Washington civil protection orders provide important protections for victims of harassment, stalking, and relationship violence. In some cases, however, a person may abuse the process and seek a protection order for another reason. In a recent case, a woman challenged a court’s finding her petition for an anti-harassment order was frivolous.
The petitioner and her husband built a fence that crossed onto their neighbor’s property in 2018. Following a letter from his attorney, the neighbor sued them. They failed to respond and a default judgment was entered. Even after being served with the judgment, the petitioner and her husband did not take down the fence.
The trial court ordered the sheriff’s office to help remove the fence in November 2019. A few days later, the neighbor died and his property passed to his brother and sister. The brother and his family went to the property to talk about the fence. The petitioner approached them and asked who they were and why they were there. The brother told her they now owned the property and were preparing to remove the fence the next week with the sheriff. He asked her to confine her horses so they would not get out. She offered to buy the property, but was rejected.
The brother cut the fence’s electric wire. The petitioner said he and his family members threatened to hurt her and her horses if they were “in his way” when he removed the fence.
A few days later, on December 3, she filed a petition for an anti-harassment order of protection against the brother. She alleged he physically threatened her, was physically aggressive, and told her her horses would be hurt if she did not move them away from the fence. She also alleged he endangered her and her horses by cutting the electric wire on the fence. She said he planned to take the fence down the next morning. She did not mention the default judgment and said she and the brother were not involved in any litigation. The court entered an order restraining the brother from being within 500 feet of the fence. The hearing was set for December 17.
The next day the brother and his family waited for the sheriff by the fence. Instead of approving the removal, the sheriff’s office served the brother with the temporary protection order.
At the hearing, he brother asked the district court to deny the petition and transfer the matter to the superior court. The court transferred the case, but reissued the temporary protection order without the 500-feet provision.
After the case was transferred, the brother filed a motion to dismiss. The petitioner testified at the superior court hearing that the brother said “they would run anything over if it was in the way. . . ,” including her or her horses.
The trial court granted the motion to dismiss. The court found there was no “course of conduct.” Additionally, the court found the brother acted “with lawful purpose” because he was attempting to execute a court order. The petitioner testified she knew about the court order regarding the fence. The trial court also awarded the brother attorney’s fees, finding the petition was frivolous.
The petitioner appealed, arguing the court did not have the authority to order attorney’s fees. She also argued the court abused its discretion in finding her petition frivolous and erred in failing to enter findings in support of that determination.
RCW 4.84.185 provides that a court may order a non-prevailing party to pay attorney fees and costs to the prevailing party “[i]n any civil action.” The petitioner argued that an anti-harassment order petition is not a civil action. The appeals court distinguished the case law she cited, which found a temporary protection order petition was “not a civil action for damages” and did not award attorney fees under a statute that only provided for an award of fees in civil actions for damages. The appeals court found the trial court had the authority to award fees and costs to the brother.
The petitioner argued the trial court abused its discretion because the default judgment and court order had been issued in the name of her neighbor, not his brother. She argued that the brother therefore did not have a lawful purpose in approaching the fence. The appeals court rejected this argument. The appeals court pointed out that she knew about the default judgment and the brother told her the sheriff’s office would come to remove the fence.
She also alleged the court had abused its discretion because the brother had threatened her. The brother testified that he had politely told her that she should keep her horses away during the removal so they did not get hurt. It is the trial court’s role to determine credibility, and the appeals court noted that when it found the petition was frivolous, there was an implicit finding that the brother’s description of the event was more credible.
The appeals court also noted that the circumstances were important in determining whether the trial court abused its discretion. The petitioner knew about the default judgment, but did not provide that information to the trial court. The day before she filed her petition, she stated in an email to the brother’s attorney that she would attempt to delay the sale “for years” if he did not sell to her.
The appeals court did, however, agree with the petitioner that the court should have entered findings in support of its finding the petition was frivolous. The appeals court remanded the case to the trial court to enter such findings.
If you are faced with a frivolous petition for a protection order against you, you need an experienced Washington civil protection order attorney on your side. Schedule an appointment at Blair & Kim, PLLC at (206) 622-6562.