In re the Guardianship of: James Donald Cudmore
32206-8
| Wash. Ct. App. | Jan 26, 2017Background
- James Cudmore, later diagnosed with dementia, had previously executed durable powers of attorney appointing Timothy Lamberson to manage finances and health-care decisions.
- Lamberson petitioned in July 2013 to be appointed guardian after learning Cudmore had executed new estate planning documents and a power of attorney in favor of attorney John Bolliger.
- At the initial guardianship hearing the court appointed Rachel Woodard to represent Cudmore and denied Bolliger’s request to be appointed, citing that Bolliger was likely to be a material witness and thus disqualified under the rules of professional conduct.
- Bolliger moved for reconsideration and requested certification for immediate appeal; the court denied reconsideration and Bolliger did not seek discretionary review under RAP 2.3.
- After disqualification, Bolliger continued to file motions, re-note hearings, issue subpoenas, and initially refused to produce Cudmore’s will to Woodard; the court found these post-disqualification actions were taken while Bolliger knew he was not attorney of record.
- The trial court imposed CR 11 sanctions against Bolliger, awarding $9,782.75 to compensate the guardianship estate for fees incurred responding to Bolliger’s post-disqualification conduct; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Lamberson) | Defendant's Argument (Bolliger) | Held |
|---|---|---|---|
| Whether Bolliger’s post-disqualification filings and subpoenas were sanctionable under CR 11 | Bolliger continued to intermeddle after being disqualified and caused the estate to incur reasonable fees responding — sanctions appropriate | Bolliger contends RCW 11.88.045(1)(a) gave Cudmore an absolute right to counsel of choice and his filings were justified; he also argued lack of explicit ruling on certification for appeal | Court held Bolliger’s continued participation after disqualification was unreasonable; sanctions under CR 11 were authorized and supported by findings |
| Whether the trial court’s factual findings lacked substantial evidence | Many challenged findings were unsupported or legally improper | Bolliger argued specific findings (e.g., being a witness, subpoenas quashed) were incorrect or premature | Court found substantial evidence supports the challenged findings and that they support sanctionable conduct |
| Whether RCW 11.88.045(1)(a) overrides court authority to disqualify counsel | N/A (Lamberson relied on court’s authority to enforce disqualification) | Bolliger argued the statute gave Cudmore an unqualified right to choose counsel, precluding disqualification | Court rejected Bolliger’s statutory trump argument: disqualification is subject to professional conduct rules and available appellate review; Bolliger should have sought discretionary review instead of persisting |
| Whether appellate fees or sanctions on appeal are warranted | Requested fees for defending appeal and for opposing appellate rule violations | Bolliger sought appellate CR 11 fees; argued trial sanctions improper | Court denied appellate CR 11 fee requests (CR 11 is for superior court); granted Lamberson leave to seek reasonable fees under RAP 18.9 only for demonstrable harm caused by Bolliger’s appellate rule violations |
Key Cases Cited
- Biggs v. Vail, 124 Wn.2d 193 (1994) (sets objective standard for CR 11 reasonableness and sanction review)
- Bryant v. Joseph Tree, Inc., 119 Wn.2d 210 (1992) (standards on attorney conduct and sanctions)
- Snyder v. Haynes, 152 Wn. App. 774 (2009) (appellate review: substantial evidence and conclusions of law)
- Eller v. E. Sprague Motors & R.V.'s, Inc., 159 Wn. App. 180 (2010) (discretionary nature of CR 11 sanctions and abuse of discretion standard)
- In re Estate of Barovic, 88 Wn. App. 823 (1997) (discusses discretionary review of disqualification orders)
- American States Ins. Co. v. Nammathao, 153 Wn. App. 461 (2009) (discretionary review under RAP 2.3)
- Bldg. Indus. Ass'n of Wash. v. McCarthy, 152 Wn. App. 720 (2009) (CR 11 is for superior court, not appellate court)
- Splash Design, Inc. v. Lee, 104 Wn. App. 38 (2000) (sanctioned party is an aggrieved party entitled to seek appellate review)
- Nelbro Packing Co. v. Baypack Fisheries, 101 Wn. App. 517 (2000) (limits and purpose of CR 54(b) certification)