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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

ANGELA HARRIS,                              )       No. 66407-7-I
                                            )
              Appellant,                    )
                                            )
              v.                            )
                                            ) 
PROVIDENCE EVERETT                          )
MEDICAL CENTER,                             )       UNPUBLISHED OPINION
                                            )
              Respondent.                   )       FILED:   April 16, 2012
                                            )

       Ellington, J.  --  Angela Harris sued her former employer alleging discrimination 

based on gender.  Her suit was dismissed, and Harris appealed.  While the appeal was 

pending,  Harris filed a second suit arising from the same facts, this time alleging 

wrongful termination and breach of contract.  The second complaint is barred by res 

judicata.  We affirm its dismissal.  We remand for findings on the court's award of 

sanctions.

                                            FACTS

       Angela Harris worked as a nurse at Providence Everett Medical Center for 

approximately three years.  She took maternity leave between October and December 

of 2006.  Eight months later, Providence terminated her employment.   Harris filed a 

lawsuit alleging gender discrimination in violation of the Washington Law Against  

No. 66407-7-I/2

Discrimination (WLAD), chapter 49.60 RCW.  Her complaint was predicated upon her 

allegation that her pregnancy and maternity leave were substantial factors in her 

termination.

       Providence moved to dismiss under CR 12(b)(6), claiming that it was a religious 
organization and therefore exempt from suit under the WLAD.1 In response, Harris did 

not challenge Providence's claim of exemption.  Instead, she argued Providence was 

estopped from asserting an exemption because in its equal employment opportunity 

policy, Providence had assured its employees that it would not discriminate on any 

basis prohibited by state law.  Harris also asserted that she had cognizable alternative 

claims of wrongful discharge in violation of public policy, outrage, and intentional 
infliction of emotional distress.2  

       The court treated the CR 12 motion as one for summary judgment, granted the 

motion, and dismissed.  Harris filed a motion for reconsideration asking the court to 

vacate the order of dismissal and grant "leave to file a motion to amend the complaint 

to set forth claims for violation of public policy, equitable estoppel and intentional and 
negligent infliction of emotional distress."3  The court declined to reconsider.

       Harris appealed, again making her estoppel argument and, for the first time,  

challenged the merits of Providence's claim of exemption as a religious organization.  

She also contended the trial court should have granted her leave to amend her 

       1 See RCW 49.60.040(11).

       2 Clerk's Papers at 30.

       3 Clerk's Papers at 38.

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No. 66407-7-I/3

complaint to add the alternative causes of action.
       In an unpublished opinion, we affirmed.4 We declined to decide whether 

Providence is exempt because Harris did not challenge the claim of exemption below 

and because the facts necessary to resolve the issue were not fully developed in the 

record.  We concluded that Harris had not established the elements of estoppel.  

Finally, because Harris never moved to amend, we held the trial court committed no 
error regarding any amendment.5

       While Harris's appeal was pending, she filed a new lawsuit.  Relying on the 

same factual background, Harris alleged wrongful termination in violation of public 

policy and breach of promise to comply with employee policies.  Providence moved to 

dismiss and for CR 11 sanctions.  The trial court granted the motion to dismiss and 

awarded sanctions of $5,604.82. Harris appeals.

                                       RES JUDICATA

       "'Filing two separate lawsuits based on the same event -- claim splitting -- is 
precluded in Washington.'"6 The doctrine of res judicata, which ensures finality of court 

decisions,7 bars litigation of claims that either were, or should have been, litigated in a 

former action.8 The general doctrine is that res judicata applies "'not only to points 

       4 Harris v. Providence Everett Medical Center,  noted at 161 Wn. App. 1039 
(2011), 2011 WL 1843450.

       5 "Without a formal motion to amend . . . the trial court had nothing to grant."  
Harris, 2011 WL 1843450 at *5. 

       6 Ensley v. Pitcher, 152 Wn. App. 891, 898, 222 P.3d 99 (2009) (quoting Landry 
v. Luscher, 95 Wn. App. 779, 780, 976 P.2d 1274 (1999)), review denied, 168 Wn.2d 
1028, 230 P.3d 1060 (2010).

       7 Pederson v. Potter, 103 Wn. App. 62, 67, 11 P.3d 833 (2000).

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No. 66407-7-I/4

upon which the court was actually required . . . to form an opinion and pronounce a 

judgment, but to every point which properly belonged to the subject of litigation, and 
which the parties . . . might have brought forward at the time.'"9

       Application of the doctrine requires identity of (1) persons and parties, 

(2) causes of actions, (3) subject matter, and (4) the quality of persons for or against 
whom the claim is made in the prior judgment and subsequent action.10 "The party 

asserting the defense of res judicata bears the burden of proof."11  Whether res judicata 

bars an action is a question of law we review de novo.12

       Harris contends that res judicata does not bar her second lawsuit because the 

two complaints do not assert identical causes of action.  In order to determine whether 

causes of action are identical, we may consider

       (1) whether the rights or interests established in the prior judgment would 
       be destroyed or impaired by the prosecution of the second action; (2) 
       whether substantially the same evidence is presented in the two actions; 
       (3) whether the suits involved infringement of the same right; and (4) 
       whether the two suits arise out of the same transactional nucleus of 
       facts.[13]

These four factors are analytical tools; it is not necessary that all four be present to bar 
the claim.14  The third and fourth factors are easily met here, because the relevant 

       8 Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995).

       9 Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004) 
(quoting Schoeman v. N.Y. Life Ins. Co., 106 Wn.2d 855, 859, 726 P.2d 1 (1986))

       10 Loveridge, 125 Wn.2d at 763.

       11 Ensley, 152 Wn. App. at 902 (citing Hisle, 151 Wn.2d at 865).

       12 Lynn v. Dep't of Labor & Indus., 130 Wn. App. 829, 837, 125 P.3d 202 (2005).

       13 Pederson, 103 Wn. App. at 72.

       14 Kuhlman v. Thomas, 78 Wn. App. 115, 122, 897 P.2d 365 (1995) ("there is no 

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No. 66407-7-I/5

factual inquiry is the same (whether pregnancy or parental leave were factors in 

Harris's termination) and the same right is involved (to be free from discriminatory 

treatment in employment).  The second factor is also established, because the same 

evidence would, had trial occurred, have been presented in both actions. 

       According to Harris, however, the causes of action are not identical because the 

first judgment established only that Providence was exempt under the WLAD, and any 

right associated with that determination would not be impaired by pursuit of her present 

claims.

       The premise of this argument is flawed.  Providence's successful defense was 

indeed based on its assertion of exemption from the statute.  But Harris's claim, then 

and now, is based upon the circumstances of her employment, pregnancy, parental 

leave, and subsequent termination.  The same transactional nucleus of facts supports 

both lawsuits.  Both complaints assert "background facts" that are identical in all 
material respects,15 and Harris acknowledged in her first appeal that the amendments 

she proposed were "only legal variations of the same facts."16

       The causes of action are identical for purposes of res judicata.

       Harris argues application of res judicata is unjust because she was not permitted 

to amend her complaint and so had no opportunity to litigate all of her claims in the first 

specific test for determining identity of causes of action"); see also Philip A. Trautman, 
Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L.Rev. 805, 816 
(1985).

       15 Clerk's Papers at 2-3, 24-25.

       16 Clerk's Papers at 73.

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No. 66407-7-I/6

lawsuit.  But, as we observed in resolving her first appeal, Harris made no motion to 

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No. 66407-7-I/7

amend her complaint.  Nor did she provide the court with her proposed amendment.17  

Her claim that she was wrongly denied the opportunity to litigate her nonstatutory 

claims is not supported by the record.  In sum, the trial court properly dismissed 
Harris's complaint as barred by res judicata.18

                                         SANCTIONS

       Harris also challenges the court's imposition of sanctions, contending her 

complaint was neither baseless nor interposed for an improper purpose.  She also 

contends the order awarding sanctions is insufficient because it includes no findings 
supporting the sanctions.19 On that issue, she is correct.

       The determination of a violation of CR 11 is within the sound discretion of the 
trial court,20 but the court must create an adequate record for review by identifying the 

sanctionable conduct and explaining its reasons for imposing sanctions.21 Nothing in 

       17 See CR 15(a) ("a copy of the proposed amended pleading, denominated 
'proposed' and unsigned, shall be attached to the motion");  Hook v. Lincoln County 
Noxious Weed Control Bd., ___ Wn. App. ___, 269 P.3d 1056, 1063 (2012) (use of the 
word "shall" in CR 15(a) is presumptively imperative; both the opposing party and the 
court have a legitimate need to see the proposed amended pleading in order to 
evaluate a motion to amend a complaint).

       18 Because we conclude that res judicata bars the claims Harris raised in her 
2010 complaint, we need not address Providence's alternative argument that dismissal 
was also appropriate on the merits

       19 Harris has preserved her claim of error by designating the court's 
November 12 order of dismissal and granting Providence's request for sanctions.  
Although the court entered a later order specifying the amount of the award, in this 
appeal, Harris challenges the decision to grant sanctions, not the amount awarded.

       20 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp, 122 Wn.2d 299, 
338, 858 P.2d 1054 (1993).

       21 Biggs v. Vail, 124 Wn.2d 193, 201, 876 P.2d 448 (1994); Bryant v. Joseph 
Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).

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No. 66407-7-I/8

the record articulates the basis for imposing sanctions here, and we are unable thus to 
review the court's determination.22 We therefore remand for entry of the necessary 

findings.23 We also deny Providence's request for attorney fees on appeal.

       Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. 

WE CONCUR:

       22 Providence contends that record establishes the basis for the sanctions, citing 
to its own pleadings below in support of its request.  But we are aware of no authority 
that excuses the obligation to make express findings in support of CR 11 sanctions 
where the record provides a basis to speculate as to the court's reasons.

       23 Biggs, 124 Wn.2d at 201-02.

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