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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

CHRISTOPHER J. CHASE and TODD E.                 )
CHASE,                                           )         No. 65604-0-I
                                                 )
                      Plaintiffs,                )         DIVISION ONE
                                                 )
              v.                                 )         UNPUBLISHED OPINION
                                                 )
FREDRIC B. ANDERSON and HOLLY S.                 )
ANDERSON,                                        )
                                                 )
                      Respondents,
                                                 )
JOHN DOE, unknown tree cutter, and the           )
CITY OF EVERETT,                                 )
                                                 )
                      Defendants,                )
                                                 )
JAMIE JENSEN, plaintiffs' former attorney,       )
                                                 )
                      Appellant.                 )         FILED: January 17, 2012
                                                 )
                                                 )

       Appelwick, J.  --  Attorney Jensen appeals from a judgment imposing CR 11 

sanctions.  But, the record supports the trial court's determination that Jensen 

signed a complaint that was not well founded in fact.  Jensen's claims that the trial 

court violated his due process rights and improperly considered                inadmissible 

evidence are also without merit.  We affirm.

                                          FACTS

       This case arises out of a landslide on an Everett hillside in about July 2009.   

No. 65604-0-I/2

At the time, respondents Fredric and Holly Anderson owned a home located at the 

top of the hillside.  Todd and Leona Chase owned an undeveloped lot in the gully

below the Andersons' home (the "gully parcel").  Todd's1 brother Christopher Chase

owned the adjacent undeveloped parcel.           Todd and Christopher alleged that the 

Andersons were responsible for the damage that the landslide caused to the lots in 

the gully.

       On September 29, 2009, the trial court entered a decree dissolving the 

marriage of Todd and Leona Chase.  The decree awarded the gully parcel to Leona 

"as her sole and separate property, free and clear of any liens, claims, interests, or 

encumbrances of the Husband." On or about October 16, 2009, Todd signed and 

acknowledged a quit claim deed conveying the gully                   parcel   to Leona in 

consideration of the terms of the dissolution decree.  Todd promptly recorded three 

property transfers that had been executed at the same time, but did not deliver or 

record the gully parcel deed until January 13, 2010.

       In about September 2009, Todd and Christopher retained attorney Jamie 

Jensen to represent them in their dispute with the Andersons.  On November 13, 

2009, Todd and Christopher filed a complaint for damages against the Andersons 

and the City of Everett,2 raising claims of trespass, intentional or negligent removal 

    1 For purposes of clarity, we refer to the Chases by their first names.
    2 By stipulation, the trial court dismissed the City on February 22, 2010.

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No. 65604-0-I/3

of trees, diminution of value, and negligent issuance of permits.   The complaint, 

which was signed solely by attorney Jensen, alleged that Todd was "the owner" of 

the  gully parcel.  Among other things, Todd requested compensation of about 

$280,000 for the loss of trees on the parcel.  

       By letter dated November 24, 2009, counsel for the Andersons informed 

Jensen that based on the dissolution decree, Leona, not Todd, was the owner of the 

gully parcel and demanded that the lawsuit be dismissed.  Counsel also notified

Jensen that the Andersons would be seeking CR 11 sanctions for pursuing a matter 

that was not well grounded in fact.

       On December 4, 2009, after Jensen or the Chases  failed to respond, the 

Andersons filed a motion to dismiss Todd's claims, arguing that he lacked standing 

because he did not own the gully parcel.  The Andersons also maintained that the 

misrepresentation  about Todd's ownership warranted  the imposition of CR 11 

sanctions and an award of attorney fees.  On December 18, 2009, Jensen filed a 

notice of withdrawal, and new counsel was substituted for the Chases.

       The  trial court concluded that CR 11 sanctions were warranted and that 

Todd's claims should be dismissed without prejudice.  The  trial judge, who also 

presided over  the Chases' dissolution proceeding, found that Todd was not the 

lawful owner of the gully parcel, that his representations in the complaint were 

fundamentally misleading and not well grounded in fact, and that the 

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No. 65604-0-I/4

misrepresentations had "resulted in a waste of time, resources and expense to the 

Andersons, requiring them to incur attorneys' fees and costs."  

       At the final hearing on May 19, 2010, the trial court entered a judgment for 

$5,000 in CR 11 sanctions, to be imposed jointly against Todd and Jensen.  

       Jensen appeals.3

                                       DISCUSSION

       CR 11 authorizes the trial court to impose appropriate sanctions for baseless 

filings and for filings made for an improper purpose.      MacDonald v. Korum Ford, 80 

Wn. App. 877, 883, 912 P.2d 1052 (1996).  A filing is "baseless" when it is "(a) not 

well grounded in fact, or (b) not warranted by (i) existing law or (ii) a good faith 

argument for the alteration of existing law."  Hicks v. Edwards, 75 Wn. App. 156, 

163, 876 P.2d 953 (1994).  "To impose sanctions for a baseless filing, the trial court 

must find not only that the claim was without a factual or legal basis, but also that the 

attorney who signed the filing did not conduct a reasonable inquiry into the factual 

and legal basis of the claim."     West v. Wash. Ass'n of County Officials, 162 Wn. 

App. 120, 135, 252 P.3d 406 (2011).  We review the trial court's imposition of CR 11 

sanctions for an abuse of discretion.  Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 

448 (1994).

    3 The trial court did not dismiss Christopher Chase's claims against the 
Andersons, which apparently remain pending.  The court ultimately entered CR 
54(b) findings authorizing Jensen's appeal.

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No. 65604-0-I/5

       Jensen  first  contends that CR 11 sanctions were not warranted, because 

Todd was in fact the owner of the gully parcel when Jensen signed and filed the 

complaint in November 2009.  He asserts that Todd was the owner of the gully 

parcel, "along with his ex-wife" until he "delivered the deed to . . . Leona Chase [in] 

January 2010."

       Jensen's argument appears to rest on the general proposition that a deed is 

not valid until delivered to the grantee.  But, the rule in Washington has long been 

that "an actual physical delivery of the deed [is] not necessary to constitute a valid 

delivery."  Thatcher v. Capeca, 75 Wash. 249, 252, 134 P. 923 (1913); see also 17 

William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property 

Law § 7.11 (2d ed. 2004).  Jensen's contentions ignore the fact that one month 

before the complaint was filed, Todd executed and acknowledged a quit claim deed 

conveying the property to Leona in accordance with the provisions of the dissolution 

decree.

       Moreover, our Supreme Court has recently noted                 that  "a Washington 

[dissolution] decree awarding property situated within the state has the operative 

effect of transferring title."  In re Marriage of Kowalewski, 163 Wn.2d 542, 548, 182 

P.3d 959 (2008).  Jensen dismisses this statement as mere dicta.  But, the court's 

comment is an integral part of its analysis of a dissolution court's power to affect title 

to real property.      Jensen's conclusory assertion that  we should ignore  the 

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No. 65604-0-I/6

Kowalewski     court's clear statement of Washington law merits no further 

consideration.  See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 

828 P.2d 549 (1992) (appellate court will not consider arguments unsupported by

relevant authority).

       In the alternative, Jensen contends that any misstatement about ownership in 

the complaint was "harmless," because Todd "was an owner of the gully property 

with his wife when the damage occurred so he had standing to bring this action."  

Jensen's reliance on Vance v. XXXL Dev., LLC, 150 Wn. App. 39, 206 P.3d 679 

(2009), for this proposition is misplaced.  Vance involved a former property owner's 

right to recover for nuisance after selling the affected property              and has no 

application to the parties' property rights following entry of a dissolution decree.  Id.

at 40.  Jensen has not devoted any argument to the effect of the dissolution decree 

on the cause of action that allegedly arose during the marriage.4

       In summary, Jensen has not demonstrated any error in the trial court's 

determination that Todd's alleged ownership of real property awarded to his former 

wife was not well grounded in fact.  Nor has he otherwise challenged the trial court's 

    4 Community property not distributed in a dissolution decree is generally owned 
by the former spouses as tenants in common.  In re Marriage of Molvik, 31 Wn. App. 
133, 135, 639 P.2d 238 (1982) (former spouse may bring a partition action or seek 
other declaratory relief after the dissolution).  Because Jensen and Todd did not 
allege that the cause of action was a community asset that was not distributed as 
part of the dissolution decree, we do not address this theory further.

                                              -6- 

No. 65604-0-I/7

determination of the appropriate amount of CR 11 sanctions and the decision to 

impose sanctions jointly on Jensen and Todd.           Accordingly, Jensen has failed to 

establish any abuse of discretion.

       Jensen next contends that the trial court imposed CR 11 sanctions without 

affording him an adequate opportunity to appear and defend himself.  He complains 

that he was not properly served or notified about all of the CR 11 hearings.

       CR 11 procedures must comply with due process requirements of notice and 

an opportunity to be heard.  Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 224, 829 

P.2d 1099 (1992).  Here, the Andersons informed Jensen, as counsel for Todd, of 

the alleged misstatement in the complaint and of the Andersons' intent to seek CR 

11 sanctions.  In response, neither Todd nor Jensen made any attempt to amend or 

correct the complaint.  The Andersons also served Jensen on December 4, 2009, 

with the motion to dismiss Todd's claims and request for CR 11 sanctions.  As the 

trial court noted, Jensen was present at the February 4, 2010 hearing, during which 

the court granted    the motion to dismiss Todd's claims and to impose CR 11 

sanctions.  Although Jensen did not speak at the hearing, nothing in the record 

suggests that the court imposed any limitations on his ability to participate.

       Finally, Jensen was present at the May 19, 2010 hearing.  Although the 

purpose of the hearing was ostensibly to determine the amount of CR 11 sanctions 

and the individuals     on  whom the sanctions would be  imposed, the trial court 

                                              -7- 

No. 65604-0-I/8

expressly noted that the prior decisions were essentially "preliminary" and that 

Jensen "has been given a full opportunity to be heard for this hearing where the 

Court would be making final decisions."  The court considered Jensen's extensive 

written pleadings, and Jensen presented oral argument on the issue of whether CR 

11 sanctions were appropriate.  Under the circumstances, Jensen had adequate 

notice and a full opportunity to be heard.  The trial court did not violate Jensen's due

process rights.  See Bryant, 119 Wn.2d at 224.

       Finally, Jensen contends that counsel for the Andersons violated ER 404(a) 

by appending documents from Jensen's prior disciplinary proceedings in Minnesota 

to the motion for CR 11 sanctions.  Jensen claims that counsel improperly presented 

inadmissible and prejudicial evidence to establish that he was acting in conformity 

with the prior conduct.

       Jensen never formally asked the trial court to rule on the challenged 

evidence.5  Nonetheless, he "presumes that the court must have been significantly 

influenced by the inadmissible evidence" and  "believes that the trial court was 

prejudiced against him and no amount of law or fact would have changed the 

outcome."   Nothing in the record supports these bare allegations.  Indeed, the trial 

court is presumed "to perform its functions regularly and properly without bias or 

    5 Jensen noted a motion to exclude the evidence but then voluntarily withdrew it 
at the request of the Chases' new counsel.

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No. 65604-0-I/9

prejudice."  Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 

P.3d 877 (2000).  And, we must presume that the trial court did not consider the 

evidence for any improper purpose.  See Id.  In the CR 54(b) certification, the trial 

court expressly noted that its CR 11 decision would have been the same "whether or 

not such material was in the record."           Jensen has failed to demonstrate any 

prejudicial error.

       Both sides have requested an award of attorney fees.  In his reply brief, 

Jensen requests for the first time an award of attorney fees based on RAP 18.9(a) 

(sanctions based on violation of Rules of Appellate Procedure).6            The Andersons 

request an award of attorney fees for a frivolous appeal.  The record supports 

neither request and both are denied. 

       Affirmed.

WE CONCUR:

    6 Jensen concedes that the request for attorney fees in his opening brief failed to 
comply with RAP 18.1.

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