IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

KEVIN P. CLARE, individually,

Respondent,

v.

TELQUIST MCMILLEN CLARE PLLC,

a Washington professional limited liability 

company; GEORGE E. TELQUIST, an 

individual; ROBERT G. MCMILLEN, an 

individual; and ANDREA J. CLARE, an 

individual,

Appellants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

No. 37702-4-III

PUBLISHED OPINION

STAAB, J. — Kevin Clare filed suit for legal malpractice against his estranged 

wife, Andrea Clare, her law partner, George Telquist, and their law firm, Telquist 

McMillen Clare PLLC.

1

 In his complaint, Mr. Clare asserted that Andrea Clare acted as 

his attorney and provided legal advice in renewing his pilot’s license and then, years 

later, released confidential information to the guardian ad litem (GAL) in their divorce 

proceeding. Mr. Clare voluntarily dismissed his suit before the court made any rulings on 

the merits of the case. Telquist filed two motions for CR 11 sanctions against Mr. Clare 

 

1 To avoid confusion, we refer to Andrea Clare, George Telquist, and the Telquist 

law firm collectively as “Telquist” when possible.

FILED

DECEMBER 28, 2021 

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37702-4-III

Clare v. Telquist, et al.

2

and his attorneys. The first motion was filed before the case was dismissed and pertained 

to a witness disclosure statement and a declaration. The second motion was filed after 

the case was dismissed and claimed that the complaint was frivolous. In the second 

motion, Telquist also sought a judgment for damages under the anti-SLAPP2statute. The 

trial court denied both motions. In separate orders, the court determined that the witness 

disclosure statement and declaration did not fall within the parameters of CR 11, that the 

anti-SLAPP defense did not apply, and that the complaint was not frivolous. 

We affirm the trial court and hold that while the two motions for CR 11 sanctions 

were timely, the request for damages under the anti-SLAPP statute, filed after the case 

was dismissed, was untimely. In addition, we affirm the trial court’s denial of sanctions,

holding that a stand-alone declaration does not qualify as a “pleading, motion, or legal 

memorandum” for purposes of CR 11 and the complaint was not frivolous. 

BACKGROUND

Andrea Clare is an attorney. Kevin Clare is employed as a crop duster pilot and 

has renewed his pilot license with FAA3form 8500 every three years since 1999 (except 

for one gap in 2005). They married on June 25, 2005, and separated in 2016. 

Mr. Clare alleges that in 2008, the FAA renewal form changed. Instead of seeking 

conviction information, the new form sought arrest information of anyone renewing their 

 

2 Strategic lawsuits against public participation. RCW 4.24.510.

3 Federal Aviation Administration.
No. 37702-4-III

Clare v. Telquist, et al.

3

license. Since he had been arrested in 1998 for a DUI,

4 Mr. Clare asked Ms. Clare for 

legal help answering the form. He contends that Ms. Clare expunged the arrest from his 

record and told him that he did not need to disclose the arrest on his FAA forms. 

Many years later, during a contentious divorce proceeding, Ms. Clare e-mailed the 

GAL investigating the parties’ parenting plan proposals. In this e-mail, Ms. Clare 

indicated that the GAL should investigate whether Mr. Clare made false statements to the 

FAA regarding his mental health, substance abuse, and arrest history. Ms. Clare 

allegedly shared Mr. Clare’s information with George Telquist, her law partner, who also 

represented her in the divorce. Ms. Clare and Mr. Telquist encouraged the GAL to notify 

the FAA that Mr. Clare falsified information on his renewal application, particularly 

details of his medical records and that he had been charged with a DUI in 1998. Both 

public and private details of Kevin’s license renewal applications, DUI, and medical 

records were provided to the GAL. Ultimately, Mr. Clare self-reported to the FAA, and 

the FAA instituted its own proceedings. 

On December 17, 2018, shortly before the divorce case went to trial, Mr. Clare

filed this collateral lawsuit alleging legal malpractice and asserting that Ms. Clare, Mr. 

Telquist and the Telquist law firm violated attorney-client privilege in sharing his 

confidential personal information with the GAL. Mr. Clare claims to have filed the suit 

 

4 Driving under the influence.
No. 37702-4-III

Clare v. Telquist, et al.

4

out of concern that he would lose his career. Ms. Clare conceded that she provided legal 

services to Mr. Clare to expunge his DUI record. She denied providing any other legal 

advice to Mr. Clare. However, Mr. Clare testified by deposition and declaration that Ms. 

Clare also provided legal advice on what information he was required to disclose in his 

FAA license renewal form 8500 after the expungement. Mr. Clare alleges, and Mr. 

Telquist denies, that Mr. Telquist had represented Mr. Clare on other unrelated estate 

planning and litigation matters. 

Telquist hired the law firm of Forsberg & Umlauf to represent them in Mr. Clare’s 

lawsuit. On June 27, 2019, through his attorney Ryan Best, Mr. Clare filed a witness 

disclosure statement. Within this statement, Mr. Clare named the following witness: 

30(b)(6) representative of Forsberg & Umlauf, P.S., . . . . The 30(b)(6) 

representative will testify to the negligence of George Telquist, on behalf of 

Forsberg & Umlauf, in supervising and preventing Andrea Clare’s 

intentional and reckless misconduct. The negligence of Andrea Clare on 

behalf of Forsberg & Umlauf, in preventing George Telquist’s intentional 

and reckless misconduct. The 30(b)(6) deponent will also detail the role 

that Andrea and George’s sexual relationship played in each of them 

violating their ethical duties towards Kevin Clare as a client of Forsberg & 

Umlauf.[

5

]

Clerk’s Papers (CP) at 48. On August 29, 2019, Mr. Best amended the witness disclosure 

to add Robert McMillen, Judge Bruce Spanner, and Erick West. 

 

5 While there is no explanation for this designation in the record, it appears from 

context that Mr. Clare’s attorney, Ryan Best, mistakenly believed that George and Andrea 

worked for Forsberg & Umlauf. 
No. 37702-4-III

Clare v. Telquist, et al.

5

On August 6, 2019, Mr. Clare, through his attorney Evan Dobbs, filed a 

declaration of counsel attaching a true and correct copy of an answer that Judge Spanner

had filed to a statement of charges leveled by the Washington Commission on Judicial 

Conduct (hereinafter “orphan declaration”). The declaration was not filed in connection 

with any motion.

On September 3, 2019, Telquist filed a joint motion for sanctions, including CR 11 

sanctions, against Mr. Clare and his attorneys. The basis for the motion specific to the 

witness disclosures and Judge Spanner’s answer was limited to CR 11:

2. For improper purposes in violation of CR 11, Plaintiffs’ counsel filed 

witness disclosures with the Court containing sensitive personal 

information regarding Ms. Clare and Mr. Telquist that has nothing to do 

with this case. 

CP at 190.

3. For improper purposes in violation of CR 11, Plaintiffs’ counsel filed 

with the Court Judge Bruce A. Spanner’s Answer to Statement of 

Charges with the Commission on Judicial Conduct of the State of 

Washington that contains disparaging comments about Defendants 

Andrea Clare and George Telquist. It has nothing to do with this case. 

The document was filed by itself—it is not connected with any pending 

motion in this case. 

CP at 190.

On November 22, 2019, Telquist moved for summary judgment dismissal of Mr. 

Clare’s complaint claiming immunity under the anti-SLAPP statute, and requesting 

damages. Mr. Clare filed a response. The case was in mandatory arbitration posture at 
No. 37702-4-III

Clare v. Telquist, et al.

6

this point. The summary judgment motion was not properly noted with the court nor 

heard. On December 13, 2019, Mr. Clare responded to the motion for sanctions. 

Telquist filed its reply on the first motion for sanctions, maintaining the CR 11 arguments 

of the original motion brief. After considering 371 pages and hearing argument the trial 

court took the first motion for sanctions under advisement.

On January 9, 2020, while the first motion for sanctions was still pending, Mr. 

Clare moved for voluntary dismissal under CR 41. Service on Telquist took place three

days later. The dismissal was granted unopposed and without findings on January 22, 

2020. 

On February 3, Telquist filed a second motion for CR 11 sanctions, asserting that 

Mr. Clare’s complaint was baseless in violation of CR 11, and claiming witness 

immunity. In addition, Telquist requested damages under the anti-SLAPP statute.

On March 27, the trial court issued its written order and findings on the first 

motion for sanctions. The trial court determined that it had the authority to decide the 

first motion for CR 11 attorney fees because it was a collateral issue following dismissal 

under CR 41. The trial court denied the first motion for sanctions, concluding that CR 11 

does not apply to witness disclosure statements and declaration exhibits because they 

were not pleadings, motions, or memorandum under the rule. 

On April 6, 2020, Telquist moved for reconsideration, asserting CR 26 as an 

alternative basis for imposing sanctions for the witness disclosure statement. Mr. Clare
No. 37702-4-III

Clare v. Telquist, et al.

7

responded, asserting that CR 26 was being raised for the first time on reconsideration, 

and the claim was waived when Telquist did not object to the dismissal. The trial court 

flatly denied reconsideration without any findings. 

On June 5, 2020, Mr. Clare responded to the second motion for sanctions arguing 

that witness immunity and the anti-SLAPP statute was not a defense to a malpractice suit 

for breach of attorney-client duties and confidences. In denying the second motion for 

sanctions, the trial court ruled:

My sense is working through all the pleadings, and I think I have some in 

the range of 270 pages with this motion is that [Mr. Clare’s attorney] has 

made sufficient argument for me to find that the position that Mr. Clare 

took was grounded enough in fact and was warranted enough by law given 

his arguments about the sanctity of the attorney-client privilege and the 

sanctity of the relationship between a lawyer or a lawyer’s partner and 

client and the acquisition of information that it wouldn’t violate that first 

set, the so-called frivolous and baseless. 

And then the second set, to summarize, that’s referred to as bad faith 

filings. Again, I think the arguments and points that he made here this 

afternoon and those that are in his memorandum are enough to show me 

that the theory for professional liability wasn’t interposed for improper 

purpose such as harassment. 

Report of Proceedings (July 17, 2020) at 55-56. The court also found the second motion 

untimely because it was filed after the court dismissed the complaint. Finally, the court 

noted that there was no authority to suggest that the anti-SLAPP statute would protect an 

attorney who divulges confidential client information. 
No. 37702-4-III

Clare v. Telquist, et al.

8

ANALYSIS

Telquist appeals, arguing that the trial court abused its discretion in denying its 

two motions for CR 11 sanctions, its request for damages and fees under the anti-SLAPP 

statute, and its motion for reconsideration seeking sanctions under CR 26. We address 

the court’s authority to hear these various motions since two of them were filed after the 

underlying case was dismissed. We then consider the substance of the motions under CR 

11.

A. TIMELINESS

Preliminarily, we consider whether the two motions for CR 11 sanctions were 

timely. One motion was filed before the case was dismissed and asserted that two filings 

in particular—the witness disclosure statement and the orphan declaration—violated CR 

11. The trial court denied this motion for sanctions. The second motion, filed after the 

case was dismissed, sought CR 11 sanctions for filing a frivolous complaint, as well as 

damages for the affirmative defense under the anti-SLAPP statute. 

Although a voluntary dismissal under CR 41(a)(1)(B) generally deprives a court of 

authority to decide a case on the merits, the court retains jurisdiction for the limited 

purpose of considering the collateral issue of a defendant’s motion for sanctions. Calvert 

v. Berg, 177 Wn. App. 466, 472-73, 312 P.3d 683 (2013). CR 11 sanctions do not 

constitute a judgment on the merits; rather, the rule requires a determination of the 

collateral issues of whether an attorney abused the judicial process and what sanction 
No. 37702-4-III

Clare v. Telquist, et al.

9

would be appropriate. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994) (citing 

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395-96, 110 S. Ct. 2447, 110 L. Ed. 2d 

359 (1990)). Thus, jurisdiction can remain to hear sanctions even years after entry of 

judgment on the merits. Cooter & Gell, 496 U.S. at 395-96. However, the sanctionable 

conduct must have occurred before the case was dismissed. Calvert, 177 Wn. App. at

473.

In this case, the court had the authority to consider both the predismissal and 

postdismissal motions for CR 11 sanctions. The first motion was filed and argued prior 

to voluntary dismissal and involved documents (witness disclosure and affidavit exhibit) 

filed before the motion for dismissal. The second motion was filed and heard after 

voluntary dismissal but attacked the initial complaint. 

The same cannot be said for Telquist’s claim for damages and fees under the antiSLAPP statute. In its second motion for sanctions, filed after the case was dismissed, 

Telquist requested damages and fees under the anti-SLAPP statute. RCW 4.24.510. This 

statute provides immunity from civil liability for persons who make complaints or 

provide information to government officials. The damages and attorney fees available 

under the statute must be pleaded as an affirmative defense. To recover, the party 

asserting the affirmative defense must prove specific elements of the defense. Trummel 

v. Mitchell, 156 Wn.2d 653, 676-77, 131 P.3d 305 (2006). Unlike sanctions under CR 

11, the anti-SLAPP statute is similar to a cause of action and is not collateral to the 
No. 37702-4-III

Clare v. Telquist, et al.

10

complaint. Dillon v. Seattle Dep. Reps., LLC, 179 Wn. App. 41, 68, 316 P.3d 1119 

(2014). 

In this case, Telquist’s motion for summary judgment on the affirmative defense 

was pending when the complaint was dismissed. Telquist did not seek to have its 

summary judgment motion decided before the case was dismissed. Thus, the trial court 

did not make findings on the elements or the merits of the affirmative defense. Although 

Telquist was the prevailing party once Mr. Clare dismissed his lawsuit, it cannot recover 

on the anti-SLAPP claim without the requisite findings. And because the cause of action 

is not collateral to the complaint, the court did not have the authority to consider the 

merits of the defense once the lawsuit was dismissed. In this case, the superior court 

denied the motion on the merits while alternatively finding that the motion was also 

untimely. We affirm the trial court’s denial of the motion for damages and fees under 

RCW 4.24.510 as untimely without reaching the merits of the defense. 

B. SANCTIONS UNDER CR 11 AND CR 26

Standard of Review

A trial court’s decision on CR 11 sanctions is reviewed for abuse of discretion. 

Eugster v. City of Spokane, 110 Wn. App. 212, 231, 39 P.3d 380 (2002). The abuse of 

discretion standard recognizes that deference is owed to the trial judge who is better 

positioned than an appellate court to decide the issue. Discretion is not abused unless a 

decision is based on untenable grounds or for untenable reasons. Id. (citing State ex rel. 
No. 37702-4-III

Clare v. Telquist, et al.

11

Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). If a court finds a violation of 

CR 11, the court still maintains the discretion on whether to impose sanctions. While an 

earlier version of the rule made sanctions mandatory once a violation was found, the rule 

was amended in 1993 to give courts considerable discretion in deciding whether to 

impose sanctions even if a violation is found. Snohomish County v. Citybank, 100 Wn. 

App. 35, 995 P.2d 119 (2000).

First Motion—Orphan Declaration

The trial court denied Telquist’s first motion for sanctions, holding that neither the 

witness disclosure statement nor the orphan declaration were sanctionable under CR 11. 

CR 11 applies to “every pleading, motion, and legal memorandum” filed by a party who 

is represented. It requires that pleadings, motions, and legal memoranda be dated and 

signed by an attorney of record. 

The definition of a “pleading” is set forth in CR 7(a), and includes a complaint, 

answer, reply, and similar third-party complaints, answers, and replies. CR 7(b) also sets 

forth that all applications for an order shall be made by written motion, signed in 

accordance with rule 11. A motion may be supported by “affidavits or other papers.” CR 

7(b)(4). 

Telquist contends that the orphan declaration was a “legal memorandum” for 

purposes of CR 11. The relevant dictionary definition of “memorandum” includes: “2. A 

party’s written statement of its legal arguments presented to a tribunal, usu[ally] in the 
No. 37702-4-III

Clare v. Telquist, et al.

12

form of a brief. . . . Also termed . . . memorandum of law; memorandum of points and 

authorities; memorandum in support.” BLACK’S LAW DICTIONARY 1179 (11th ed. 2019)

(alteration in original). The orphan declaration does not meet the definition of a legal 

memorandum. The declaration did not provide legal argument or points of law. Instead, 

it provided factual allegations. 

For purposes of context, we note that the state court rule is modeled after the 

federal rule. Miller v. Badgley, 51 Wn. App. 285, 300, 753 P.2d 530 (1988). However, 

the federal rule is distinguishable in one significant respect. The federal rule applies to 

“Every pleading, written motion, and other paper.” Fed. R. Civ. Proc. 11(a) (emphasis 

added). While recognizing this distinction, courts have been inconsistent in deciding its 

relevance. 

In a footnote, Division One noted that use of the term “legal memorandum” in the 

state rule, as opposed to “other papers” in the federal rule, suggests that the Washington 

rule was intended to apply in fewer circumstances. Miller, 51 Wn. App. at 299 n.10. 

Three years later, in another footnote, a different panel of Division One disagreed with 

the footnote in Miller. Clipse v. State, 61 Wn. App. 94, 97 n.1, 808 P.2d 777 (1991). 

Instead, the Clipse court noted that the term “legal memorandum” “more logically refers 

to briefs or other papers filed in support of pleadings or motions.” Id. at 97 n.1 (emphasis
No. 37702-4-III

Clare v. Telquist, et al.

13

added). While the comment in both Miller and Clipse were likely dicta,

6

the Clipse

footnote was relied on by Division Two in Mitchell v. Wash. State Inst. of Pub. Policy, 

153 Wn. App. 803, 828, 225 P.3d 280 (2009) to hold that a cost bill submitted in support 

of a motion was a legal memorandum subject to CR 11.

Given the rule’s plain language, especially in contrast to the broader language 

used in the federal rule, we hold that the term “legal memorandum” does not include a 

declaration or affidavit. This plain-language interpretation is bolstered by the differences 

between the state and federal rule. Both rules have been amended numerous times over 

the years. While the federal rule applies to “other papers,” and would thus apply to a 

declaration, the state rule only applies to “legal memorandum.” In light of this 

recognized distinction, we assume that the limitation in the state rule is intentional. State 

v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007) (court rules are interpreted as 

though enacted by the legislature whose intent is expressed through plain meaning). 

We also note that other rules more specifically apply to a declaration filed in bad 

faith. For instance, CR 56(g) provides for sanctions when an affidavit is presented in bad 

faith or solely for the purpose of delay. In addition, declarations are signed under penalty 

of perjury. See GR 13 (use of unsworn statement in lieu of affidavit); see Biggs, 124 

 

6 Since the definition of “legal memorandum” was not an issue in either Miller or 

Clipse, the footnote comment in both cases are dicta. In re Pers. Restraint of Domingo, 

155 Wn.2d 356, 365-66, 119 P.3d 816 (2005) (dicta in an opinion cannot establish a rule 

or principle and dispelling dictum does not establish a significant change in the law).
No. 37702-4-III

Clare v. Telquist, et al.

14

Wn.2d at 197 (CR 11 sanctions are inappropriate where other court rules more 

specifically apply.).

We affirm the trial court’s decision to deny Telquist’s first motion for sanctions 

under CR 11.

Telquist argues that even if CR 11 does not apply to the orphan declaration, the 

trial court abused its discretion by not deciding, sua sponte, to exercise its inherent 

authority to impose sanctions. We decline to address this issue because it is being raised 

for the first time on appeal. RAP 2.5(a).

Witness Disclosure Statement—CR 26

In its first motion for sanctions, Telquist requested sanctions under CR 11 for the 

witness disclosure statement. The trial court held that CR 11 does not apply to witness 

disclosure statements. After Mr. Clare dismissed his complaint, Telquist filed a motion 

for reconsideration, requesting for the first time that the court impose sanctions for the 

witness disclosure statement under CR 26. The court declined this motion without 

findings.

On appeal, Telquist essentially concedes that CR 11 does not apply to Mr. Clare’s 

witness disclosure statement. In Clipse, 61 Wn. App. 94, the court addressed whether CR 

11 applied to an expert witness list. The plaintiff’s expert witness list identified people 

who had never been contacted by the plaintiff and were not familiar with the case. After 

two fruitless depositions, the defendant moved for sanctions. The trial court imposed 
No. 37702-4-III

Clare v. Telquist, et al.

15

sanctions under CR 11 for filing the list without investigating or speaking to the 

witnesses. Without deciding the parameters of CR 11, the court affirmed the award of 

sanctions on the alternative basis that CR 26(g) was the more appropriate rule for 

sanctions under these circumstances. Id. at 97-98.

Telquist also concedes that it did not raise the possibility of CR 26 sanctions for 

the witness disclosure statement until its motion for reconsideration. “By bringing a 

motion for reconsideration under CR 59, a party may preserve an issue for appeal that is 

closely related to a position previously asserted and does not depend [ ]on new facts.” 

River House Dev. Inc. v. Integrus Architecture, PS, 167 Wn. App. 221, 231, 272 P.3d 289 

(2012) (citing Newcomer v. Masini, 45 Wn. App. 284, 287, 724 P.2d 1122 (1986)). “But 

while the issue is preserved, the standard of review is less favorable.” Id. (citing 14A

KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 34:3, at 434 (2d ed. 

2009)). “CR 59 provides that on the motion of an aggrieved party the court ‘may’ vacate 

an interlocutory order and grant reconsideration.” Id. “The trial court’s discretion 

extends to refusing to consider an argument raised for the first time on reconsideration 

absent a good excuse.” Id. “We review a trial court’s denial of a motion for 

reconsideration for abuse of discretion, that is, discretion manifestly unreasonable, or 

exercised on untenable grounds, or for untenable reasons.” Id. (quoting Rivers v. Wash. 

State Conf. of Mason Contractors, 145 Wn.2d 674, 684-85, 41 P.3d 1175 (2002)).
No. 37702-4-III

Clare v. Telquist, et al.

16

On appeal, Telquist argues that the trial court abused its discretion in not granting 

its motion for reconsideration. However, Telquist fails to present any reason for its 

failure to assert a discovery violation under CR 26 within the context of its first motion

for sanctions. Where the record does not contain any reasonable excuse, the trial court 

was within its discretion to decline to consider the CR 26 argument on reconsideration 

and deny sanctions. We need not further consider CR 26 on appeal. 

Post-dismissal motion for CR 11 sanctions

We turn to the trial court’s decision on Telquist’s second motion for CR 11 

sanctions, filed after Mr. Clare dismissed his complaint.7 In its second motion, Telquist 

argued that Mr. Clare’s complaint was not well-grounded in fact or warranted by existing 

law. As noted above, CR 11 provides that the signature of an attorney on a pleading 

constitutes a certificate that the pleading: 

(1) it is well grounded in fact; (2) it is warranted by existing law or a good 

faith argument for the extension, modification, or reversal of existing law 

or the establishment of new law; (3) it is not interposed for any improper 

purpose, such as to harass or to cause unnecessary delay or needless 

increase in the cost of litigation; and (4) the denials of factual contentions 

are warranted on the evidence or, if specifically so identified, are 

reasonably based on a lack of information or belief.

 

7 Having disposed of Telquist’s anti-SLAPP issue above, we only address the 

second motion request for sanctions under CR 11.
No. 37702-4-III

Clare v. Telquist, et al.

17

The courts have defined two types of improper filings: “(1) those that are not ‘well 

grounded in fact and warranted by law’ (frivolous and baseless filings); and (2) those that 

are interposed for an improper purpose such as harassment or unnecessary delay (bad 

faith filings).” 3A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CR 11 

author’s cmt. 2, at 230 (5th ed. 2006) (quoting Bryant v. Joseph Tree, Inc., 119 Wn.2d 

210, 829 P.2d 1099 (1992)). If a sufficient factual and legal basis exists for the 

complaint, we do not reach the question of whether counsel made a reasonable 

investigation before filing. Brin v. Stutzman, 89 Wn. App. 809, 827, 951 P.2d 291 

(1998). “‘The burden is on the movant to justify the request for sanctions’” under CR 

11. Building Industry Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 218 P.3d 196 

(2009) (quoting Biggs, 124 Wn.2d at 202)). Since sanctions for “bad faith filing of 

pleadings for an improper purpose or by filing pleadings that are not grounded in fact or 

warranted by law . . . have a potential chilling effect . . . the trial court should impose 

sanctions only when it is patently clear that a claim has absolutely no chance of success”; 

“[t]he fact that a complaint does not prevail on its merits is not enough.” Skimming v. 

Boxer, 119 Wn. App. 748, 82 P.3d 707 (2004) (citations omitted) (citing Bryant, 119 

Wn.2d at 220).

The trial court denied Telquist’s second motion for sanctions, finding that it failed 

to meet its burden of showing that the complaint was wholly frivolous. Instead, the trial 

court found that the complaint’s claim of violation of the attorney-client confidence was 
No. 37702-4-III

Clare v. Telquist, et al.

18

“sufficiently well-grounded in fact and sufficiently warranted in law, not baseless or 

frivolous, and were not interposed for an improper purpose.” 

The record supports the trial court’s conclusion. The issues presented were at the 

very least debatable. Ms. Clare conceded that she assisted Mr. Clare in expunging his 

DUI record. Mr. Clare and Ms. Clare disagree about the factual existence of an attorneyclient relationship between them and the factual application of the attorney-client 

privilege under RPC 1.6 to various pieces of information that she allegedly conveyed to 

Mr. Telquist and the GAL. Whether an attorney-client relationship existed was a

disputed issue of fact. Whether Mr. Clare could prevail for an alleged violation of that 

relationship was not well settled and presented novel issues of law.

On appeal, Telquist asserts the wrong standard of review by arguing that Mr. Clare

failed to demonstrate a factual or legal basis for filing the complaint. For purposes of 

seeking CR 11 sanctions, the burden is on Telquist as the moving party. See McCarthy,

152 Wn. App. 720. 

Telquist also argues that regardless of any attorney-client relationship, Ms. Clare 

is immune under the litigation privilege. Under this privilege, also referred to as the 

witness immunity doctrine, a “witness[ ] in judicial proceedings [is] absolutely immune 

from suit based on their testimony.” Bruce v. Byrne-Stevens & Assocs. Eng’rs, Inc., 113 

Wn.2d 123, 125, 776 P.2d 666 (1989). Ms. Clare and Telquist contend that the doctrine 

applies to the statements she made to the GAL during the divorce case. In making this 
No. 37702-4-III

Clare v. Telquist, et al.

19

argument, Telquist fails to address the dispositive question of whether the litigation 

privilege permits Ms. Clare to violate RPC 1.9(c)(1) by disclosing information relating to 

the representation of her former client, Mr. Clare, to his disadvantage. Because Telquist 

has not adequately argued the litigation privilege issue, we decline to review it. See State 

v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (appellate court will not review 

issues inadequately argued or briefed).

We conclude that the trial court did not abuse its discretion in denying Telquist’s 

second motion for sanctions after finding that Mr. Clare’s complaint was not frivolous for 

purposes of CR 11. 

C. ATTORNEY FEES IN THIS CASE

Telquist suggests that we exercise our “inherent power” to sanction Mr. Clare’s 

attorneys for the “global conduct” in this case. No case law exists to support the position 

that this court has the authority to take such action. We decline the invitation. Telquist 

also requests attorney fees on appeal, citing RAP 18.1, pursuant to RCW 4.24.510 (antiSLAPP), CR 26(g), and CR 37. The firm does not provide any analysis as to why fees 

should be awarded under these alternative provisions, so we deny the request for fees.

CONCLUSION

We affirm the trial court’s denial of Telquist’s two motions for sanctions. We 

hold that the orphan declaration is not a “pleading, motion, or legal memorandum” for 

purposes of CR 11 and that any potential imposition of sanctions related to this kind of 
No. 37702-4-III

Clare v. Telquist, et al.

20

document would be more appropriate under different rules. We also hold that Telquist’s 

request for damages and fees under the anti-SLAPP statute, RCW 4.24.510, which was 

filed after Mr. Clare’s complaint was dismissed, was untimely and not properly before 

the trial court for consideration. And finally, we affirm the denial of CR 11 sanctions for 

the complaint. The trial court did not abuse its discretion in finding that the complaint 

was not frivolous or filed for an improper purpose. 

Affirmed.

_________________________________

Staab, J.

WE CONCUR:

_________________________________

Siddoway, A.C.J.

_________________________________

Lawrence-Berrey, J.