BELLEVUE FARM OWNERS ASSOCIATION, A Non-profit Corporation; LAUREN BARRETT and WILLIAM BARRETT, husband and wife respectively, trustees of the Laurie Barrett Residential Trust and of the Bill Barrett Residential Trust; WEBSTER AUGUSTINE III, an individual; HOOPOE LLC, a Washington Limited Liability Company; GIGI BIRCHFIELD and MARK BAUTE, husband and wife; TIMOTHY DOHERTY and CHRISTINE DOHERTY, husband and wife; GLEN CORSON and KIM KYLO-CORSON, husband and wife; JANTANA KUPPERMANN and BARUCH KUPPERMANN, husband and wife; RODNEY SMITH and MARY MARGARET SMITH, husband and wife; MATTHEW STRAIGHT and VERONICA STRAIGHT, husband and wife; TOM TUCCI and DIANE TUCCI, husband and wife; and DANA PIGOTT, an individual, Respondents,
CHAD STEVENS and "JANE DOE" STEVENS, husband and wife, Appellants, PETE FINDLEY and "JANE DOE" FINDLEY, husband and wife; CASCADE MOUNTAIN RENTALS LLC, a Washington limited liability company; ROBERT STEVENS, an individual; and DOES 1 to 10, Inclusive, Defendants.
establish abuse of process, the claimant must prove (1) an
ulterior purpose to accomplish an object not within the
proper scope of the process, (2) an act not proper in the
regular prosecution of proceedings, and (3) harm caused by
the abuse of process. Chad Stevens filed a counterclaim
against Mark Baute for abuse of process. Stevens alleged as
damages that he incurred attorney fees and costs as a result
of abuse of process. We affirm the August 5, 2015 order to
produce the "Attorney's Fees for Abuse of
Process" spreadsheet. We also affirm denial of the
motion to bifurcate liability and damages, lift the temporary
stay of the August 5, 2015 discovery order, and remand.
original owners of the Friday Harbor Bellevue Farm property
owned the waterfront portion of the property as tenants in
common. In 1991, the owners recorded a "Grant Deed of
Conservation Easement." In 1994, the owners recorded a
short plat to create four lots and a common waterfront. In
May 1997, the Bellevue Farm Owners Association (BFOA)
recorded a declaration of protective covenants, conditions,
2005, Chad Stevens purchased 10 acres of waterfront property
in the Bellevue Farm plat. Mark Baute and his spouse Gigi
Birchfield own waterfront property located adjacent and to
the south of Stevens' property. Baute and Birchfield also
co-own waterfront property with Jantana and Baruch Kuppermann
adjacent and to the north of Stevens' property.
was a BFOA board member and an attorney licensed to practice
in California. Baute began representing BFOA in May 2012. In
August 2012, BFOA board members clarified and amended the
covenants, conditions, and restrictions and adopted a
revocable license agreement.
September 2012, BFOA filed a lawsuit against Stevens alleging
violation of the covenants, conditions, and restrictions. In
November, the court granted the motion to admit Baute pro hac
vice. Baute acted as lead attorney in the lawsuit.
asserted a number of counterclaims against BFOA, BFOA board
members, and other property owners (collectively, BFOA).
Stevens alleged the 2012 clarification and amendments to the
covenants, conditions, and restrictions and adoption of the
revocable license agreement were unlawful. In counterclaim
12, Stevens asserts BFOA did not comply with the statutory
requirements that govern a homeowner association, chapter
64.38 RCW. Stevens sought declaratory and injunctive relief.
April 2013, the court revoked pro hac vice admission of
Baute. The court found, in pertinent part:
Mr. Baute's personal interest as a party plaintiff
appeared to be causing a relatively straightforward lawsuit
to be increasingly characterized by unprofessional personal
invective, excessive and unnecessary pleadings, and a lack of
civility between himself and counsel for the defendants.
Mr. Baute has ignored the court's warning and again
engaged in unnecessary and intentionally provocative behavior
that has only increased the level of personal antagonism and
rancor that infects this litigation.
Provocation is exactly the type of behavior the court had
warned Mr. Baute to refrain from and that should no longer be
tolerated. .....the Court is convinced that Mr. Baute's
conduct continues to manifest an intentional disregard for
this Court's directions and a flippant disregard for the
clearly adverse effect his personal feelings of animosity and
disrespect for the Defendants and their attorneys have had on
the manner in which this lawsuit has been conducted.
filed a motion for leave to file amended counterclaims to add
a counterclaim against Baute and the marital community
(collectively, Baute) for abuse of process, counterclaim 13.
Stevens also alleged breach of fiduciary duty and sought
damages against BFOA under chapter 64.38 RCW.
abuse of process counterclaim alleged that during the course
of the litigation, Baute engaged in conduct "based upon
the existence of his ulterior motives and was coercion for
the purpose of obtaining collateral advantage."
The conduct of Baute has been based upon the existence of his
ulterior motives and was coercion for the purpose of
obtaining collateral advantage not properly involved in the
litigation process itself, and constitutes the misuse of the
litigation process for purposes other than those which
constitute legitimate litigation proceedings.
... As a result of the conduct of Baute,
Defendant/Counterplaintiff Chad Stevens has been damaged.
alleged the litigation strategy was designed to harass
Stevens and "needlessly increase" litigation costs.
The counterclaim alleged that despite the April 2013 court
order revoking pro hac vice admission, Baute "continued
and continues to provide to the plaintiffs legal advice and
engaged in the unlawful practice of law for the continued
purpose of harming Stevens through use of the litigation
process." Over the objection of BFOA and Baute, the
court granted the motion to file the amended counterclaims on
May 6. BFOA filed a demand for a jury trial.
13, 2014, Baute propounded interrogatories and requests for
production of documents to Stevens, including a request to
produce invoices for the legal fees and costs allegedly
incurred for abuse of process. In a June 19 letter, the special
master directed the parties to "confer about how to
approach this issue" and urged the parties to take steps
to preserve attorney client privilege and attorney work
2014, Stevens filed a motion to stay discovery and a motion
to file amended counterclaims. Stevens alleged Baute made
assertions in pleadings that Baute knew were false, continued
to harm Stevens through "the litigation process, "
and engaged in conduct designed to "harass" and
"needlessly increase Stevens' litigation
costs." Stevens alleged Baute was "liable for the
attorney's fees and costs that defendant Stevens has
incurred as a result of Mr. Baute's abuse of
process." Stevens alleged BFOA was "liable for the
attorney's fees and costs that defendant Stevens has
incurred because of their breach of fiduciary duty to
him." Stevens argued the court should stay discovery on
the counterclaims for breach of fiduciary duty and abuse of
process, counterclaim 12 and counterclaim 13.
did not object to filing the amended counterclaims. BFOA
objected to the motion to stay discovery on counterclaim 12
and counterclaim 13. The court denied the motion to stay
discovery on the counterclaims.
August, BFOA filed a motion to compel Stevens to respond to
the June 13, 2014 interrogatories and requests for
production. The motion states BFOA sought information that
was "not privileged" on "the amount of legal
fees that [Stevens] claims are linked to any alleged abuse of
process by Mr. Baute." The discovery master granted the
motion to compel based on the "agreement of the
parties." The order states Stevens "is not at this
time required to produce privileged time sheets."
filed a motion to stay the order of the special master
granting the motion to compel and certification to the
appellate court. The court denied the motion to stay. The
court ruled the discovery master "was correct in ruling
that [Stevens'] attorney's fees are discoverable
because he had alleged that those fees are his damages under
Counterclaims 12 and 13." The court ruled that
"where attorney's fees constitute an element"
of tort damages, "they must be proved to the trier of
fact." But the court granted the request to certify
"whether [Stevens'] alleged damages of attorney
fees/costs under abuse of process and breach of fiduciary
duty are discoverable, where those fees/costs are the only
allegation of proximately caused harm under each claim."
February 23, 2015, Stevens submitted supplemental responses
to the interrogatories and requests for production. Stevens
states he is entitled to $204, 000 in attorney fees and costs
as damages for abuse of process and $185, 000 in attorney
fees and costs as damages for breach of fiduciary duty under
chapter 64.38 RCW. Stevens did not provide attorney time
filed a motion for sanctions under CR 37. BFOA argued the
responses did not allow BFOA to evaluate whether the attorney
fees were the proximate cause of breach of fiduciary duty or
abuse of process. Baute propounded additional discovery
requests asking for production of attorney fee invoices
including time entries and task descriptions.
discovery master conducted an in camera review of the
attorney billing records. On March 31, the special master
issued a letter ruling. The discovery master denied the
motion for CR 37 sanctions.
discovery master ruled that to establish liability for breach
of fiduciary duty and abuse of process, Stevens must prove
the fact of damages.
[T]o establish liability on his counterclaims, defendant must
prove the fact of damage, and his only claimed damages are
his attorney fees. Permitting defendant to claim the full
amount of his attorney fees without allowing plaintiffs'
discovery of them violates plaintiffs' right to a fair
special master agreed BFOA was entitled to determine whether
the attorney fees were proximately caused by the alleged
breach and harm.
Plaintiffs are correct that plaintiffs are entitled to test
the validity of the claimed fees by examining whether they
were proximately caused by plaintiffs alleged misconduct, and
whether they are overstated, duplicated, or unrelated to the
based on the in camera review, the special master concluded
that there "is no way to reasonably redact"
attorney communications and work product and that producing
the billing records would disclose information protecting the
attorney client privilege and work product.
However, a review of the billings indicates that producing
them would disclose both descriptions of attorney/client
communications and attorney work product, i.e. strategy,
areas of research, names of individuals being interviewed,
etc. Of course, many of the entries are innocuous .... But
there is no way to reasonably redact sensitive entries and
permit examination of the rest. It would be an overly
burdensome and expensive task and the redacted billings would
not give an accurate picture of what the attorney fees are.
disclosure would violate the attorney client privilege and
work product, the special master concluded production of the
attorney billing records before a trial on liability was not
The Discovery Master cannot appropriately order that defense
counsel produce these billing records before the liability
trial without invading the attorney/client privilege and work
product doctrine protections. Disclosure of the billings
pre-trial would compromise defense counsel's ability to
represent his client.
solution to the competing interests, the special discovery
master suggested the parties stipulate to the fact of damages
and to bifurcate the trial on liability and damages.
One solution is for the parties to stipulate (1) to the fact
of damage; (2) to plaintiffs' full discovery of
defendant's fees and costs post trial, as is customary,
if the jury finds for defendant; [and] (3) to [the]
Judge['s]... determination of ...