Washington

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

In re Estate of Delguzzi,
1999.WA.42018 (Wash.App.Div.2 01/08/1999)

Washington Court of Appeals

No. 21752-0-II

1999.WA.42018

January 08, 1999

IN RE THE ESTATE OF JACK J. DELGUZZI, DECEASED. GARY DELGUZZI AND CHARLES M. CRUIKSHANK, III, APPELLANTS,

v.

WILLIAM E. WILBERT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JACK DELGUZZI; LORETTA DICKSON WILBERT, SPOUSE OF WILLIAM E. WILBERT; WILLIAM E. WILBERT-BROKER, INC., A WASHINGTON CORPORATION; WILLIAM E. WILBERT, P.S., INC., A WASHINGTON CORPORATION, CEDARWOOD PROPERTIES, INC., A WASHINGTON CORPORATION; W AND S INVESTMENTS, INC., A WASHINGTON CORPORATION; HEMISPHERE, LTD., A WASHINGTON CORPORATION; 400430 D.C. LTD., A BRITISH COLUMBIA, CANADA CORPORATION; 413505 T OF G HOLDINGS D.C., LTD., A BRITISH COLUMBIA, CANADA CORPORATION; WILLIAM DICKSON WILBERT, AND KATHLEEN ANN WILBERT, HUSBAND AND WIFE; DANIEL GERARD JARBOE AND JANE DOE JARBOE; LAURE ANNE WILBERT AND JOHN DOE WILBERT, HUSBAND AND WIFE, ELLEN D. CLARK AND DAVIS WRIGHT TREMAINE, ALLEN D. CLARK AND JANE DOE CLARK; DAVIES, WRIGHT AMD TREMAINE, A WASHINGTON GENERAL PARTNERSHIP; GARY PARISH AND SUSAN PARISH, HUSBAND AND WIFE, WILLIAM A. AND MICHEL SHAO HAI CARLSEN, HUSBAND AND WIFE; GERALD H. SHAW AND JANE DOE SHAW, HUSBAND AND WIFE; PAUL R. CRESSMAN AND SHORT AND CRESSMAN, A WASHINGTON GENERAL PARTNERSHIP; WILBERT F. HAMMOND AND JANE DOE HAMMOND, HUSBAND AND WIFE; LOCKWOOD FOUNDATION; WESTERN SURETY COMPANY, A COMPANY LICENSED TO DO BUSINESS IN THE STATE OF WASHINGTON, JOHN DOE, I THROUGH JOHN DOE XX AND JANE DOE I THROUGH JANE DOE XXV; ABC CORPORATIONS I THROUGH XX; WILLIAM W. WILBERT, TRUSTEE OF THE IRREVOCABLE TRUST OF GARY DELGUZZI; WILLIAM E. WILBERT, AS TRUSTEE OF THE TRUST OF LORETTA DICKSON WILBERT; WESTERN SURETY COMPANY; AND TOTH WILBERT & HANNON, AN UNKNOWN ENTITY; SOSUMI, INC., A WASHINGTON CORPORATION, RESPONDENTS.

Counsel: Counsel for Appellant(s) Charles M. Cruikshank Iii Attorney At Law 108 S Washington St #306 Seattle, WA 98104 Gary J. Delguzzi (Appearing Pro Se) 1306 Western Avenue # 402 Seattle, WA 98104 Counsel for Respondent(s) Larry N. Johnson Chicoine & Hallett PS Waterfront Plc 1 Ste 803 1011 Western Ave Seattle, WA 98104 G. M. Zeno Jr. Davidson Czeiler etal 520 Kirkland Way Ste 400 P.o. Box 817 Kirkland, WA 98083-0817

Judges: Authored by Elaine M. Houghton Concurring: J. Dean Morgan Karen G. Seinfeld

The opinion of the court was delivered by: Houghton, C. J.

Source of Appeal: Appeal from Superior Court of Clallam County Docket No: 80-8-7 - Judgement or order under review Date filed: 02/10/97 Judge signing: Hon. William E. Howard

UNPUBLISHED OPINION

Gary DelGuzzi appeals from the trial court's dismissal of his claims against William E. Wilbert, several of Wilbert's adult children, and two corporations wholly owned by the children.*fn1 Gary DelGuzzi and his attorney, Charles Cruikshank, further appeal the trial court's imposition of fees and sanctions against them. We affirm the trial court's imposition of fees and sanctions regarding claims against the Wilbert children, reverse the trial court's dismissal of claims and imposition of fees and sanctions regarding William E. Wilbert, and remand for further proceedings.

FACTS

Jack DelGuzzi died in 1978, appointing his son and sole heir, Gary DelGuzzi (DelGuzzi), as personal representative of his estate. DelGuzzi served as personal representative until August 13, 1982, when he resigned in favor of the current administrator, William E. Wilbert (Wilbert). In 1994, DelGuzzi, through his counsel Charles Cruikshank (Cruikshank), served a complaint on Wilbert.*fn2 The complaint accused Wilbert, who is a real estate agent and developer, of breach of fiduciary duty, self-dealing, and failure to properly account for estate assets. It requested an accounting and the return of any improper fees, charges, and distributions. DelGuzzi amended his complaint several times.

The second amended complaint, dated September 14, 1994, named additional defendants. The additional defendants included the Wilbert children, who are all licensed real estate agents. All of the Wilbert children performed services for the estate and were compensated by the estate. These services included real property sales, property development, property management, appraisal work, and clerical and administrative services. In addition to cash payments for commissions and fees, at least one of the children was compensated with two parcels of real property of the estate.

The second amended complaint requested orders voiding transfers of estate assets to Wilbert, his family members, and their related corporate entities, and removing Wilbert as administrator. Wilbert moved to dismiss based upon lack of jurisdiction. The jurisdictional hearing did not occur until almost two years later, and the motion was denied.

DelGuzzi filed another amended complaint on July 16, 1996. It separated plaintiff's claims into two separate petitions. The first petition (removal petition) requested orders removing the administrator, directing him to render an accounting, appointing a successor, and for other related relief under RCW 11.96.020, .070, .080, .140, and 11.68.070. The trial court set an evidentiary hearing on the motion to remove the administrator for January 21, 1997.

The second petition (damages petition) alleged tort claims against the administrator for various breaches of fiduciary duty, violation of a court order requiring reporting and approval of administrative fees, using alter ego corporations to conceal estate transactions, improperly borrowing plaintiff's separate trust fund assets to pay estate liabilities, and failing to close the estate in a timely manner. In his damages petition, DelGuzzi requested an order setting a trial date on damages, but no date was ever set.

The Wilbert Children's Motion to Dismiss

On November 15, 1996, the Wilbert children's counsel sent a letter to Cruikshank requesting that he drop them from the lawsuit because the complaint failed to state a legally cognizable claim against them. The letter warned that if the claims were not dismissed voluntarily, the Wilbert children would move for dismissal and seek CR 11 sanctions. Cruikshank did not respond to the letter. On December 18, 1996, the Wilbert children filed a motion to dismiss and for CR 11 sanctions.

Wilbert's Motion for Sanctions

On November 8, 1996, Wilbert served his first set of interrogatories on DelGuzzi. DelGuzzi's responses were due on December 9, 1996. CR 33(a). On that day, Cruikshank informed Wilbert's counsel that he would serve partial responses the following day and the remainder within a week. The next day, Cruikshank served only a list of objections to the interrogatories. The parties met and discussed the objections. Wilbert then filed a motion to compel responses to the interrogatories. DelGuzzi filed a motion to extend time to respond.

On December 17, 1996, the parties met and entered into an agreement on several matters: each side would continue its respective motion (to compel discovery and extend time); DelGuzzi would abandon his motion to compel discovery;*fn3 and, DelGuzzi would provide full and complete answers to Wilbert's interrogatories by January 2, 1997.

On December 30, 1996, Cruikshank asked Wilbert's counsel for an extension until January 3, 1997 to provide the responses. Wilbert's counsel agreed, and Cruikshank timely served the responses. The responses were 36 pages of objections and answers. A response to each of defendant's 85 interrogatories was provided, but many of the answers were vague or did not provide the specific information requested. Many of the responses stated that specific information could not be provided because of Wilbert's failure to provide discovery to DelGuzzi.

On January 13, 1997, Wilbert filed a motion for sanctions under CR 37(d) for evasive and misleading discovery. Wilbert also requested CR 11 sanctions, claiming that DelGuzzi's interrogatory responses showed his complaint was not well grounded in fact when filed. The motion stated that a hearing was set for January 21, 1997 on DelGuzzi's claims. It did not distinguish between the removal petition, set for hearing on January 21, and the damages petition, for which no trial date had been set.

On January 15, 1997, DelGuzzi moved to compel discovery. He claimed that Wilbert had failed to properly respond to interrogatories and had denied that business records existed for many of the estate's corporate interests. He further claimed that Wilbert had repeatedly failed to produce source documents for his estate reports and accountings, such as bank statements, check registers, deposit books, and cash journals. DelGuzzi's motion to compel was noted for hearing on January 17, 1997, the same day that Wilbert's and the Wilbert children's motions for sanctions were to be heard. Because of its Disposition of the defendants' motions, the trial court did not rule on DelGuzzi's motion to compel.

Trial Court Rulings

At the January 17, 1997 hearing, the trial court granted the Wilbert children's motion, dismissing them from the lawsuit and awarding them fees and costs of $10,174.45 under CR 11. The monetary sanction was assessed solely against Cruikshank. The trial court dismissed the claims both on the pleadings, under CR 12(c) and 9(b), and on summary Judgement, under CR 56.

The trial court also granted Wilbert's motion and dismissed all of DelGuzzi's claims against Wilbert as a sanction under CR 37(d) and CR 37(b)(2)(C). The trial court found that Wilbert incurred a total of $183,867.53 in expenses in defending the action and ordered a $30,000 sanction for violations of CR 37(d) and CR 11. The trial court assessed the monetary sanction against both DelGuzzi and Cruikshank.

Both Cruikshank and DelGuzzi appeal.

ANALYSIS

Dismissal of Claims Against the Wilbert Children and Award of CR 11 Sanctions

Cruikshank does not challenge the trial court's dismissal of the claims against the Wilbert children, but he argues that the sanctions imposed were improper and unreasonable. He argues that because the allegations against the Wilbert children were only legally insufficient but not factually inaccurate, CR 11 sanctions were improper. He also claims that the trial court erred in dismissing the claims and imposing sanctions before affording DelGuzzi full discovery. Finally, he claims that the amount of the sanction was unreasonable.

A court's imposition of CR 11 sanctions is reviewed for abuse of discretion. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994) (citing Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 338-39, 858 P.2d 1054 (1993)). A trial court abuses its discretion when its order is manifestly unreasonable or based upon untenable grounds. Fisons, 122 Wn.2d at 339.

CR 11 requires that pleadings signed by an attorney be well grounded in fact, warranted by law, and based upon reasonable inquiry. Before imposing sanctions, the trial court must find both that a complaint lacks a factual or legal basis and that the attorney who signed and filed the complaint failed to conduct a reasonable inquiry into its factual and legal basis. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992). The reasonableness of an attorney's inquiry is evaluated by an objective standard. Bryant, 119 Wn.2d at 220 (citing Miller v. Badgley, 51 Wn. App. 285, 299-300, 753 P.2d 530, review denied, 111 Wn.2d 1007 (1998)). The court should inquire whether a reasonable attorney in like circumstances could believe his or her actions to be factually and legally justified, considering such factors as the time available to the attorney, the complexity of the factual and legal issues, and the need for discovery to develop factual circumstances underlying a claim. Bryant, 119 Wn.2d at 220-21.

Here, Cruikshank had ample time to determine whether claims against the Wilbert children were appropriate: the complaint was first filed in February 1994, and the Wilbert children were not named as defendants until September 1994. Information about the work they did for the estate was provided to DelGuzzi in December 1994, almost two years before they asked to be voluntarily dropped from the lawsuit.

Although Cruikshank asserts that he needed additional discovery to substantiate his claims, he never presented a cognizable legal theory under which the Wilbert children could be liable to DelGuzzi. They had no fiduciary duty to DelGuzzi and therefore could not be liable for "self-dealing," as DelGuzzi's complaint alleged. And if DelGuzzi were bringing a fraudulent transfer claim, he failed to do so with the particularity required by CR 9(b), that is, he failed to specifically identify a single parcel of real property as having been fraudulently transferred and presented no evidence suggesting the Wilbert children intentionally participated in a scheme to defraud DelGuzzi. See RCW 19.40 et seq. (outlining fraudulent transfer claims); Park Hill Corp. v. Don Sharp, Inc., 60 Wn. App. 283, 287-88, 803 P.2d 326 (fraudulent transfer claim requires intent to defraud), review denied, 117 Wn.2d 1005 (1991); Deyong Management, Ltd. v. Previs, 47 Wn. App. 341, 346-47, 735 P.2d 79 (1987). Under these circumstances, a reasonable attorney would not have been justified in naming the Wilbert children defendants.

As required before imposing sanctions, the trial court specifically found that DelGuzzi's complaint against the Wilbert children was legally and factually insufficient and made without reasonable inquiry. Cruikshank's argument that sanctions are not appropriate where a claim is not factually inaccurate but is merely legally insufficient is contradicted by the plain text of CR 11.*fn4 His contention that he should have been permitted additional discovery before sanctions were imposed fails precisely because the insufficiency of his pleading is legal rather than factual. Cruikshank's purpose of naming the Wilbert children to acquire jurisdiction over estate property they may have improperly received is not legally cognizable. The trial court did not abuse its discretion in finding that Cruikshank both failed to conduct a reasonable investigation and made legally and factually insufficient claims.

If CR 11 is violated, a court may impose sanctions, including the reasonable expenses incurred by the other party as a result of offending pleading. CR 11. Fees granted under CR 11 must be limited to those amounts reasonably expended in responding to the sanctionable filing. MacDonald v. Korum Ford, 80 Wn. App. 877, 892, 912 P.2d 1052 (1996). Here, the sanctionable conduct was naming the Wilbert children as defendants without investigating whether there was a legal basis for doing so. Cruikshank offers no arguments in support of his assertion that $10,174.45 is not reasonable. Therefore the trial court did not abuse its discretion in imposing the entire amount of fees incurred by the Wilbert children as a sanction.

Dismissal of Claims Against Wilbert and Award of CR 11 Sanctions

1. Dismissal as a Discovery Sanction

Cruikshank next contends that the trial court erred in dismissing DelGuzzi's claims as a discovery sanction under CR 37(d). He asserts that the trial court's decision was improper because it was based upon factual errors, because the trial court failed to find prejudice and willfulness, and because no prior discovery order had been entered. Discovery sanctions under CR 37, like sanctions under CR 11, are reviewed for abuse of discretion. Rhinehart v. Seattle Times, 59 Wn. App. 332, 339, 798 P.2d 1155 (1990), review denied, 124 Wn.2d 1010, cert. denied, 513 U.S. 1017 (1994). Because dismissal is the most severe sanction a court may impose, its use must be carefully considered by the trial court to assure that it is merited. Anderson v. Mohundro, 24 Wn. App. 569, 575, 604 P.2d 181 (1979), review denied, 93 Wn.2d 1013 (1980).

a. Factual Errors

Cruikshank asserts that the trial court was mistaken as to two important factual issues when it ordered dismissal of DelGuzzi's claims: (1) the court believed that the January 21, 1997 evidentiary hearing encompassed both the removal petition and the damages petition; and (2) the court was given the wrong document to review as DelGuzzi's responses to Wilbert's interrogatories.

DelGuzzi's removal petition was based upon RCW 11.96.020, .070, .080, .140, and 11.68.070. Those provisions permit interested persons to petition for a declaration of rights, including orders that the personal representative do or abstain from doing any particular fiduciary act. RCW 11.96.070(b), .080. An interested party may also petition for removal of the personal representative. RCW 11.68.070. Grounds for removal include waste, embezzlement, mismanagement, fraud, incompetence, neglect, or other reasons deemed sufficient by the court. RCW 11.28.250. The court has discretion to order removal of the personal representative if "it appears that said personal representative has not faithfully discharged said trust or is subject to removal for any reason specified in RCW 11.28.250." RCW 11.68.070.

Neither party addresses what level of proof was required at the removal hearing and whether the amount and type of proof would substantially differ from that presented at the hearing on the damages petition.*fn5 All of Wilbert's interrogatories specifically referred to the allegations contained in the damages petition. The trial court appears to have been unclear as to the scope of the January 21st hearing*fn6 and never clearly expressed its position as to which claims that hearing was to encompass.*fn7

Also the trial court was given the wrong document to review as DelGuzzi's answers to Wilbert's interrogatories. Wilbert accurately quoted several interrogatories and DelGuzzi's responses in his memorandum supporting the motion, but he stated that DelGuzzi's responses were attached as exhibit H. Exhibit H was not DelGuzzi's 36 pages of objections and responses dated January 3, 1997, but consisted of DelGuzzi's four pages of objections and responses to defendant's first request for production of documents, also dated January 3, 1997.*fn8

It appears that the trial court was mistaken, or at best unclear, as to the two factual issues Cruikshank raised. This confusion in the record leads us to hold that the trial court failed to exercise its discretion on reasonable grounds.

b. Due Process

The choice of what sanctions to impose for a discovery violation is within the trial court's discretion. Peterson v. Cuff, 72 Wn. App. 596, 601, 865 P.2d 555 (1994) (citing Rhinehart v. KIRO, Inc., 44 Wn. App. 707, 710, 723 P.2d 22 (1986), review denied, 108 Wn.2d 1008 (1987)). Constitutional due process, however, limits the circumstances under which a court can dismiss a plaintiff's claims as a discovery sanction. Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 227, 548 P.2d 558 (citing Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257 (9th Cir. 1964), cert. denied, 380 U.S. 956 (1965)), review denied, 87 Wn.2d 1006 (1976).

Due process requires that a trial court find "a willful or deliberate refusal to obey a discovery order, which refusal substantially prejudices the opponent's ability to prepare for trial" before dismissing an action. Peterson, 72 Wn. App. at 601-02 (quoting Associated Mortgage Investors, 15 Wn. App. at 228-29). The trial court must make it clear on the record whether the factors of willfulness and prejudice are present before dismissing plaintiff's claims. Peterson, 72 Wn. App. at 559 (citing Snedigar v. Hoddersen, 114 Wn.2d 153, 170, 786 P.2d 781 (1990)). The court must also consider whether lesser sanctions would suffice. RCL Northwest, Inc. v. Colorado Resources, Inc., 72 Wn. App. 265, 271-72, 864 P.2d 12 (1993) (quoting Snedigar, 114 Wn.2d at 169-70).

Here, the trial court considered the issue of prejudice, although without making an express finding on the record. The court noted that trial was set for the next business day, discovery had not been complied with, and DelGuzzi had not sought a protective order or a continuance. But the trial court did not consider willfulness. Nonetheless, a violation is willful and deliberate if it is done without reasonable excuse. RCL Northwest, 72 Wn. App. at 272 (citing Rhinehart, 59 Wn. App. at 339). Cruikshank presented several excuses: he had been unable to supply complete answers because Wilbert, who had all of the estate's accounting records, failed to comply with discovery.*fn9 He was also disadvantaged in discovery because his client was very ill and suffered from memory problems.*fn10 He had only a few months to pursue discovery, not a few years, as defendants alleged.*fn11

The trial court noted that having an ill client must have impeded Cruikshank's ability to handle the case, but it did not consider the reasonableness of Cruikshank's other excuses. The court summarily stated that Cruikshank had failed to comply with his obligation under the court rules, without discussing or inquiring into the reasons for the failure. Because the trial court failed to consider the reasonableness of Cruikshank's excuses and the willfulness of his conduct, the trial court failed to comply with due process requirements.

The trial court also failed to adequately consider whether a sanction short of dismissal would have sufficed. See Peterson, 72 Wn. App. at 601 (citing Snedigar, 114 Wn.2d at 170). The trial court discussed only two options:

Dismiss the action, one, or try to put the burden on the trial Judge on Tuesday of identifying what information plaintiffs could present that was not included in the failure to respond. I think those interrogatories pretty much cover every single thing that the plaintiffs could produce at any trial. For that reason, I'm going to grant the request to dismiss.

As discussed above, the trial court apparently believed that all of DelGuzzi's claims were set for hearing on January 21st (both the removal petition and the damages petition). The trial court erred in dismissing the claims that were not set for trial, as defendants were not yet substantially prejudiced in their trial preparation. As a lesser sanction, the trial court could have precluded evidence for which responses were inadequate at the removal hearing and ordered responses by a reasonable date before the trial on the damages petition. Because the trial court apparently considered lesser sanctions based upon its belief that all of plaintiff's claims were set for hearing on January 21st, its ruling was based upon untenable grounds.

Moreover, although our courts have not addressed this issue, courts in other jurisdictions have held that dismissal is not warranted absent a finding of willfulness or fault on the part of the party itself rather than the party's attorney. See, e.g., Birds Int'l Corp. v. Arizona Maintenance Co., 135 Ariz. 545, 662 P.2d 1052, 1054-55 (1983); Cole v. Bayley Prods., Inc., 661 So. 2d 1299, 1299-1300 (Fla. App. 1995); LeBlanc v. GMAC Fin. Servs., 695 So. 2d 1106, 1108 (La. App. 1997); Nevada Power Co. v. Fluor Illinois, 108 Nev. 638, 837 P.2d 1354, 1359 (1992); Zaccardi v. Becker, 88 N.J. 245, 440 A.2d 1329, 1332-33 (1982); In re Barnes, 956 S.W.2d 746, 748 (Tex. App. 1997). Here, the trial court expressly stated that DelGuzzi was not at fault and may have had valid claims.*fn12 Under these circumstances, absent a finding of willfulness on Cruikshank's part and because lesser sanctions were not properly considered, dismissal of DelGuzzi's claims was an abuse of discretion.

2. CR 11 Sanctions

In addition to dismissing DelGuzzi's claims as a discovery sanction, the trial court imposed attorney fees and costs against Cruikshank and DelGuzzi under CR 37(d) and CR 11. The trial court imposed a total of $30,000, a portion of Wilbert's attorney fees and costs in defending the entire action. Cruikshank argues that the CR 11 sanctions were inappropriate and the $30,000 figure was not reasonable. Because the sanctions imposed were a substantial amount of money, appellate review of the award should be inherently more rigorous to ensure that such sanctions are quantifiable with some precision. MacDonald, 80 Wn. App. at 892 (citing Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 883 (5th Cir. 1988)).

CR 11 permits the court to order an attorney or party*fn13 to pay the other party's reasonable expenses incurred because of a filing deemed to violate CR 11. Here, the trial court based the sanctions upon both CR 11 and CR 37(d), without finding a specific violation of CR 11. The court merely stated: "I think it's appropriate to grant sanctions because this hearing wouldn't be required except for the fact that there was failure to comply."

As discussed, before imposing CR 11 sanctions, the trial court must find both that a complaint lacks a factual or legal basis and that the attorney who signed and filed the complaint failed to conduct a reasonable inquiry into its factual and legal basis. Bryant, 119 Wn.2d at 220. Also, the trial court must specify in the record the specific pleading that violates CR 11. MacDonald, 80 Wn. App. at 892. Because the trial court neither identified a specific pleading nor examined its factual basis, CR 11 sanctions were not appropriate.

Monetary sanctions were, however, permissible under CR 37(d). That rule allows the court to impose the reasonable expenses caused by a party's failure to respond to discovery as a sanction, in addition to any other sanctions imposed. On remand, the trial court may impose as a discovery sanction Wilbert's reasonable expenses incurred as a result of DelGuzzi's failure to comply with discovery.

3. Sanctions Against Cruikshank

Cruikshank further contends that the trial court violated CR 54(f)(2)(B) and improperly imposed sanctions against him that were initially imposed only against DelGuzzi.

CR 54(f)(2)(b) requires that counsel be given five days' notice of presentation and served with a copy of any order or Judgement prior to its entry. Cruikshank asserts that the trial court's order of January 17, 1997 granting Wilbert's motion was signed by the Judge in his absence after the proceedings. He therefore claims that Wilbert's counsel had an improper ex parte contact with the trial court.

Wilbert counters that he served a copy of all orders on Cruikshank at least five days before the orders were entered. Cruikshank's assertion that the order was signed in his absence is not itself a violation of CR 54(f)(2), which merely requires that the parties be given five days' notice and served with a copy of the order.

The January 17, 1997 order granting Wilbert's motion ordered attorney fees as a sanction against "Plaintiff Gary DelGuzzi." The order was signed by the Judge and Wilbert's counsel. The later order and Judgement, dated April 8, 1997, imposed the sanction against both Cruikshank and DelGuzzi. The April 8th order stated that both counsel had participated in a teleconference hearing that set the sanction amount. In the April 8th order, the trial court found that Judgement against both DelGuzzi and Cruikshank was appropriate.

These facts do not demonstrate a violation of CR 54(f)(2), or that adding Cruikshank to the Judgement was improper. Cruikshank cites Havsy v. Flynn, 88 Wn. App. 514, 945 P.2d 221 (1997), arguing that the court may not include counsel for a party in a sanctions order when counsel was not named in the original order. The Havsy case, however, does not discuss sanctions against an attorney but only considers when RCW 4.84.185 sanctions are proper against a party. Havsy, 88 Wn. App. at 521. Because Cruikshank fails to provide either authority or a factual basis to support his claims under CR 54(f)(2), his argument fails. Fiduciary Conflict of Interest re Judgement in Favor of Wilbert

DelGuzzi, appealing pro se, contends it is an impermissible conflict of interest for Wilbert, as administrator, to pursue a Judgement in an estate proceeding against the sole heir, and that it is improper for Wilbert to levy DelGuzzi's property to satisfy the Judgement because Wilbert learned the location of DelGuzzi's property through his fiduciary relationship.

Although DelGuzzi is correct that a fiduciary has a duty to avoid conflicts of interest, it does not follow that Wilbert has violated that duty by defending his actions as administrator and seeking sanctions where appropriate. DelGuzzi's assertion that an administrator who breaches his fiduciary duty is not entitled to fees is likewise correct, but here no breach of fiduciary duty was ever proved. DelGuzzi's conflict of interest claims are otherwise unsupported and therefore fail.

In sum, the trial court did not abuse its discretion in awarding CR 11 sanctions to the Wilbert children. But the trial court abused it discretion in dismissing DelGuzzi's claims against Wilbert as a discovery sanction, and that dismissal is reversed. The $30,000 sanction imposed under CR 11 and CR 37(d), following Wilbert's motion, was also an abuse of discretion. On remand, the trial court may impose, as a sanction under CR 37(d), the amount reasonably incurred by Wilbert as a result of DelGuzzi's failure to properly respond to discovery.

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

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Houghton, C.J.

We concur:

Morgan, J.

Seinfeld, J.

Opinion Footnotes

*fn1 The Wilbert children are Laure Anne Wilbert, Daniel G. Wilbert, and William D. Wilbert. Their corporations are SoSumi, Inc., and Puget Sound Property Consultants, Inc. We refer to these respondents as the Wilbert children.

*fn2 The first complaint was never filed.

*fn3 DelGuzzi first served interrogatories and requests for production on September 3, 1996. He moved for an order compelling discovery and for discovery sanctions on November 7, 1996.

*fn4 "The signature {on a pleading} of a party or of an attorney constitutes a certificate by the party or attorney that . . . to the best of the party's or attorney's knowledge, information, and belief . . . it is well grounded in fact and is warranted by existing law . . . ." CR 11.

*fn5 Wilbert assumes that all of the allegations made in the petition for damages would also have been presented at the removal hearing.

*fn6 At the hearing, Cruikshank specifically informed the court that the motion to remove Wilbert was scheduled for the next court date, but no hearing had yet been set for the petition for damages. The court then asked the other two attorneys what they thought was to occur on January 21st: THE COURT: What do you think is scheduled to happen on Tuesday? MR. ZENO: My own understanding is that, and I'm not the best one to tell you because I didn't appear in this case until the fall, but my understanding is that there's a hearing on the plaintiff's motion to remove the personal representative . . . . . . . . THE COURT: . . . I heard Mr. Cruikshank say that there was not going to be a trial on Tuesday. That there was only his motion to remove the personal representative and trial would come at a subsequent time. And so I need to know what your position is on that. MR. JOHNSON: My understanding from your order, your Honor, is that you have set a hearing and an evidentiary hearing of Mr. Cruikshank to carry his burden to establish the allegations in his petition to justify removal of Mr. Wilbert as administrator are {sic} established and to give Mr. Wilbert the opportunity to defend against those allegations. . . . All of {the allegations} are directed towards supposed bad acts or acts of Mr. Wilbert as administrator and that I assume he is attempting to utilize those to justify removal of Mr. Wilbert.

*fn7 The court stated: Now, I understand contrary to what Mr. Cruikshank has just argued that on Monday we are going to have or Tuesday we have scheduled a trial. The trial is on the petition of Mr. Delguzzi . . . to have the personal representative of the estate removed. In doing that, the plaintiff has a fairly heavy burden. . . . . . . {T}he plaintiff can't simply make the 56 factual allegations . . . and stand on those facts and not tell the defendants the basis for those facts. Although the court appears to contemplate a hearing on the removal petition, the 56 factual allegations were contained in the damages petition.

*fn8 At oral argument, Wilbert acknowledged that the wrong responses were attached to the motion for sanctions, but claimed that the correct responses were attached to DelGuzzi's motion for reconsideration. The motion for reconsideration was not included in the appellate record. But our analysis would not change even if the trial court had reviewed the correct document.

*fn9 Wilbert claims to have completely answered these interrogatories and made available all of the estate documents for inspection. The court never considered DelGuzzi's motion to compel or made any findings regarding Wilbert's discovery compliance.

*fn10 DelGuzzi's illness requires him to take up to 16 different medications daily, including tranquilizers. He suffers from confusion, memory loss, disorganization, and decreased comprehension and concentration. These problems were apparent during his deposition.

*fn11 Cruikshank asserts that defendants had delayed the hearing on their jurisdictional motion for almost two years, until September of 1996. Cruikshank did not pursue discovery until after that motion was denied.

*fn12 The court stated to Cruikshank: I think that your client may have some . . . valid concerns, and those concerns should be brought to the court's attention so that a decision can be made about whether the personal representative can be removed. And should be removed. But you, Mr. Cruikshank, have not complied with the court rules. . . . . . . . That's your problem. It's not your client's problem.

*fn13 DelGuzzi argues that the CR 11 sanctions against him are in error because sanctions against a party are only available under RCW 4.84.185. He cites Havsy v. Flynn, 88 Wn. App. 514, 945 P.2d 221 (1997), where the court stated: "Sanctions against an attorney are awarded under CR 11. Sanctions against a party are awarded under RCW 4.84.185." Havsy, 88 Wn. App. at 521. Havsy, however, did not involve CR 11 sanctions. CR 11 clearly permits sanctions against "the person who signed {the offending pleading}, a represented party, or both." CR 11; see also Blair v. GIM Corp., 88 Wn. App. 475, 481-82, 945 P.2d 1149 (1997); Rhinehart v. Seattle Times Co., 51 Wn. App. 561, 581, 754 P.2d 1243 (citing Wilson v. Henkle, 45 Wn. App. 162, 174, 724 P.2d 1069 (1986)), review denied, 111 Wn.2d 1025 (1988), cert. denied, 490 U.S. 1015 (1989).

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