Kevin P. Clare v. Telquist McMillen Clare PLLC ( 2021 )

FILED
DECEMBER 28, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KEVIN P. CLARE, individually, )
) No. 37702-4-III
Respondent, )
)
v. )
)
TELQUIST MCMILLEN CLARE PLLC, ) PUBLISHED OPINION
a Washington professional limited liability )
company; GEORGE E. TELQUIST, an )
individual; ROBERT G. MCMILLEN, an )
individual; and ANDREA J. CLARE, an )
individual, )
)
Appellants. )
STAAB, J. — Kevin Clare filed suit for legal malpractice against his estranged
wife, Andrea Clare, her law partner, George Telquist, and their law firm, Telquist
McMillen Clare PLLC.1 In his complaint, Mr. Clare asserted that Andrea Clare acted as
his attorney and provided legal advice in renewing his pilot’s license and then, years
later, released confidential information to the guardian ad litem (GAL) in their divorce
proceeding. Mr. Clare voluntarily dismissed his suit before the court made any rulings on
the merits of the case. Telquist filed two motions for CR 11 sanctions against Mr. Clare
1
To avoid confusion, we refer to Andrea Clare, George Telquist, and the Telquist
law firm collectively as “Telquist” when possible.
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and his attorneys. The first motion was filed before the case was dismissed and pertained
to a witness disclosure statement and a declaration. The second motion was filed after
the case was dismissed and claimed that the complaint was frivolous. In the second
motion, Telquist also sought a judgment for damages under the anti-SLAPP2 statute. The
trial court denied both motions. In separate orders, the court determined that the witness
disclosure statement and declaration did not fall within the parameters of CR 11, that the
anti-SLAPP defense did not apply, and that the complaint was not frivolous.
We affirm the trial court and hold that while the two motions for CR 11 sanctions
were timely, the request for damages under the anti-SLAPP statute, filed after the case
was dismissed, was untimely. In addition, we affirm the trial court’s denial of sanctions,
holding that a stand-alone declaration does not qualify as a “pleading, motion, or legal
memorandum” for purposes of CR 11 and the complaint was not frivolous.
BACKGROUND
Andrea Clare is an attorney. Kevin Clare is employed as a crop duster pilot and
has renewed his pilot license with FAA3 form 8500 every three years since 1999 (except
for one gap in 2005). They married on June 25, 2005, and separated in 2016.
Mr. Clare alleges that in 2008, the FAA renewal form changed. Instead of seeking
conviction information, the new form sought arrest information of anyone renewing their
2
Strategic lawsuits against public participation. RCW 4.24.510.
3
Federal Aviation Administration.
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license. Since he had been arrested in 1998 for a DUI,4 Mr. Clare asked Ms. Clare for
legal help answering the form. He contends that Ms. Clare expunged the arrest from his
record and told him that he did not need to disclose the arrest on his FAA forms.
Many years later, during a contentious divorce proceeding, Ms. Clare e-mailed the
GAL investigating the parties’ parenting plan proposals. In this e-mail, Ms. Clare
indicated that the GAL should investigate whether Mr. Clare made false statements to the
FAA regarding his mental health, substance abuse, and arrest history. Ms. Clare
allegedly shared Mr. Clare’s information with George Telquist, her law partner, who also
represented her in the divorce. Ms. Clare and Mr. Telquist encouraged the GAL to notify
the FAA that Mr. Clare falsified information on his renewal application, particularly
details of his medical records and that he had been charged with a DUI in 1998. Both
public and private details of Kevin’s license renewal applications, DUI, and medical
records were provided to the GAL. Ultimately, Mr. Clare self-reported to the FAA, and
the FAA instituted its own proceedings.
On December 17, 2018, shortly before the divorce case went to trial, Mr. Clare
filed this collateral lawsuit alleging legal malpractice and asserting that Ms. Clare, Mr.
Telquist and the Telquist law firm violated attorney-client privilege in sharing his
confidential personal information with the GAL. Mr. Clare claims to have filed the suit
4
Driving under the influence.
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out of concern that he would lose his career. Ms. Clare conceded that she provided legal
services to Mr. Clare to expunge his DUI record. She denied providing any other legal
advice to Mr. Clare. However, Mr. Clare testified by deposition and declaration that Ms.
Clare also provided legal advice on what information he was required to disclose in his
FAA license renewal form 8500 after the expungement. Mr. Clare alleges, and Mr.
Telquist denies, that Mr. Telquist had represented Mr. Clare on other unrelated estate
planning and litigation matters.
Telquist hired the law firm of Forsberg & Umlauf to represent them in Mr. Clare’s
lawsuit. On June 27, 2019, through his attorney Ryan Best, Mr. Clare filed a witness
disclosure statement. Within this statement, Mr. Clare named the following witness:
30(b)(6) representative of Forsberg & Umlauf, P.S., . . . . The 30(b)(6)
representative will testify to the negligence of George Telquist, on behalf of
Forsberg & Umlauf, in supervising and preventing Andrea Clare’s
intentional and reckless misconduct. The negligence of Andrea Clare on
behalf of Forsberg & Umlauf, in preventing George Telquist’s intentional
and reckless misconduct. The 30(b)(6) deponent will also detail the role
that Andrea and George’s sexual relationship played in each of them
violating their ethical duties towards Kevin Clare as a client of Forsberg &
Umlauf.[5]
Clerk’s Papers (CP) at 48. On August 29, 2019, Mr. Best amended the witness disclosure
to add Robert McMillen, Judge Bruce Spanner, and Erick West.
5
While there is no explanation for this designation in the record, it appears from
context that Mr. Clare’s attorney, Ryan Best, mistakenly believed that George and Andrea
worked for Forsberg & Umlauf.
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On August 6, 2019, Mr. Clare, through his attorney Evan Dobbs, filed a
declaration of counsel attaching a true and correct copy of an answer that Judge Spanner
had filed to a statement of charges leveled by the Washington Commission on Judicial
Conduct (hereinafter “orphan declaration”). The declaration was not filed in connection
with any motion.
On September 3, 2019, Telquist filed a joint motion for sanctions, including CR 11
sanctions, against Mr. Clare and his attorneys. The basis for the motion specific to the
witness disclosures and Judge Spanner’s answer was limited to CR 11:
2. For improper purposes in violation of CR 11, Plaintiffs’ counsel filed
witness disclosures with the Court containing sensitive personal
information regarding Ms. Clare and Mr. Telquist that has nothing to do
with this case.
CP at 190.
3. For improper purposes in violation of CR 11, Plaintiffs’ counsel filed
with the Court Judge Bruce A. Spanner’s Answer to Statement of
Charges with the Commission on Judicial Conduct of the State of
Washington that contains disparaging comments about Defendants
Andrea Clare and George Telquist. It has nothing to do with this case.
The document was filed by itself—it is not connected with any pending
motion in this case.
CP at 190.
On November 22, 2019, Telquist moved for summary judgment dismissal of Mr.
Clare’s complaint claiming immunity under the anti-SLAPP statute, and requesting
damages. Mr. Clare filed a response. The case was in mandatory arbitration posture at
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this point. The summary judgment motion was not properly noted with the court nor
heard. On December 13, 2019, Mr. Clare responded to the motion for sanctions.
Telquist filed its reply on the first motion for sanctions, maintaining the CR 11 arguments
of the original motion brief. After considering 371 pages and hearing argument the trial
court took the first motion for sanctions under advisement.
On January 9, 2020, while the first motion for sanctions was still pending, Mr.
Clare moved for voluntary dismissal under CR 41. Service on Telquist took place three
days later. The dismissal was granted unopposed and without findings on January 22,
2020.
On February 3, Telquist filed a second motion for CR 11 sanctions, asserting that
Mr. Clare’s complaint was baseless in violation of CR 11, and claiming witness
immunity. In addition, Telquist requested damages under the anti-SLAPP statute.
On March 27, the trial court issued its written order and findings on the first
motion for sanctions. The trial court determined that it had the authority to decide the
first motion for CR 11 attorney fees because it was a collateral issue following dismissal
under CR 41. The trial court denied the first motion for sanctions, concluding that CR 11
does not apply to witness disclosure statements and declaration exhibits because they
were not pleadings, motions, or memorandum under the rule.
On April 6, 2020, Telquist moved for reconsideration, asserting CR 26 as an
alternative basis for imposing sanctions for the witness disclosure statement. Mr. Clare
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responded, asserting that CR 26 was being raised for the first time on reconsideration,
and the claim was waived when Telquist did not object to the dismissal. The trial court
flatly denied reconsideration without any findings.
On June 5, 2020, Mr. Clare responded to the second motion for sanctions arguing
that witness immunity and the anti-SLAPP statute was not a defense to a malpractice suit
for breach of attorney-client duties and confidences. In denying the second motion for
sanctions, the trial court ruled:
My sense is working through all the pleadings, and I think I have some in
the range of 270 pages with this motion is that [Mr. Clare’s attorney] has
made sufficient argument for me to find that the position that Mr. Clare
took was grounded enough in fact and was warranted enough by law given
his arguments about the sanctity of the attorney-client privilege and the
sanctity of the relationship between a lawyer or a lawyer’s partner and
client and the acquisition of information that it wouldn’t violate that first
set, the so-called frivolous and baseless.
And then the second set, to summarize, that’s referred to as bad faith
filings. Again, I think the arguments and points that he made here this
afternoon and those that are in his memorandum are enough to show me
that the theory for professional liability wasn’t interposed for improper
purpose such as harassment.
Report of Proceedings (July 17, 2020) at 55-56. The court also found the second motion
untimely because it was filed after the court dismissed the complaint. Finally, the court
noted that there was no authority to suggest that the anti-SLAPP statute would protect an
attorney who divulges confidential client information.
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ANALYSIS
Telquist appeals, arguing that the trial court abused its discretion in denying its
two motions for CR 11 sanctions, its request for damages and fees under the anti-SLAPP
statute, and its motion for reconsideration seeking sanctions under CR 26. We address
the court’s authority to hear these various motions since two of them were filed after the
underlying case was dismissed. We then consider the substance of the motions under CR
11.
A. TIMELINESS
Preliminarily, we consider whether the two motions for CR 11 sanctions were
timely. One motion was filed before the case was dismissed and asserted that two filings
in particular—the witness disclosure statement and the orphan declaration—violated CR
11. The trial court denied this motion for sanctions. The second motion, filed after the
case was dismissed, sought CR 11 sanctions for filing a frivolous complaint, as well as
damages for the affirmative defense under the anti-SLAPP statute.
Although a voluntary dismissal under CR 41(a)(1)(B) generally deprives a court of
authority to decide a case on the merits, the court retains jurisdiction for the limited
purpose of considering the collateral issue of a defendant’s motion for sanctions. Calvert
v. Berg, 177 Wn. App. 466, 472-73, 312 P.3d 683 (2013). CR 11 sanctions do not
constitute a judgment on the merits; rather, the rule requires a determination of the
collateral issues of whether an attorney abused the judicial process and what sanction
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would be appropriate. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994) (citing
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395-96, 110 S. Ct. 2447, 110 L. Ed. 2d
359 (1990)). Thus, jurisdiction can remain to hear sanctions even years after entry of
judgment on the merits. Cooter & Gell, 496 U.S. at 395-96. However, the sanctionable
conduct must have occurred before the case was dismissed. Calvert, 177 Wn. App. at
473.
In this case, the court had the authority to consider both the predismissal and
postdismissal motions for CR 11 sanctions. The first motion was filed and argued prior
to voluntary dismissal and involved documents (witness disclosure and affidavit exhibit)
filed before the motion for dismissal. The second motion was filed and heard after
voluntary dismissal but attacked the initial complaint.
The same cannot be said for Telquist’s claim for damages and fees under the anti-
SLAPP statute. In its second motion for sanctions, filed after the case was dismissed,
Telquist requested damages and fees under the anti-SLAPP statute. RCW 4.24.510. This
statute provides immunity from civil liability for persons who make complaints or
provide information to government officials. The damages and attorney fees available
under the statute must be pleaded as an affirmative defense. To recover, the party
asserting the affirmative defense must prove specific elements of the defense. Trummel
v. Mitchell, 156 Wn.2d 653, 676-77, 131 P.3d 305 (2006). Unlike sanctions under CR
11, the anti-SLAPP statute is similar to a cause of action and is not collateral to the
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complaint. Dillon v. Seattle Dep. Reps., LLC, 179 Wn. App. 41, 68, 316 P.3d 1119(2014).
In this case, Telquist’s motion for summary judgment on the affirmative defense
was pending when the complaint was dismissed. Telquist did not seek to have its
summary judgment motion decided before the case was dismissed. Thus, the trial court
did not make findings on the elements or the merits of the affirmative defense. Although
Telquist was the prevailing party once Mr. Clare dismissed his lawsuit, it cannot recover
on the anti-SLAPP claim without the requisite findings. And because the cause of action
is not collateral to the complaint, the court did not have the authority to consider the
merits of the defense once the lawsuit was dismissed. In this case, the superior court
denied the motion on the merits while alternatively finding that the motion was also
untimely. We affirm the trial court’s denial of the motion for damages and fees under
RCW 4.24.510 as untimely without reaching the merits of the defense.
B. SANCTIONS UNDER CR 11 AND CR 26
Standard of Review
A trial court’s decision on CR 11 sanctions is reviewed for abuse of discretion.
Eugster v. City of Spokane, 110 Wn. App. 212, 231, 39 P.3d 380 (2002). The abuse of
discretion standard recognizes that deference is owed to the trial judge who is better
positioned than an appellate court to decide the issue. Discretion is not abused unless a
decision is based on untenable grounds or for untenable reasons. Id. (citing State ex rel.
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Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). If a court finds a violation of
CR 11, the court still maintains the discretion on whether to impose sanctions. While an
earlier version of the rule made sanctions mandatory once a violation was found, the rule
was amended in 1993 to give courts considerable discretion in deciding whether to
impose sanctions even if a violation is found. Snohomish County v. Citybank, 100 Wn.
App. 35, 995 P.2d 119 (2000).
First Motion—Orphan Declaration
The trial court denied Telquist’s first motion for sanctions, holding that neither the
witness disclosure statement nor the orphan declaration were sanctionable under CR 11.
CR 11 applies to “every pleading, motion, and legal memorandum” filed by a party who
is represented. It requires that pleadings, motions, and legal memoranda be dated and
signed by an attorney of record.
The definition of a “pleading” is set forth in CR 7(a), and includes a complaint,
answer, reply, and similar third-party complaints, answers, and replies. CR 7(b) also sets
forth that all applications for an order shall be made by written motion, signed in
accordance with rule 11. A motion may be supported by “affidavits or other papers.” CR
7(b)(4).
Telquist contends that the orphan declaration was a “legal memorandum” for
purposes of CR 11. The relevant dictionary definition of “memorandum” includes: “2. A
party’s written statement of its legal arguments presented to a tribunal, usu[ally] in the
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form of a brief. . . . Also termed . . . memorandum of law; memorandum of points and
authorities; memorandum in support.” BLACK’S LAW DICTIONARY 1179 (11th ed. 2019)
(alteration in original). The orphan declaration does not meet the definition of a legal
memorandum. The declaration did not provide legal argument or points of law. Instead,
it provided factual allegations.
For purposes of context, we note that the state court rule is modeled after the
federal rule. Miller v. Badgley, 51 Wn. App. 285, 300, 753 P.2d 530 (1988). However,
the federal rule is distinguishable in one significant respect. The federal rule applies to
“Every pleading, written motion, and other paper.” Fed. R. Civ. Proc. 11(a) (emphasis
added). While recognizing this distinction, courts have been inconsistent in deciding its
relevance.
In a footnote, Division One noted that use of the term “legal memorandum” in the
state rule, as opposed to “other papers” in the federal rule, suggests that the Washington
rule was intended to apply in fewer circumstances. Miller, 51 Wn. App. at 299 n.10.
Three years later, in another footnote, a different panel of Division One disagreed with
the footnote in Miller. Clipse v. State, 61 Wn. App. 94, 97 n.1, 808 P.2d 777 (1991).
Instead, the Clipse court noted that the term “legal memorandum” “more logically refers
to briefs or other papers filed in support of pleadings or motions.” Id. at 97 n.1 (emphasis
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added). While the comment in both Miller and Clipse were likely dicta,6 the Clipse
footnote was relied on by Division Two in Mitchell v. Wash. State Inst. of Pub. Policy,
153 Wn. App. 803, 828, 225 P.3d 280 (2009) to hold that a cost bill submitted in support
of a motion was a legal memorandum subject to CR 11.
Given the rule’s plain language, especially in contrast to the broader language
used in the federal rule, we hold that the term “legal memorandum” does not include a
declaration or affidavit. This plain-language interpretation is bolstered by the differences
between the state and federal rule. Both rules have been amended numerous times over
the years. While the federal rule applies to “other papers,” and would thus apply to a
declaration, the state rule only applies to “legal memorandum.” In light of this
recognized distinction, we assume that the limitation in the state rule is intentional. State
v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007) (court rules are interpreted as
though enacted by the legislature whose intent is expressed through plain meaning).
We also note that other rules more specifically apply to a declaration filed in bad
faith. For instance, CR 56(g) provides for sanctions when an affidavit is presented in bad
faith or solely for the purpose of delay. In addition, declarations are signed under penalty
of perjury. See GR 13 (use of unsworn statement in lieu of affidavit); see Biggs, 124
6
Since the definition of “legal memorandum” was not an issue in either Miller or
Clipse, the footnote comment in both cases are dicta. In re Pers. Restraint of Domingo,
155 Wn.2d 356, 365-66, 119 P.3d 816 (2005) (dicta in an opinion cannot establish a rule
or principle and dispelling dictum does not establish a significant change in the law).
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Wn.2d at 197 (CR 11 sanctions are inappropriate where other court rules more
specifically apply.).
We affirm the trial court’s decision to deny Telquist’s first motion for sanctions
under CR 11.
Telquist argues that even if CR 11 does not apply to the orphan declaration, the
trial court abused its discretion by not deciding, sua sponte, to exercise its inherent
authority to impose sanctions. We decline to address this issue because it is being raised
for the first time on appeal. RAP 2.5(a).
Witness Disclosure Statement—CR 26
In its first motion for sanctions, Telquist requested sanctions under CR 11 for the
witness disclosure statement. The trial court held that CR 11 does not apply to witness
disclosure statements. After Mr. Clare dismissed his complaint, Telquist filed a motion
for reconsideration, requesting for the first time that the court impose sanctions for the
witness disclosure statement under CR 26. The court declined this motion without
findings.
On appeal, Telquist essentially concedes that CR 11 does not apply to Mr. Clare’s
witness disclosure statement. In Clipse, 61 Wn. App. 94, the court addressed whether CR
11 applied to an expert witness list. The plaintiff’s expert witness list identified people
who had never been contacted by the plaintiff and were not familiar with the case. After
two fruitless depositions, the defendant moved for sanctions. The trial court imposed
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sanctions under CR 11 for filing the list without investigating or speaking to the
witnesses. Without deciding the parameters of CR 11, the court affirmed the award of
sanctions on the alternative basis that CR 26(g) was the more appropriate rule for
sanctions under these circumstances. Id. at 97-98.
Telquist also concedes that it did not raise the possibility of CR 26 sanctions for
the witness disclosure statement until its motion for reconsideration. “By bringing a
motion for reconsideration under CR 59, a party may preserve an issue for appeal that is
closely related to a position previously asserted and does not depend [ ]on new facts.”
River House Dev. Inc. v. Integrus Architecture, PS, 167 Wn. App. 221, 231, 272 P.3d 289(2012) (citing Newcomer v. Masini, 45 Wn. App. 284, 287, 724 P.2d 1122 (1986)). “But
while the issue is preserved, the standard of review is less favorable.” Id. (citing 14A
KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 34:3, at 434 (2d ed.
2009)). “CR 59 provides that on the motion of an aggrieved party the court ‘may’ vacate
an interlocutory order and grant reconsideration.” Id. “The trial court’s discretion
extends to refusing to consider an argument raised for the first time on reconsideration
absent a good excuse.” Id. “We review a trial court’s denial of a motion for
reconsideration for abuse of discretion, that is, discretion manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Id. (quoting Rivers v. Wash.
State Conf. of Mason Contractors, 145 Wn.2d 674, 684-85, 41 P.3d 1175 (2002)).
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On appeal, Telquist argues that the trial court abused its discretion in not granting
its motion for reconsideration. However, Telquist fails to present any reason for its
failure to assert a discovery violation under CR 26 within the context of its first motion
for sanctions. Where the record does not contain any reasonable excuse, the trial court
was within its discretion to decline to consider the CR 26 argument on reconsideration
and deny sanctions. We need not further consider CR 26 on appeal.
Post-dismissal motion for CR 11 sanctions
We turn to the trial court’s decision on Telquist’s second motion for CR 11
sanctions, filed after Mr. Clare dismissed his complaint.7 In its second motion, Telquist
argued that Mr. Clare’s complaint was not well-grounded in fact or warranted by existing
law. As noted above, CR 11 provides that the signature of an attorney on a pleading
constitutes a certificate that the pleading:
(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; and (4) the denials of factual contentions
are warranted on the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief.
7
Having disposed of Telquist’s anti-SLAPP issue above, we only address the
second motion request for sanctions under CR 11.
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The courts have defined two types of improper filings: “(1) those that are not ‘well
grounded in fact and warranted by law’ (frivolous and baseless filings); and (2) those that
are interposed for an improper purpose such as harassment or unnecessary delay (bad
faith filings).” 3A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CR 11
author’s cmt. 2, at 230 (5th ed. 2006) (quoting Bryant v. Joseph Tree, Inc., 119 Wn.2d
210, 829 P.2d 1099 (1992)). If a sufficient factual and legal basis exists for the
complaint, we do not reach the question of whether counsel made a reasonable
investigation before filing. Brin v. Stutzman, 89 Wn. App. 809, 827, 951 P.2d 291(1998). “‘The burden is on the movant to justify the request for sanctions’” under CR
11. Building Industry Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 218 P.3d 196(2009) (quoting Biggs, 124 Wn.2d at 202)). Since sanctions for “bad faith filing of
pleadings for an improper purpose or by filing pleadings that are not grounded in fact or
warranted by law . . . have a potential chilling effect . . . the trial court should impose
sanctions only when it is patently clear that a claim has absolutely no chance of success”;
“[t]he fact that a complaint does not prevail on its merits is not enough.” Skimming v.
Boxer, 119 Wn. App. 748, 82 P.3d 707 (2004) (citations omitted) (citing Bryant, 119
Wn.2d at 220).
The trial court denied Telquist’s second motion for sanctions, finding that it failed
to meet its burden of showing that the complaint was wholly frivolous. Instead, the trial
court found that the complaint’s claim of violation of the attorney-client confidence was
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“sufficiently well-grounded in fact and sufficiently warranted in law, not baseless or
frivolous, and were not interposed for an improper purpose.”
The record supports the trial court’s conclusion. The issues presented were at the
very least debatable. Ms. Clare conceded that she assisted Mr. Clare in expunging his
DUI record. Mr. Clare and Ms. Clare disagree about the factual existence of an attorney-
client relationship between them and the factual application of the attorney-client
privilege under RPC 1.6 to various pieces of information that she allegedly conveyed to
Mr. Telquist and the GAL. Whether an attorney-client relationship existed was a
disputed issue of fact. Whether Mr. Clare could prevail for an alleged violation of that
relationship was not well settled and presented novel issues of law.
On appeal, Telquist asserts the wrong standard of review by arguing that Mr. Clare
failed to demonstrate a factual or legal basis for filing the complaint. For purposes of
seeking CR 11 sanctions, the burden is on Telquist as the moving party. See McCarthy,
152 Wn. App. 720.
Telquist also argues that regardless of any attorney-client relationship, Ms. Clare
is immune under the litigation privilege. Under this privilege, also referred to as the
witness immunity doctrine, a “witness[ ] in judicial proceedings [is] absolutely immune
from suit based on their testimony.” Bruce v. Byrne-Stevens & Assocs. Eng’rs, Inc., 113
Wn.2d 123, 125, 776 P.2d 666 (1989). Ms. Clare and Telquist contend that the doctrine
applies to the statements she made to the GAL during the divorce case. In making this
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argument, Telquist fails to address the dispositive question of whether the litigation
privilege permits Ms. Clare to violate RPC 1.9(c)(1) by disclosing information relating to
the representation of her former client, Mr. Clare, to his disadvantage. Because Telquist
has not adequately argued the litigation privilege issue, we decline to review it. See State
v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (appellate court will not review
issues inadequately argued or briefed).
We conclude that the trial court did not abuse its discretion in denying Telquist’s
second motion for sanctions after finding that Mr. Clare’s complaint was not frivolous for
purposes of CR 11.
C. ATTORNEY FEES IN THIS CASE
Telquist suggests that we exercise our “inherent power” to sanction Mr. Clare’s
attorneys for the “global conduct” in this case. No case law exists to support the position
that this court has the authority to take such action. We decline the invitation. Telquist
also requests attorney fees on appeal, citing RAP 18.1, pursuant to RCW 4.24.510 (anti-
SLAPP), CR 26(g), and CR 37. The firm does not provide any analysis as to why fees
should be awarded under these alternative provisions, so we deny the request for fees.
CONCLUSION
We affirm the trial court’s denial of Telquist’s two motions for sanctions. We
hold that the orphan declaration is not a “pleading, motion, or legal memorandum” for
purposes of CR 11 and that any potential imposition of sanctions related to this kind of
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document would be more appropriate under different rules. We also hold that Telquist’s
request for damages and fees under the anti-SLAPP statute, RCW 4.24.510, which was
filed after Mr. Clare’s complaint was dismissed, was untimely and not properly before
the trial court for consideration. And finally, we affirm the denial of CR 11 sanctions for
the complaint. The trial court did not abuse its discretion in finding that the complaint
was not frivolous or filed for an improper purpose.
Affirmed.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Siddoway, A.C.J.
_________________________________
Lawrence-Berrey, J.
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