Marlo Coyle, o/b/o B.J.C. v. Nimsha Asia Goins

FILED
AUG. 20, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MARLO COYLE, on behalf ofBJ.C., )
) No. 32418-4-111
Appellant, )
)
v. )
)
NIMSHA ASIA GOINS, ) UNPUBLISHED OPINION
)
Respondent. )
FEARING, J. We address the superior court's authority to enter sanctions against
a vexatious litigator. Marlo Coyle sought a sexual assault protection order against a
Department of Social and Health Service (DSHS) case worker who evaluated a child in
need of services (CHINS) petition of Coyle's son. The trial court denied Coyle's request
for a protection order and declared her a vexatious litigant. In addition to appealing this
declaration, Marlo Coyle assigns error to the trial court's admission, as exhibits, of
previous protection petitions filed by Coyle, the trial court's refusal to require her son to
testify, and the trial court's construction ofRCW 7.90.010(4)(d), the sexual assault
protection act. We affirm the superior court.
No. 32418-4-111
Coyle v. Goins
FACTS
Appellant Marlo Coyle is the mother ofB.J.C., sixteen years old in July 2013. By
that month, BJ.C. had been the subject of four child dependency actions. During July
20l3, BJ.C. fled home. He then filed a child in need of services (CHINS) petition,
alleging neglect and abuse by his mother. BJ.C. claimed that his mother hit him, pulled
his hair, and threatened to shoot him and others. According to BJ.C., his mother called
.~
him derogatory names and referred to him as "an ungratefull [sic] piece of shit like [his]
dad." Clerk's Papers (CP) at 28. In response to the petition, Coyle denied striking
BJ.C., except "smacking" him once to gain his attention. Upon the granting of a CHINS
petition, the DSHS may place a child in a crisis residential center, foster family home,
licensed group home facility, or any other suitable residence.
DSHS Division of Children and Family Services (DCFS) assigned social worker
and respondent, Nimsha Asia Goins (Asia Goins) to assist with BJ.C. 's CHINS petition.
As was standard practice, Goins completed a family assessment, helped BJ.C. find a
placement home, and referred BJ.C. for mental health counseling. Goins recommended
to the trial court that BJ.C.'s petition be granted and the trial court concurred.
At the time BJ.C. entered a placement home, he saw a therapist at Spokane
Mental Health, but B.J.C. told Goins he wanted a new therapist. Goins referred BJ.C. to
Lutheran Social Services and Spokane Therapist. BJ.C. decided to see Jeff Wirth at
Spokane Therapist. Goins had recently begun his own private counseling practice with
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Spokane Therapist, but he insists he did not benefit financially from referring B.J.C. to
Spokane Therapist.
After B.J.C. filed his CHINS petition, his mother, Marlo Coyle, filed an At-Risk-
Youth (ARY) petition alleging that BJ.C. abused drugs and alcohol, exhibited anger
problems, and engaged in assaultive and aggressive behavior. In the petition, Coyle
alleged that B.J.C. assaulted her, her husband, and BJ.C.'s brother. Granting of an ARY
petition by the juvenile court allows the parent to obtain assistance and support from the
court in maintaining the care. custody and control of the child and to assist in the
resolution of family conflict. We do not know if a court granted Marlo Coyle's ARY
petition. BJ.C.'s CHINS placement lasted about seven months.
On November 20, 2013, Marlo Coyle started a Facebook Page titled: "The Fight
For [B.]-An End to A Corrupt System," in which she chronicled her "battle" with DCFS
and posted photos of Jeff Wirth and Asia Goins. CP at 61. In one posting on the
Facebook site, Coyle alleged that Goins engaged in sexual conduct with her son. On
December 2,2013, Marlo Coyle filed a complaint with the State of Washington Office of
the Family and Children's Ombuds. She alleged that Asia Goins engaged in
unprofessional conduct when he referred BJ.C. to Spokane Therapist.
On December 13,2013, the trial court's court commissioner, in the CHINS
petition suit, found Marlo Coyle in contempt for willful violation of an order prohibiting
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her from having contact with B.J.C. 's placement custodians absent a true emergency.
The court commissioner also stated in its order:
The court is close to ordering that [Coyle] is deemed a vexatious
litigant. The mother cannot file any additional motions (including any
petition) until she has provided proof from her medical [doctor] that she is
unable to take [mental] health medications based upon her medical
condition.
CP at 25. The "medical condition" referred to by the court was a heart condition. Report
of Proceedings (RP) at 46. After a CHINS hearing, Marlo Coyle stated in the courthouse
hall that she would file a complaint against the court commissioner, and she yelled that
Asia Goins was a child molester.
On January 10,2014, Asia Goins resigned from DCFS. Goins' DCFS supervisor
then informed him: "Had you not resigned, the current investigation against you would
have continued and if allegations were substantiated, I would have sought to impose
appropriate discipline." CP at 34. On February 13,2014, the family and children's
ombudsman informed Marlo Coyle that it substantiated her complaint and found that
Asia Goins engaged in unprofessional conduct when referring B.J.C. to Spokane
Therapist. On February 26, 2014, B.J.C. dismissed his CHINS petition and returned to
Coyle's home.
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Coyle v. Goins
PROCEDURE
On March 5, 2014, Marlo Coyle filed, on behalf ofBJ.C., a petition for a sexual
assault protection order against Asia Goins. The trial court's order denying this petition
is the order on review before this appeals court.
In her petition for a protection order, Marlo Coyle asserted four principal
allegations of sexual misconduct toward her son by Asia Goins. First, during the CHINS
petition, Goins followed BJ.C. into the bathroom at the courthouse, poked his head over
the stall in which BJ.C. stood, and asked to see BJ.C.'s penis. Second, Goins appeared
at one ofBJ.C.'s urology appointments and refused to leave until asked by BJ.C. in the
presence of a doctor. Third, Goins approached BJ.C. at a coffee shop and asked ifhe
"would be interested in getting 'into things w/another man.''' CP at 3-4. Goins informed
BJ.C. that this contact would be experimental, rather than homosexual in nature. BJ.C.
replied that he liked girls. Fourth, on one occasion, Goins caressed BJ.C.'s face and the
back of his head, and, on another occasion, Goins kissed BJ.C.'s forehead. As part of
the petition, Coyle declared that BJ.C. feared for his safety and dreaded seeing a
psychologist because of Goins' actions. Coyle also averred: "I fear because of the
corruption in this case I will be retaliated against harassed & am in fear of what this man
is capable of." CP at 4. In addition to filing the petition, Marlo Coyle reported Asia
Goins to the police.
On March 5, 2014, the trial court granted a temporary sexual assault protection
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order and scheduled a hearing for a permanent protection order on March 18, 2014. The
order named BJ.C. as the protected party and appointed Coyle as B.J.C.'s guardian ad
litem for the proceeding. On March 14, 2014, Asia Goins filed a declaration in response
to Coyle's petition. Goins denied all allegations against him and attacked Coyle's
credibility based on her litigious past. Goins filed several exhibits showing that Coyle,
under her current name and pseudonyms, Marlo Bailey and Marlo Colten, filed, since
1996, twenty-one petitions for anti-harassment or sexual assault protection orders. Most
of the prior petitions alleged sexual misconduct by various respondents.
On March 18,2014, the trial court conducted a hearing on Marlo Coyle's petition
for a permanent sexual assault protection order against Asia Goins. Coyle objected to the
timing of the filing of Asia Goins' declaration and requested a continuance. In the
alternative, Coyle asked that the court strike the declaration as untimely. The trial court
denied Coyle's requests by noting that a party responding to a protection order
proceeding need not abide by a rigid deadline and may provide evidence the day of a
hearing without providing prior notice to the petitioner. Goins moved the court to
dismiss Coyle's petition on the ground that the allegations, even if true, did not support
relief under Washington's sexual assault protection order act. The trial court denied
Goins' motion.
During the March 18 hearing, Marlo Coyle, acting as B.J.C.'s guardian ad litem,
argued that the court should issue a sexual assault protection order because Asia Goins
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"groomed" BJ.C. Coyle claimed that Goins had no reason to attend BJ.C.'s urology
appointment, that Goins attempted to isolate BJ.C. by helping him change counselors,
and that BJ.C. told her he fears being killed or kidnapped by Goins.
During the petition hearing, Marlo Coyle repeatedly entreated the trial court to
allow BJ.C. to testify or to speak with BJ.C. in chambers. The trial court denied the
request. During the hearing, the trial court repeatedly inquired of Coyle whether BJ.C.
would confirm the statements uttered by Coyle concerning the conduct of Asia Goins, for
which she brought the petition. Coyle confirmed that BJ.C. would so testify.
During the March 18 hearing, Asia Goins stated that he last interfaced with BJ.C.
in November 2013. Goins emphasized Coyle's history of filing similar petitions for
protection orders against people with whom she had conflict. Goins accentuated the
December 13 contempt order prohibiting Coyle from filing any additional motions in the
CHINS proceeding until she verified with her physician that her heart condition
prevented her from ingesting mental health medications. Goins requested that the trial
court review, in advance, any future motions or petitions Coyle wished to file.
During the March 18 hearing, the astute trial court allowed Marlo Coyle liberty to
speak about her concerns. Instead of focusing on alleged misconduct of Asia Goins,
Coyle extensively complained about DSHS and its handling ofBJ.C.'s CHINS petition.
Coyle promoted herself as a good parent and functioning member of the Spokane
community. Coyle faulted DSHS and the juvenile court system for granting her son's
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CHINS petition. According to Coyle, she disciplined B.l.C. for drinking alcohol. In
response, her son filed the petition to avoid the consequences of his behavior, and the
government believed his untruths that she abused and neglected him.
The trial court denied Marlo Coyle's petition against Asia Goins for a sexual
assault protection order. The trial court explained:
There's no basis whatsoever here for the Court to grant the request
that Ms. Coyle has presented to the Court. There's clearly been no sexual
touching of the child by Mr. Goins whatsoever. There's no-there's been
no touching of his private bodily parts, either under his clothing or outside
of his clothing. It's not even alleged in the declaration that was filed in any
way.
As best as I can tell from the pleadings that were filed, and that's
what I have to base my conclusion on, there's really been no inappropriate
touching at all, except a suggestion that perhaps Mr. Goins caressed the
child or an allegation which he vehemently denies that he kissed the child
in some fashion. Frankly, the request for a sexual assault protection order
is completely nonmeritorious, and it doesn't comply with the statute in any
way.
RP at 71. The trial court identified an agenda of Marlo Coyle against anyone who has the
audacity to disagree with her. The trial court remarked:
[T]here is just no question in my mind today that the action that's
been filed by Ms. Coyle in terms of this request for a sexual assault
protection order was filed by her as a retaliatory action.
RP at 76.
The trial court declared Marlo Coyle a vexatious litigator and prohibited her from
filing any pleadings, during the next two years, in any Spokane County court without
permission of the court. The trial court reviewed attachments to Asia Goins' declaration
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that listed the other twenty-one petitions filed by Coyle and included some of the
pleadings in the other petition proceedings. In its ruling, the trial court mentioned the
other petitions. Nevertheless, the court found the petition against Asia Goins by itself
vexatious since Coyle filed the petition to retaliate against Goins because of his work as a
DCFS case manager in BJ.C.'s CHINS proceeding. The trial court also restrained Coyle
from harassing, intimidating, retaliating against, or disturbing the peace of Asia Goins or
contacting him. The trial court imposed CR II sanctions on Coyle in the amount of
$1,200 to cover Asia Goins' attorney fees.
LA W AND ANALYSIS
Issue 1,' Whether the trial court erred by admitting evidence ofMarlo Coyle's
previous petitions for protection orders?
Answer 1.' No.
Marlo Coyle first contends that the trial court erred in admitting evidence of her
multiple past attempts to obtain protection orders against other individuals. Asia Goins
attached the orders and related documentation to his responsive pleadings. We note that
the trial court did not expressly admit the orders as exhibits. Nevertheless, Goins
mentioned the orders during the hearing argument, and the trial court reviewed the
orders. The trial court referenced Marlo Coyle's other litigation during its ruling.
Therefore, we proceed as if the trial court formally admitted the prior petitions as
evidence.
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Marlo Coyle argues that the statute governing sexual assault protection orders
prohibits a court from considering the prior sexual activity or the reputation of the
petitioner. She maintains that her filing other petitions is irrelevant to the question of
whether Asia Goins inappropriately sexually groomed B.J.C. Asia Goins contends that
BJ.C. was the petitioner, not Coyle, and therefore the statute provides Coyle no
protection from evidence of her reputation as a potentially vexatious litigant.
In 2006, the Washington legislature adopted the sexual assault protection order
act. The legislature recognized sexual assault as a heinous crime that goes underreported.
RCW 7.90.005. The legislature desired a mechanism for victims to obtain an order of
protection against the perpetrator in instances when the prosecutor declines charges.
RCW 7.90.005. The state legislature noted that often times the victim does not qualify
for a domestic violence protection order, because the perpetrator is not a relative. RCW
7.90.005. The act allows a minor child between the ages of sixteen and eighteen years
old to file a petition on his or her own. RCW 7.90.040(2). However, a person may file a
petition on behalf of any minor child alleging a need for protection from the conduct
covered by the act. RCW 7.90.030(I)(b)(i). No reported decisions address the act.
RCW 7.90.080, a section of the sexual assault protection order act, controls Marlo
Coyle's first assignment of error. The statute provides, in relevant part:
(1) In proceedings for a sexual assault protection order ... the prior
sexual activity or the reputation ofthe petitioner is inadmissible except:
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(a) As evidence concerning the past sexual conduct of the petitioner
with the respondent when this evidence is offered by the respondent upon
the issue of whether the petitioner consented to the sexual conduct with
respect to which the offense is alleged.
(Emphasis added.) This statute echoes, in part, Washington's rape shield statute, RCW
9A.44.020(2), which prohibits evidence of the alleged rape victim's sexual history or
reputation. The latter statute reads, in pertinent part:
2) Evidence of the victim's past sexual behavior including but not
limited to the victim's marital history, divorce history, or general reputation
for promiscuity, nonchastity, or sexual mores contrary to community
standards is inadmissible on the issue of credibility and is inadmissible to
prove the victim's consent. ...
We conclude that the evidentiary bar ofRCW 7.90.080 does not apply for three
reasons. First, assuming RCW 7.90.080 applies to a parent suing on behalf of a child,
Asia Goins did not submit evidence of Marlo Coyle's prior sexual activity or reputation.
Second, the petitioner sought to be protected by the sexual assault protection order act
shield statute is the victim, not the parent filing the petition on behalf of the victim.
Third, although the evidence of Coyle's other petitions was irrelevant to whether Asia
Goins engaged in sexual misconduct, the evidence was relevant to Goins' request for
sanctions and restraints on further petitions because of Coyle's history of vexatious
litigation.
We note that Asia Goins did not provide evidence of Coyle's sexual activity or
reputation, but rather submitted evidence of prior petitions filed by Coyle against others.
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RCW 7.90.080 excludes evidence of "the prior sexual activity or the reputation of the
petitioner." The "reputation," to which the statute refers, would be the victim's
reputation for unchastity or promiscuity. None of the evidence submitted by Asia Goins
qualifies for this exclusion.
RCW 7.90.010(2), the definition section of the sexual assault protection order act,
defines "petitioner" as "any named petitioner for the sexual assault protection order or
any named victim of non consensual sexual conduct or nonconsensual sexual penetration
on whose behalf the petition is brought." (Emphasis added.) This definition is in the
disjunctive and distinguishes between a petitioner who is a victim and any other named
petitioner. Thus, the definition should encompass a parent who files the petition on
behalf of her child at least for most purposes.
RCW 7.90.080 contains tempering language as to who qualifies as a "petitioner"
for purposes of the evidentiary shield. The statute again reads:
(I) In proceedings for a sexual assault protection order ... the prior
sexual activity or the reputation ofthe petitioner is inadmissible except:
(a) As evidence concerning the past sexual conduct ofthe petitioner
with the respondent when this evidence is offered by the respondent upon
the issue of whether the petitioner consented to the sexual conduct with
respect to which the offense is alleged.
The additional language in subsection (a) ofRCW 7.90.080(1) establishes a purpose of
protecting the victim of the sexual assault, not a parent who files the petition. Statutory
language is to be interpreted in context, considering related provisions, and the statutory
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scheme as a whole. In re Marriage ofChandola, 180 Wn.2d 632,648,327 P.3d 644
(2014); Lake v. Woodcreek Homeowners Ass 'n, 169 Wn.2d 516,526,243 P.3d 1283
(2010). We interpret statutes so as to advance the legislative purpose. State v. Walls, 106
Wash. App. 792, 795, 25 P.3d 1052 (2001). Thus, we hold that RCW 7.90.080 provides no
protection for a parent filing a petition on behalf of a child. We note, however, that
evidence of the parent's sexual history or reputation may otherwise rarely be admitted on
grounds of relevance. But, again, Asia Goins did not introduce evidence of Marlo
Coyle's sexual history or reputation.
The trial court ruled that Asia Goins did not engage in sexual misconduct defined
by the sexual assault protection order act. In so ruling, the trial court did not rely on
evidence of Marlo Coyle's other petitions for protection. The trial court held that Coyle's
evidence, even if accepted as true, fell short of sexual touching. The trial court relied on
evidence of other petitions for protection only when ruling that Coyle engaged in
vexatious litigation.
Evidence irrelevant for one purpose may be relevant for another purpose. In re
Det. of West, 171 Wn.2d 383,398,256 P.3d 302 (2011). Equity affords a remedy by way
of an injunction against suits which are vexatious and oppressive. Bodeneck v. Cater's
Motor Freight System, Inc., 198 Wash. 21, 30, 86 P.2d 766 (1939); Burdick v. Burdick,
148 Wash. 15,23,267 P. 767 (1928). Courts recognize the need for pre approval of a
litigious party's filing of new lawsuits because of the party's long history of filing suits.
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Safir v. United States Lines Inc., 792 F.2d 19,23-24 (2d Cir. 1986); Kissi v. United States
Dep't ofJustice, 793 F. Supp. 2d 233,234 n.l (D.D.C. 2011); Smith v. Educ. People,
Inc., 233 F.R.D. 137, 138-39 (S.D.N.Y. 2005); Am. Int'l Specialty Lines Ins. Co. v. Triton
Energy Ltd., 52 S.W.3d 337,340 (Tex. App. 2001). In order to enter such an order, the
court must know about prior suits, thereby making evidence of the earlier suits relevant.
Marlo Coyle broadly asserts that RCW 7.90.080 specifically prohibits judges from
considering inappropriate or irrelevant evidence. We agree that the trial court should not
permit inappropriate or irrelevant evidence, but disagree that RCW 7.90.080 supports
such a prohibition. Other rules prohibit introduction and use of inappropriate or
irrelevant evidence. Nevertheless, Coyle does not identify evidence, other than her prior
petitions, that the trial court should have ignored, nor does she cite any rule of evidence
or case law supporting inadmissibility of other evidence.
Issue 2: Whether the trial court erred in not allowing B.J.C. to testify?
Answer 2: No.
Marlo Coyle next contends that the trial court erred by refusing to hear testimony
from BJ.C. regarding the allegations in the petition his mother prepared. Coyle argues
that, because BJ.C., at age sixteen, could have filed the petition on his own, the
legislature musthave intended that a sixteen year old attend the protection order hearing
and present his side of the facts.
RCW 7.90.040(2) provides: "A person under eighteen years of age who is sixteen
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years of age or older may seek relief under this chapter and is not required to seek relief
by a guardian or next friend." Although BJ.C. was sixteen years old at the filing of this
petition and could have filed the petition on his own, Marlo Coyle filed on his behalf. In
tum, the trial court appointed Coyle to act as BJ.C.'s guardian ad litem in this proceeding
as authorized by RCW 7.90.040(4). As BJ.C.'s temporary guardian ad litem, Coyle had
the responsibility to represent BJ.C.'s best interests, maintain independence and
professionalism, and appear at the hearing on his behalf. GALR 1, 2(a), 2(b), 2(c), and
4(e).
Marlo Coyle identifies no statute, law, or rule that requires a court to allow a
guardian ad litem to call the minor party she represents to testify. RCW 7.90.040(2)
imposes no duty on a court to question a minor in a proceeding for a protection order
under the statute. The opposite is also true. No statute, law, or rule authorizes the trial
court to exclude, from testifying, a sixteen year old alleged victim. Nevertheless, under
RCW 2.28.010, "[e]very court ofjustice has power ... [t]o provide for the orderly
conduct of proceedings before it or its officers." The trial court holds broad discretion in
controlling its courtroom, including the examination of witnesses. State v. Dye, 170 Wn.
App. 340, 344,283 P.3d 1130 (2012), aff'd, 178 Wash. 2d 541, 309 P.3d 1192 (2013).
Whereas a trial court should be reluctant to limit witnesses with relevant
knowledge to the claims in litigation, Marlo Coyle informed the trial court that, ifBJ.C.
testified, he would confirm her allegations. She never stated that BJ.C. would describe
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additional details beyond her allegations in order to supply proof of sexual conduct under
the sexual assault protection order act. Thus, we hold the trial court did not abuse his
discretion in denying testimony from B.J.C. The trial court may have entertained
B.J.C.'s best interests by excluding him from testitying.
Issue 3: Whether the trial court misapplied RCW 7.90. 01 0(4) (d) in determining
whether the acts asserted by Marlo Coyle constituted nonconsensual sexual conduct?
Answer 3: No.
Marlo Coyle argues that the trial court erred in ruling that the alleged acts
contained within B.J.C.'s petition for a protection order did not constitute nonconsensual
sexual conduct as defined by RCW 7.90.010. Coyle argues that the trial court only
considered whether Asia Goins assaulted or touched B.J.C. and did not consider whether
Goins engaged in other "sexual conduct" that would warrant a sexual assault protection
order. In particular, she maintains Goins' request to see BJ.C.'s genitals meets the
statutory definition of "sexual conduct." Goins contends that this allegation, even if
accepted as true, does not quality under the statute's definition of sexual conduct. We
agree with Goins.
Under the sexual assault protection order act, a party must show the "existence of
nonconsensual sexual conduct or nonconsensual sexual penetration." RCW 7.90.020(1).
The petitioner holds the burden of proving the need for the order by a preponderance of
the evidence. RCW 7 .90.090(4). The act defines "sexual conduct" in pertinent part as:
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(a) Any intentional or knowing touching or fondling of the genitals,
anus, or breasts, directly or indirectly, including through clothing;
(b) Any intentional or knowing display of the genitals, anus, or
breasts for the purposes of arousal or,sexual gratification ofthe respondent;
(c) Any intentional or knowing touching or fondling of the genitals,
anus, or breasts, directly or indirectly, including through clothing, that the
petitioner is forced to perform by another person or the respondent;
(d) Any forced display ofthe petitioner's genitals, anus, or breasts
for the purposes ofarousal or sexual gratification ofthe respondent or
others . ..
RCW 7.90.010(4) (emphasis added).
Marlo Coyle argues that the courtroom bathroom incident alleged in her petition
qualifies as ~~sexual conduct" because Asia Goins stood in a position of authority in a
place of authority, the courthouse. Still there remains no evidence that the incident, if
presumed to be true, meets the statutory definition of sexual conduct. Coyle does not
allege that BJ.C. displayed his genitals to Goins. Coyle claimed other incidents of Goins
touching and kissing BJ.C., but the statute covers only touching of genitals, the anus or
breasts.
Issue 4: Whether the trial court erred in declaring Marlo Coyle a vexatious
litigant and controlling her ability to seek protection orders for two years?
Answer 4: No.
Marlo Coyle last contends that the trial court erred in finding her a vexatious
litigant and requiring her to seek the court's approval before bringing any future motions
or petitions before the court. She argues that her bringing the petition on BJ.C.'s behalf
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does not make her a vexatious litigant because there was corroboration for her story. By
asserting this argument, Coyle may confuse frivolous litigation with vexatious litigation.
The trial court did not find her lawsuit to be frivolous.
Although a lawsuit may be both frivolous and vexatious, frivolous litigation
emphasizes the lack of merits in a suit, whereas vexatious litigation underlines the
retaliatory nature of the litigation. Although there is undoubtedly an overlap in the
meaning of the two words, the term "vexatious" embraces the distinct concept of being
brought for the purpose of irritating, annoying, or tormenting the opposing party. United
States v. Heavrin, 330 F.3d 723, 729 (6th Cir. 2003). The word "frivolous" connotes
filing a lawsuit, without bad faith or a wrong motive, but which lacks foundation or a
basis for belief that it might prevail. United States v. Heavrin, 330 F.3d at 729 (6th Cir.
2003).
Washington's civil rules exist "to secure the just, speedy, and inexpensive
determination of every action." CR 1. Likewise, RCW 2.28.010(3) provides: "Every
court ofjustice has power.... To provide for the orderly conduct of proceedings before it
or its officers." In furtherance of these aims, our supreme court has long recognized that
a court may equitably enjoin a party from bringing litigation that the court has found to
be vexatious or oppressive. Bodeneck v. Cater's Motor Fre ight Sys. Inc., 198 Wash. at
30 (1939); Burdickv. Burdick, 148 Wash. at 23 (1928). A person possesses no absolute
and unlimited constitutional right of access to courts. A person only possesses a
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reasonable right of access or a reasonable opportunity to be heard. In re Marriage of
Giordano, 57 Wash. App. 74, 77, 787 P.2d 51 (1990). We review a trial court's order
limiting a party's access to the court for an abuse of discretion. Bay v. Jensen, 147 Wn.
App. 641, 657,196 P.3d 753 (2008).
Marriage ofGiordano, 57 Wash. App. 74 is illustrative. After negotiating a
settlement agreement, incorporated by reference into the final divorce decree, Marjorie
Giordano filed multiple motions to enforce or amend the final decree, potentially
involving all thirty nine of King County's superior court judges. The trial court issued
multiple restraining orders, including a moratorium on all motions until trial on a separate
issue in the case. The moratorium lasted four months, during which time Giordano filed
twelve additional motions. Finally back at trial, a pro se Giordano presented five more
motions. The "exasperated" trial court found Giordano "unduly litigious" and "extremely
aggressive" and sanctioned her $500. Giordano argued on appeal that the trial court
denied her access to the courts by the four-month moratorium. While this court could
'have affirmed on the grounds that Giordano could point to no prejudice that she suffered
as a result of the moratorium, we chose to address the merits of the case. We noted the
right of access to the courts assumed that litigation would proceed in good faith and
comply with court rules. We upheld the trial court's moratorium on the ground that it did
not completely deny Giordano access to the courts, but rather delayed hearing for an
efficient resolution of issues.
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Ample evidence supported our trial court's conclusion that Marlo Coyle engaged
in vexatious litigation. Coyle's presentation at trial showed that her true motive in suing
Asia Goins was his role in her son's CHINS petition. Marlo Coyle had previously filed
over twenty one petitions for protection orders against others with whom she had
differences. The trial court noted the extensive online denigration campaign Coyle
maintained against Goins and other DCFS providers. The trial court's conditions on
Coyle's ability to file future motions or petitions do not completely deny Coyle access to
the courts, but rather require its approval before she may file any future motions or
petitions. The trial court did not abuse its discretion in declaring Coyle a vexatious
litigant and limiting her future participation in the court.
Marlo Coyle also complains about the trial court's imposing CR II sanctions and
restraining her from continuing an online Facebook besmirching campaign against Asia
Goins. Coyle provides no argument addressing the sanctions or restraints. RAP
1OJ(a)(6) directs each party to supply, in her brief, "argument in support of the issues
presented for review, together with citations to legal authority and references to relevant
parts of the record." We do not consider conclusory arguments that are unsupported by
citation to authority. Joy v. Dep't o/Labor & Indus., 170 Wash. App. 614, 629, 285 PJd
187 (2012), review denied, 176 Wn.2d 1021,297 PJd 708 (2013). Passing treatment of
an issue or lack of reasoned argument is insufficient to merit judicial consideration. West
v. Thurston County, 168 Wash. App. 162, 187,275 PJd 1200 (2012) (quoting Holland v.
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No. 32418-4-111
Coyle v. Goins
City ofTacoma, 90 Wn. App. 533,538,954 P.2d 290 (1998)). Therefore, we decline to
address this assignment of error.
Issue 5: Whether this reviewing court should award reasonable attorney fees and
costs incurred on appeal to Asia Goins against Marlo Coyle?
Answer 5: No.
Asia Goins requests appellate attorney fees and costs pursuant to RAP 18.9(a) on
the ground that Marlo Coyle's appeal is frivolous. Coyle contends Goins is not entitled
to fees or costs because of debatable issues she presents on appeal. We agree with Coyle
and deny Goins fees and costs.
RAP 18.9(a) provides, in relevant part:
The appellate court on its own initiative or on motion of a party may
order a party or counsel ... who ... files a frivolous appeal, or fails to
comply with these rules to pay terms or compensatory damages to any other
party who has been harmed by the delay or the failure to comply ...
This court abides by the following considerations when determining whether an appeal is
frivolous:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all
doubts as to whether the appeal is frivolous should be resolved in favor of
the appellant; (3) the record should be considered as a whole; (4) an appeal
that is affirmed simply because the arguments are rejected is not frivolous;
(5) an appeal is frivolous if there are no debatable issues upon which
reasonable minds might differ, and it is so totally devoid of merit that there
was no reasonable possibility of reversal.
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No. 32418-4-III
Coyle v. Goins
Streater v. White, 26 Wash. App. 430, 435,613 P.2d 187 (1980); see also Griffin v. Draper,
32 Wash. App. 611, 616, 649 P.2d 123 (1982).
The question of whether Marlo Coyle's appeal is frivolous is a close call, so we
resolve the question in Coyle's favor. Coyle's argument concerning the court denying
permission of her son to testify has limited merit, since a trial court should infrequently
exclude a witness with percipient knowledge. Coyle's argument concerning the
construction ofRCW 7.90.090 may be weak, but no reported decision has construed the
statute.
One may wonder why we affirm the trial court's grant of sanctions against Marlo
Coyle for vexatious litigation, but deny Asia Goins fees and costs of appeal. These
dissimilar rulings illustrate the difference between vexatious litigation and frivolous
litigation.
CONCLUSION
We affirm the trial court's review of prior protection order petitions filed by Marlo
Coyle and the trial court's exclusion ofB.J.C. as a witness. We also affirm the trial
court's dismissal of Coyle's petition for a protective order and the trial court's declaration
of Marlo Coyle as filing a vexatious suit. We deny Asia Goins an award of reasonable
attorney fees and costs on appeal.
A majority of the panel has determined this opinion will not be printed in the
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No. 32418-4-111
Coyle v. Goins
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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Lawrence-Berrey, J.
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23