IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JULIE ANN THOMAS, a single woman, Appellant,

v. J.R. LeVASSEUR and DONNA LOUISE LeVASSEUR, husband and wife, individually and the marital community composed thereof, Respondents. DIVISION ONE
No. 71845-2-1 UNPUBLISHED OPINION

FILED: August 24, 2015 

### Dwyer, J. —Julie Thomas filed suitagainst herparents, J.R.1 and Donna Louise LeVasseur, overownership of a Seattle condominium. Thomas's 

### complaint, which sounded in quiettitle and declaratoryjudgment, alleged thatthe deed to the condominium was in the LeVasseurs' names in "error." Thomas also 

### filed a lis pendens against the property. Subsequently, in response to a motion 

### for summaryjudgmentfiled by the LeVasseurs, Thomas acknowledged that there was no error on the condominium deed and stated that, to the contrary, the 

### LeVasseurs were purposely on the deed. Thetrial court granted summary 

### judgment in the LeVasseurs' favor and awarded them attorney fees pursuantto both the lis pendens statute (againstThomas) and Civil Rule 11 (against both Thomas and her attorney). Thomas now appeals. 

### We affirm thegrant ofsummaryjudgment and the award ofattorney fees 

### pursuantto the lis pendens statute. However, we reverse the award ofattorney He is also referred to in the record as "Reggie."No. 71845-2-1/2
fees pursuant to CR 11 as to both Thomas and her attorney.
I
A. General Thomas filed suit against her parents, the LeVasseurs, on January 29, 2014, requesting that the LeVasseurs' names be removed from the title to a Seattle condominium (condo) and replaced with her name. In the trial court, Thomas proposed two theories for why she should be on the title to the condo instead of her parents. In her complaint, Thomas alleged that she had contributed all of the funds for the purchase and maintenance of the 

### property and thatit was an "error" that herparents were on thetitle. However, later in the litigation, Thomas admitted that herparents were purposely on the title to the condo butclaimed that they had orally agreed to gift her the condo at her request. 

### For their part, the LeVasseurs claimed thatthey agreed topurchase the 

### property because they saw it as anopportunity to help their daughter and granddaughter, who lived in the condo after it was purchased, in the shortterm, and to make money (through expected capital gains) in the long term.
B. The Condo

a. Official Records The LeVasseurs were listed as the owners on the statutory warranty deed for 

### thecondo property. The deed reflects thattheproperty was sold to the LeVasseurs by Harvard &Highland, LLC. In addition to thedeed, the LeVasseurs were identified as the buyers in the condo purchase and saleNo. 71845-2-1/3 agreement. Furthermore, the LeVasseurs were listed as the tax payer of record with the King County Treasurer. The settlement statement for the closing ofthe condo purchase reflects 

### that the purchasefunds wereoverwhelmingly contributed by J.R. LeVasseur.2 However, the undisputed facts in the record reveal a more complicated arrangement. b. Financial Contributions The record establishes that the following contributions were made to the purchase and maintenance of the condo. • $42,500.00 in earnest money was paid by Thomas. However, it is 

### undisputed that a large portion ofthis sum (at least $30,000.00) was advanced by the LeVasseurs, either directly orthrough thefamily business, L & L Machinery.


### • $400,000.00 was paid by the LeVasseurs using a combination offunds 

### from (1) a loan secured by a deed oftrust on a property oftheirs in Jefferson County,3 and (2) a line ofcredit extended to L&LMachinery.

• $500,000.00 was paid by Thomas using funds from a loan that she 

### obtained from a personal friend. This loan was subsequently repaid with funds from a loan taken outby the LeVasseurs and secured by a deed of trust on the condo in September2012. This loan, in turn, was repaid by Thomas' current fiance in September 2013. • The LeVasseurs and Thomas each paid some of the condo property taxes. 

### • Thomas paid thecondo's homeowner assessmentswhile she lived there.



### • Thomas repaid the LeVasseurs and/or L&LMachinery some ofthe funds that were contributed to the condo. The exact amount was not established in the trial court record.

2All but the earnest money isattributed tohim. The earnest money isnot attributed to anyone. 3TheLeVasseurs attempted togift theJefferson County property toThomas via a residential trust, which was part oftheir estatedistribution plan. However, Thomas, who was trustee, nevertransferred the property into her name. Instead, Thomas, astrustee, gifted the Jefferson County property from the trust back to the LeVasseurs.No. 71845-2-1/4
C. The Complaint Thomas's complaint alleged only quiet title and declaratoryjudgment
causes of action against the LeVasseurs. There was no mention of an oral 

### agreement between the parties. Thomas alleged that she had paid for everything related to the condo—-its purchase, taxes, and fees—and that the LeVasseurs had contributed nothing. She further alleged that the statutorywarranty deed


### was "incorrectly issued" to the LeVasseurs. Thomas also filed a lis pendens 

### against the property based on her allegation that there was an "error" on the title. D. Summary Judgment and Thomas's Second Theory The LeVasseurs filed a motion for summaryjudgment on March 12, 2014, 

### seeking dismissal ofThomas's claims as well as anaward ofattorney fees pursuant to CR 11 "and/or" the lis pendens statute. 

### Thomas filed herresponse to the summaryjudgment motion onApril 1, 

### 2014. In it, she proposed her second theory for why she was the rightful owner 

### ofthe condo. Specifically, Thomas claimed that shewas the real purchaser of the condo but that she had arranged for the official documents to bear her 

### parents' names in orderto insulate the assetfrom herformer husband.4 Thomas further claimed that she had an oral agreement with the LeVasseurs that they 

### would transfer the property toher at anundetermined future date. According to Thomas, shefiled theunderlying suit after the LeVasseurs breached their oral 

### agreement, in September 2013, by refusing to transferthe property to her upon her request. 

### 4

According to Thomas, she and her parents were convinced that any assetofany value held in her name would besubjectto attack from her ex-husband. Curiously, sheand her exhusband were divorced in 2010, well before the condo purchase.

-4-No. 71845-2-1/5
In their reply, which was timely filed on April 7, 2014, the LeVasseurs pointed out that Thomas was attempting to change the nature of the underlying action from quiet title to breach of contract. They argued that, while the claims alleged in Thomas's complaint must fail, there was still a possibility of Thomas amending her complaint to reflect her new claim.5 E. Summary Judgment Hearing The summaryjudgment hearing was held on April 11, 2014. During oral argument, Thomas's counsel referenced that the complaint might be amended but argued that there was no need for such an amendment.6 At the conclusion of the hearing, the trial court took the matter under advisement with the expectation that a decision would be rendered within approximately one week. OnApril 15, 2014, Thomas filed a motion for an order shortening time and a motion for leave to amend her complaint. On April 17, 2014, the trial court entered three orders: (1) granting Thomas's motion for an order shortening time; (2) denying Thomas's motion for leave to amend; and (3) granting the

5 The reply stated, for example: Plaintiffhas changed her storyand argues she is entitled to equitablerelief based on the alleged breach ofsome oralcontract. However, Plaintiffhas not attempted to amend herComplaint and apparently continues to seek reliefin the form ofquiet title eventhough Plaintiffadmits thatDefendants participated in the purchase ofthe Subject Property and itwas nomistake title was conveyed to Defendants. 6 Thomas's counsel stated, Ifas a result of this, what's come to lightas a result of this motion, response, and reply, we end up in a situation where we ought to be pleading breach of contract, specificperformance, we're happy to do that. And we certainly have the ability underRule 16 - or 15, rather, to amend ourcomplaint to allege specific performance and/or breach of contract. And ifwe're in that realm, and we certainly would respectfully request the opportunity to be able to dothat, ifyour Honor is inclined to grantthis motion, and wethink you can't because ofthe genuine issues ofmaterial facthere, if your Honor isintending to godown thatroad, then wewould respectfully request the opportunity to amend ourcomplaint; Idon't think it's necessary.No. 71845-2-1/6
LeVasseurs' motion for summaryjudgment in its entirety, reserving only the issue of sanctions and the amount of attorney fees to be awarded. Thomas filed this appeal on April 23, 2014. Her appeal originally pertained to all of the trial court's April 17 orders. However, at oral argument in this court, the parties agreed that, based on the progress of separate, butrelated, litigation, this courtnow need only address the propriety of the summary judgment order and the attorney fee awards.
II Thomas first contends that the trial court erred by granting summary 

### judgment in favor ofthe LeVasseurs. This is so, she asserts, because discovery
was required to resolve disputes ofmaterial fact. We disagree. 

### Wereview a summaryjudgment orderde novo. Lokan SAssocs.. Inc. v. Am. Beef Processing, LLC, 177 Wn. App. 490, 495, 311 P.3d 1285 (2013). 

### When reviewing an order granting summaryjudgment, we engagein the same 

### inquiry as thetrial court, viewing thefacts and all reasonable inferences therefrom in thelight most favorable tothenonmoving party. Brown v. Brown, 157 Wn. App. 803, 812, 239 P.3d 602 (2010). "Summaryjudgment is 

### appropriate ifthe pleadings, affidavits, depositions, answers to interrogatories, and admissions onfile show that there is no genuine issue ofmaterial fact and 

### thatthe moving party isentitled tojudgment as a matter oflaw." Keithly v. Sanders, 170 Wn. App. 683, 686, 285 P.3d 225 (2012) (citing CR 56(c)).No. 71845-2-1/7 A quiet title action is equitable and designed to resolve competing claims ofownership. See RCW 7.28.010.7 "An action to quiettitle allows a person in peaceable possession or claiming the right to possession of real property to compel others who assert a hostile right or claim to come forward and assert 

### their right orclaim and submit it tojudicial determination." Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001). Because "the object ofthe statute is to 

### authorize proceedings 'for the purpose ofstopping the mouth ofa person who has asserted or who is asserting a claim to the plaintiff's property[,] [i]t is not 

### aimed at a particular piece ofevidence, but atthe pretensions ofthe individual.'" McGuinness v. Harqiss, 56 Wash. 162, 164, 105 P. 233 (1909) (quoting Castro v. 

### Barry, 79 Cal. 443, 21 P. 946, 947 (1889)), overruled on othergrounds by Rorviq

v. Douglas, 123 Wn.2d 854, 873 P.2d 492 (1994). 

### The LeVasseurs' summaryjudgment motion wasdirected atThomas's 

### complaint, which sounded in quiet title and declaratoryjudgment. Thomas's causes ofaction were based on herassertion that the condodeed was in the LeVasseurs' names by mistake. 

### In her complaint, Thomas averred, "Despite the fact that all funds used to 

### purchase the Subject Property were provided by Thomas, the StatutoryWarranty Deed was incorrectly issued to LeVasseur [sic]." Complaint, U3.2. Emphasizing 

### this point, she reiterated, "The fact thattitle to the Subject Property is currently in

7 RCW 7.28.010 provides, in pertinent part: 

### Any person having avalid subsisting interestin real property, and arightto the possession thereof, may recoverthe same by action in the superiorcourt ofthe propercounty, to be brought... againstthe person claiming the title or some interest therein, and may havejudgment in such action quieting orremoving a cloud from plaintiffs title.No. 71845-2-1/8
LeVasseur's name is an error." Complaint, U3.7 (emphasis added). In their summaryjudgment motion, the LeVasseurs presented significant evidence refuting Thomas's allegation that their names were on the deed by mistake, including documentation of their substantial financial contributions to the purchase of the property. Thereafter, Thomas essentially capitulated. In her 

### response to the motion, she acknowledged that the deed had been correctly issued to her parents; there was no error. Indeed, she even claimed that she had orchestrated the situation so that the deed would be in her parents' names instead of hers. 

### By Thomas's own admission, then, theultimate material fact—whether the deed was incorrectly issued to the LeVasseurs—was notin dispute. Moreover, Thomas could notrely on discovery to change thatwhich she knew to be truethere was no error on the deed. 

### Therefore, summaryjudgment in the LeVasseurs' favor was properly granted.
Ill Thomas next contends that the trial court erred by awarding the 

### LeVasseurs reasonableattorney fees pursuant to the lis pendens statute, RCW 

### 4.28.328(3).8 This is so, she asserts, because she established a substantial justification for filing the lis pendens. We disagree.

8 RCW 4.28.328(3) provides, in pertinent part: Unless the claimant establishes a substantial justification forfiling the lis pendens, aclaimant is liable to an aggrieved party who prevails in defense ofthe action in which thelis pendens was filed for actual damages caused by filing the lis pendens, and in the court's discretion, reasonable attorneys' fees and costs incurred in defending the action
8No. 71845-2-1/9
Under the lis pendens statute, where a lis pendens is filed, the claimant may be liable fordamages and attorney fees to a party who successfully defends the related action unless the claimant establishes substantial justification for filing the lis pendens. RCW 4.28.328(3). Whether to award reasonable attorneyfees and costs incurred in successfully defending against the action is within the discretion of the trial court. RCW 4.28.328(3). 

### Alis pendens isfiled in a specific action. Filing a lis pendens is notitself an assertion of a claim to property. Rather, it is a mechanism forgiving notice that a lawsuit that concerns real property has been filed. Thus, the justification 

### for filing a lis pendens must befound not in the lis pendens itselfbut in the 

### underlying causeofaction. Thomas's causeofaction against the LeVasseurs is grounded in her complaint. 

### In this case, it is clear, based on the averments in her complaint, that Thomas did not have a substantialjustification forfiling the lis pendens. 

### Thomas's complaint was based on analleged "error" in thecondominium deed, but even she now admits that there is not—and neverwas—an errorin the deed. 

### To the contrary, it is now Thomas's assertion that her parents were listed on the deed by her own design. Thomas nevertheless contends that she "amply demonstrate^]" a 

### substantialjustification for filing the lis pendens herein through thedeclarations she submitted in opposition tothe LeVasseurs' summaryjudgment motion. She further asserts that, in order to restrict the substantialjustification inquiry to the 

### averments in a complaint, the underlying litigation must have progressed furtherNo. 71845-2-1/10
than it did in this case.9 However, Thomas's implied fairness argument ignores the fact that a party chooses when or ifto file a lis pendens and, therefore, when or ifto subject him- or herselfto liability under the lis pendens statute. A lis pendens may be filed "[a]t any time after an action affecting title to real property has been commenced." RCW 4.28.320. A party is notliable under the lis pendens statute unless a lis pendens isfiled. However, once a lis pendens isfiled, the party filing it must have a substantialjustification for doing so. The 

### trade-offthat a party faces between the security afforded by a lis pendens and the risk ofliability under the lis pendens statute necessarily forces the party 

### considering filing a lis pendens toweigh the cost offiling an unjustified lis 

### pendens. As a result ofthis legislative scheme, a prudent litigantwill delay filing a lis pendens until he or she has sufficient information to fairly evaluate the strength of the asserted claim. Thomas chose to file the lis pendens herein alongwith her complaint, 

### rather than waiting until she had thebenefit ofdiscovery toevaluate her claims. As discussed, there was no substantialjustification for this filing. Therefore, the trial courtdid not abuse its legislatively-given discretion byawarding the LeVasseurs reasonable attorneyfees fordefending against this action. We also award the LeVasseurs reasonable attorney fees for the costs 

### incurred in defending against Thomas's action onappeal. See RCW

9At oral argument, Thomas hypothesized that an appropriate time to sorestrict the substantialjustification inquiry would be after discovery has been completed.

-10-No. 71845-2-1/11 4.28.328(3); RAP 18.1; accord Richau v. Ravner, 98 Wn. App. 190, 199,988 P.2d1052(1999).10
IV Thomas also contends that the trial court erred by awarding the LeVasseurs attorney fees against both her and her counsel pursuant to CR 11 based on factually incorrect statements in her complaint. This is so, she asserts, 

### because the alleged factual errors preceded discovery andwere the product of reasonable inquiry by hercounsel. We agree that the award as toThomas's counsel was inappropriate. 

### The signature ofa party orattorney on a pleading constitutes a certificate 

### by that party or attorney thatthe pleading is well grounded in fact, warranted by existing law or a good faith argument for a change in existing law, is not 

### interposed for an improper purpose, and contains only factual contentions or denials warranted by the evidence. CR 11(a). Where a pleading is signed in violation ofthe rule, "the court, upon motion orupon itsown initiative, may 

### impose upon the person who signed it, a represented party, or both, an 

### appropriate sanction," including reasonable attorney fees and expenses. CR 11(a). We review an award ofsanctions under CR 11 for an abuse ofdiscretion. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994). 

### In determining whetherthe trial court abused its discretion, we are mindful that CR 11 is intended todeter baseless filings and tocurb abuses ofthejudicial 

### system. Biggs, 124Wn.2d at 197. The rule is not "meantto act asafee shifting 10 In arelated appeal, the question ofthe amount properly awarded has been remanded to the trial court. On remand, the trial court is also tasked with making an appropriate award of appellate fees.
-11

-No. 71845-2-1/12 mechanism." Biggs, 124Wn.2d at 197. Furthermore, because "discovery will provide parties with the opportunity to learn more detailed information about the nature of a complaint[, a] court should
... be reluctant to impose sanctions for factual errors or deficiencies in a complaint before there has been an opportunity 

### for discovery." Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 222, 829 P.2d 1099 (1992). "Courts should employ an objective standard in evaluating an attorney's 

### conduct, and the appropriate level ofpre-filing investigation is to be tested by 

### 'inquiring what was reasonable tobelieve at thetime thepleading, motion or 

### legal memorandum was submitted.'" Biggs. 124 Wn.2d at 197 (quoting Bryant, 119 Wn.2d at220). Moreover, anattorney is not obliged todisbelieve his client's 

### factual allegations and "it is improperto impose sanctions on an attorney based 

### solely on the ultimate determination ofhis client's credibility." Saldivarv. Momah, 145 Wn. App. 365, 403, 186 P.3d 1117 (2008). 

### In this case, the trial court awarded the LeVasseurs reasonable attorney 

### fees pursuantto CR 11 against both Thomas and her counsel. The trial court made the following findings in support of this order:



### • "[T]he Court finds that numerous allegations contained in Plaintiff's Complaint are not well grounded in fact—such unfounded allegations include the claims that Plaintiffmade all payments associated with the 

### purchase and ownership ofthe [condo]." • "The Courtfurtherfinds that the untruthfulness ofPlaintiff's claims should 

### have beendiscovered by Plaintiff's counsel before Plaintiffs counsel signed the Complaint and filed it." 

### The challenged allegations have since been shown or admitted to be incorrect.

-12No. 71845-2-1/13
As to Thomas's counsel, starting from the correct premises—that is, that CR 11 sanctions for factual errors should rarely be imposed before discovery and that an attorney is not obliged, at the outset of a case, to disbelieve his client— the award of sanctions against Thomas's counsel was improper. The untruthfulness seized on by the trial court was Thomas's averment in her complaint that she made all payments associated with the purchase and ownership ofthe condominium. And, indeed, it is now clearfrom the record that Thomas did not, in fact, make allof the payments; she only made some. But we 

### mustavoid imposing "the wisdom ofhindsight" on Thomas's counsel. Bryant, 119 Wn.2d at 220. Instead, we focus our inquiry on the circumstances at the
time. Herein, Thomas's counsel had a client who had lived at the subject 

### property with her daughter since it was purchased. Moreover, that client had evidence that she contributed more than $540,000.00 to the purchase of the 

### condo property and that she had continued to contribute financially by paying fees and taxes associated with it. Objectively, Thomas's attorney had a 

### reasonable basis for making the averments at issue at the pleading stage ofthe 

### litigation, before discovery had commenced.11 The trial court abused its discretion by determining otherwise. The sanctions award against Thomas's
counsel must be vacated.

11 It also appears from the record that counsel for the LeVasseurs did not provide Thomas notice ofthe alleged CR 11 violation before requesting sanctions from the trial court. 

### This is contrary to established professional norms. VaN, 124Wn.2d at198-99 n.2. Moreover, the trial court should have taken the lack ofnotice into consideration before deciding theCR 11 request.
-13-No. 71845-2-1/14
As to Thomas herself, the trial court entered no factual finding describing the facts giving rise to her individual culpabilityunder CR 11.12 Indeed, the trial court's order is entirely silent on this matter. Thus, the trial court's imposition of CR 11 sanctions against Thomas, individually, must also be vacated. Affirmed in part and reversed in part.

We concur: 

# \^J^e<ex \

12 We also notethatthe attorney fee award was more properly madepursuant to thelis pendens statute, which applies to Thomas's primary misconduct herein—filing alis pendens in an unjustified action. SeeWashington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn 2d299, 339-40, 858 P.2d 1054 (1993) ("CR 11 sanctions are notappropriate where, as here, 

### other court'rules more properly apply."); accord Momah, 145 Wn. App. at402 ("When aspecific sanction rule applies, the inherent powerofthe trial court to sanction does not apply.").

14