Sara Maynard, V. John And Mary Maynard, Respondent's

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

SARA MAYNARD, No. 82527-5-I

Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

JOHN MAYNARD JR., and MARY

MALEY MAYNARD, and ATTORNEY

JOHN R. HOLMES, and ATTORNEY

JAMES A. JACKSON, and ESTATE

OF HELEN B. MAYNARD by and

through Andrew Pollock McConnell III

in his capacity as Personal

Representative of the Estate of Helen

B. Maynard, Jr.,

Respondents.

ANDRUS, C.J. — Sara Maynard appeals the dismissal of her claims against

her brother, John Maynard Jr., who served as personal representative of their

parents’ estates, and John Holmes, an attorney who assisted their parents in

setting up and administering several family trusts, provided legal advice to John

Jr. in his role as trustee of these trusts, and represented John Jr. as personal

representative of their mother’s estate. She also challenges the trial court’s award

Citations and pin cites are based on the Westlaw online version of the cited material.

No. 82527-5-I/2

of attorney fees and costs against her as sanctions under CR 11 and RCW

4.84.185. 1 We affirm in part and reverse in part.

FACTS

This appeal arises out of a dispute between Sara Maynard and her brother,

John Maynard Jr. (John Jr.), regarding the handling of the estates of their parents,

Helen Sr. and John Maynard Sr. (John Sr.), and his management of several family

trusts that their parents established.

John Sr. and Helen Sr. had five children: Carey Maynard Moody, Sara,

Helen Jr., John Jr. and Jared Maynard Lawson. According to Sara, her parents

retained John Holmes to prepare their wills and to create several testamentary

trusts. In July 2000, Holmes witnessed John Sr. execute his will. John Sr. passed

away in August 2000. At that time, John Sr.’s will created several trusts, the

primary of which being the John C. Maynard Credit Trust (JCM Trust), to which

Helen Sr. was appointed trustee. Holmes represented Helen Sr. in her role as

personal representative of John Sr.’s estate in 2000, and allegedly represented

her in her role as trustee of the JCM Trust.

In 2006, Helen Sr. signed her last will and testament. Holmes also

witnessed the execution of the will. In it, Helen Sr. appointed John Jr. to be her

personal representative and the successor trustee to the JCM Trust. In 2011,

Helen resigned as trustee of the JCM Trust, at which time John Jr. became the

1 Because Sara and John have the same last name, we will refer to them by their first names for

clarity. Because Sara’s mother and sister are both named Helen, the parties refer to them as Helen

Sr. and Helen Jr. We do the same for clarity. Sara, in her notice of appeal, identified trial court

rulings relating to defendants James A. Jackson, and the Estate of Helen B. Maynard Jr. (the Helen

Jr. Estate). But she subsequently assigned no error to any ruling relating to these defendants. We

interpret her failure to do so to constitute an abandonment of any appeal regarding the dismissal

of her claims against Jackson and the Helen Jr. Estate.

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successor trustee. Holmes advised John Jr. in his role as trustee of the trust and,

Sara alleges, continues to do so to this day.

Helen Sr. passed away in 2016. John Jr. filed a petition to probate her

estate in King County Superior Court No. 16-4-05205-1 (Probate Litigation) in

August of that year. The court appointed John Jr. as the personal representative

of her estate and, according to Sara, was represented by Holmes through at least

December 2018.

Sara filed a creditor’s claim in December 2016. After John Jr. rejected the

claim, Sara filed a lawsuit against John Jr. in March 2018, under King County

Superior Court No. 18-2-06779-1 (Creditor Claim Litigation). The court granted

John Jr.’s motion for summary judgment and dismissed Sara’s claims against him

personally and as personal representative of Helen Sr.’s estate in October 2018

because her claims were time-barred under RCW 11.40.100(1).

In the Probate Litigation, Sara contested John Jr.’s proposed distribution of

property under Helen Sr.’s will and alleged that her siblings, along with John Jr.’s

attorneys—Holmes and James Jackson—conspired to deprive her of personal

property her mother bequeathed to her. Sara also claimed that Holmes had

received this personal property from her mother’s safety deposit box in 2017, and

refused to give it to her. Sara signed a receipt on June 30, 2017, acknowledging

receipt of certain family jewelry distributed to her from her mother’s safe deposit

box. But she continued to maintain that Holmes was withholding additional

personal property to which she was entitled.

Meanwhile, in November 2017, John Jr. notified Sara and his other siblings

of his desire to make a partial distribution from Helen Sr.’s estate and from the

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JCM Trust. He sent proposed distribution agreements for the siblings to sign,

which included releases of liability and indemnification provisions to which Sara

objected.

In April 2018, the probate court approved John Jr.’s petition to approve his

final report and the plan of distribution of Helen Sr.’s estate and denied Sara’s

request for an accounting. It did order the estate to provide Sara with tax records

for 2016 and 2017 and required Sara to identify within 30 days the personal

property she claimed she remained entitled to receive from the estate.

Shortly after the probate court entered this order, John Jr., as trustee of the

JCM Credit Trust, filed a petition seeking court approval of his activities in

managing that trust through April 30, 2018, under King County Cause No. 18-4-

03455-5 (JCM Trust Litigation). At a July 10, 2018 hearing, the court informed

John Jr. that he had no authority to require Sara to execute a release of liability as

a condition of receiving what she was entitled to receive from the trust. The court

“declined to use its authority under RCW 11.96A.020 to essentially bless the

actions of the trustee for the past 8 years. Further, the trustee’s demand that

beneficiaries waive any and all claims and indemnify the trustee (and possibly each

other) in order to receive a distribution to which they are entitled . . . is improper

and [was] rightfully refused by Sara Maynard.” 2

According to Mary Maley, John Jr.’s wife, Sara filed a new lawsuit against

John Jr. in July 2018 under King County No. 18-2-16613-6 but Sara subsequently

2 The record in this appeal does not indicate the current status of the JCM Trust Litigation. Sara

supplied a December 2019 court order under which Jackson, John Jr.’s attorney, was ordered to

provide Sara with copies of all trust documentation from 2011 to 2019. We have no further

information before us regarding the claims, if any, pending before the court in that litigation.

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dismissed that action voluntarily before effectuating service of process. We have

no record of the claims Sara raised in that lawsuit.

In June 2019, the probate court entered an order approving the final decree

of distribution of Helen Sr.’s estate and ordered Sara to pay $7,000 in attorney fees

to the estate for bringing baseless claims. Sara appealed that ruling to this court

in In re Estate of Helen Maynard, No. 80179-1, an appeal Sara voluntarily

dismissed in February 2020.

Sara then filed this lawsuit against John Jr., Mary Maley, and John Holmes

in August 2019. In an October 22, 2020 first amended complaint, Sara added as

defendants Jackson and the estate of her sister, Helen B. Maynard Jr. Her

complaint alleged 19 causes of action related to the handling of the estates of her

parents and the family trusts.

All of the defendants filed motions to dismiss under CR 12(b)(6). In their

motions, the siblings explained Sara’s long history of forcing her family to endure

“acrimonious litigation.” The defendants argued that her claims were time barred,

barred by res judicata, barred by litigation immunity, improperly pleaded, not

causes of action recognized under Washington law, or claims belonging to her

parents’ estates or the family trusts, which Sara lacked standing to prosecute. The

defendants also requested sanctions and attorney fees under RCW 4.84.185 and

CR 11.

The trial court granted each motion to dismiss with prejudice. The court

also concluded the claims were frivolous in violation of CR 11 and RCW 4.84.185

and awarded each defendant attorney fees. Sara appeals.

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ANALYSIS

Sara’s appeal consists of convoluted and often repetitive assignments of

error related to the trial court’s dismissal of her claims against only two of the

named defendants, John Jr. and Holmes. She also argues that the trial court

denied her due process, the trial court was biased against her, and the trial court

erred in awarding attorney fees under CR 11 and RCW 4.84.185. We affirm in part

and reverse in part.

Standard of Review

We review a trial court's ruling to dismiss a claim under CR 12 (b)(6) de

novo. Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104

(1998). Dismissal is warranted only if the court concludes, beyond a reasonable

doubt, the plaintiff cannot prove “any set of facts which would justify recovery.” Id.

The court presumes all facts alleged in the plaintiff's complaint are true and may

consider hypothetical facts supporting the plaintiff's claims. Id. at 330.

Deficiencies in Sara’s Appeal Briefing

Sara alleges 21 separate assignments of error on appeal. Holmes asks this

court to deem all of Sara’s assignments of error waived based on deficiencies in

her appellate briefs. We agree that Sara has failed to preserve many—but not

all—of the errors she now raises in this court.

Under RAP 10.3(a)(6), an appellant must provide “argument in support of

the issues presented for review, together with citations to legal authority and

references to relevant parts of the record.” “We do not consider conclusory

arguments that are unsupported by citation to authority. Passing treatment of an

issue or lack of reasoned argument is insufficient to merit judicial consideration.”

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Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014)

(citations omitted). Arguments that are not supported by references to the record,

meaningful analysis, or citation to pertinent authority need not be considered.

Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992). “It is not the responsibility of this court to attempt to discern what it is

appellant may have intended to assert that might somehow have merit.” Port

Susan Chapel of the Woods v. Port Susan Camping Club, 50 Wn. App. 176, 188,

746 P.2d 816 (1987).

Sara pleaded multiple claims against John Jr. and Holmes in her first

amended complaint, many of which she fails to address in her briefing to this court.

We will not review the dismissal of any claims other than her claims for breach of

fiduciary duty against John Jr. and Holmes and the claim of legal malpractice

against Holmes, as she has failed to provide any argument to support her other

claims, has not cited to the record with regard to most of her arguments, and has

provided us with no meaningful analysis of these claims.

As to Sara’s assignment of error no. 15, in which she contends the trial court

denied her rights to due process, and assignment of error no. 14, relating to the

trial court’s denial of her motion to amend her complaint, neither claim warrants

our consideration under RAP 10.3(a)(6) because Sara does not provide any

citation to authority or legal argument to support them. 3 The same is true

regarding assignment of error no. 4; Sara assigns error to the trial court’s dismissal

3 Sara also raises this due process argument for the first time on appeal and makes no argument

that the trial court committed manifest error affecting a constitutional right, as required for review of

the issue under RAP 2.5(a)(3). “ ‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual prejudice.”

State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). Sara has made no such showing.

The claim is therefore also waived under RAP 2.5(a).

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of her claims with prejudice on the grounds that the court did not specify that it was

dismissing with prejudice in its oral ruling and that the written order conflicts with

the oral ruling. But she does not cite authority for her argument that when a trial

court dismisses with prejudice, it needs to specify as much in its oral ruling, nor

does she devote any argument to this assignment of error. It is therefore also

waived under RAP 10.3(a)(6).

Finally, Sara alleges for the first time on appeal that the trial court judge

“demonstrated a predisposition of prejudice” against her and did not spend enough

time considering her allegations. An argument neither pleaded nor argued to the

trial court cannot be raised for the first time on appeal. Sourakli v. Kyriakos,

Inc., 144 Wn. App. 501, 509, 182 P.3d 985 (2008). We thus decline to consider

this argument under RAP 2.5(a). Additionally, Sara did not assign error or cite any

authority in support of this argument. Her failure to do so under RAP 10.3(a)(6)

precludes appellate consideration of this alleged error. Escude ex rel. Escude v.

King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190 n.4, 69 P.3d 895

(2003). 4

Assignment of Error Nos. 1, 2 and 18 (Statute of Limitations)

Sara first argues the trial court erred in dismissing claims against John Jr.

and Holmes as time barred by applicable statutes of limitations. She claims that

4 Additionally, at least three of Sara’s assignments of error (nos. 6, 7, and 8) address the trial court’s

dismissal of her claims on standing grounds. But these assignments of error are based on a

misunderstanding of the trial court’s order. The only time the defendants argued lack of standing

below was with regard to Sara’s claim of “breach of duty to Estate of Helen B. Maynard.” Holmes

argues on appeal that, to the extent that Sara is suing on behalf of a particular trust or estate, she

lacks standing to do so. Sara argues on appeal, seemingly contrary to her claims below, that she

is only suing on behalf of herself. The trial court never held that she does not have standing to sue

Holmes and John Jr. for breach of duties they owed Sara as her counsel and trustee. Because

Sara no longer argues she has standing to sue on behalf of Helen Sr.’s estate, her assignments of

error regarding standing are moot.

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the court applied “the wrong date of tolling the statute of limitations,” that her

“claims are based upon [her] point of discovery of the damages,” and that “[t]he

commencement, running, and tolling of the statute of limitations are factual

determinations inappropriate to a dismissal under Rule 12(b)(6).”

Sara appears to make two arguments. First, she contends the limitations

period for her claims against John Jr. should be tolled while he continues to serve

as trustee of the JCM Credit Trust, or for the period of time he served as personal

representative of their mother’s estate. Second, she maintains that any claims

against Holmes should be tolled by the “continuous representation rule.” She cites

two cases to support these general arguments, Janicki Logging & Constr. Co. v.

Schwabe, Williamson & Wyatt, 109 Wn. App. 655, 661-61, 37 P.3d 309 (2001),

and Giraud v. Quincy Farm & Chem., 102 Wn. App. 443, 452, 6 P.3d 104 (2000).

In Giraud, this court set out the law on the discovery rule: the limitations

period for certain tort claims begins to run when the plaintiff’s cause of action

accrues. 102 Wn. App. at 449. For negligence claims, the cause of action accrues

when the plaintiff suffers injury or damage. Id. When there is a delay between an

injury and a plaintiff’s discovery of it, the court may apply the discovery rule,

provided the delay was not caused by a plaintiff sleeping on her rights. Id. “The

discovery rule operates to toll the date of accrual until the plaintiff knows or, through

the exercise of due diligence, should have known all the facts necessary to

establish a legal claim.” Id. But to invoke the discovery rule, the plaintiff must

show that she could not have discovered the relevant facts earlier. Id.

Sara provides no analysis as to how the discovery rule applies to her breach

of fiduciary duty or legal malpractice claims and has not identified the date on which

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she discovered her alleged damages. From what we can discern from the

amended complaint, Sara alleges her brother, John Jr., cheated her out of money

she believes she should have inherited from her parents, or he diverted funds from

family trusts to which she claims she was or is a beneficiary. Sara also alleges

that Holmes, as attorney for the family trusts, somehow participated in this

diversion of assets.

But many of the events Sara alleges date back to 2000, 2009 and 2013.

Sara fails to explain what statute of limitations applies to each of her claims against

John Jr. and Holmes, or why the applicable limitations period should be tolled for

any particular period of time. We thus cannot determine how the discovery rule as

laid out in Giraud applies to Sara’s dismissed claims.

Sara’s reliance on Janicki is similarly difficult to understand. In that case,

this court held that under the continuous representation rule, a statute of limitations

for a claim of legal malpractice is tolled until the end of an attorney’s representation

of a client in the matter in which the alleged malpractice occurred. 109 Wn. App.

at 663-64. While Sara did plead a legal malpractice claim against Holmes in her

amended complaint, she did not allege below that Holmes committed malpractice

in any legal proceeding in which he represented her.

As a result, any claims arising out of alleged events before August 26, 2016

(three years before she filed this action) are time-barred under RCW 4.16.080

(three-year statute of limitations applies to claims of negligence), or RCW

11.96A.070 (three-year statute of limitations applies to claim against trustee for

breach of fiduciary duty). The trial court did not err in concluding that any breach

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of fiduciary duty or legal malpractice claims arising prior to August 26, 2016 are

barred by the statute of limitations.

However, Sara also alleges that John Jr. and Holmes violated duties owing

to her during the course of the Probate Litigation, the Credit Claim Litigation, and

the JCM Trust Litigation, all of which occurred during the relevant three-year

window. We must thus address the other bases on which the trial court dismissed

her claims against these two defendants.

Assignment of Error Nos. 2, 5, 11, 16, 19, 20, and 21 (Res Judicata)

Sara contends the trial court erred in dismissing her fiduciary duty and legal

malpractice claims under the doctrine of res judicata. We disagree as to claims

Sara raised or could have raised in the Probate Litigation, but agree as to claims

she has yet to prosecute relating to the JCM Trust.

Res judicata prohibits the relitigation of claims and issues that were litigated

or could have been litigated in a prior action. Pederson v. Potter, 103 Wn. App.

62, 67, 11 P.3d 833 (2000). A threshold requirement of res judicata is a final

judgment on the merits in the prior suit. Matter of Rights to Use of Surface Waters

of Yakima River Drainage Basin, 198 Wn.2d 687, 706, 498 P.3d 911 (2021). We

review whether res judicata applies de novo. Matter of Recall of Fortney, 199

Wn.2d 109, 124, 503 P.3d 556 (2022).

Sara contends there was no final judgment on the merits of any of her claims

against John Jr. or Holmes in the Probate Litigation. We disagree. The probate

court issued a final judgment on the merits of Sara’s probate-related claims when

that court issued an order approving John Jr.’s administration of the estate and

rejecting Sara’s claims. Sara attempted on three separate occasions to appeal

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rulings of the probate court. See In re Estate of Helen B. Maynard, No. 76464-1-I

(Sara sought discretionary review of probate court orders; review denied); In re the

Estate of Helen B. Maynard, No. 80179-1-I (Sara filed notice of appeal from various

probate orders; voluntarily dismissed appeal in 2020); In re Estate of Helen B.

Maynard, No. 81270-0-I (Sara again filed and later voluntarily dismissed appeal

from probate rulings). The June 14, 2019 order became a final judgment on the

merits of any claim that Sara raised or could have raised regarding Sara’s right to

receive property from the estate, John Jr.’s administration of the estate or Holmes’s

involvement in, or conduct during, the Probate Litigation, when she dismissed her

last appeal.

Sara also contends that her claims here are different from the claims she

asserted in the Probate Litigation. Res judicata applies when the two actions have

identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4)

the quality of the persons for or against whom the claim is made. Hadley v. Cowan,

60 Wn. App. 433, 441, 804 P.2d 1271 (1991). A probate action can have res

judicata effect in a later tort action. Id. at 440.

Although not clear from Sara’s complaint and her appeal, she appears to

be raising two different types of claims—claims relating to her right to inherit from

her mother and John Jr.’s management of the probate estate as the personal

representative of that estate, and claims relating to her right to receive trust funds

from the JCM Trust and John Jr.’s management of the JCM Trust as its trustee.

As to her inheritance-related claims, the subject matter of the Probate

Litigation and this new lawsuit are the same and the people involved in both

lawsuits are the same. John Jr. was personal representative of the estate and is

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a defendant here. Although Holmes was not a party in the Probate Litigation, he

was actively involved as counsel for John Jr.

To determine if there is identity of causes of action, we consider whether

the rights or interests established in the prior judgment would be destroyed or

impaired by prosecution of the second action, whether substantially the same

evidence is presented in the two actions, whether the two suits involve an

infringement of the same right, and whether the two suits arise out of the same

transactional nucleus of facts. Id. at 441-42 (quoting Constantini v. Trans World

Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087 (1982)).

We conclude that under these factors, Sara is precluded from raising a breach of

fiduciary duty claim against either John Jr. or Holmes as to their administration of

the probate estate, as that claim was one she did raise or could have raised in the

Probate Litigation. To permit Sara to reopen the administration of her mother’s

estate through this type of collateral attack would impair the rights of the other

beneficiaries.

Sara appears to contend that newly discovered evidence would establish

that “the Estate [of] Helen Maynard Sr. probate was incorrectly closed in June

2019.” But once a judgment is final, a court may reopen it only when specifically

authorized by statute or court rule. In re Marriage of Shoemaker, 128 Wn.2d 116,

120, 904 P.2d 1150 (1995). Sara presents no argument that a statute or court rule

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allows her to collaterally attack the finality of a judgment in a new lawsuit based on

allegations of newly discovered evidence. 5

The report of proceedings from the June 14, 2019 probate hearing and the

pleadings Sara presented below demonstrate that she litigated or had the

opportunity to litigate her inheritance-related claims in the Probate Litigation. Sara

is barred by res judicata from relitigating these claims in this new lawsuit.

We cannot, based on the record before us, reach the same conclusion as

to claims relating to her right to receive trust funds from the JCM Trust and John

Jr.’s management of the JCM Trust as its trustee. According to a November 2017

letter from John Jr. to his siblings, as trustee of the JCM Trust, he was obligated

to disburse its assets within a reasonable time following the death of their mother.

At the time of this letter, the trust assets were valued at $763,891. He proposed

disbursing $142,000 to each of the five beneficiaries and reserving $53,891 for

future tax preparation and legal fee expenses. These assets were not within Helen

Sr.’s probate estate and thus were not within the scope of the probate court’s final

order of distribution. Sara raised allegations of mismanagement of the JCM Trust

at various stages of the Probate Litigation, but it is not clear that the probate court

had the authority to rule on any such allegations because they did not affect the

distribution of assets from Helen Sr.’s estate.

While it is possible that Sara has raised or could have raised claims about

John Jr.’s management of the JCM Trust in the JCM Trust Litigation, we have no

5 CR 60(b)(3) would have allowed Sara to file a motion to vacate the final order based on newly

discovered evidence within a year of the final order. There is no indication in the record before us

that she ever sought such relief from the probate court.

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indication that a final judgment on the merits has been entered in that proceeding.

Res judicata thus does not bar Sara’s claims against John Jr. or Holmes to the

extent they relate to their management of the JCM Trust after August 26, 2016. 6

Assignment of Error No. 13 (Litigation Immunity)

Next, Sara argues that the trial court erred in dismissing her claims against

Holmes on the basis of litigation immunity. She contends the doctrine does not

apply because Holmes did not file a notice of appearance in the JCM Trust

Litigation. While Sara misunderstands the doctrine, as no notice of appearance

was required for the doctrine to apply, we also do not see how it applies to her

claims against Holmes.

It is an absolute defense to a claim of defamation that the allegedly libelous

statements were made in the course of judicial proceedings. Twelker v. Shannon

& Wilson, 88 Wn.2d 473, 475, 564 P.2d 1131 (1977). Such statements are

privileged, even if false or defamatory. Id. This defense applies to lawyers who

make statements in the course of representing their clients and to witnesses alike.

Id. (doctrine applied to engineering expert who was retained to investigate cause

of landslide). Thus, the fact that Holmes did not appear as counsel for John Jr. in

the JCM Trust Litigation is not dispositive.

But the doctrine nevertheless does not apply here because Sara has not

sued Holmes for defamation. Although Sara pleaded a claim of defamation in her

6 To the extent that the trial court dismissed any of Sara’s claims regarding John Jr.’s or Holmes’s

management of the JCM Trust after August 2016 based on inadequate or defective pleading, we

do not agree. A plaintiff claiming negligence or breach of fiduciary duty must establish duty, breach,

causation, and injury. Miller v. U.S. Bank of Wash., N.A., 72 Wn. App. 416, 426, 865 P.2d 536

(1994). She alleged these elements in her first amended complaint.

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first amended complaint, she did so only as to John Jr. and the Estate of Helen Jr.,

the dismissal of which she has not raised on appeal.

Assignment of Error Nos. 3, 9, 10, 12 (Sanctions and Attorney Fees)

Sara finally challenges the trial court’s award of attorney fees to Holmes and

John Jr. under RCW 4.84.185 and CR 11.

RCW 4.84.185 authorizes a trial court to award reasonable attorney fees

incurred in opposing an action deemed “frivolous and advanced without

reasonable cause.” The statute requires that a lawsuit, in its entirety, must be

frivolous. Biggs v. Vail, 119 Wn.2d 129, 133, 830 P.2d 350 (1992). The trial court

is not empowered to sort through a lawsuit, search for abandoned or frivolous

claims and then award attorney fees based solely on isolated claims. Id. at 136.

If one claim advances to trial, the lawsuit cannot be frivolous in its entirety and fees

under RCW 4.84.185 are not appropriate. State ex rel. Quick-Ruben v. Ver, 136

Wn.2d 888, 904, 969 P.2d 64 (1998).

CR 11 allows sanctions in the form of an award of attorney fees when a

litigant “fil[es] a claim for an improper purpose, or if the claim is not grounded in

fact or law and the signing litigant failed to conduct a reasonable inquiry.” In re

Recall of Piper, 184 Wn.2d 780, 787, 364 P.3d 113 (2015). CR 11 differs from

RCW 4.84.185 in that the court rule does not require the court to find that the entire

lawsuit is frivolous. CR 11 is not a fee shifting mechanism but rather a deterrent

to frivolous pleadings. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994).

We review sanctions awarded for frivolous actions or defenses or for

pleadings filed for improper purpose for abuse of discretion. Kilduff v. San Juan

County, 194 Wn.2d 859, 874, 453 P.3d 719 (2019).

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The trial court awarded attorney fees to the Estate of Helen Jr., to Jackson,

and to Holmes. Although the trial court entered an order that awarded reasonable

attorney fees and costs to “[a]ll other [d]efendants” under CR 11 and RCW

4.84.185, there is no separate monetary judgment in John Jr.’s favor in the record

before us. Because there was no monetary award to John Jr. under either the

statute or court rule, there is nothing for us to reverse on appeal.

As to the award of attorney fees and costs to Holmes, the court found that

the complaint violated CR 11 and the action as a whole was frivolous under RCW

4.84.185. Because we reverse the CR 12(b)(6) dismissal of Sara’s legal

malpractice claim as to Holmes’ actions after August 2016, we must also reverse

the award of attorney fees under RCW 4.84.185. Although a trial court may on

remand determine that the case against Holmes is frivolous in its entirety, we

cannot make that determination at this stage. As for the imposition of sanctions

under CR 11, we do not reverse the trial court’s finding that many of Sara’s

allegations against Holmes are frivolous as they are clearly barred by the statute

of limitations. But we reverse the award of CR 11 sanctions to allow the trial court

to determine whether the amount of attorney fees awarded remains reasonable in

light of this court’s decision.

Attorney Fees on Appeal

Both John Jr. and Holmes seek attorney fees under RAP 18.9(a), which

permits an appellate court to award a party attorney fees as sanctions, terms, or

compensatory damages when the opposing party files a frivolous appellate action

or fails to comply with the RAPs. Reid v. Dalton, 124 Wn. App. 113, 128, 100 P.3d

349 (2004); RAP 18.9(a). An appeal is frivolous if, considering the entire record,

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the court is convinced that the appeal presents no debatable issues upon which

reasonable minds might differ, and that the appeal is so devoid of merit that there

is no possibility of reversal. Advocates for Responsible Devt v. W. Wash. Growth

Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). Sara’s appeal was

not so devoid of merit to warrant an imposition of attorney fees.

To be clear, we do not conclude that Sara’s claim against John Jr. arising

out of his management of the JCM Trust after August 26, 2016 is factually well-

founded. Nor do we so conclude with regard to her legal malpractice claim against

Holmes. Our ruling is narrow and based solely on the fact that these claims were

erroneously dismissed under CR 12(b)(6). Sara must still produce evidence on

remand to substantiate her allegations and her failure to do so may expose her

once again to an assessment of legal fees and costs.

Affirmed in part; reversed in part.

WE CONCUR:

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