                                                                 FILED 

                                                              AUGUST 29, 2013 

                                                        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

JAMES W. and JUDY D. AASEBY,                  )        No. 30093-5-111
husband and wife,                             )
                                              )
                     Respondents and          )
                     Cross-Appellants,        )
                                              )
              v.                              )        UNPUBLISHED OPINION
                                              )
WILLIAM VUE, a single person; and             )

VILAY and AGNES VUE, husband and              )

wife,                                         )

                                              )

                     Defendants,              )

                                              )

J. SCOTT MILLER,                              )
                                              )
                     Appellant.               )

       KULIK, J. -   William Vue was involved in a car accident with James W. Aaseby

and Judy Aaseby in 2000. The Aasebys initiated a personal injury action against Mr. Vue.

Attorney J. Scott Miller was retained by Allstate Insurance Company to represent Mr.

Vue. After the case was settled for Allstate's policy limits in 2004, the Aasebys identified

a Farmers Insurance policy that was not provided during discovery and other factual

discrepancies. The Aasebys moved for sanctions against Mr. Miller under CR 11(a) and
No. 30093-5-III
Aaseby v. Vue


CR 26(g). Extensive and protracted litigation ensued. In 2011, the Spokane County

Superior Court imposed sanctions on Mr. Miller in the amount of$22,300 for failing to

exercise diligence in answering the complaint and the discovery request. Mr. Miller

appeals the imposition of sanctions. The Aasebys cross appeal the amount of the

sanctions and the denial of sanctions against Mr. Miller's firm.

       We reverse the sanctions imposed on Mr. Miller, affirm the trial court's dismissal

of Mr. Miller's law firm, deny attorney fees on appeal, and remand solely for the trial

court to deny the Aasebys' cross motion for sanctions.

                                            FACTS

       The underlying litigation that gave rise to the sanctions involved a motor vehicle

accident. On October 20, 2000, 18-year-old Mr. Vue pulled out in front of a vehicle

driven by Mr. Aaseby, causing a collision. Both cars were totaled. Mr. Aaseby and his

wife, Judy Aaseby, were injured in the collision. Mr. Vue was at fault.

      At the scene of the accident, Mr. Vue provided Mr. Aaseby information about a

Farmers Insurance policy. Mr. Aaseby's notes taken at the scene include the names of

Cheu and Pai Vue, l Mr. Vue's address, and a Farmers policy number. Later that day, Mr.

Aaseby contacted Farmers and provided the policy number he received at the scene.



       1   For clarity, members of the Vue family will be referenced by their first names,

                                               2

No.30093-5-III
Aaseby v. Vue


Farmers issued a claim number to Mr. Aaseby. Ultimately, Mr. Aaseby determined that

Farmers did not provide coverage. Instead, he was informed that Allstate insured the car

Mr. Vue was driving.

       In 2003, the Aasebys retained attorney Michael J. Delay and initiated a personal

injury claim against Mr. Vue. The complaint also named Vilay and Agnes Vue as

defendants. The complaint alleged that Vilay and Agnes were the natural parents of Mr.

Vue, and husband and wife. The complaint also alleged that Vilay and Agnes were the

registered owners of Mr. Vue's car.

      Allstate, who was Vilay's insurer, retained Mr. Miller and his law firm of Miller,

Devlin, McLean, & Weaver, P.S. to represent Mr. Vue, Vilay, and Agnes. The file

provided to Mr. Miller by Allstate indicated that the car driven by Mr. Vue was owned by

and registered to his parents, Vilay and Agnes.

       Soon after Mr. Miller was retained, he sent a letter to the defendants requesting

that they contact him. Mr. Vue called Mr. Miller and confirmed that he had been driving

the car with Vilay's permission. However, he did not inform Mr. Miller that some of the

allegations in the complaint were inaccurate. Specifically, he did not advise Mr. Miller




with the exception of William Vue.

                                             3
No.30093-5-III
Aaseby v. Vue


that Vilay and Agnes were his siblings, that his parents were Cheu and Pai, and that Cheu

was the registered owner of the car.
                                                          ·            .

       Mr. Miller filed an answer to the complaint, admitting that Vilay and Agnes were

the married parents of Mr. Vue and that the two were the registered owners of the car

driven by Mr. Vue. Neither Mr. Vue nor Allstate indicated that there was a Farmers

Insurance policy issued to anyone in the Vue family.

       The Aasebys served the defendants with a set of interrogatories and requests for

production. In tum, Mr. Miller sent the discovery request to Mr. Vue, Agnes, and Vilay

at their shared home. Mr. Miller requested that they answer all of the questions to the

best of their ability. Mr. Miller informed Mr. Vue that the questions stamped "Attorney

will Answer" would be filled out by his office, but that if Mr. Vue could answer any of

these questions in whole or part, he should do so. Clerk's Papers (CP) at 231.

      A paralegal in Mr. Miller's office met with Mr. Vue to draft responses. Of

importance here are three requests and responses. First, interrogatory 14 asked Mr. Vue

to identify any insurance or indemnification agreements or policies that may satisfy part

or all of a judgment. The answer provided to the Aasebys identified only the Allstate

policy. Second, the corresponding request for production asked Mr. Vue to produce any

other documents affecting insurance coverage, such as documentation denying coverage,


                                            4

No. 30093-5-III
Aaseby v. Vue


for the defendant or covered person. The answer to this request was "none." CP at 1437.

Last, interrogatory 35 asked Mr. Vue to identifY the registered owner of the vehicle that

he was driving at the time of the collision. The answer stated "Vilay Vue." CP at 1451.

       During this meeting, Mr. Vue also corrected the caption of the case, indicating that

Vilay was his brother and Agnes was his sister. He also noted on the caption that Vilay

owned the car.

       Mr. Vue was asked to review the answers. In a declaration submitted around two
                                                                                        !



years later, Mr. Vue noted that the answers reflected that Allstate was the only insurance

providing potential indemnification in the case and, at the time, he believed that this

information regarding insurance was correct. 2 He also believed that Vilay was the

registered owner of the car. Mr. Vue signed the verification page of the discovery

request, stating that he read the responses and believed them to be true and correct.

       A new associate in Mr. Miller's firm, Crystal Spielman, signed and certified the

answers pursuant to CR 26. At the time of certification, Ms. Spielman had been in

practice for about six weeks. The final answers provided to the Aasebys generally

mirrored the answers drafted in the meeting with Mr. Vue. However, the caption of the


      2 In a subsequent declaration, Mr. Vue claimed that he did not provide any
information regarding insurance coverage at the meeting and that he did not have an
opportunity to review the final answers to the interrogatories.

                                             5

No.30093-5-III
Aaseby v. Vue


case was not corrected. Nor did Mr. Miller notify the Aasebys that ViIay and Agnes were

Mr. Vue's siblings.

       The only other discovery conducted for this action was Mr. Vue's deposition of

Mr. Aaseby. The Aasebys did not depose any of the defendants.

       In June 2004, the case was settled for Allstate's policy limits of$25,000. The

Aasebys released the defendants from liability and dismissed their claim with prejudice.

       The Aasebys subsequently pursued a claim for underinsured motorists insurance

and personal injury protection coverage under their own policy held by Grange Insurance.

The Aasebys received the policy limits of$100,000.

       During Grange's investigation of the Aasebys' claim, Grange identified the

Farmers liability policy for Mr. Vue and the claim number assigned to Mr. Aaseby.

Grange notified the Aasebys that Mr. Vue may have had his own insurance policy in

addition to the Allstate policy. Mr. Delay, the Aasebys' counsel, informed Grange that

his investigation verified that no other policy existed, and that this information could be

verified through Mr. Miller and Allstate.

       Around this same time, Farmers contacted Mr. Vue. Mr. Vue e-mailed Mr. Miller

about the coverage, telling Mr. Miller that he was unsure ifhe had two policies. Mr.

Miller did not contact the Aasebys about the Farmers policy.



                                             6

No. 30093-5-III
Aaseby v. Vue


       In June 2005, the Aasebys contacted Mr. Miller about the Fanners policy. The

Aasebys requested that Mr. Miller open a claim with Fanners. Mr. Miller notified the

Aasebys that he no longer represented Mr. Vue and that he forwarded the Aasebys' letter

to Mr. Vue. Mr. Miller filed his notice of intent to withdraw as Mr. Vue's counsel.

       Patrick McMahon of Carlson, McMahon & Seal by, PLLC, filed a notice of

substitution of attorney for Mr. Vue. Mr. McMahon sent a letter to the Aasebys that

clarified that Vilay and Agnes were Mr. Vue's siblings. Mr. McMahon also stated that

Vilay owned and insured the car. Sometime before September 2005, the Aasebys became

aware that Cheu and Pai were Mr. Vue's parents and that the car was registered to Cheu.

       The Aasebys moved to set aside the stipulation and order of dismissal with

prejudice. The Aasebys also requested attorney fees and costs. The trial court granted the

motion and vacated the order of dismissal. The court reserved the ruling on attorney fees.

       In December 2005, the Aasebys filed another motion for attorney fees, citing rules

CR 26(g) and CR 11(a). They contended that attorney fees were appropriate because Mr.

Vue and Mr. Miller failed to disclose the Fanners policy or supplement the record with

the policy during discovery, and that Mr. Vue's and Mr. Miller's willful actions

constituted bad faith and a complete disregard for court rules. Mr. Miller was not served

with this motion for sanctions or given notice of the upcoming hearing.



                                            7

No.30093-5-III
Aaseby v. Vue


       A hearing was held, with Judge Robert Austin presiding. Mr. Miller was not

present. In February 2006, Judge Austin issued a letter addressing the Aasebys' motion

for sanctions. The court found that Mr. Miller, Ms. Spielman, and Mr. Vue violated CR

11 and CR 26(g) by failing to make a reasonable inquiry and discover the obvious

falsehoods in the answer and interrogatories. The court concluded that sanctions were

appropriate against all three individuals. 3 The court requested that the parties prepare

findings of fact and conclusions of law for its signature. Mr. Miller was not served with

the court's letter opinion.

       On June 23, 2006, a presentment hearing occurred. Mr. Miller was given notice

and made his first appearance in the trial court on the issue of sanctions. He argued to the

trial court that his answer to the complaint was reasonable, based on the information

provided by Mr. Vue. He also informed the court that the Aasebys had knowledge of the

policy from the beginning. He explained that he was not told of the Farmers policy when

he answered the interrogatories, but had he been aware that there was another policy, he

would have addressed the issue. He subsequently became aware of the policy only during

Mr. Aaseby's deposition when Mr. Aaseby stated that the policy did not apply. As for the




       3 Sanctions   against Ms. Spielman and Mr. Vue were eventually dismissed.

                                              8

 No. 30093-5-III
 Aaseby v. Vue


 misidentification of parties, Mr. Miller contended that he had no information to the

 contrary until after the case was dismissed.

         At the end of the hearing, the trial court declined to sign the findings submitted by

 the Aasebys and decided to review the issue further. Judge Austin stated, "Just factually

 there's enough in here, that I'd like to review this and write another memo. I'm not going

 to sign findings today. I know this is really a presentment. I'm not sure even findings are

 a way to go. There are things in [the Aasebys'] findings that I'm not sure I found." CP at

. 713.

         In August 2006, the trial court determined that the resolution of all the issues of

 the case depended on whether the Farmers policy covered Mr. Vue. The court stated,

 "[I]fthere is coverage, then all these other issues fall into place. If there isn't coverage,

 then I think the matter is pretty much at an end." CP at 169. The trial court stayed the

 case until the Farmers issue was resolved.

         F or the next few years, Farmers and the Aasebys litigated the coverage issue. In

 June 2007, the trial court concluded that the Farmers liability policy did not cover Mr.

 Vue at the time of the accident. The decision was upheld on appeal in 2009. Farmers

 Ins. Co. v. Vue, noted at 151 Wn. App. 1005,2009 WL 1941991.




                                                9

No.30093-5-III
Aaseby v. Vue


       Meanwhile, while Farmers Ins. Co. v. Vue was pending, Judge Austin retired.

Judge Linda Tompkins was assigned to preside over the Aasebys' action against Mr. Vue.

       The Aasebys' request for sanctions resurfaced in March 2011. The Aasebys filed a

motion for CR 11(a) and CR 26(g) sanctions based on Judge Austin's February 2006

letter opinion and based on the Aasebys' June 2006 proposed findings of fact and

conclusions of law. Judge Tompkins affirmed. A reasonableness hearing was set to

determine the amount of the sanctions.

       Mr. Delay filed a billing statement for fees incurred to litigate the Aasebys' claim.

Mr. Delay's billing statement included costs from 2003 to 2007, and 2011. Mr. Delay

declared that the fees were incurred as a direct result of Mr. Vue's and Mr. Miller's

misconduct and violation of the court rules. Mr. Delay also declared that no litigation

would have been necessary to obtain the Allstate policy limit for Vilay if Mr. Vue and

Mr. Miller had told the truth.

       At the reasonableness hearing, the trial court ordered sanctions against Mr. Miller

under CR 11 and CR 26 for failure to investigate. Judge Tompkins accepted and signed

extensive findings of fact and conclusions of law presented by the Aasebys. While the

findings memorialized Judge Austin's February 2006 letter decision, the findings did not

include Judge Austin's June 2006 oral decision in which he refused to sign the Aasebys'



                                             10 

No. 30093-5-111
Aaseby v. Vue


proposed findings and refused to impose sanctions. The findings also did not incorporate

Judge's Austin's August 2006 detennination that the appropriateness of sanctions

depended on whether Fanners coverage existed.

       The parties appeared for presentment ofjudgment. The Aasebys included Mr.

Miller's current law finn of J. Scott Miller, PLLC in the judgment. Mr. Miller argued to

remove his current law finn from the judgment because the finn was not in existence at

the time the sanctionable conduct took place and the finn did not participate in the

sanctionable conduct. The trial court agreed and removed the law finn of J. Scott Miller,

PLLC from the judgment. The trial court entered the judgment against Mr. Miller in the

amount of$46,285.27 to be awarded to Mr. Delay.

       Mr. Miller filed a motion for reconsideration. Mr. Miller contended that the

Aasebys misrepresented Judge Austin's ruling on sanctions. At the motion hearing, the

trial court ordered a transcription of the June 2006 hearing to detennine the scope of

Judge Austin's prior ruling.

      After reviewing the transcript, Judge Tompkins issued a letter in which she

recognized Judge Austin's refusal to sign the findings and his intention to review the

arguments and write another memo. Judge Tompkins stated in part that "[t]his transcript

casts doubt on the finality of the two earlier written memo decisions of Judge Austin



                                            1l
No. 30093-5-111
Aaseby v. Vue


which have been the foundation for the court's rulings to date. It also underscores the

importance of the question of whether the sanctions issue is or is not necessarily linked to

the dismissal vacation/liability issues." CP at 727. Judge Tompkins requested additional

briefing.

       Another hearing was held, and the trial court entered new findings of fact and

conclusions oflaw. The court concluded that Mr. Miller's lack of diligence in the answer

and discovery responses and withdrawal from the case warranted sanctions. However,

the court also concluded that Mr. Delay was in a position to investigate further the initial

information about Farmers insurance prior to the settlement, and could have cleared up

any ambiguity through further detailed discovery. Additionally, the court concluded that

Mr. Delay needlessly protracted a just determination of sanctions by failing to advise the

court that Judge Austin declined to enter the Aasebys' findings and conclusions.

Ultimately, the court ordered sanctions against Mr. Miller in the amount of $22,550 for

attorney fees and costs up to the July 1,2005 hearing.

       Mr. Miller filed a second motion for reconsideration, this time contesting the

amount of the sanctions. Mr. Miller contended that the award of sanctions was not

supported by Mr. Delay's cost bill. In response, the trial court revised the findings and




                                             12 

No. 30093-5-III
Aaseby v. Vue


conclusions. Based on Mr. Delay's declaration of costs dated May 20,2011, the court

reduced the reasonable attorney fees to $22,300.

       In March 2012, the Aasebys filed a motion requesting that the court compel Mr.

Miller to post a supersedeas bond in the amount of$65,000 pending the appeal ofthe

judgment. Mr. Miller opposed the motion. Mr. Miller contended that there is no

legitimate basis in law for a trial court to demand a supersedeas bond to be filed. Mr.

Miller requested CR 11 sanctions against the Aasebys for filing a frivolous and

unsupportable motion. The Aasebys filed a cross motion for sanctions.

       The next day, Mr. Miller paid the judgment and applicable interest. The court

denied the Aasebys' motion to compel a supersedeas bond. The trial court reserved the

issue on the attorney fees pending a decision on appeal.

       Mr. Miller appeals the imposition and the amount of sanctions. The Aasebys cross

appeal the trial court's decision to reduce the fees and to remove the law firm of J. Scott

Miller, PLLC from the judgment. The Aasebys also cross appeal the court's denial of

their request for attorney fees from their supersedeas motion.

                                       ANALYSIS

      Discovery Sanctions. A trial court's decision on discovery sanctions is reviewed

for an abuse of discretion. Wash State Physicians Ins. Exch & Ass'n v. Fisons Corp.,



                                             13 

No.30093-5-III
Aaseby v. Vue


122 Wn.2d 299,338,858 P.2d 1054 (1993). "A trial court abuses its discretion when its

order is manifestly unreasonable or based on untenable grounds." Id. at 339.

       CR 11 requires an attorney to certify that they have read each pleading, motion or

legal memorandum, and that to the best of the party's or attorney's knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances, the

forementioned document is: (1) well grounded in fact, (2) 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) 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.

       "CR 11 allows courts to impose sanctions upon a party and/or the attorney for

signing pleadings, motions or memoranda in violation of the rule." Blair v. GIM Corp.,

88 Wn. App. 475, 481-82, 945 P.2d 1149 (1997). "CR 11 imposes a standard of

'reasonableness under the circumstances.'" Bryant v. Joseph Tree, Inc., 119 Wn.2d 210,

220, 829 P.2d 1099 (1992). "The court should inquire whether a reasonable attorney in

like circumstances could believe his or her actions to be factually and legally justified."

Id. "The court is expected to avoid using the wisdom of hindsight and should test the


                                             14 

No. 30093-5-111
Aaseby v. Vue


signer's conduct by inquiring what was reasonable to believe at the time the pleading,

motion or legal memorandum was submitted." Id.

       Factors to be considered in assessing the reasonableness may include: (a) the time

available to the signer; (b) the extent of the attorney's reliance on others, including the

client, for factual support; (c) whether the signing attorney accepted the case from a

forwarding attorney; (d) the complexity of the factual and legal issues;

and (e) the need for discovery to develop factual circumstances underlying the claim.

Millerv. Badgley, 51 Wn. App. 285,301-02,753 P.2d 530 (1988).

       "CR 26(g) parallels CR 11." Demelash v. Ross Stores, Inc., 105 Wn. App. 508,

531, 20 P.3d 447 (2001). CR 26(g) provides that when responding to a discovery request,

an attorney must certify by signature that, after making a "reasonable inquiry," the

discovery responses are: (1) consistent with the rules, (2) not interposed for any improper

purpose, and (3) not unreasonable or unduly burdensome or expensive. "Reasonable

inquiry" is judged by an objective standard. Fisons, 122 Wn.2d at 343. "In determining

whether an attorney has complied with the rule, the court should consider all of the

surrounding circumstances, the importance of the evidence to its proponent, and the

ability of the opposing party to formulate a response or to comply with the request." Id.




                                              15 

No.30093-5-II1
Aaseby v. Vue


A response to a discovery request must be consistent with the letter, spirit, and purpose of

the rules. Id. at 344.

       Proof of intentional withholding of information is not required for sanctions to be

imposed under CR 26. Carlson v. Lake Chelan Cmty. Hasp., 116 Wn. App. 718, 739, 75

P.3d 533, review granted, 150 Wn.2d 1017 (2003). An inadvertent failure to disclose

information without a reasonable excuse is enough to establish a violation of the rule. Id.

       The purpose of CR 26 is to deter discovery abuses, which include delaying tactics,

procedural harassment, and mounting legal costs. Deme lash , 105 Wn. App. at 531.

       Sanctions are usually reserved for egregious conduct; they should not be viewed as

"simply another weapon in a litigator's arsenaL" Biggs v. Vail, 124 Wn.2d 193, 198 n.2,

876 P.2d 448 (1994).

       Mr. Miller contends that the trial court abused its discretion in issuing sanctions.

He assigns error to the trial court's conclusion that he failed to exercise diligence in

forming the answer and discovery responses and that he improperly withdrew before

identifying the parties. Mr. Miller maintains that he conducted a reasonable inquiry and

provided appropriate responses under the circumstances. 4



       4As a preliminary matter, Mr. Miller contends that the sanctions are improper
because he was not afforded due process rights. Before sanctions can be imposed, the
court must provide minimal due process rights to the opposing party, which is satisfied

                                              16 

No. 30093-5-III
Aaseby v. Vue


        The primary sanction able conduct that the trial court focused on was Mr. Miller's

certification of three errors: (1) the interrogatory answer that did not identify the Farmers

insurance policy, (2) the interrogatory answer that incorrectly listed Vilay as the

registered owner, and (3) the answer that admitted the false familial relationship of the

Vues.

        We conclude that the trial court erred by sanctioning Mr. Miller for this conduct.

First, in responding to the interrogatory and request for production regarding insurance

coverage, Mr. Miller conducted a reasonable inquiry under the circumstances before

certifying the discovery request. Mr. Miller sent the interrogatories to Mr. Vue, Agnes,

and Vilay and asked them to review the questions. Mr. Vue, who was the only party to

respond, was interviewed by Mr. Miller's office. Mr. Vue admitted that he did not tell

Mr. Miller about another insurance policy even though he told Mr. Aaseby at the accident

of the Farmers policy. Mr. Vue later justified withholding the information because he did

not think he was covered. Additionally, neither Allstate nor the Aasebys informed Mr.

Miller about another policy, although it appears both parties knew of the policy and were



with notice and an opportunity to be heard. Watson v. Maier, 64 Wn. App. 889, 899-900,
827 P.2d 311 (1992). Although Mr. Miller was not told about the initial sanction motions
and hearings, when the trial court realized the error, Mr. Miller was given notice of the
sanctions and was allowed to address the court on the issue. Minimal due process rights
were met.

                                             17
No. 30093-5-III
Aaseby v. Vue


in contact with Mr. Miller. In sum, after conducting a reasonable inquiry, Mr. Miller had

no knowledge ofthe Farmers policy and answered the interrogatory appropriately.

       As for the interrogatory regarding the registered owner of the car, Mr. Miller's

investigation into the matter was also reasonable. Vilay and Agnes did not respond to the

interrogatories served to their home address. However, Mr. Vue was interviewed by Mr.

Miller's office and responded that Vilay was the registered owner of the car. Mr. Vue

declared that he thought this was the correct answer at the time he was interviewed. As

additional verification of ownership, Allstate also told Mr. Miller that Vilay was the

registered owner of the car. Considering the uncontested information gathered from these

two sources, and considering that Vilay's insurance would cover the accident, it was

reasonable under the circumstances for Mr. Miller to indicate that Vilay was the

registered owner of the car.

       On the other hand, Mr. Miller violated CR 11 when he signed and verified the

answer to the Aasebys' complaint regarding Vilay's and Agnes's familial relationship.5

Mr. Miller filed the answer after Mr. Vue had met with Mr. Miller's office and corrected

the caption on the interrogatory request. Thus, Mr. Miller had implied knowledge that




      5 This error is not sanctionable under CR 26(g) because it does not involve a
discovery violation. Pleading violations are addressed under CR 11.

                                            18 

No.30093-5-III
Aaseby v. Vue


Agnes and Vilay were brother and sister to Mr. Vue. His answer admitting that Vilay and

Agnes were married parents of Mr. Vue was inaccurate and a pleading violation.

       But, sanctions under CR 11 are not warranted or reasonable for this insubstantial

violation. The family relationship was not crucial to the outcome of the litigation. Vilay,

as the legal owner of the car, as opposed to the registered owner, was still the responsible

party, regardless ifVilay and Agnes are parents or siblings of Mr. Vue. Furthermore, the

fact that Cheu and Pai were Mr. Vue's parents did not impede litigation. The Aasebys did

not assign fault to Mr. Vue's parents. Thus, it made no difference that Vilay and Agnes

were not Mr. Vue's parents.

       Moreover, Mr. Miller's conduct was not egregious. He simply admitted to a fact

that the Aasebys also assumed was true. 6 A trial court should be "reluctant to impose

sanctions for factual errors or deficiencies in a complaint before there has been an

opportunity for discovery." Bryant, 119 Wn.2d at 222. Sanctions should not be

encouraged for these errors because "[t]he notice pleading rule contemplates that

discovery will provide parties with the opportunity to learn more detailed information

about the nature of a complaint." Jd. The parties had just begun discovery when Mr.



      6Based on Mr. Aaseby's notes taken at the scene of the accident, the Aasebys had
knowledge that Cheu and Pai were family members of Mr. Vue. Mr. Aaseby noted these
names with Mr. Vue's Farmers policy information. No explanation is given as to how

                                            19 

No. 30093-5-111
Aaseby v. Vue


Miller answered the complaint. Thus, the trial court abused its discretion by sanctioning

Mr. Miller for this minor error.

       There is no indication that Mr. Miller's responses were provided for an improper

purpose. His responses were consistent with the rules. He conducted a reasonable

inquiry and properly certified the interrogatories and answer under CR 26(g) and CR 11.

The trial court abused its discretion in sanctioning Mr. Miller.

       The other sanctionable conduct found by the trial court was Mr. Miller's

withdrawal from the case. However, Mr. Miller's withdrawal as counsel was justified

and did not prolong litigation. The action between Mr. Vue and the Aasebys was settled

and dismissed. When the Aasebys brought the discovery issues to Mr. Miller, Mr. Miller

acted appropriately by informing the Aasebys that he no longer represented Mr. Vue on

the matter and then by informing Mr. Vue that he needed to contact the Aasebys. Once

Mr. Miller's notice ofwithdrawal was filed, Mr. Vue's new counsel immediately

addressed the issues raised by the Aasebys. The trial court abused its discretion by

sanctioning Mr. Miller for withdrawing from the case.

      Also, Mr. Miller's withdrawal does not appear to have been done in bad faith. In a

letter to Allstate on June 20,2005, Mr. Miller expressed his understanding that Allstate


they arrived at the conclusion that Agnes and Vilay were Mr. Vue's parents.

                                             20
No. 30093-5-111
Aaseby v. Vue


was reassigning Mr. Vue's matter to a new attorney, and indicated that he would maintain

the file and provide it to the new attorney. Mr. Miller also understood that he could

potentially be a witness in the case. Mr. Miller acted reasonably and was not required to

interject himself back into the case.

       The trial court abused its discretion in sanctioning Mr. Miller for violations of

CR 11 and CR 26.

       The outcome of the first issue is dispositive. As a result, we need not reach the

amount of the sanctions and the dismissal of Mr. Miller's law firm.

       Cross Motion {or Sanctions and Supersedeas Bond. A supersedeas bond stays

enforcement of a judgment while on appeal. RAP 8.1. "An appellant is under no

obligation to supersede a judgment or a decree appealed from. It is a right and a privilege

granted, in certain cases under certain conditions, to preserve the fruits of his appeal if he

prevails, but it is not something he is obliged to do." In re Estates o/Sims, 39 Wn.2d 288,

297,235 P.2d 204 (1951).

       The Aasebys contend that the trial court abused its discretion by not imposing

sanctions on Mr. Miller after Mr. Miller objected to filing a supersedeas bond. The

Aasebys contend that Mr. Miller misrepresented the law in his objection to their motion.




                                             21 

No.30093-5-II1
Aaseby v. Vue


They also contend that Mr. Miller's objection was a frivolous filing because a few days

after objecting, Mr. Miller paid the judgment in full.

       The trial court deferred judgment on the issue of sanctions to this court, to be

resolved on appeal. We determine that sanctions are not warranted. Mr. Miller provided

valid case law that casts doubt on whether the Aasebys can compel Mr. Miller to file a

supersedeas bond. Mr. Miller's objection was not frivolous, baseless, or filled with

misrepresentations. The Aasebys are not entitled to sanctions on their cross motion.

       We remand to the trial court to order that the Aasebys are not entitled to the

sanctions requested in their cross motion.

       Attorney Fees on Appeal. RAP IS.S(d) states that the remedy for a violation of the

rules of appellate procedure is set forth in RAP IS.9. "The court may condition the

exercise of its authority under this rule by imposing terms or awarding compensatory

damages, or both, as provided in rule IS.9." RAP IS.S(d). RAP IS.9(a) allows an

appellate court to sanction a party with terms or compensatory damages when the party

(l) uses the appellate court rules for the purpose of delay, (2) files a frivolous appeal, or

(3) fails to comply with the rules.

       Yet again, the Aasebys request sanctions against Mr. Miller, this time for his

actions on appeal. The Aasebys contend that Mr. Miller's entire appeal is frivolous. The


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Aasebys also contend that Mr. Miller's motion to dismiss the Aasebys' cross appeal as

untimely was a baseless and frivolous motion. The Aasebys request terms and reasonable

attorney fees under RAP I8.8(d) and RAP I8.9(a).

       We deny the Aasebys' request. Sanctions are usually reserved for egregious

conduct; they should not be viewed as "simply another weapon in a litigator's arsenal."

Biggs, 124 Wn.2d at 198 n.2. Mr. Miller's motion and appeal were not filed for the

purpose of delay, were not frivolous, and complied with the rules. Mr. Miller asserted

valid arguments on appeal. Sanctions are not warranted.

       Mr. Miller also requests attorney fees on appeal. He contends that the Aasebys

engaged in misrepresentations and frivolous claims at trial and on appeal. He relies on

RCW 4.84.185 as authority for attorney fees for baseless claims. RCW 4.84.185 allows

the prevailing party to recover attorney fees from the nonprevailing party for frivolous

actions. While the Aasebys' incessant request for sanctions is troublesome, we deny Mr.

Miller's request. The Aasebys' initial request for CR 11 and CR 26(g) sanctions was not

frivolous and formed a reasonable basis for appeal.

       We reverse the trial court's imposition of sanctions against Mr. Miller. We deny

both parties' request for attorney fees on appeal. Finally, we remand to the trial court for

denial of the Aasebys' April 2012 cross motion for sanctions.


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No. 30093-5-111
Aaseby v. Vue


      A majority of the panel has detennined 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.


                                         Kulik, J.

WE CONCUR:




                                         Brown, J.




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