Darla K. Dehlin v. Forget Me Not Animal Shelter ( 2017 )

FILED
OCTOBER 19, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DARLA K. DEHLIN, a single person, ) No. 34407-0-111
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
FORGET ME NOT ANIMAL SHELTER, )
KIM GILLEN, JOHN DOE(S), )
)
Respondents. )
LAWRENCE-BERREY, J. - Darla Dehlin appeals the trial court's summary
judgment dismissal of her conversion, trespass to property, and civil conspiracy claims
against Forget Me Not Animal Shelter (Forget Me Not), as well as the trial court's
imposition of CR 11 sanctions against her attorney. The claims arose after Forget Me
Not's director e-mailed the sheriffs office to report suspected animal neglect on Ms.
Dehlin's property. The sheriffs office obtained a warrant to seize the dogs and then
asked Forget Me Not to provide volunteers and vehicles to assist in impounding them.
Because Forget Me Not was not the entity that seized the dogs, but rather
transported and stored them on behalf of the sheriffs office, we conclude the trial court
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
properly dismissed Ms. Dehlin's conversion and trespass to property claims. Moreover,
because no evidence indicates Forget Me Not intended or agreed to accomplish anything
unlawful, we conclude the trial court properly dismissed her civil conspiracy claim. We
also conclude that the trial court did not abuse its discretion by imposing CR 11 sanctions.
Accordingly, we affirm.
FACTS
Forget Me Not is a nonprofit animal shelter located in Republic, Washington. Its
volunteer executive director is Kim Gillen. It is not a humane society, and its volunteers
cannot perform welfare checks. Thus, when it receives complaints of animal abuse or
neglect, it forwards them to the Ferry County Sheriffs Office for investigation.
In June 2011, a woman named Laura Bernier e-mailed Ms. Gillen, inquiring about
what county agency investigates animal abuse and neglect. Ms. Gillen informed Ms.
Bernier that Ferry County did not have an animal control agency, and that the sheriffs
office investigates reports of animal abuse and neglect. Ms. Gillen gave Ms. Bernier the
sheriffs office's phone number, but Ms. Bernier apparently did not follow up.
Later in 2011, Ms. Bernier again e-mailed Ms. Gillen. This time, she expressed
concern for the welfare of a number of Ms. Dehlin's dogs. Ms. Bernier stated that her
friend had bought several puppies from Ms. Dehlin and that when her friend received
2
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
them, one was emaciated, had an infection, and had worms. Ms. Bernier believed Ms.
Dehlin did not live full-time at the house and only checked on the dogs once or twice per
week.
Ms. Gillen e-mailed the Ferry County Sheriff, Pete Warner, and outlined the
information she received from Ms. Bernier. She advised Sheriff Warner that she did not
know where Ms. Dehlin lived, but that she had instructed Ms. Bernier and her friend to
contact him. Sheriff Warner was never contacted about the situation.
On September 17, 2012, Ms. Gillen received another e-mail from Ms. Bernier,
again expressing concern for the welfare of Ms. Dehlin's dogs. This e-mail contained
Ms. Dehlin's physical address.
Ms. Gillen forwarded Ms. Bernier's e-mail to Sheriff Warner and requested a
welfare check. She asked Sheriff Warner to let her know if any dogs were in immediate
need so she could arrange to bring them into the shelter. She stated she would coordinate
with an organization called Poodle Club of America Rescue (PCAR) if needed. Sheriff
Warner assigned the welfare check to Deputy Patrick Rainer.
On September 18, Deputy Rainer drove to Ms. Dehlin's address. Ms. Dehlin had a
gate at her driveway, which was marked with no trespassing signs. However, the gate
was unlocked. Deputy Rainer drove up the driveway and parked in front of several dog
3
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
kennels. These kennels were not visible from the roadway. The property appeared to be
abandoned.
Deputy Rainer saw at least 15 dogs in four separate kennels, including both adult
dogs and puppies. He believed the living conditions in the kennels were unsanitary and
believed the hair on several of the dogs was matted and coated in feces. In addition to the
dogs in the kennels, Deputy Rainer also saw one dog running around unrestrained,
another dog chained up, and at least 10 young puppies in an upside-down animal transport
earner.
After leaving Ms. Dehlin's property, Deputy Rainer applied for a warrant to search
Ms. Dehlin's residence for evidence of second degree animal cruelty and to seize all the
dogs. He relied on his observations from Ms. Dehlin's property as well as Ms. Gillen's e-
mails to support his application. The trial court issued the warrant the same day. The
warrant instructed the sheriff to search Ms. Dehlin's residence, seize the dogs, and keep
them safely.
Later in the day on September 18, Sheriff Warner informed Ms. Gillen that the
sheriffs office had obtained a warrant to remove all of the dogs from Ms. Dehlin's
property. Sheriff Warner stated the sheriffs office did not have enough personnel or
vehicles available to transport 27 dogs. He asked Forget Me Not to provide volunteers
4
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
and vehicles to assist the sheriff's office in removing the dogs. Forget Me Not then
arranged for available volunteers to accompany Deputy Rainer and Deputy Talon Ventura
to Ms. Dehlin's residence. At roughly 5:00 p.m., Ms. Gillen and several volunteers met at
the sheriff's office. They then followed the two deputies out to Ms. Dehlin's address.
The Forget Me Not volunteers waited at the end of Ms. Dehlin's driveway while
the deputies cleared the scene. Once they were given permission to proceed up the
driveway, the volunteers followed the deputies through the scene. The deputies identified
the dogs that the sheriff's office was removing from the property under the search
warrant.
Once the dogs were all loaded into vehicles, the sheriff's office had the dogs
transported either to a foster home, Forget Me Not's shelter, a veterinary clinic, or an
animal care facility. Over the next few days, a veterinarian visited the dogs. The sheriff's
office retained responsibility for the dogs' medical care and boarding fees while the dogs
were impounded, and the sheriff's office received invoices for their care. Throughout the
next month, the dogs received vaccinations, exams, microchips, and dewormer. They
were also spayed and neutered. Forget Me Not began accepting applications from
individuals who were interested in adopting the dogs.
5
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
On October 20, the Ferry County Prosecuting Attorney notified Forget Me Not and
PCAR that an agreement-in which Ms. Dehlin would relinquish ownership of the dogs
in exchange for no criminal action being taken against her-was imminent. He advised
Forget Me Not and PCAR that they could begin preparing to transfer the dogs to more
permanent housing.
On October 29, Ms. Dehlin wrote a letter to the Ferry County Prosecuting Attorney
relinquishing her ownership of the poodles. She stated she relinquished ownership to
PCAR, which had agreed to accept the poodles and incur the costs associated with taking
possession of them. She further stated that in exchange for relinquishing the poodles, she
understood that the State agreed not to charge her with any crime. However, she felt
coerced into relinquishing the dogs based on threats and intimidation from members of
the community, Facebook posts by Forget Me Not, "and a general hostile public
atmosphere." Clerk's Papers (CP) at 61. She also felt pressured by the prosecuting
attorney, Ms. Gillen, and the president of PCAR.
Around this time, PCAR began assigning the dogs to individuals and rescue
organizations. PCAR asked Forget Me Not to place several dogs with individuals who
had previously submitted applications. These individuals signed adoption contracts on
October 27, October 30, November 5, and November 8. PCAR assigned the rest of the
6
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
dogs to poodle rescues in Nevada and Arizona. PCAR scheduled a commercial
transporter to pick up the dogs. Forget Me Not incurred $17,981.86 in costs from
boarding the dogs and providing them medical care. It recovered $13,941.60 from
community donations, reimbursements from the sheriff's office, and adoption fees.
On October 31, Ms. Dehlin e-mailed the president of PCAR. She stated she was
upset with how PCAR was placing her former poodles. In a follow-up e-mail later that
evening, she stated she was "rescinding the relinquishment to PCAR." CP at 67. She
asked PCAR's president to keep her e-mail confidential. There is no evidence Ms. Dehlin
ever communicated her intent to rescind the relinquishment to Forget Me Not, the
prosecuting attorney, or the sheriff's office.
PROCEDURE
In September 2015, Ms. Dehlin filed a complaint naming Forget Me Not, Ms.
Gillen, and Forget Me Nat's volunteers as defendants. She brought claims for civil
conspiracy, intentional infliction of emotional distress, negligent infliction of emotional
distress, trespass to property, conversion, and assault. In its answer, Forget Me Not
asserted affirmative defenses and stated it was entitled to an award of sanctions under
CR 11.
7
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
Ms. Dehlin filed a separate lawsuit against Ferry County, the Ferry County
Sheriffs Office, Sheriff Warner, Deputy Rainer, and Deputy Ventura. She brought a
42 U.S.C. § 1983 claim, in which she alleged the search of her property and seizure of her
dogs violated her constitutional rights. That suit was removed to federal court.
Forget Me Not moved for summary judgment on all of Ms. Dehlin's claims. Ms.
Dehlin stipulated to the dismissal of her assault claim. The trial court granted summary
judgment in favor of Forget Me Not. Ms. Dehlin filed a notice of appeal from this order.
After the trial court granted summary judgment, Forget Me Not moved for attorney
fees and costs on the grounds that Ms. Dehlin's counsel violated CR 11. The trial court
granted Forget Me Nat's motion. The court found that Ms. Dehlin's counsel violated
CR 11 by asserting the claims for assault, intentional inflection of emotional distress, and
negligent infliction of emotional distress. With respect to these three claims, the court
found that counsel did not have knowledge, information, or belief based on a reasonable
inquiry that they were grounded in fact, supported by existing law, or that a good faith
argument existed for extending the law. However, the court found that counsel did not
violate CR 11 by asserting the claims for conversion, trespass to property, or civil
conspiracy. The court awarded Forget Me Not $2,500 for the unnecessary fees and costs
it incurred in defending against the three baseless claims.
8
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
ANALYSIS
This court reviews a summary judgment order de novo, engaging in the same
inquiry as the trial court. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532,547,374
P.3d 121 (2016). Summary judgment is appropriate only if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." CR 56(c). A material fact is one the outcome
of the litigation depends on. In re Estate ofBlack, 153 Wn.2d 152, 160, 102 P .3d 796
(2004 ). This court views all facts and reasonable inferences from those facts in the light
most favorable to the nonmoving party. Kim, 185 Wn.2d at 547. Summary judgment is
appropriate only if a reasonable person could reach one conclusion from all the evidence.
Id.A defendant moving for summary judgment has the initial burden of showing that
there is no issue of material fact. Barker v. Advanced Silicon Materials, LLC, 131 Wn.
App. 616, 624, 128 P.3d 633 (2006). Once the defendant does this, the burden shifts to
the plaintiff to produce admissible evidence that alleges specific facts establishing a cause
of action. Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993).
9
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
When reviewing a civil case in which the standard of proof is clear, cogent, and
convincing evidence, this court "' must view the evidence presented through the prism of
the substantive evidentiary burden."' Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d
807 (2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986)). The burden of proof for civil conspiracy claims is clear,
cogent, and convincing evidence. Id. Thus, this court must determine whether, viewing
the evidence in the light most favorable to Ms. Dehlin, a rational trier of fact could find
that she supported her conspiracy claim with clear, cogent, and convincing evidence. Id.CONVERSION AND TRESPASS TO PROPERTY CLAIMS
Ms. Dehlin argues that Forget Me Not converted and trespassed on her poodles by
spaying, neutering, and holding them out for adoption before she had formally
relinquished them. She argues she was coerced into relinquishing the poodles, and that
she rescinded her relinquishment three days later. She further argues that chapter 16.52
RCW's requirements governing the seizure of animals were not followed.
Conversion is the exercise of dominion or ownership over another's personal
property. Potter v. Wash. State Patrol, 165 Wn.2d 67, 78, 196 P.3d 691 (2008). It occurs
when one willfully interferes with another's property without justification and deprives
the other person of possession. Id. This can occur when one wrongfully takes, alters,
10
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
misdelivers, or disposes of the other person's property. See RESTATEMENT (SECOND) OF
TORTS§ 223 (1965). "All types of tangible personal property can be converted."
16 DAVID K. DEWOLF & KELLER W. ALLEN, WASH. PRACTICE: TORT LAW AND
PRACTICE§ 14:16, at 587 (4th ed. 2013) (hereinafter DEWOLF).
Generally, an agent is personally liable when he or she assists a principal in
converting or trespassing on another's property, even if the agent acts at the direction of
the principal and performs the acts solely for the principal' s benefit. Dodson v. Econ.
Equip. Co., 188 Wash. 340, 343, 62 P .2d 708 (1936); RESTATEMENT (SECOND) OF
AGENCY§ 349 (1958); 2A C.J.S. Agency§ 374, at 636 (2003). When this occurs, the
agent is liable to the extent he or she aided or abetted in the consummation of the wrong.
Martin v. Sikes, 38 Wn.2d 274,278,229 P.2d 546 (1951). However,
[a] bailee, agent, or servant who receives the possession of a chattel for
storage, safekeeping, or transportation on behalf of his bailor, principal, or
master, is subject to liability for conversion if, but only if, he does so with
knowledge or reason to know that a third person has the right to immediate
possession of the chattel.
RESTATEMENT (SECOND) OF TORTS§ 230.
The distinction between the rule and the exception is not well defined. However,
an instructive case is Foreign Car Center, Inc. v. Essex Process Service, Inc., 62 Mass.
App. Ct. 806, 821 N.E.2d 483 (2005). There, a bank recovered a judgment against
11
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
Foreign Car Center, a car dealership and repair center. Id. at 807. The bank then
obtained a writ of attachment. Id. at 808. A deputy sheriff, acting pursuant to the writ,
engaged a towing company and went to Foreign Car Center's place of business. Id.Upon arriving, he could not locate the owner and thus did not immediately serve the writ
of attachment. Id. He began seizing vehicles and instructing the towing company to tow
them away. Id. The owner eventually arrived and the deputy sheriff showed him the writ.
Id. The owner complained the towing company towed the cars in a rough and damaging
manner. Id.The deputy sheriff lost the original writ and thus never returned it to court, as was
required. Id. at 809, 811 n.9. Due to issues with the vehicles' titles, the sheriffs sale also
did not occur within 30 days of the seizure, as was required by statute. Id. at 810, 811
n.9.
Foreign Car Center sued the bank, the deputy sheriff, the process company that
employed the sheriff, and the towing company for, among other things, conversion. Id. at
806, 810. At trial, the court instructed the jury that it could find the deputy sheriff and
process company liable for conversion, but not the bank or the towing company. Id. at
813.
12
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
The Massachusetts Appeals Court agreed. Id. at 815. It held that the procedural
violations of the collections laws "were strictly the responsibility of the sheriff' and did
not support a cause of action for conversion against the bank. Id. at 813-14. The court
further held that an instruction for conversion against the towing company would have
been improper. Id. at 814. Relying on Restatement (Second) of Torts§ 230, the court
reasoned that Foreign Car Center presented no evidence, nor did it argue on appeal, that
the towing company knew or should have known that the deputy sheriff and process
company were converting Foreign Car Center's property. Id.
Here, even if we assume without deciding that: ( 1) Ms. Dehlin did not consent to
the torts when she relinquished her dogs, and (2) the seizure of her dogs was illegal and
without justification, her conversion claim still fails because Forget Me Not was not the
entity responsible. Although an agent is generally liable when he or she converts property
at a principal's direction and for the principal's benefit, in this case there is no genuine
dispute that the exception outlined in Restatement (Second) of Torts § 230 applies.
First, Forget Me Not possessed the dogs on behalf of the sheriffs office for
transportation and then for storage. Like in Foreign Car Center, where the deputy sheriff
seized the cars and engaged the towing company to tow them away, Deputy Rainer and
Deputy Ventura identified the dogs the sheriffs office intended to seize under the warrant
13
No. 34407-0-111
Dehlin v. Forget Me Not Animal Shelter
and asked Forget Me Not to assist in removing them. After the sheriffs office housed the
dogs in various locations, which included Forget Me Not's shelter, it retained
responsibility for them.
Second, Forget Me Not did not know, or have reason to know, that Ms. Dehlin had
the right to immediately possess the dogs. After making the report to Sheriff Warner, the
next information Forget Me Not received was that the sheriffs office had obtained a
warrant to remove all of the dogs from Ms. Dehlin's property. Forget Me Not was not
involved in the welfare check or the warrant application. Ms. Dehlin argues that chapter
16.52 RCW's requirements for the seizure of animals were not followed, but as discussed
in Foreign Car Center, this was not Forget Me Not's responsibility.
Like in Foreign Car Center, where the deputy sheriff seized the cars pursuant to a
court order and the towing company had no way of knowing the cars were being
converted, here the sheriffs office seized the dogs pursuant to a search warrant and Ms.
Dehlin presents no evidence, nor does she argue, that Forget Me Not knew or should have
known that she had a right to immediately possess the dogs. In light of Forget Me Not's
evidence, the burden shifts to Ms. Dehlin to produce evidence establishing a cause of
action. She has not met this burden. We conclude the trial court did not err in dismissing
Ms. Dehlin's conversion claim on summary judgment.
14
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
Trespass to property, on the other hand, is something less than a conversion.
DEWOLF, supra,§ 14:15, at 585. It occurs when a person intentionally interferes with the
possession or physical condition of another's personal property without justification. Id.
Here, Forget Me Not took and cared for the dogs pursuant to the sheriffs request,
supported by a warrant. Forget Me Not had no reason to believe that the warrant was
wrongfully issued. Later, Forget Me Not began placing the dogs at the request of PCAR
at a time when Forget Me Not reasonably believed that Ms. Dehlin had given up her
rights to the dogs. Because these facts are not contested and establish justification for
Forget Me Not's actions, the trial court did not err in dismissing Ms. Dehlin's trespass to
property claim.
CIVIL CONSPIRACY CLAIM
Ms. Dehlin argues Forget Me Not conspired to illegally seize her dogs. She argues
the e-mails between Ms. Gillen, Ms. Bernier, and Sheriff Warner are evidence of the
conspiracy. She further argues the search warrant was invalid because it was not
supported by probable cause, and it contained secondhand and unreliable information.
To establish a claim for civil conspiracy, plaintiffs '"must prove by clear, cogent,
and convincing evidence that ( 1) two or more people combined to accomplish an
unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and
15
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
(2) the conspirators entered into an agreement to accomplish the conspiracy.'" Woody,
146 Wn. App. at 22 (quoting All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998
P.2d 367 (2000)). To establish civil conspiracy, a plaintiff must show that the factual
circumstances are "inconsistent with a lawful or honest purpose and reasonably consistent
only with the existence of the conspiracy." John Davis & Co. v. Cedar Glen No. Four,
Inc., 75 Wn.2d 214,224,450 P.2d 166 (1969).
To conspire, a person must be aware of the illegality. See All Star Gas, 100 Wn.
App. at 741. For example, in All Star Gas, one of All Star Gas's managers had a clause
in his employment contract prohibiting him from competing with the business for three
years after ending his employment. Id. at 734. A few months before resigning, he started
a gas business with his brother, using information he obtained through his employment
with All Star Gas. Id. at 734-35. All Star Gas sued both the employee and his brother,
alleging they both conspired to violate the noncompetition agreement. Id. at 735. The
trial court dismissed the conspiracy claims. Id. at 736.
This court affirmed. Id. at 740. This court reasoned that the brother did not know
about the noncompetition agreement and, therefore, could not have conspired to violate
an agreement that he did not know existed until after the alleged conspiracy had occurred.
Id. at 741. This court further reasoned that nothing in the record suggested the brother
16
No. 34407-0-111
Dehlin v. Forget Me Not Animal Shelter
had an unlawful motive or used unlawful means when he agreed to form the new
business. Id.
"A person who communicates a complaint or information to any branch or agency
of federal, state, or local government ... is immune from civil liability for claims based
upon the communication to the agency or organization regarding any matter reasonably of
concern to that agency or organization." RCW 4.24.510. The legislature enacted this
statute to encourage citizens to report potential wrongdoing to governmental entities.
Gontmakher v. City of Bellevue, 120 Wn. App. 365,366, 85 P.3d 926 (2004). This statute
provides immunity even if a person makes a report in bad faith. 1 See DEWOLF, supra,
§ 12:22, at 503; Bailey v. State, 147 Wn. App. 251, 260-63, 191 P.3d 1285 (2008).
Ms. Dehlin argues the e-mails between Ms. Gillen, Ms. Bernier, and Sheriff
Warner demonstrate the existence of a conspiracy. 2 But the e-mails do not establish that
any of the parties intended or agreed to accomplish anything unlawful. Rather, Ms.
Bernier forwarded her concerns about the dogs to Ms. Gillen, who appropriately
1
Former RCW 4.24.510 (1999) expressly contained a good faith requirement. In
2002, the legislature deleted the phrase "in good faith" preceding "communicates a
complaint or information" in the first sentence of the statute. See LAWS OF 2002, ch. 232,
§ 2.
2
Ms. Dehlin also argues the prosecuting attorney and PCAR's president conspired
to convince her to relinquish her dogs, but it is unclear how this involves Forget Me Not.
17
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
forwarded them to law enforcement. To the extent Ms. Dehlin argues that Forget Me Not
conspired based on its report to the sheriffs office, RCW 4.24.510 immunizes Forget Me
Not from liability. This is true even if Ms. Gillen's report was motivated by some
preexisting grudge against Ms. Dehlin or a desire to "take" the dogs from her. CP at 58.
Ms. Dehlin also argues that the warrant was iHegally obtained and lacked probable
cause. As discussed above, Forget Me Not did not participate in the welfare check or the
warrant application, and nothing in the record suggests it was aware of any alleged
deficiencies with the warrant or believed the seizure of the dogs would be unlawful when
it agreed to assist the sheriffs office.
Accordingly, Ms. Dehlin failed to establish a prima facie case of civil conspiracy
by clear, cogent, and convincing evidence. The trial court did not err in dismissing this
claim on summary judgment. 3
TRIAL COURT'S IMPOSITION OF CR 11 SANCTIONS
Ms. Dehlin challenges the trial court's imposition of CR 11 sanctions. 4 This court
3
Ms. Dehlin does not challenge the trial court's dismissal of her claims for
intentional and negligent infliction of emotional distress.
4
Although Ms. Dehlin did not appeal from either of the CR 11 orders, "[a]n appeal
from a decision on the merits of a case brings up for review an award of attorney fees
18
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
reviews an award of CR 11 sanctions for an abuse of discretion. Stiles v. Kearney, 168
Wn. App. 250, 260, 277 P.3d 9 (2012).
When an attorney signs a court filing, the attorney certifies that
to the best of the ... attorney's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances: (1) [the pleading,
motion, or memorandum] is well grounded in fact; [and] (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 ....
CR 1 l(a). If an attorney signs a pleading in violation of this rule, the court may impose
an appropriate sanction, which may include an order to pay the other party the reasonable
expenses incurred because of the filing. CR l l(a).
1. Timely notice
Ms. Dehlin first argues that Forget Me Not's request for CR 11 sanctions was
untimely. She argues that the statement in its answer that it was entitled to CR 11
sanctions was insufficient and that it should have moved for CR 11 sanctions at the outset
of the case.
entered after the appellate court accepts review of the decision on the merits." RAP
2.4(g).
19
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
Attorneys and judges who perceive a possible violation of CR 11 must bring it to
the offending party's attention as soon as possible. Biggs v. Vail, 124 Wn.2d 193, 198,
876 P.2d 448 (1994). Without timely notice, CR 11 sanctions are unwarranted. Id. The
purpose of this requirement is to give the offending party an opportunity to mitigate the
sanction by amending or withdrawing the baseless filing. Id. Another reason is to deter
the offending party from submitting additional baseless filings. Id.An answer to the initial complaint provides sufficient notice that the defendant
intends to seek CR 11 sanctions. Stiles, 168 Wn. App. at 264. In Stiles, the defendant's
answer sought dismissal of the complaint and attorney fees under CR 11. Id. at 255.
After conducting discovery, the defendant moved for summary judgment. Id. The trial
court granted the defendant's motion. Id. at 256. Roughly one month later, the defendant
moved for CR 11 sanctions, which the trial court imposed. Id. The Stiles court held that
the defendant's notice in his answer was timely and that it gave sufficient notice of his
intent to seek CR 11 sanctions. Id. at 264.
The facts regarding notice of CR 11 sanctions in this case are identical to those in
Stiles. Ms. Dehlin, therefore, received timely notice of Forget Me Not's intent to seek
CR 11 sanctions.
20
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
2. Appropriateness of sanctions when other claims are nonfrivolous
Ms. Dehlin also argues that CR 11 sanctions were not appropriate because some of
her claims were nonfrivolous. She cites Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 829
P.2d 1099 (1992). First, Bryant does not require that all claims be frivolous before a
court can impose CR 11 sanctions. Id. at 220. Second, Biggs v. Vail makes clear that a
trial court may impose CR 11 sanctions as to those portions of the complaint deemed
frivolous. 124 Wn.2d at 200-01. 5
3. Factual and legal bases and reasonable inquiry
Ms. Dehlin further argues that substantial evidence does not support the trial
court's finding that her claims for assault, intentional infliction of emotional distress, and
negligent infliction of emotional distress lacked a factual or legal basis. She also argues
the trial court did not inquire or make a finding as to whether her counsel conducted a
reasonable inquiry before signing the complaint.
5
In this respect, CR 11 sanctions are more easily imposed than sanctions under
RCW 4.84.185. For sanctions to be imposed under RCW 4.84.185, the action,
counterclaim, cross-claim, third party claim, or defense must be deemed frivolous in its
entirety and advanced without reasonable cause.
21
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
To impose sanctions for a baseless filing under CR 11, the trial court must find:
(1) that the claim was without a factual or legal basis, and (2) that the attorney who signed
the filing did not conduct a reasonable inquiry into the factual and legal basis of the
claim. West v. Wash. Ass 'n of County Officials, 162 Wn. App. 120, 135, 252 P.3d 406(2011 ). A trial court may consider a number of factors in determining whether counsel
conducted a reasonable inquiry, including the time counsel had available and the
complexity of the issues. See Bryant, 119 Wn.2d at 220-21.
Here, substantial evidence supports the trial court's finding that the three baseless
claims lacked factual or legal support. Ms. Dehlin never presented any evidence an
assault occurred. Moreover, her assault claim was barred by the statute of limitations, as
she filed her complaint three years after the incident. See RCW 4.16.100 (statute of
limitations for assault and battery is two years). She never presented any evidence that
Forget Me Not intended to inflict emotional distress. See Womack v. Rardon, 133 Wn.
App. 254, 261, 135 P.3d 542 (2006) (trial court properly dismissed outrage claim where
immolation of plaintiffs cat, though deplorable, was not intended to bring about distress).
Finally, a pet owner has no right to "recover damages for negligent infliction of
emotional distress ... for the negligent death or injury of a pet." Sherman v. Kissinger,
146 Wn. App. 855, 873, 195 P.3d 539 (2008).
22
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
The trial court also found that Ms. Dehlin's counsel failed to conduct a reasonable
inquiry into whether the baseless claims had factual or legal support. See CP at 251;
Report of Proceedings (RP) at 90. Ms. Dehlin appears to argue that the trial court erred
by failing to perform an on-the-record inquiry into counsel's actual prefiling
investigation. Although such an inquiry would be helpful for appellate review, Ms.
Dehlin cites no authority that holds this is required. A trial court may consider multiple
factors in making its determination, which have varying degrees of relevance to the actual
investigation counsel conducted. See Bryant, 119 Wn.2d at 220.
Here, the trial court expressly considered the fact that Ms. Dehlin filed her
complaint shortly before most of the statutes of limitation expired, causing her to throw
"everything ... against the wall hoping something would stick." RP at 90. Moreover, the
fact that one of the claims was barred by a statute of limitations and two others were
clearly barred as a matter of law indicates counsel did not reasonably investigate before
filing the complaint. See RP at 89.
For the reasons set forth above, we conclude the trial court did not abuse its
discretion in imposing CR 11 sanctions.
23
No. 34407-0-III
Dehlin v. Forget Me Not Animal Shelter
ATTORNEY FEES ON APPEAL
Forget Me Not requests attorney fees under RAP 18.9 on the basis that Ms. Dehlin
filed a frivolous appeal. RAP 18.9 authorizes an appellate court to order a party who files
a frivolous appeal "to pay terms or compensatory damages to any other party who has
been harmed." For an appeal to be frivolous under RAP 18.9, it must not present any
debatable issues on which reasonable minds may differ and must be totally devoid of
merit. In re Recall ofBoldt, 187 Wn.2d 542,556,386 P.3d 1104 (2017). This court
resolves all doubts as to whether the appeal is frivolous in favor of the appellant. Hanna
v. Margitan, 193 Wn. App. 596,615,373 P.3d 300 (2016).
Here, Ms. Dehlin raised issues that were at least debatable. We, therefore, decline
to award attorney fees to Forget Me Not under RAP 18.9.
Affirmed.
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.
WE CONCUR:
Fe~4?.Fa=t s'.J
24