.00
01/31/2011
Receive and review plaintiffs’ remote on
motion for reconsideration, prepare
objections to plaintiffs’ untimely motion for
reconsideration and discussions with
attorneys.
1"."1 0
74.80
01/31/2011
Prepare and Send Facsimile Transmission
to plaintiffs’ counsel regarding improperly
6.80
71
N0. 32284-0-111
Rose v. EMS, Inc.
03/07/201 1
noted motion'for reconsideration.
Receive. review and analyze plaintiffs’
supplemental response to motion for
sanctions.
67.20
03/07/2011
Receive, review and analyze plaintiffs’
supplemental response to motion for
sanctions.
20.40
03/07/2011
Review and analyze plaintiffs’
supplemental brief in opposition to motion
for sanctions and supporting declaration of
R. Mitchell with exhibits thereto.
0.90
151.20
03/07/2011
Prepare e—mail to K. Martin regarding and
attaching plaintiffs’ supplemental
submission on FMS’s motion for sanctions.
0.20
'f'03/07/201 1
Telephone call to K. Martin regarding
response to plaintiffs” supplemental
submission in opposition to motion for
sanctions; leave voice message.
0.10
03/07/2011
Telephone call from K. Martin regarding
plaintiffs’ supplemental submission in
opposition to motion for sanctions and F MS
response.
0.20
33.60
03/07/2011
Prepare supplemental declaration of S.
Stolle and exhibits thereto in response to
plaintiffs’ supplemental submission in
opposition to FMS’s motion for sanctions.
1.20
03707/201 1
Receive, review and analyze plaintiffs’
supplemental response to FMS’ motion for
03/09/2011 '
sanction with Mitchell declaration thereto.
Exchange e—mails with K. Martin regarding
contact with Kohl’s in response to
plaintiffs’ supplemental submission on
motion for sanctions.
03/10/2011
Receive, review, modify and revise F MS’
surreply in support of its motion for
sanctions.
0.50
03/10/201 1
Assist counsel with draft surreply on
motion for sanctions against plaintiffs”
0.20
13.60
72
No. 32284-0—
111
Rose v. FMS, Inc.
counsel.
03/10/2011
Prepare supplemental declaration of Martin
in support of motion for sanctions.
0.20
13.60
03/10/2011
Review and revise surreply in support of
FMS’S motion for sanctions.
1 0.30
20.40
103/10/2011
Prepare GR 17 declaration regarding
Martin’s e-mailed declaration, prepare
certificate of service and correspondence to
001111.
03/10/2011
Send/Receive e—mail transmission to local
messenger company regarding service of
FMS’s surreply on motion for sanctions
papers.
% 0.70
47.60“
6.80
03/10/2011
Prepare PMS surreply on motion for
sanctions.
03/18/2011
03/18/2011
l
1
Review email communications from
plaintiffs’ counsel regarding Kohl’s records
and review e—mail communications between
Kohlls and plaintiffs’ counsel and
documents produced by Kohl’s.
Review e~mail from plaintiffs’ counsel R.
Mitchell with e-mail string between
Mitchell and Kohl’s representative, and
attached Kohl’s documents.
0.50
03/18/2011
5 Prepare e—mail to K. Martin, forwarding e-
mail and attachments from plaintiffs”
counsel R. Mitchell and requesting client
deposition.
03/18/2011
16.80
84.00 ‘
Telephone call from K. Martin regarding m
Mitchell e—mail and response.
"03/21/2011
Receive, review and analyze subpoena
duces tecum to Kohls, and supplemental
declarations from plaintiffs’ counsel
regarding sanctions.
03/21/2011
Review/analyze — Receive, review and
analyze plaintiffs” supplemental
declarations regarding FMS’s motion for
sanctions. ‘
0.20
No. 32284—0—111
Rose v. FMS”, Inc.
03/21/2011
Review and analyze two supplemental
“declarations” oi’plaintiffs’ counsel R.
; Mitchell with exhibits regarding FMS’S
pending motion for sanctions.
0.80
l 134.40
1
l
l
1
l
03/21/2011
Prepare e-mail forwarding latest Mitchell
tilingto K. Martin; review response.
1
i
3 0.20
; 03/21/2011
Telephone to K. Martin regarding response
to Mitchell filing. [
l 0.20
1
1'
03/2 1/2101 1
03/21/2011
4 sanctions.
Prepare F MS’s second surrcply and second
supplemental declaration of S. Stolle with
exhibits in support of FMS’s motion for
Receive, review and analyze Mitchell’s 2nd
and 3rd supplemental declarations in
response to motions sanctions. A
0.90
0.40
l
03/22/201 lTRCVlGW, revise and finaliEe second surreply
03/22/201 1
on motion for sanctions papers and prepare
certificate of service; Prepare motion for
voluntary dismissal of counterclaim,
proposed order and certificate of service
and prepare correspondence to court
regarding all.
Exchange series of telephone calls and e—
mails with K. Martin regarding FMS
response to latest Mitchell supplemental
filing on FMS’s motion for sanctions.
2.20
0.40
J 149.60
07.20 '
03/22/2011
lHPrepare FMS’s 2d surreply on its motion
for sanctions.
03/23/2011
03/23/2011
' Prepare declaration of K. Engle at Kohl’s in
support of second motion for sanctions and
revise correspondence to court and
certificate of’service; Prepare GR 17
declaration regarding Engle declaration. ‘
Review e—mail from K. Martin, including ew
mail string between FMS personnel and l
Kohl's regarding plaintiffs’ subpoena and
attached documents provided by Kohlis
evidencing communications with R.
l
0.70
0.70
g 0.60”
74
No. 32284—0—111
Rose 12. FMS, Inc.
l
1
Mitchell.
03/23/2011
Telephone call to K. Engle at Kohl’s
regarding possible declaration.
16.80
l
l
l
a
l
1
03/23/2011
Telephone call from J. Mikhail ofKohl’s
regarding declaration.
03/23/5611
33.60
Revise declaration and transmit to J.
Mikhail.
04/04/2011
Receive and review e-mail from Robert
Mitchell
-ww .... ___r _
33.60
16.80
04/04/201 1
Review email from K. Martin re status of
sanctions motion.
16.80
04/04/201 1
Review and analyze lengthy email from
plaintiffs’ counsel R. Mitchell and
forwarded emails between Mitchell and J.
Dickerson of Kohl’s, and attached letter
dated March 23, 2011, from Dickerson to
Mitchell regarding plaintiffs’ Kohl’s
account.
’ 04/04/201 1
1 Prepare email to K. Martin regarding
response to plaintiffs’ counsel’s email and
x attaching three Dickerson letters.
0.30
67.20
.. Mg
"OX/637561 1
Review responsive email from K. Martin
regarding response to email from plaintiffs
counsel threatening sanctions.
3
0.10
16.80
“am/201 1
Review email from K. Martin regarding
Dickerson letters.
0.10
16.80
04/06/2011
Prepare draft of Second Declaration of
Shelly Votaw.
04/06/201 1
04/07/201 1
0.50
84.00
Prepare email to K. Martin attaching draft
of Second Declaration of S. Votaw.
0.20
33.60
Review and revise second declaration of
Votaw in support of motion.
0.20
13.60
04/07/201 1
Review voice message from K. Martin
regarding information from Kohl’s.
04/07/201 1
Telephone call to K. Martin regarding
possible declaration from Kohl’s.
04/07/201 1
Prepare second declaration of S. Votaw;
transmit to K. Martin.
75
No. 32284—0—111
Rose 12. FMS, Inc.
04/07/2011
Review email from K. Martin to T. White
regarding Votaw declaration.
0.10
04/07/201 1
Review email from T. White to" S. Votaw
forwarding draft declaration.
0.10
04/07/201 1
Conference call with K. Martin and T.
White._
0.30
04/08/201 1
04/0 8/201 1
Review and revise correspondence to
plaintiffs’ counsel regarding motion for
sanctions and prepare facsimile
correspondence to plaintiffs’ counsel
concerning same.
Attend and participate in telephonic
conference with K. Martin, T. White, and S.
Votaw regarding Kohl’s administration of
card holder agreements.
0.20
0.50
84.00
i
t.
04/08/2017717-1» Revise Second Votaw declaration and
exchange several emails with S. Votaw
regarding additional revisions and
finalization, review email from Votaw with
attached signed final Second Declaration.
0.80
02/0 8/201 1
Prepare letter to plaintiffs’ counsel R.
Mitchell regarding declaration from Kohl’s
and attach draft to email to K. Martin.
0470072011
Review email from plaintiffs” counsel R.
Mitchell and attached motions for sanctions
against FMS and for order to show cause to
set'aside order on summary judgment, with
. supporting declarations by Mitchell for
each.
"‘pmm- #%
67.20
117.60
04/08/2011771’repare email to K. Martin, forwarding
email from R. Mitchell with attached
motions and supporting papers.
04/08/20TT
Review and analyze second email from
plaintiffs” counsel R. Mitchell and attached
motion to compel deposition of FMS with
supporting declaration of R. Mitchell.
04/09/201 1
Forward Mitchell email of previous evening
to K. Martin; review response.
76
No. 32284—0411
Rose 12. FMS, Inc.
04/10/201 1
Receive, review and analyze plaintiffs”
motion for sanctions and order to show
cause papers.
04/11/2011
Receive, review and analyze motion for an
order to show cause, the supplemental
declaration of Robert Mitchell, plaintiffs’
motion and memorandum for sanctions.
0.50
1.10
04/11/2011
Review email communications with
plaintiffs’ counsel regarding motion for
sanctions.
0.10
6.80
104/11/2011 l
a Review plaintiffs motion for sanctions,
motion to compel deposition ofFMS, and
i motion for order to show cause re order on
summary judgment, with multiple
declarations ofplaintiffs’ counsel R.
Mitchell, previously received unsigned via
email from R. Mitchell.
0.90
151.20
04/11/2011
04/12/2011
“(Tat/T1 /201 '1’ “
Review and respond to three emails from
plaintiffs’ counsel R. Mitchell, one of
which is very lengthy.
0.50
84.00
Receive & review Plaintiff‘s Motion for
_§a_nctions and supporting declarations.
Prepare FMS’s third surreply on its motion
for sanctions against plaintiffs’ counsel R.
Mitchell ..
0.30
g 2.20
04/13/2011
Receive, review and analyze plaintiffs’
response to motion to cut off discovery.
0.40
04/1372011
Review and analyze plaintiffs’ motion to
compel depositions of FMS and K. Martin,
and supporting declaration. of R. Mitchell
with exhibits thereto;
1.30
04/13/2011
Prepare email to KfMartin attaching
plaintiffs’ motion to compel FMS’S
deposition and disCussing response.___
0.20
33.60
04/13/2011
Review responsive email from K. Martin
regarding plaintiffs” motion to compel.
0.10
16.80
04/ 13/201 1 l Receive & review plaintiffs” Response to
Defendant’s Motion to Cut OffDiscovery
77
r_
0.30
20.40
No. 32284—0411
Rose 12. FMS, Inc.
. & plaintiffs” Motion to Compel CR
30(b)(6) Deposition.
04/14/201 1
i Prepare FMS response to plaintiffs’ motion
for sanctions and motion to compel
depositions.
04/15/2011
k.._q__.__.__w .... ,.
1 04/15/2011
1
Review and revise objections and response
V to plaintiffs” third supplemental declaration
and motion for sanctions and assist attorney
_with citations therein.
0.60
Review, revise and finalize objection to
plaintiffs’ third supplemental declaration
and third supplemental surreply on F MS’s
motion for sanctions papers; Prepare
court and file/serve same.
certificate of service and correspondence to l
1.70
"04/15/201 1
Prepare FMS’S third surreply to third
supplemental submission of plaintiffs’ in
opposition to FMS’s motion for sanctions,
and supporting declaration of S. Stolle with
exhibits thereto.
621.60
04/17/2011
Send/Receive e—mail transmission to
messenger in Spokane regarding service of
FMS’S objection and third supplemental
surreply on motion for sanction papers.
0.10
6.80
"04/20/201 1
Review court’s docket entries regarding
order of dismissal.
0.10
6.80
"04/2 1/201 1
i Telephone conference with court’s
administrative clerks regarding pending
motions.
0.20
L 13.60
04/21/2011
1
Prepare and exchange three sets of emails
with K. Martin regarding documents
evidencing DOL closure of investigation of
F
0.30
50.40
04/21/2011
Review and analyze pleadings:
1 correspondence, and discovery received
recently.
0.50
34.00
04/27/2011
2 Review email from plaintiffs” counsel R.
Mitchell attaching unsigned copy of notice
78
0.30
50.40
No. 32284-0-111
Rose V. FMS, Inc.
striking the hearing on plaintiffs’ motion for
sanctions and motion to compel FMS’S
deposition; forward to_ K. Martin.
3 04/28/2011
1
1
1
Receive and review correspondence from
plaintiffs” counsel to Kohl’s and Telephone
conference with court’s administrator
regarding pending motions. _W__
0.40
04/28/2011
Review email from K. Martin and attached
letter from plaintiffs” counsel R. Mitchell to
S. Votaw at Kohl’s.
50.40
04/28/2011
Prepare email to K. Martin regarding
handling of Mitchell letter to Votaw.
33.60
04/28/2011
04/28/201 1
Review responsive email from K. Martin
1 regarding Mitchell letter to S. Votaw.
i Return call from Kohl’s internal counsel A.
Catalano regarding Mitchell letter to S.
Votaw, Kohl’s response, and possible third
declaration from S. Votaw.
.
l
1
1
1
04/28/201 1
Prepare (ii/Ea third declaration of Votaw
and transmit via email to Kohl’s internal
counsel A. Catalano.
1.10
16.80
84.00
05/05/2011
internal counsel A. Catalano to schedule
’ conference call including S. Votaw
regarding draft declaration.
04/29/201 1 Review email acknowledgement from A. 0.10 16.80
Catalano re receipt of draft Votaw
declaration. W
05/02/201 1 Receive and review notice striking hearing 0.10 16.80
from plaintiff‘s counsel. ____ M
05/02/201 1 Review hard copy of previously emailed 0.10 16.80
copy ofplaintiffs’ notice striking hearing. WW
05/03/201 1 Exchange series of six emails with Kohl’s 0.50 84.00
McCann from Chartis.
Review Votaw’s thirddeclaration. 0 10 6.80
05/05/201 1 Review email from M. Votaw with attached 0.10 16.80
executed declaration; forward to K. Martin. WW
05/20/201 1 Produced requested documentation for Amy 0.20 13.60
05/20/2011 1
Produced requested documentation for Amy
79
No. 32284—0—111
Rose 12. FMS, Inc.
McCann from Chartis.
.1m 2
05/23/2011
Receive, review and analyze judge’s
correspondence and Telephone conference
with court regarding pending motions.
0.20
13.60
05/23/2011
Review and analyze letter from the court
regarding procedural posture of the case
and requesting a response from counsel.
0.30
50.40
05/23/2011"
Mitchell, attaching court’s letter regarding
Prepare email to plaintiff s counsel R.
remaining issues and third declaration of S.
Votaw, and requesting response for reply to
court.
i 0.30 W
50.40
05/23/2011
1
1 ..
05/24/2011
Produced requested documentation for Amy
McCann from Chartis.
Review and analyze responsive email from
plaintiffs counsel regarding response to
court’s letter.
05/24/2011
Exchange six emails withplaintift’s'
counsel R. Mitchell in attempt to reach
agreement on response to court’s inquiry
i regarding matters remaining at issue.
'3360
54.40
117.60
05/25/2011
Review email communications with
plaintiffs’ counsel regarding pending
motions”;
0.10
" 6.80
05/25/2011
Review email from K. Martin; respond.
0.20
33.60"”
05/25/2011
Prepare parties’ joint response to letter from
the court on remaining issues; transmit to
plaintiff’s counsel R. Mitchell for approval;
review response and sign final.
0.60
100.80
06/08/2011
1 Draft and send letter to Judge Baker re”
Judge’s_copies.
0.50
" 07/08/201 1
1
Review & analyze motion for sanctions
responses.
0.40
07/14/201 1
Receive, review and analyze the Court’s
letter ruling on FMS’ motion for sanctions.
0.40
07/14/2011
Receive, review, modify and revise status
report to client and carrier regarding the
Court'smruling on FMS” motion for
0.30
80
No. 32284—0-III
Rose v. FMS, Inc.
Steven Stolle, enamored by the word “behoove,” wrote to Robert Mitchell on
August 6:
It would “behoove” you to maintain a modicum of professionalism
when dealing with opposing counsel, and accusing my office of unethical
conduct right out of the box is not a good start. I have done nothing to
warrant it, and I frankly don’t appreciate it. While I have no intention of
responding to everything in your email, I address the pertinent points as
follows.
First I requested a courtesy copy of the proof of service you filed in
the court docket I can obtain it by other means, but I have never refused or
been refused a copy of such documents in the past. Instead of responding
to this very reasonable request by either providing a copy or politely
declining, you chose to engage in a rant about how we know we were
served. What I know is that my client received a copy of the summons and
complaint. If you want me to acknowledge that the alleged service was
proper, I will have to see a copy of the proof of service. That’s what the
document is for, and you should serve a copy on the other parties to the
case in any event.
Second, while I was unaware of any emailed courtesy copies,
electronic service without prior agreement of the parties is not recognized
under the Civil Rules. See CR 5(b)(7). We have not so agreed. I also do
not know how you allegedly served my client with discovery. We have
located your email attaching PDF copies of plaintiffs” discovery, none of
which is signed by you, nor do they have the required certificate of service.
According to you, you sent it one day, June 27, 2010, and it was
acknowledged by our client the next, June 28, 2010. Effecting service
either by personal service or by mail between Spokane and Tulsa,
Oklahoma, in one day would, I think, be a first. So I also question the
validity of service of the original discovery requests on my client.
Third, service of discovery prior to filing the complaint on June 29
was invalid in any event. See CR 33(a). If you want your discovery
answered, then properly serve it on my office.
Finally, I note that the only appearance on behalf of my client in this
case was made by my office. So I don’t know what you mean by my client
having “appeared” through its in—house counsel. You may have served the
summons and complaint some time ago, but the complaint was only filed
on June 29, 2010, and only my office entered a notice of appearance.
No. 32284-0-
111
Rose 12. FMS, Inc.
sanctions.
“07/14/201 1
Receive and review correspondence from
Judge Rebecca Barker on motion for
sanctions.
0.30
50.40
07/‘14/201 1 1
Research on cases filed by plaintiffs”
counsel related to submission of the fees
and costs pursuant to the court’s ruling on
motion for sanctions. ___
07/14/2011
0.70
47.60
Receive, review and analyze court’s letter
ruling on FMS’s motion for sanctions;
0.30
07/14/201 1
Review and analyze four page letter order
from the court granting FMS’s motion for
sanctions.
07/14/2011
1
0.60
20.40
100.80
Review letter from Judge RéEé'éEé Baker re
ruling.
07/15/2011
L
0.80
54.40
Receive and review e—m-.il 0.76113 Robert W.
Mitchell.
0.10
16.80
07/15/2011
Receive and review efrriailflto Robert W.
Mitchell.
0.10
16.80
"06/27/201 1
Research on proposed judgment against
plaintiffs” counsel, individually.
0.40
27.20
10/11/2011
Assist counsel with draft response to
plaintiffs” objections to order on sanctions
award; contact Secretary of State
Corporations Division regarding allegations
raised by plaintiffs’ counsel in response;
make notes regarding same.
0.40
' 27.20
10/11/2011
Prepare FMS’S response to R. Mitchell’s
“objections” to proposed form of order on
sanctions. ‘
5.20
873.60
10/13/2011
Receive, review, modify and revise FMS’s
court ordered reply to Mitchell’s objections
to presentation of order on fees and
expenses.
1.40
235.20
10/13/2011
Status Report to Client/Carrier re: Court
ordered reply on presentation of sanctions
order.
0.60
100.80
10/13/2011
Review and revise response to plaintiffs’
0.80
54.40
81
No. 32284-0—111
Rose v. FMS, Inc.
counsel regarding order awarding fees and ‘
costs; draft Certificate of Service for same; i l
have same filed with clerk and served on
trial court; serve plaintiffs’ counsel with
ws ame. _
l 10/ 13/2011 Revise and finalize proposed order for 0.80 134.40
E presentment of judgment against R.
Mitchell. "w _
10/ 16/201 1 Review and analyze plaintiffs’ objections to 0.30 20.40
‘1 proposed order on fees and costs award. ____
10/17/201 1 Review FMS’S response to Mitchell’s 0.10 6.80
objections to order on the fees and costs
# award.
10/31/2011 Research on judgment lien and procedures 0.80 54.40
for perfecting judgment lien. “
l 1/01/201 1 Telephone conference with court regarding 0.10 680
abstract of judgment.
CP105,106,107.113,114,115,116,119,122,123. 127—31,135—42, 144—45,150,152—
54.
82
No. 32284—0—111
Rose v. FMS, Inc.
Appendix 3
We now list those billing entries of Martens + Associates that we hold are not
compensable.
FMS seeks reimbursement of time spent by Martens + Associates on July 9, 2010
and July 12, 2010 for the law firm’s communications with FMS, the law firm’s
communication with opposing counsel, a conflicts check, preparing a notice of
appearance, reviewing date of service, and preparing correspondence with the court. This
court previously ruled that the lawsuit was not frivolous. All of the tasks performed on
July 9 and 12 are standard tasks performed when responding to a lawsuit. Since the
lawsuit was not frivolous, standard tasks in responding to the lawsuit cannot be the result
of frivolous conduct of opposing counsel.
On August 6, 9, and 11, and September 2 and 3, 2010, FMS’ lawyers prepared
some unidentified pleadings, prepared an answer and counterclaim, telephoned the court
clerk, telephoned the secretary of state and FMS’ registered agent, and communicated
with FMS. These tasks are standard tasks performed when responding to a lawsuit.
Since the lawsuit was not frivolous, standard tasks in responding to the lawsuit cannot be
the result of frivolous conduct of opposing counsel.
The law firm Martens + Associates assessed time on August 3, 5, 6, 7, 8, 12, 16,
17, and 23, and September 1, 2010 for written discovery and communications with
83
No. 32284-0-111
Rose v. FMS, Inc.
Robert Mitchell and FMS regarding discovery. Most entries do not identify the discovery
requests upon which the firm labored. Entries for August 7, 12, 16, 17 reference requests
for admission, interrogatories, requests for production, and the notice for a corporate
deposition. FMS would be entitled to reimbursement for time spent regarding the notice
for the corporate deposition, most of the requests for admission, and the requests for
production seeking proprietary information, if Martens + Associates had segregated the
time spent on responding to those discovery requests. Since the law firm did not
segregate, we disallow recovery for the work performed on these dates.
On August 5, 9, and 11, September 3, 9, and 28, and November 3, 4, 9, and 10,‘
2010, Martens + Associates conducted fact investigation and reviewed the Roses’
complaint. These chores are standard chores performed when responding to a lawsuit.
Since the lawsuit was not frivolous, standard tasks in responding to the lawsuit cannot be
the result of frivolous conduct of opposing counsel.
On August 9, ll, 12, 17, and 26, September 1, 9, and 28, and November 17, 2010,
Martens + Associates engaged in document production. This task is a standard chore
when responding to a lawsuit. Since the lawsuit was not frivolous, standard tasks in
responding to the lawsuit cannot be the result of frivolous conduct of opposing counsel.
On August 10, ll, 13, 20, and 25, and October 26, 2010, FMS” law firm prepared
discovery motions, worked on discovery, and communicated with Robert Mitchell about
discovery. On August 10, Steven Stolle engaged in a discovery conference with
84
No. 32284—0-111
Rose V. FMS, Inc.
Mitchell. Our review ofcorrespondence leading to the discovery conference reveals that
the conference focused on whether FMS was properly served with discovery requests and
when FMS would respond to the requests. The conference did not entail discussion of
the discovery requests that the trial court found to be harassing. Thus, we deny recovery
for this work.
On November 10, 2010, FMS supplemented its discovery responses. Since this is
a standard task of responding to a lawsuit, we deny recovery for this work.
On August 25, October 25, November 10, and December 6, 2010, Martens +
Associates engaged in analysis, strategy and communications with FMS. These tasks are
standard tasks performed when responding to a lawsuit. Since the lawsuit was not
frivolous, standard tasks in responding to the lawsuit cannot be the result of frivolous
conduct of opposing counsel.
On August 27 and July 18, 2010, Martens + Associates prepared a settlement offer
and reviewed the Roses’ settlement offer. On October 5, 6, 10, 16, and 17, 201 1,
Martens + Associates engaged in communications with Robert Mitchell and FMS about
settlement and possible mediation. This work is standard work performed when
responding to a lawsuit. Since the lawsuit was not frivolous, standard tasks in responding
to the lawsuit and attempting to settle the lawsuit cannot be the result of frivolous
conduct of opposing counsel. The October 2011 settlement discussions likely involved
resolving the sanctions against Robert Mitchell rather than the lawsuit between the Roses
85
No. 32284-O-lll
Rose v. EMS, Inc.
and FMS. Still this work is not compensable, since we have reversed twice the sanctions
amount. Thus, engaging in settlement negotiations was a reasonable task. The record
contains no evidence that, during the negotiations, Mitchell engaged in bad faith.
On September 3, 8, 22, 24, 26, and 28, 2010, Martens + Associates drafted
discovery requests for submittal to the Roses. This work is standard work performed
when responding to a lawsuit. Since the lawsuit was not frivolous, standard tasks in
responding to the lawsuit cannot be the result of frivolous conduct of opposing counsel.
On September ll and November 3, 2010, Steven Stolle communicated with
Robert Mitchell about FMS” corporate status and a proposed protective order. On
November 4, Martens + Associates communicated with the court clerk about filing the
order. On November 15, the law firm reviewed the executed order. FMS could recover
for time its attorneys spent in work as a result of Robert Mitchell’s delay in signing the
protective order. But recovery would not include time spent in drafting the order,
reviewing the signed order, or filing the order. Those tasks would be performed even
without a delay. FMS provides no accounting to show work performed specifically
because of a delay in Robert Mitchell’s signing the stipulation.
On September 14, 26, and 27, November 17, December 6, 2010, and March 24,
201 l, Martens + Associates accounted for time spent in preparing and filing a notice of
unavailability of counsel, preparing a filing a withdrawal of a notice, and reviewing a
notice of unavailability sent by Robert Mitchell. This work is standard work performed
86
No. 32284-0411
Rose v. FMS, Inc.
when responding to a lawsuit. Since the lawsuit was not frivolous, standard tasks in
responding to the lawsuit cannot be the result of frivolous conduct of opposing counsel.
On October 1, 2010, Martens + Associates engaged in legal briefing regarding
state and federal analog statutes. On November 10, 2010, Martens + Associates engaged
in further substantive legal briefing. This work is standard work performed when
responding to a lawsuit. Since the lawsuit was not frivolous, standard tasks in responding
to the lawsuit cannot be the result of frivolous conduct of opposing counsel.
On October 29 and November 1, 2010, Martens + Associates reviewed and
analyzed the Roses’ discovery responses. The trial court found Robert Mitchell to have
engaged in bad faith when responding to requests for production 2 and 6 and
interrogatories 10, 17, 20, 23, and 25. The law firm does not segregate any time spent in
responding to these discovery requests. Therefore, we deny recovery for the time spent
in reviewing discovery responses. The review of discovery responses is a standard work
task in a lawsuit.
On October 21, 22, 28, and 30, and November 5, 8, and 19, 2010, Martens +
Associates billed for time spent in communicating with Robert Mitchell, a court reporter,
and FMS concerning deposition dates and for time spent in preparing deposition notices.
The firm also briefed recovery of deposition costs on December 7, 2010. This work is
standard work performed when responding to a lawsuit. Since the lawsuit was not
frivolous, standard tasks in responding to the lawsuit cannot be the result of frivolous
87
No. 32284—0411
Rose v. FMS, Inc.
conduct of opposing counsel. The trial court found Robert Mitchell to have
misrepresented facts when claiming that the Roses needed to deposed on separate days.
Nevertheless, the law firm does not identify any time spent discussing whether the Roses
would be deposed on the same day.
On November 5, 11, and 12, 2010, Martens + Associates accounted for time spent
in preparing for and conducting the deposition of Gregory Rose. This work is standard
work performed when responding to a lawsuit. Since the lawsuit was not frivolous,
standard tasks in responding to the lawsuit cannot be the result of frivolous conduct of
opposing counsel.
In a November 23, 2010 billing entry, Martens + Associates mentions the review
of a second amended complaint filed in Oklahoma courts. We are not aware of any
lawsuit filed in Oklahoma and thus deny any recompense for this task. FMS does not
explain how this entry relates to any harassing or bad faith conduct of Robert Mitchell.
On October 28, 29, and 31, November 1, 15, l6, l7, 18, 22, 23, 24, 29, and 30,
and December 1, 2, 2010, and February 2, 20] l, Martens + Associates reviewed the
Roses’ motion for summary judgment, prepared FMS’ cross motion for summary
judgment, prepared a response to the Roses’ summary judgment motion, communicated
with PMS and its insurance carrier regarding the motions, communicated with the clerk
regarding FMS’ motion for summary judgment, attended a summary judgment motion
hearing, and prepared a summary judgment order. This work is standard work performed
88
No. 32284~0-1ll
Rose v. FMS, Inc.
when responding to a lawsuit. Since the lawsuit was not frivolous, standard tasks in
responding to the lawsuit cannot be the result of frivolous conduct of opposing counsel.
On December 1 and 2, 2010, and March 18 and 22, and April 26, 27, 2011,
Martens + Associates bills time for reviewing rules and preparing a motion for default
because of the Roses’ failure to file an answer to its counterclaim, communicating with
Robert Mitchell and the court clerk with regard to the default, and preparing and filing an
order of dismissal. This work is standard work performed when responding to a lawsuit.
Since the lawsuit was not frivolous, standard tasks in responding to the lawsuit cannot be
the result of frivolous conduct of opposing counsel. The work is not the result of any bad
faith conducted found by the trial court.
On December 1 and 8, 2010 and January 10, 12, 13, 17, 19,20, 24, 25,26, 27, 28
and 31, February 2, 3, 4, 8, 9, 10, ll, 14, and 15, March l and 15, April 13, July 15, 18,
20, 22, and 25, August .9, 15, 26,26, 29, 30, and 31, September 1, 13, 14,26, 27, 28, and
29, and October 3, 4, 10, 17, 19, 2011, Martens + Associates engaged in legal research
for a CR 11 and CR 26(g) sanctions motion, communicated with FMS regarding a
sanctions motion, prepared a motion for sanctions, communicated with the superior court
clerk and Robert Mitchell regarding the motion, prepared orders granting sanctions,
reviewed Robert Mitchell’s response to the motion for sanctions, attended the hearing on
the motion for sanctions, prepared declarations of costs and fees, reviewed and responded
to Robert Mitchell’s challenge to the fees and costs, briefed a lodestar fee submittal,
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reviewed a letter from Mark Case, reviewed correspondence from the trial judge,
reviewed local rules, and reviewed court rulings. FMS prevailed in part on this motion.
Robert Mitchell prevailed in part on this motion, since this court has held that the lawsuit
was not frivolous. FMS sought recovery of substantially all of its reasonable attorney
fees and costs. This court is granting FMS only a fraction of FMS’ request.
If both parties prevail on major issues, there may be no prevailing party. Smith v.
Okanogcm County, 100 Wash. App. 7, 24, 994 P.2d 857 (2000). When there is no
prevailing party, neither party is entitled to attorney fees. Phillips Bldg. Co. v. An, 81
Wash. App. 696, 702, 915 P.2d 1146 (1996). These principles are not directly on point,
since the motion for sanctions could be considered one issue. FMS prevailed in part on
this issue, but Robert Mitchell also in part, if not substantially in part, prevailed by
significantly reducing the amount of sanctions sought. We consider the purpose behind
the principles to apply in the situation when a party only recovers a small amount that it
seeks and the opposing party substantially lessens the amount sought. Thus, we deny
FMS reimbursement of fees and costs incurred in litigating its motion for sanctions,
except to the extent already discussed.
On January 28, 201 1, Steven Stolle spent .6 hours preparing the motion for
sanctions and reviewing service of the Roses’ motion for reconsideration. FMS could
recover time spent in responding to the motion for reconsideration. Nevertheless, since
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it is regrettable that this case has started off as it has, but I still hope
for a better working relationship going forward.
CP (303 802) at 423-24. Robert Mitchell, in turn, wrote to Stolle, on August 7:
Technicalitics, misapplication of applicable law. and gamesmanship.
Your client received the discovery by mail and email and confirmed receipt
by email. You also received a copy via email. You now admit to receiving
discovery by email.
If you had problems with the timing and/ or form of discovery,
professional courtesy would dictate that you speak up when you received
the discovery. Waiting more than a month to deny receipt of the discovery
and then objecting to the timing and form of the discovery is gamesmanship
and it illustrates a lack of candor. Quite simply, you received the discovery
by email and then denied ever seeing any discovery. You now admit
receiving the discovery. That smacks ofuntruthfulness.
Your client “appeared” in this case as that term applies in this
jurisdiction. Not coincidentally, your client played the same stalling games
you are now continuing.
Again, this is a fee-shifting statute and my fees have now been
unnecessarily increased as a result of these games.
I will telephone your office as previously stated to conduct a CR 26i
conference.
CP (303802) at 423.
On August 10, 2010, the parties’ attorneys conducted a CR 26(i) discovery
conference. On August 17, 2010, FMS responded to the Roses’ first set of
interrogatories, requests for production, and requests for admissions. The responses were
unsatisfactory. On August 20, 2010, Robert Mitchell e-mailed Steven Stolle and
requested another CR 26(i) conference concerning FMS’ objections to some of the
Roses’ discovery requests and seeking dates in September for FMS’ corporate deposition.
Stolle responded, in part:
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Martens + Associates does not segregate the time spent on the motion for reconsideration,
we do not allow any recovery for this time.
Martens + Associates agreed that FMS would not seek recovery for fees incurred
in responding to a possible renote of the Roses’ motion for reconsideration. Therefore,
we deny recovery for time spent on this task on January 31, 2011.
On March 23 through 25, 2011, Leehwa Kim—McFadden, of Martens + Associates
spent 1.5 hours in preparing a surreply in support of the motion for sanctions and in a
motion for voluntary dismissal of the counterclaim. Since Kim—McFadden did not
segregate between the two tasks, we do not award compensation for this time. On March
27, June 21, July 13 and 26, August 9 and 30, and September 25, 2011, Richard Martens
engaged in fact investigation and communicating with FMS for 3.4 hours. Since Martens
does not attribute the fact investigation to the bad faith pleadings filed by Robert
Mitchell, we do not award compensation for this time.
On October 17, 201 1, Martens + Associates spent .2 hours in reviewing an oath
appointing Judge Baker as a judge pro tempore. The appointment of Judge Baker was the
result ofher retirement not the result of bad faith conduct of or frivolous pleadings filed
by Robert Mitchell. Therefore, we deny recovery for this task.
On November 9, 201 1, Richard Martens communicated with James Studt. FMS
does not explain how this communications related to this lawsuit, let alone resulted from
bad faith conduct of Robert Mitchell. Therefore, we deny reimbursement for this task.
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Rose v. FMS, Inc.
On November 9, 2011, Robert Mitchell filed his first notice of appeal. Mitchell
prevailed in part on appeal. On remand, the trial court again committed error and granted
FMS an excessive award. Mitchell filed this second appeal and prevails again in
All of the work performed by Martens + Associates after November 9, 201 1 relates to the
appeal and remand. We deny FMS any recovery for fees incurred after November 9,
2011.
FMS seeks recovery of costs and expenses incurred in this litigation. The
accounting provided does not permit us to determine What costs are attributed solely to
frivolous pleadings filed by or bad faith and harassing conduct of Robert Mitchell.
Therefore. we deny costs and expenses.
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