Opinion
No. 53549-8-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 02-2-01116-7. Judgment or order under review. Date filed: 12/05/2003. Judge signing: Hon. David a Nichols.
Counsel for Appellant(s), James Edward Britain, Carpenter Hardesty Britain PLLC, 222 Grand Ave Ste a, PO Box 367, Bellingham, WA 98227-0367.
David Nelson Bruce, Savitt Bruce LLP, 1325 4th Ave Ste 1410, Seattle, WA 98101-2509.
Counsel for Respondent(s), Douglas Ross Shepherd, Shepherd Abbott, 114 W Magnolia St Ste 300, Bellingham, WA 98225-4354.
D. Murphy Evans, Brownlie Evans Wolf Lee LLP, 100 Central Ave, Bellingham, WA 98225-4406.
A dispute among neighbors escalated into this lawsuit. Michael and Debbie McKinney believed that their neighbors Peter and Lynn Ostrovsky and George and Elizabeth Olsen had 'appropriated' the main access road in their neighborhood by allowing their children to play in the street, allowing their childrens' toys to be in the street, allowing their dogs to be in the street, directing traffic around their children and dogs, and drawing with chalk on the street. After a physical altercation between Michael McKinney and Lynn Ostrovsky, the McKinneys filed a lawsuit claiming assault, public nuisance, false imprisonment, outrage, and defamation. All of the claims were ultimately dismissed, and the court sanctioned the McKinneys and their attorney for filing frivolous claims under RCW 4.84.185 and CR 11. They appeal. We affirm with respect to the judgments in favor of the Olsens, but reverse with respect to the judgment in favor of Peter Ostrovsky.
FACTS
This suit arose out of a neighborhood dispute regarding the proper use of a public roadway. Michael and Debbie McKinney moved to the neighborhood on Garden Terrace Road in Bellingham, Washington in September 1999. At that time Peter and Lynn Ostrovsky and George and Elizabeth Olsen had been neighbors on Garden Terrace Road for at least six years and were friends. Garden Terrace is a narrow, winding, wooded street with no sidewalks and virtually no shoulders. All the houses are on the west side of the street; the east side is a steep hill. People who live in the neighborhood walk their dogs and ride their bicycles on the narrow roadway, and their children play in the street.
On May 14, 2002, Mr. McKinney confronted Ms. Ostrovsky about his perception that the Ostrovskys and others in the neighborhood were purposefully obstructing the McKinneys' travel on the narrow roadway. A physical altercation occurred. Two weeks later, the McKinneys sued the Ostrovskys for assault and defamation, and sued both the Ostrovskys and Ms. Olsen for public nuisance as defined by RCW 7.48, for blocking the roadway.
The specific acts of which the McKinneys complained were outlined in Mr. McKinney's declaration dated May 30, 2002, submitted with a motion for a preliminary injunction on the nuisance claims. The declaration alleged specific incidents, as well as general conduct, involving the Ostrovskys:
From January 2000, through September 2001, Ms. Ostrovsky showed an increase in aggression when passing Mr. McKinney when they both walked on the street. When Mr. McKinney was walking his dog and she was driving her SUV, she began to drive 'unnecessarily close.'
One day in the spring of 2000, Ms. Ostrovsky blocked the passage of Mr. McKinney's vehicle while she was in her vehicle talking to a young man in a yard. Mr. McKinney was detained for about 30 seconds.
Through the summer and fall of 2000, when the Ostrovskys would see Mr. McKinney riding his bicycle or walking his dog, they would approach him aggressively in their SUVs and Mr. McKinney would move out of the way. But when he was in his vehicle and they were pedestrians, they would impede his passage with their dog or children.
On Memorial Day in 2001, when bicycling home, Mr. McKinney encountered the Ostrovskys' dog tied to one of their SUVs, lying in the middle of the street. Mr. Ostrovsky was raising a flag, and watched as his dog blocked Mr. McKinneys' path, and did nothing to prevent it.
By June and July 2001, the Ostrovskys' twin toddlers were walking; their parents encouraged them to play in the center of the street with wagons and tricycles. The Ostrovskys allowed their dog to roam unleashed.
In late August of 2001, Mr. McKinney observed Mr. Ostrovsky running around in the middle of the street with his toddlers, and Mr. McKinney stopped his truck. After Mr. Ostrovsky gathered the children and moved to the side, Mr. McKinney proceeded, but one of the children escaped Mr. Ostrovsky and ran into the road. Mr. McKinney stopped 5 or 6 feet from the child. When he drove away, he observed Mr. Ostrovsky resuming play with the children in the street. Mr. McKinney returned and complained to Mr. Ostrovsky that he was turning the street into a playground.
Over Labor Day weekend of 2001, the McKinneys left their home in their vehicle and were confronted by the Ostrovskys and their children and another parent and child, who stood in the street and blocked their path. Ms. Ostrovsky had a 'smirk on her face.'
On September 21, 2001, Ms. Ostrovsky was in the middle of the street accompanied by her children on tricycles, and Mr. McKinney stopped his vehicle until the children and their mother moved aside. A ball remained in the road, and rather than drive in the narrow space between the people and the ball, Mr. McKinney got out of his vehicle and removed the ball. Ms. Ostrovsky responded by saying, 'Why don't you just learn how to drive, moron?' and 'When are you going to learn to just go the other way? Why is it such a big deal that you have to go this way?' and told Mr. McKinney that he should learn the 'rules of the block' or move elsewhere. Mr. McKinney retorted that she was threatening her children by encouraging them to play in the street and said, 'your kids aren't going to make it.' Mr. McKinney reported this and other incidents to the Bellingham police.
On January 4, 2002, Mr. McKinney was leaving his home when he observed Ms. Ostrovsky with her twins on tricycles and their dog, all in the street. Mr. McKinney had to stop his vehicle while Ms. Ostrovsky directed her children to the other side, retrieved the dog, and glared at him.
During the first week of April 2002, Ms. Ostrovsky twice veered toward Mr. McKinney in her SUV as he was cycling on Garden Terrace Road.
On May 8, 2002, the McKinneys observed that the entire street in front of the Garfinkle and Ostrovsky homes was covered with chalked graffiti, including hundreds of words and pictograms of children and flowers in various colors and a sign reading 'SLOW DOWN FOR CHILDREN — CAUTION SLOW CAREFUL.' The McKinneys did not see who made the graffiti.
Shortly after May 14, 2002, more graffiti appeared on the street stating 'Our Neighborhood.' The McKinneys did not see who drew the graffiti.
Clerk's Papers at 1345-1363.
Mr. McKinney described a May 14, 2002, incident with Ms. Ostrovsky in detail. He stated that he was bicycling on Garden Terrace Road when he encountered Ms. Ostrovsky with her children on their tricycles and her dog on a lead, in the middle of the road. He said she told her children, 'stay right there' and positioned them to block his passage. When one of the children said 'hi' to him, Mr. McKinney said, 'it seems your mom and I disagree about you blocking the street.' He stated that Ms. Ostrovsky told him, 'We're going to keep blocking you until we drive you out of the neighborhood.' Mr. McKinney circled back on his bike, exchanged angry words, and then tried to leave but Ms. Ostrovsky lunged at his throat with her dog's lead, which stretched across the road at chest height, and pushed him off his bicycle. When Mr. McKinney said that she had crossed the line into assault, Ms. Ostrovsky responded, 'there are no witnesses' and then slapped Mr. McKinney when he rose to his feet. Mr. McKinney used his bike to push her away and Ms. Ostrovsky called him a 'pussy' and 'crazy man.' Clerk's Papers at 1345-63.
Mr. McKinney's declaration also outlined the following specific incidents involving Ms. Olsen:
A few weeks after the McKinneys moved into the neighborhood, Ms. Olsen used her 'disabled arm' as a traffic signal to say 'slow down' to Mr. McKinney.
Ms. Olsen let herself into the Ostrovskys' home to find a tree saw to help Mr. McKinney cut up a tree limb and said, 'That's the way we do things around here.'
In April of 2001, when bicycling home, Mr. McKinney saw Ms. Olsen leading her dog on a line with her 'one intact arm'. Ms. Olsen did not have good control of the dog, and allowed it enough slack to cross the street to block Mr. McKinney's path, encircle him with the line, and cause him to fall to the ground.
In August of 2001, Ms. McKinney was 'accosted' twice by Ms. Olsen who was standing in the middle of the street directing traffic with her 'deformed arm.' Ms. McKinney was brought to a complete stop in her vehicle, both times. Ms. Olsen confronted Ms. McKinney the second time and demanded that she slow down since children live on the street.
In mid-January of 2002, the McKinneys were twice 'harassed' by Ms. Olsen. Once, the McKinneys stopped their vehicle while Ms. Olsen slowly pulled her leashed dog out of the center of the street on a long line. A second time, the dog only slowed the McKinneys' progress, rather than stopping it altogether.
Clerk's Papers at 1345-1363.
In response to Mr. McKinney's accusation that she had assaulted him, Ms. Ostrovsky asserted that Mr. McKinney had ridden his bike in a circle around her children in a threatening manner and said, 'Your mommy is teaching you to ride in the street again,' and that her children began to cry. She stated that when she tried to pick up one of the children, Mr. McKinney blocked her path with his bicycle and said, 'Didn't I pet Lynn enough when I first moved into the neighborhood? What's the matter . . . didn't I pay enough attention to Lynn?' Clerk's Papers at 1299-1300. Ms. Ostrovsky said that she had to push Mr. McKinney away to reach her child, and then he hit her with his bike. So she slapped him, gathered her up children, and headed to her house followed by Mr. McKinney, who was yelling and threatening her.
Mr. Ostrovsky declared, similarly to his wife, that the McKinneys regularly exceeded the 25-mile an hour speed limit on the narrow road, that the road was used daily by neighbors for riding bikes and walking dogs, and that he had never obstructed or unlawfully impeded travel on the roadway. Mr. Ostrovsky further declared that he had repeatedly observed Mr. McKinney drive by his house and yell at him and his wife and that he had reached the conclusion that Mr. McKinney was 'unstable.'
Ms. Olsen submitted a declaration in which she admitted to helping Mr. McKinney borrow a tree saw and to waving at the McKinneys, asking them to slow down, when they drove on the road. She stated that she thought these were neighborly actions. She also admitted that Mr. McKinney fell over on his bike, but said that it had nothing to do with her dog. She denied that there had been any effort to build a blockade on Garden Terrace to keep the McKinneys or anyone else from proceeding up or down the road. In June 2002, the court denied the McKinneys' motion for a preliminary injunction. During the hearing, the court stated, 'Neighbors invariabl[y] get on each other's nerves or irritate one another from time to time. However, in this instance, to talk about irreparable harm is to elevate this lawsuit to a level that it can never reach[.]
. . . This request and this lawsuit verge on the frivolous.' Report of Proceedings 06/21/02 at 16. Soon after this, the McKinneys' original counsel withdrew and their current counsel, James E. Britain, substituted in the suit.
In September 2002, Ms. Olsen filed a motion for summary judgment seeking dismissal of the public nuisance claim. Thereafter, the McKinneys sought to amend the complaint to add Mr. Olsen to the suit, and to add claims of false imprisonment and outrage against both the Olsens and the Ostrovskys. The McKinneys did not offer any additional support for these new causes of action at the time of filing this motion. At hearing, the court stated, 'I don't hear anything with Ms. Olsen specifically that justifies a tort of outrage or unlawful imprisonment.' Report of Proceedings 10/18/02 at 21-22. The court granted the motion to add Mr. Olsen, but denied the McKinneys' motion to amend the complaint, without prejudice, pending development of facts that would support the additional causes of action. Thereafter, depositions of the Ostrovskys and the McKinneys were taken. In deposition, Ms. Ostrovsky admitted to using chalk with her children to draw on the street, once or twice a month. She observed the big chalk drawing that appeared on the street in May of 2002, but stated that she did not help draw it or know who did it. She admitted that she played with her children in the middle of the street for an hour about five or six times a week, and had done so for the past year. Ms. Ostrovsky also admitted that toys, such as bicycles, strollers, or balls, were present in the street, and that traffic cones were sometimes present at the bumper-end of cars. She had observed vehicular traffic being slowed, but not stopped, by the activities in the street, and admitted that the McKinneys had been slowed by the activity. She stated that she and Ms. Olsen were friends and that Ms. Olsen was present about twice a month, when people were playing in the street.
Ms. Ostrovsky described the May 14, 2002, incident in the same manner as in her prior declaration. She emphasized that Mr. McKinney circled the children on his bike in a 'threatening manner' and upset them with his words. She denied having said that she was going to keep blocking him until he moved from the neighborhood, and denied ever swerving at Mr. McKinney when she drove on Garden Terrace Road. Ms. Ostrovsky admitted that she believed that Ms. McKinney had reported her family to Child Protective Services (CPS), and that she had told various neighbors that if this were true she thought it was very malicious. She also admitted that she had told several neighbors that she thought Mr. McKinney was crazy. Mr. Ostrovsky stated that while he did not know how the large chalk drawing got on the road, he and his wife sometimes drew in chalk with their children in the street. He also stated that he had seen childrens' tricycles, adult bicycles, and a ball in the area, as well as traffic cones on the side of the street. Mr. Ostrovsky asserted that he had never observed vehicular traffic stopped by the activities of the children and adults or the objects in the street, but that he had seen traffic slowed, and that Mr. McKinney had been slowed on the day that he stopped to yell at him and his sons that the street was not a playground. Mr. Ostrovsky stated that he had told two neighbors that Mr. McKinney had hit his wife with a bicycle, and that she had slapped him in self-defense, and he admitted that he had written the City of Bellingham requesting a speed study on Garden Terrace Road.
During his deposition, Mr. McKinney admitted that he hit Ms. Ostrovsky with his bicycle on May 14, but said that this was after he was nearly strangled by the dog leash, and after she slapped him. He stated that he had learned from a neighbor that Ms. Ostrovsky had been calling him a 'nut' for several years and making other pejorative comments about him.
During Ms. McKinney's deposition, she stated that she had called CPS because she feared for the safety of the Ostrovsky children because they were not well supervised.
On November 1, 2002, the McKinneys filed a second motion to amend their complaint, again seeking to assert a false imprisonment claim against Ms. Olsen. To support this motion, the McKinneys filed additional declarations. These declarations were similar to their depositions and first declarations. Mr. McKinney additionally claimed that he had seen Ms. Olsen 'participating' in the playground area and obstructing the use of the road on at least 12 occasions, by standing in the middle of the road or in the road towards the edge. They also filed declarations from neighbors. Charles Israels declared that he had lived on Garden Terrace Road for 16 years and that in the spring of 2002, he had noticed one of the Ostrovsky toddlers walking down the road unaccompanied by any adults. He ran out to the child and observed the Ostrovskys and their second child walking 20 yards away from the toddler. Mr. Israels said that he had seen signs outside of the Ostrovskys' home and written on the street stating 'slow down' and 'kids playing here,' and that he had seen chalk art such as hopscotch squares. Carol Ann Wiseman declared that she had lived on Garden Terrace for 17 years, and that for the past two years she had been concerned for the safety of the Ostrovsky children, whom she had observed playing in close proximity to the road. She also had seen chalk-written signs on the roadway in front of the Ostrovskys' home stating 'slow' and 'children at play.'
After receiving this additional evidence, the court granted the Olsens' summary judgment motion dismissing the public nuisance claim and denied the McKinneys' motion for leave to amend to add the claims of false imprisonment and outrage, with prejudice. The Court commented that the facts stated by the McKinneys were insufficient to support a suit for nuisance, outrage, or false imprisonment, and stated, 'We are on the verge of getting this matter declared frivolous on a Civil Rule 11 basis.' Report of Proceedings 11/15/02 at 24.
The Olsens subsequently filed a motion for sanctions against the McKinneys and their attorney, James E. Britain, under CR 11 and RCW 4.84.185, asserting that all the claims made against the Olsens were frivolous and made without proper investigation into the facts and the law. This motion was accompanied by declarations by Ms. Olsen and her attorney, Murphy Evans, outlining the attorney fees and costs the Olsens had incurred in defending against the lawsuit.
The McKinneys and Mr. Britain filed a memorandum in opposition, asserting that the McKinneys relied on seven declarations and extensive factual and legal research conducted by their attorney. Mr. Britain's declaration included attached declarations from two additional neighbors, Nancy Ghali and Karen Copher. Nancy Ghali declared that she had lived on Garden Terrace Road for eight years and that for the period from at least September 2001, through May 2002, the Ostrovskys' children and other young children had regularly played in the middle of the street, accompanied by their parents. She stated that she had observed various toys and objects on the street as well as chalk writing, drawings and figures 'such that one would have to be on hands and knees in the middle of the street' in front of the Ostrovskys' home in order to draw them. Ms. Ghali stated that she had been slowed at this area of Garden Terrace when returning home, due to children, adults and dogs playing or standing in the middle of the road as well as 'assorted objects blocking my path.'
Karen Copher declared that she had lived on Garden Terrace Road for five years and that she often talked to Ms. Ostrovsky. She stated that in early summer of 2001, Ms. Ostrovsky referred to Mr. McKinney as a 'nut case' and asserted that he had threatened her children on the street one day by saying 'Lady, your child is going to be killed in the street.' Ms. Copher said she interpreted this statement more as cautionary than threatening. Ms. Copher declared that in late summer 2001, Ms. Ostrovsky said that she had a 'plan' to get the McKinneys out of the neighborhood. Ms. Copher also stated that during a Christmas party in 2001, Ms. Ostrovsky stated, in reference to Mr. McKinney, 'I tend to lose control around that guy.' Ms. Copher believed the neighborhood unrest arose in part out of 'the belief of the Ostrovskys and their neighbors, the Garfinkles, that they have the right to use the street and place barriers in the street to create a play area for their children in the street.' She stated that on at least one occasion when driving home she had been forced to stop and wait in the street while four small children and a dog were removed from the street.
Clerk's Papers at 934-37.
After receiving this additional evidence, the trial court granted the Olsens' motion for sanctions. The trial court ruled that the McKinneys' claims for public nuisance, false imprisonment, and outrage were not well grounded in fact, not warranted by existing law, and were frivolous and advanced without reasonable cause. The court found that Mr. Britain, the McKinneys' attorney, 'did not conduct reasonable inquiry into the factual or legal basis' for the claims of false imprisonment and outrage. Clerk's Papers at 27. The court awarded the Olsens $19,801.60 against the McKinneys for attorney fees under RCW 4.84.195. The court also imposed, as part of the same sanctions and not in addition to them, $18,425.60 against the McKinneys for CR 11 violations, and $6,945.44 against Britain, jointly and severally with the McKinneys, for CR 11 violations. These judgments were entered on January 10, 2003.
In April 2003, the Ostrovskys moved for summary judgment dismissing the nuisance and defamation claims against them, but not the assault claim. By then, the McKinneys had decided to give up and move from the neighborhood. They voluntarily dismissed all of their claims against the Ostrovskys, including the assault claim.
Thereafter, in July 2003, the Ostrovskys filed a motion claiming that all of the McKinneys' claims against the Ostrovskys had been frivolous, and requesting an award of attorney fees pursuant to RCW 4.84.185. The McKinneys filed their opposition on August 18, 2003, attaching additional declarations of both the plaintiffs and their attorney, James E. Britain. These documents contained nothing of significance that had not already been stated in earlier declarations.
In September 2003, the trial court issued a memorandum opinion concluding that the McKinneys could not be sanctioned under RCW 4.84.185 because the assault claim against Lynn Ostrovsky had been viable, and RCW 4.84.185 sanctions were not awardable unless the entire claim was frivolous. Thereafter, Peter Ostrovsky filed a motion for reconsideration, seeking an order of sanctions with respect to all the claims as they related solely to him. The McKinneys opposed the motion, arguing that by Lynn Ostrovsky's version of events, she committed the assault to protect the children, and so it was committed in furtherance of the marital community interest.
On October 10, 2003, the trial court granted Peter Ostrovsky's request for sanctions. The court said:
Plaintiffs argue strongly that the alleged acts of Mrs. Ostrovsky were done in furtherance of a community enterprise: protecting her children. However, there is no evidence of that. As argued, this was a personality clash between Mr. McKinney and Mrs. Ostrovsky. They did not like each other, and tempers exploded. The children were never at risk. The altercation complained of had nothing to do with Mr. Ostrovsky, and the act of suing him as well as his wife and their marital community does not change that.
Clerk's Papers at 99.
Thereafter, the court entered an order and judgment holding that, with the exception of the claim of assault against Lynn Ostrovsky, all of McKinney's claims against her were without merit and were advanced without reasonable cause. The court also held that all of the claims against Peter Ostrovsky were without merit and advanced without reasonable cause, and thus the suit against Peter Ostrovsky was frivolous in its entirety. Pursuant to RCW 4.84.185, the court ordered the McKinneys to pay attorney fees of $8,298 and costs of $78.26 half the total amount incurred by the Ostrovskys for defending against the lawsuit which the court found were reasonably incurred by Peter Ostrovsky up to the time the McKinneys voluntarily dismissed their claims.
The McKinneys and their attorney James E. Britain appeal the trial court's award of sanctions in favor of Peter Ostrovsky pursuant to RCW 4.84.185, and to the Olsens pursuant to CR 11 and RCW 4.84.185. The McKinneys do not claim that the amounts were unreasonable, but rather that sanctions should never have been imposed.
DISCUSSION I. CR 11 and RCW 4.84.185
The appropriate standard of review regarding sanctions under either RCW 4.84.184 or CR 11 is abuse of discretion. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998). The question on appeal is whether the trial court's award of fees under either the statute or the rule was manifestly unreasonable or based on untenable grounds or reasons. Tiger Oil Corp. v. Department of Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
RCW 4.84.185, as amended in 1991, provides in part:
In any civil action, the court having jurisdiction may, upon written findings by the judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense.
RCW 4.84.185 allows for recovery of attorney fees and costs by the prevailing party where the lawsuit is found to be 'frivolous.' Generally, a lawsuit or an appeal is frivolous when it cannot be supported by any rational argument on the law or facts or 'if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.' Quick-Ruben, 136 Wn.2d at 905 (citations omitted); Tiger Oil Corp., 88 Wn. App. at 938. An award of attorney fees under RCW 4.84.185 requires that '[t]he lawsuit as a whole, that is in its entirety, must be determined to be frivolous and to have been advanced without reasonable cause[.]' Biggs v. Vail, 119 Wn.2d 129, 137, 830 P.2d 350 (1992) (Biggs I).
The Ostrovskys' assertion that attorney fees may now be awarded for a frivolous claim under RCW 4.84.185 even where some, but not all, of the claims in a suit are frivolous, is incorrect. Although the 1991 amendments to RCW 4.84.185 deleted the sentence: 'The judge shall consider the action, counterclaim, cross-claim, third party claim, or defense as a whole' from the statute, courts still require the entire suit to be frivolous before awarding fees. Laws 1991, ch. 70, sec. 1. See, e.g., Quick-Ruben, 136 Wn.2d at 903 (citing current version of RCW 4.84.185 and holding the entire claim must be frivolous to award fees); Biggs I, 119 Wn.2d at 136-37 (emphasizing that the 1991 legislative report about the amendment indicated a clear intent of the Legislature that courts continue to examine the action or lawsuit as a whole when determining if it is frivolous); Forster v. Pierce County, 99 Wn. App. 168, 183-84, 991 P.2d 687 (2000). Thus, in determining whether the trial court abused its discretion in awarding fees under RCW 4.84.185, we must decide whether the trial court abused its discretion in holding that all claims advanced against Peter Ostrovsky and the Olsens were unsupported by any rational argument on the law or facts and advanced without reasonable cause.
CR 11, another basis for sanctions, requires attorneys to date and sign all pleadings, motions and legal memoranda. Such signature constitutes the attorney's certification that:
to the best of the attorney's knowledge, information, and belief, formed after reasonable inquiry it [the pleading, motion or memoranda] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
In order to award sanctions under CR 11, the trial court must make a finding either that the claim is not grounded in fact or law and the attorney or party failed to make a reasonable inquiry into the law or facts, or that the paper was filed for an improper purpose. Biggs v. Vail, 124 Wn.2d 193, 200-01, 876 P.2d 448 (1994) (Biggs II). 'In deciding whether the trial court abused its discretion, we must keep in mind that '[t]he purpose behind CR 11 is to deter baseless filings and to curb abuses of the judicial system.'' Biggs II, 124 Wn.2d at 197 (quoting Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992)). Thus, the court should inquire whether a 'reasonable attorney in like circumstances' could believe his or her actions to be factually and legally justified. Bryant, 119 Wn.2d at 220 (citing Doe v. Spokane Inland Empire Blood Bank, 55 Wn. App. 106, 111, 780 P.2d 853 (1989)). We must determine whether the trial court abused its discretion in finding that CR 11 was violated.
II. Claims Against the Olsens
In finding that the McKinneys violated RCW 4.84.185 and that they and their attorney violated CR 11, the trial court held that their claims for public nuisance, false imprisonment, and outrage against the Olsens were not well grounded in fact, not warranted by existing law, and were frivolous and advanced without reasonable cause. The court also held that Mr. Britain, the McKinneys' attorney, 'did not conduct reasonable inquiry into the factual or legal basis' for the claims of false imprisonment and outrage, as required by CR 11. Even though the McKinneys ultimately were not allowed to amend their complaint to add the claims of false imprisonment and outrage, the court sanctioned the McKinneys and Mr. Britain for costs and fees the Olsens incurred in defending against the motions to amend with respect to those claims. Because all claims must be frivolous to award fees under RCW 4.84.185, we examine whether the trial court abused its discretion with respect to all claims against the Olsens.
A. Public Nuisance
The McKinneys assert that their public nuisance claim against the Olsens rested on the straightforward application of various nuisance statutes and common law to the facts in the case, many of which are undisputed. RCW 7.48.010 defines an 'actionable nuisance' and provides:
The obstruction of any highway or the closing of the channel of any stream used for boating or rafting logs, lumber or timber, or whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief.
RCW 7.48.120 also defines a nuisance, and provides: Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.
Finally, RCW 7.48.140 sets forth various public nuisances and provides, in part: 'It is a public nuisance . . . [t]o obstruct or encroach upon public highway, private ways, streets, alleys[.]' RCW 7.48.140(4). The McKinneys assert that the facts provided by them to the trial court and the cases interpreting these statutes establish that their claim of public nuisance was well grounded in fact, warranted by existing law, not frivolous, and not advanced without reasonable cause as prohibited by RCW 4.84.185.
A public nuisance is 'one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.' RCW 7.48.130. A claim for public nuisance also requires a showing of evidence of some special injury. See, e.g., State ex rel. Vandervort v. Grant, 156 Wash. 96, 99-103, 286 P. 63 (1930) (petitioner who claimed that permanent stalls erected at Pike Place should be removed denied relief because the petitioner was unable to show he had suffered an injury distinct from that of the general public). Finally, the petitioner must show that the 'obstruction' at issue constitutes a nuisance. The cases discussing whether a particular 'obstruction' constitutes a nuisance have focused on the permanent nature of the 'obstructions' at issue. See, e.g., Grant, 156 Wash. 96 (permanent stalls erected at Pike Place, a public street, constituted public nuisance under statutes similar to RCW 7.48.120 and RCW 7.48.140(4)); West v. Keith, 154 Wash. 682, 684-85, 693, 283 P. 198 (1929) (permanent structures erected on public highway constituted public nuisance); State v. Camp Lewis Serv. Garage Co., 129 Wash. 166, 169-70, 224 P. 584 (1924) (gasoline pump and tanks encroaching upon highway constituted public nuisance). It is true that in at least one case the Supreme Court did not describe the types of 'obstructions' constituting a public nuisance, but the court did not go so far as to say that any type of obstruction of traffic, no matter how transitory or impermanent, constitutes a public nuisance. See Okanogan County v. Johnson, 156 Wash. 515, 287 P. 15 (1930).
Respondents Ostrovskys also cite Burback v. Bucher, 56 Wn.2d 875, 879, 355 P.2d 981 (1960) to illustrate that cattle blocking a roadway is not considered a nuisance under RCW 7.48.010, 7.48.020, and 7.48.140. However, the court in Burback recognized that cattle owners in Washington have a fundamental and historical right to the use of highways and that injured parties have sufficient remedies under the law of negligence. Burback, 56 Wn.2d at 879 (citing RCW 16.24.065 and 16.24.070). Thus, this case is inapplicable here.
Further, occasional minor annoyances, such as discreet instances of public drinking, foul or profane language, nudity, the noise from children playing, and other similar behaviors at a privately run beach and camp, have not constituted a public nuisance for abutting property owners. State ex rel. Warner v. Hayes Inv. Corp., 13 Wn.2d 306, 310-14, 125 P.2d 262 (1942). Likewise, 'ordinary noise resulting from attendance of people at a picnic or recreation ground, conducting themselves in an orderly manner, during the day time and early evening, does not constitute a nuisance' even though such noise might occur in conjunction with the opening of a resort in a lakeside neighborhood. Warner, 13 Wn.2d at 311 (citing Turtle v. Fitchett, 156 Wash. 328, 331, 287 P. 7 (1930)).
No Washington cases address the exact type of road 'obstruction' claimed here probably because lawsuits like this one, mercifully, are rare. But clearly these neighborhood activities were relatively minor annoyances similar to those at issue in Warner; as such, they were not truly nuisances.
Two out-of-state cases illustrate the difference between relatively minor annoyances and true nuisances. In Beaver v. Batrouny, 71 A.D.2d 821, 419 N.Y.S.2d 391 (1979) four juveniles were playing touch football in the middle of a street in the town of Niagara Falls when one of them failed to see that the plaintiff, a pedestrian, was crossing the street. The player ran into her and she was injured. She sued all four boys on the theory that the game they played in the public street was a nuisance that had caused her injury. Following a defense verdict, the plaintiff appealed. The court affirmed, ruling that the plaintiff had not been entitled to a jury instruction on nuisance:
To constitute a public nuisance, the boys' conduct must have been unreasonable and must have substantially interfered with the rights of others in the public highway (see Prosser on Torts (4th ed.), p. 573 et. seq.). The conduct of four teenage boys playing touch football hardly falls into that category. For similar reasons the court correctly refused to charge that the conduct was a public nuisance because it violated the provisions of section 240.20(5) of the Penal Law which prohibit obstructing vehicular or pedestrian traffic[.]
Id. at 392 (citation omitted).
At the other end of the spectrum, in Commonwealth v. Brown, 7 Pa. D. C.3d 418 (1978), the mother of five daughters permitted them to run wild through the neighborhood, beating up other children, threatening physical violence, using vile language, playing loudly amplified music, inviting in unruly crowds of youths, throwing rocks at people, throwing trash onto other people's property and even into their homes, and knocking on doors as late as 3 a.m. Not only did the mother make no attempt to control her children, but she also told neighbors who complained that nothing could be done to her because she was on welfare, and nothing could be done to the children because they were minors. When the neighbors called police, the mother declared that she was turning her daughters loose on the neighborhood and that the neighbors would pay for having called the police. After that, things got worse. Finally, a number of the neighbors circulated a petition alleging that the mother and her children were a public nuisance, and presented it to the prosecuting authority. The prosecutor filed a criminal complaint, and the mother was convicted. She brought a post-trial motion challenging the sufficiency of the evidence to convict her. The court denied the motion, and ordered that the mother be presented for sentencing:
A nuisance is such a course of conduct as transgresses the just restrictions upon conduct which the proximity of other persons or property in civilized communities imposes upon what would otherwise be rightful freedom[.] The common good certainly requires that parents residing with their children in close proximity to others in an urban residential neighborhood control and supervise their offspring. In neglecting to do a thing required by the common good, defendant created and maintained a public and common nuisance[.] Her children clearly interfered with her neighbor[s'] rights to the comfortable enjoyment of their lives and property.
Id. at 424 (citations omitted). The court concluded that the mother's conduct had been comparable to that of 'keeping a dangerous, vicious, trespassing and barking dog[.]' Id. at 426 (citation omitted). Given the conduct of the five children described in the opinion, we can only agree. The conduct of Ms. Olson, as well as that of the Ostrovskys, was a far cry from that of the mother in Brown. Certainly Mr. McKinney was not the only resident on Garden Terrace Road who was inconvenienced by the Ostrovskys' insistence that their children play in the street though we perceive from the record that he set himself up as a target by confronting the Ostrovskys about the situation, after which the Ostrovskys no doubt went out of their way to be annoying to him. Still, we see no abuse of discretion in the trial court's determination that the conduct at issue here, whether that of Ms. Olsen or that of the Ostrovskys, did not rise to the level of public nuisance. No doubt the Ostrovskys in particular made 'nuisances' of themselves in the popular sense, but allowing children to play in the streets while supervised by adults, and allowing dogs to be in the street on long leashes, and drawing on the streets with chalk causing neighbors headed in or out to have to slow or stop momentarily while kids, dogs and tricycles are cleared to one side does not rise to the level of public nuisance in the legal sense no more than did the touch football game in Beaver.
Parenthetically, we are dismayed by Mr. McKinney's repeated and entirely unnecessary emphasis on Ms. Olsen's arm which seemed to give him special offense. We even wonder whether he would have sued Ms. Olson for public nuisance if she had done exactly the same thing but not had the condition. Be that as it may, raising an arm and asking neighbors to slow down, walking one's dog on a long leash instead of a short one, and standing and watching children playing in the street cannot under any stretch of the imagination be considered a public nuisance.
B. False Imprisonment
The McKinneys assert that their false imprisonment claim against the Olsens was not frivolous because the claim requires only restraint, not total confinement. They assert that their evidence of Ms. Olsen's repetitive obstructions of their progress is evidence of her intent to deprive them of their liberty and freedom of movement. The cases that the McKinneys rely upon involved sheriff deputies or store security guards confronting individuals, rather than a neighbor and the actions involved here. See, e.g., Harris v. Stanioch, 150 Wash. 380, 384, 273 P. 198 (1928); Moore v. Pay'N Save Corp., 20 Wn. App. 482, 581 P.2d 159 (1978). Nevertheless, these cases are instructive to illustrate why no false imprisonment action lies here.
'In an action for false imprisonment, the plaintiff must prove that the liberty of his or her person was restrained.' Moore, 20 Wn. App. at 486 (citing William L. Prosser, Law of Torts sec.11 (4th ed. 1971)). A person is restrained or imprisoned when 'he is deprived of either liberty of movement or freedom to remain in the place of his lawful choice; and such restraint or imprisonment may be accomplished by physical force alone, or by threat of force, or by conduct reasonably implying that force will be used.' Moore, 20 Wn. App. at 486. See also Harris, 150 Wn. at 384. If the words and conduct are such as to induce a reasonable apprehension of force and the means of coercion are at hand, a person may be as effectually restrained and deprived of liberty as by prison bars. Moore, 20 Wn. App. at 486 (citing Kilcup v. McManus, 64 Wn.2d 771, 777-78, 394 P.2d 375 (1964)).
Additionally,
[i]t is essential . . . that the restraint be against the plaintiff's will; and if he agrees of his own free choice to surrender his freedom of motion, as by remaining in a room or accompanying the defendant voluntarily, to clear himself of suspicion or to accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment.
Moore, 20 Wn. App. at 487 (citing William L. Prosser, Law of Torts sec. 11 (4th ed. 1971)). Thus, the Supreme Court held in Harris that the trial court erred by granting summary judgment in favor of the defendants where a woman plaintiff consented to being searched by another woman who was not a deputy sheriff, after she was confronted by armed male deputies and informed that she must consent to be searched. Harris, 150 Wash. at 383-85. Conversely, the court in Moore held that summary judgment was appropriately granted in favor of the defendant where the plaintiff went willingly with a security guard to prove that she had not shoplifted items. The Moore court determined that the plaintiff was not compelled to go with the security guard, but chose to do so anyway; thus she was not falsely imprisoned. Moore, 20 Wn. App. at 486-87.
Here, no reasonable person could have interpreted Ms. Olsen's actions as forceful or threatening. She merely raised her arm to signal approaching vehicles to slow down until children, dogs and toys could be moved to one side of the road. Moreover, the McKinneys were not forced to do anything against their will. To the contrary, the McKinneys had no desire to run over children, dogs, or toys; they would have slowed or stopped their vehicles to avoid doing that whether or not Ms. Olsen had been present. Finally, 'restrain' means to 'restrict a person's movement without consent and without legal authority in a manner that interferes substantially with his liberty.' RCW 9A.40.010(1). There is no indication that Ms. Olsens' attempts to direct traffic substantially interfered with the McKinneys' liberty. Admittedly, they were delayed briefly until kids, dogs, and toys were removed from the street, but no reasonable person could conclude that this was substantial interference. That the McKinneys and their attorney were unable to grasp this shows that their judgment, which no doubt was good in most situations, had been overcome by territorial imperative, blind advocacy, or other inappropriate emotional responses to the situation in the neighborhood.
C. Tort of Outrage
The McKinneys also assert that facts in the record were sufficient to support their claim for outrage against Ms. Olsen, asserted in their first motion to amend. Thus, they argue, the trial court erred in concluding that their outrage claim was frivolous and advanced by them and their attorney without a reasonable inquiry into the factual or legal basis for the claim.
Both parties agree that the proper rule for the tort of outrage is outlined in Washington Pattern Jury Instructions, and that the conduct at issue must be "so outrageous in character and extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in civilized community." Tort of Outrage, 6 Washington Practice: Washington Pattern Jury Instructions (WPJI), sec.14.03. See also Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291, 77 A.L.R.3d 436 (1975) (adopting for first time in Washington Restatement (Second) Torts sec.46, Outrageous Conduct Causing Severe Emotional Distress, using same definition for outrageous conduct outlined above by 6 Washington Practice, sec. 14).
The outrageous conduct that the McKinneys allege is this: Ms. Olsen joined with the Ostrovskys' efforts to enforce the 'rules of the block,' to appropriate the street as a 'playground area,' to retaliate against the McKinneys for challenging those rules, and thereby to drive the McKinneys from the neighborhood. With all due respect to Mr. Britain, no reasonable attorney could conclude that the conduct attributed by the McKinneys to Ms. Olsen constituted outrage, even though there is evidence in the record that the ultimate goal of Ms. Ostrovsky, at least, was to drive the McKinneys from the neighborhood. The court did not abuse its discretion in concluding that the McKinneys' outrage claim against the Olsens was not well grounded in fact, not warranted by existing law, and was frivolous and advanced without reasonable cause.
Neither did the court abuse its discretion in holding that the outrage claim was advanced by the McKinneys and their attorney without a reasonable inquiry into the factual or legal basis for the claim. The fact that Mr. Britain obtained declarations from various neighbors and deposition testimony verifying that children and dogs played in the roadway and that chalk drawings were in the roadway and that Ms. Olsen was in the neighborhood directing traffic and watching children play in the roadway does not resolve the reasonable inquiry requirement even if one agrees that the evidence raises an inference of retaliation against the McKinneys for not obeying the neighborhood rules. If a dozen neighbors had provided declarations repeating these same things, there still would be no factual basis for the false imprisonment and outrage claims. The facts and reasonable inferences therefrom simply do not add up to conduct so outrageous as to go beyond the pale of decency. Annoying, yes; outrageous, probably; but beyond the pale of decency, no whether we consider Ms. Olsen's conduct alone or in conjunction with that of her friends the Ostrovskys.
In sum, because the court did not abuse its discretion in finding that all three claims advanced by the McKinneys against the Olsens were frivolous, it did not abuse its discretion in awarding attorney fees and costs to the Olsens under RCW 4.84.185. Additionally, because it is clear with respect to the false imprisonment and outrage claims that Mr. Britain failed to conduct reasonable inquiry into the factual and legal basis for these claims, the trial court did not abuse its discretion in awarding CR 11 sanctions against Mr. Britain on these claims.
III. Claims Against Ostrovskys A. Marital Community's Liability for Assault
The McKinneys argue that the trial court erred in finding that all of the McKinneys' claims against Mr. Ostrovsky were frivolous and thus warranted attorney fees under RCW 4.84.185. Their primary assertion on appeal is that the trial court abused its discretion in determining that the assault claim was not actionable as against Mr. Ostrovsky as a member of the marital community.
The McKinneys point to Ms. Ostrovsky's version of the assault, i.e., that she pushed and then slapped Mr. McKinney in an effort to protect her children, to illustrate that, by her own statements, her conduct was for the benefit of the marital community. We also observe that Mr. Ostrovsky clearly approved of his children playing in the street he supervised them in that activity on more than one occasion. To the extent that the assault arose from the hostilities that had developed between the McKinneys and the Ostrovskys from this activity, both generally and on the day in question, there is an arguable nexus between the assault and the community enterprise of supervising the twins while they played in the street. Moreover, Mr. Ostrovsky admitted that he told people that his wife had struck Mr. McKinney in self-defense, arguably ratifying her conduct by that statement. Thus, we cannot agree with the trial court's conclusion that no evidence whatsoever supported an inference that the assault was committed for the benefit of the marital community. The trial court was not sitting as a trier of fact in deciding the motion for sanctions, and could not properly base the ruling on credibility determinations.
Generally, a marital community can be held liable for an intentional tort of a spouse where the evidence shows that the tort was committed in furtherance of or with the intent to benefit the marital community, its property, or its business. See, e.g., Kilcup, 64 Wn.2d at 780-81 (because actions in employment benefit both the employer and the marital community, the marital community was liable for husband's false imprisonment committed in course of his duties as Port Commissioner); McHenry v. Short, 29 Wn.2d 263, 273, 186 P.2d 900 (1947) (because eviction of tenant was in furtherance of community-owned business, the marital community was liable for deadly beating of tenant during eviction); Benson v. Bush, 3 Wn. App. 777, 778-80, 477 P.2d 929 (1970) (after husband and neighbor broke up a fight between their respective community-owned dogs, husband became annoyed at neighbor and sprayed him in the face with the same can of mace husband had used to break up the dog fight; this was a community tort because the husband had not launched upon an enterprise of his own which had no relationship to the community; rather he became annoyed with his neighbor as a part of the community transaction of breaking up the dogfight). Moreover, the reason for distinguishing between community and separate torts lies in the property against which a judgment in favor of the victim can be satisfied. After our Supreme Court's decision in deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980), a judgment for a separate tort can be satisfied from the tortfeasor spouse's share of the community property, if that spouse has insufficient separate property to satisfy the judgment. The innocent spouse's half of the community property and his or her separate property will never become liable for the separate torts of the tortfeasor spouse.
And so, we think the ultimate question is this: When filing a lawsuit seeking to recover for a tort committed by a married person, must a plaintiff 'get it right' in the complaint, in terms of the community or separate nature of the tort, on pain of being sanctioned for bringing a frivolous lawsuit against the innocent spouse if it should turn out that the tort was separate in nature? The respondents cite no authority for such a proposition. We think this would be dangerous ground upon which to ask attorneys to walk, for reading the case law does not always lead to an obvious answer. As the deElche court noted, because the previous rule was so harsh, '[t]oo often the determination of whether the tort is separate or community has been based on distinctions without a difference.' Id. at 240. In sum, we reverse the judgment in favor of Mr. Ostrovsky because it rests on untenable grounds. There is some factual basis in the record to support community liability, and given the nature of the briefing for this appeal we are unwilling to base liability for bringing a frivolous lawsuit on a plaintiff's good faith pretrial determination that a tort committed by a married person is a community tort. If such a plaintiff gets it wrong, the remedy lies in insulating the property of the innocent spouse from execution on a judgment, not in sanctioning the plaintiff for failing to recognize the separate nature of the tort in the first instance.
B. Nuisance and Defamation Claims
Because attorney fees under RCW 4.84.185 cannot be awarded unless all claims are frivolous, we do not need to discuss the remaining claims that the McKinneys brought against the Ostrovskys.
IV. Attorneys Fees on Appeal A. Olsens' Fee Request
The Olsens request attorney fees on appeal pursuant to RAP 18.9(a) and RAP 18.1(a), claiming the McKinneys' appeal is frivolous.
RAP 18.9(a) permits the court to impose sanctions for a 'frivolous appeal.' 'An appeal is frivolous when, considering the record in its entirety and resolving all doubts in favor of the appellant, no debatable issues are presented upon which reasonable minds might differ, i.e., 'it is devoid of merit [so] that no reasonable possibility of reversal exists.'' Olson v. City of Bellevue, 93 Wn. App. 154, 165, 968 P.2d 894 (1998) (quoting Brin v. Stutzman, 89 Wn. App. 809, 828, 951 P.2d 291 (1998)).
RAP 18.1(a) provides that if applicable law grants a party a right to recover reasonable attorney fees on appeal, the party must request the fees. The Olsens request the fees pursuant to CR 11 and RCW 4.84.184. Courts are generally reluctant to grant sanctions under RAP 18.1(a) for appeals arising under CR 11 or RCW 4.84.184 unless the appeal itself was frivolous and lacks any merit. See, e.g., Bryant, 119 Wn.2d at 225; MacDonald v. Korum Ford, 80 Wn. App. 877, 895, 912 P.2d 1052 (1996). But as discussed above, all of the claims against the Olsens lacked merit below and have gained no merit on appeal. Thus, we grant the Olsens their reasonable attorney fees for defending against this appeal.
B. Ostrovskys' Fee Request
The Ostrovskys request attorney fees on appeal pursuant to RAP 10.7 for the McKinneys' claimed failure to comply with RAP 10.3(4). We assume the Ostrovskys make reference to RAP 10.3(a)(4), which requires that the brief, in its Statement of the Case, provide a 'fair statement of the facts and procedure relevant to the issues presented for review, without argument' as well as reference to the record for each factual statement. RAP 10.7 allows this court, on its own motion or the motion of a party, to strike portions of a brief and sanction a party for failure to comply with the Rules of Appellate Procedure.
The Ostrovskys claim that the Statement of the Case in the McKinneys' brief fails to comply with RAP 10.3(a)(4) because it contains argument and improper reference to the record. Thus, they assert, the improper portions must be stricken and the McKinneys should be sanctioned by an award of attorney fees to the Ostrovskys. Such motions are not properly included in a brief, however. See RAP 17.4(d). Moreover, while it does contain some argument in violation of RAP 10.3(a)(4), the larger portion of the Statement of the Case contains factual assertions. The majority of these factual assertions are supported by citations to the record. The remaining factual assertions are generally supported by the record. The McKinneys' minor briefing errors have not hampered processing of the appeal, and would not be a basis for an award of attorney fees as a sanction even if the motion were properly before us.
The Ostrovskys also request fees pursuant to RAP 18.9(a), which permits the court to impose sanctions for a 'frivolous appeal.' That request became moot with our reversal of the trial court's judgment in favor of Peter Ostrovsky.
Affirmed as to the judgment in favor of the Olsens; reversed and remanded for vacation of the judgment in favor of Peter Ostrovsky.
GROSSE and BECKER, JJ., concur.