Opinion Information Sheet

			

                                                                               FILED
                                                                            FEB 02, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AARON DOYLE, real party in interest,                      No.  29212-6-III
                                                )
                      Appellant,                )
                                                )         Division Three
              v.                                )
                                                )
DEREK ANGUS LEE, in his capacity as             )         PUBLISHED OPINION
the GRANT COUNTY PROSECUTING                    )
ATTORNEY and the GRANT COUNTY                   )
PROSECUTING ATTORNEY'S OFFICE,                  )
a division of GRANT COUNTY,                     )
                                                )
                      Respondents and           )
                      Cross-Appellants.         )
                                                )

       Brown, J.  --  At the time of this suit, Aaron Doyle was a Quincy Police 

Department officer.  He had been a deputy sheriff in California, but left that job as part 

of a dispute settlement surrounding allegations of improper conduct, partly involving 

dishonesty.  Grant County Prosecutor D. Angus Lee became aware accidentally of 

Officer Doyle's past as part of an investigation of a theft reported by Officer Doyle.  Mr. 

Lee decided he was required to notify defense counsel of Officer Doyle's past for 

impeachment purposes in cases where Officer Doyle was a witness.  Officer Doyle  

No.  29212-6-III 
Doyle v. Lee

sued Mr. Lee and the Grant County Prosecuting Attorney's office (collectively Mr. Lee) 

to prevent disclosure and protect his privacy.  Officer Doyle obtained a temporary 

restraining order (TRO) and then a preliminary injunction.  The trial court soon 

summarily dismissed his complaint and dissolved the injunctions.  Officer Doyle 

appealed.  Mr. Lee cross-appeals, contending the trial court erred by sealing the file

and entering the injunctions.  We affirm the trial court's orders, determine the cross-

appeal is mainly moot, and award attorney fees to Mr. Lee.

                                            FACTS

       Officer Doyle left his California employment with the Sierra County Sheriff's 

office after a settlement agreement dismissing a disciplinary action in exchange for his

resignation.  The agreement precluded Officer Doyle from applying for or accepting

employment with Sierra County for five years.  Before this agreement was reached, 

Officer Doyle had first been subject to termination, and later was placed on unpaid, one-

year probation.  Officer Doyle denies any wrong-doing finding and generally argues Mr. 

Lee's actions are vindictive due to his non-support of Mr. Lee's reelection as 

prosecutor.

       In May 2007, Officer Doyle became employed by the Quincy Police Department. 

He later was involved in a romantic relationship with Haley Taylor that ended badly with 

allegations of criminal misconduct claimed by both parties.  In 2009, Officer Doyle 

reported a memory device containing documents related to his Sierra County 

                                               2 

No.  29212-6-III 
Doyle v. Lee

employment had been stolen from his home.  Police recovered the memory device from 

Ms. Taylor's attorney and reviewed the Sierra County investigation documents.  

Believing the investigation resulted in a finding that Officer Doyle was dishonest; police 

passed this information to Mr. Lee.  Mr. Lee preliminarily determined the dishonesty

finding and the supporting information were potential impeachment materials that his 

office was required to disclose to criminal defendants in cases where Officer Doyle was 

a witness under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 

(1983).

       Mr. Lee notified Officer Doyle of his determination and invited him to provide any 

information he wished to assist Mr. Lee in making his Brady determination.  Officer

Doyle responded by suing in Kittitas County Superior Court for declaratory relief

seeking orders to prohibit Mr. Lee from using, distributing, or disseminating any of the 

documents related to Officer Doyle's Sierra County employment.  Officer Doyle alleged

this result was compelled by the settlement agreement entered into with Sierra County 

and by court orders issued by both the California Superior Court and the Grant County 

Superior Court.  Ex parte on April 8, 2010, Officer Doyle moved for a TRO and an order

to seal the record.  Mr. Lee unsuccessfully moved to dissolve the TRO. On April 23, 

2010, the trial court granted a preliminary injunction and entered an order sealing the 

entire court file.

       On June 11, 2010, Mr. Lee moved for summary judgment to dissolve the

                                               3 

No.  29212-6-III 
Doyle v. Lee

preliminary injunction and to dismiss the complaint. Mr. Lee partly asserted Officer

Doyle's case was moot, since copies of the Sierra County documents had been 

distributed as discovery to numerous Grant County criminal defense attorneys. Six 

days after Mr. Lee's summary judgment motion, Officer Doyle served Deputy 

Prosecuting Attorney Douglas Mitchell with a subpoena for deposition and a subpoena 

duces tecum. Mr. Lee successfully moved to quash the subpoena on grounds that Mr. 

Mitchell had appeared on his behalf in this case, and his deposition was barred by both 

the attorney/client privilege and the work product doctrine.  The court directed further 

discovery held in abeyance until after Mr. Lee's summary judgment motion was heard.

Officer Doyle did not identify what evidence he hoped to obtain through discovery.

       Officer Doyle supplemented his opposition to the summary judgment by moving

to remove the Grant County Prosecuting Attorney's office and Mr. Lee on cases where 

he was a potential witness, including the summary judgment proceedings.  The court 

denied his request.  Finding the Sierra County outcome was adverse to Officer Doyle

and that such information would be of public concern, the trial court ordered the 

immediate termination of the April preliminary injunction and granted Mr. Lee's motion 

for summary dismissal.  The court ordered that the court file be unsealed on August 2,
2010.  Officer Doyle appealed.  Mr. Lee cross-appealed.1 We also consider various 

       1  We grant Mr. Lee's motion to seal and redact portions of his reply brief in 
response to our clerk's February 17, 2011 letter requiring that action.  We allow Mr. 
Lee to file the redacted brief and grant the motion to seal Mr. Lee's reply brief to the 
extent it quotes sealed material.  

                                               4 

No.  29212-6-III 
Doyle v. Lee

motions.  

                                          ANALYSIS

                                 A.  Disqualification Motion

       The issue is whether the trial court erred in refusing to remove Mr. Lee and the 

Grant County Prosecuting Attorney's office from the summary judgment proceedings, 

considering Officer Doyle's conflict of interest contentions.  We review the court's ruling 

for abuse of discretion.  Public Util. Dist. No. 1 of Klickitat County v. Int'l Ins. Co., 124 

Wn.2d 789, 812, 881 P.2d 1020 (1994). Discretion is abused if it is exercised without 

tenable grounds or reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 

775 (1971).

       A prosecuting attorney may be replaced with a special prosecuting attorney if

the prosecuting attorney fails, from sickness or other cause, to attend court.  State v. 

Heaton, 21 Wash. 59, 61-62, 56 P. 843 (1899).  Conflict of interest would be 

considered an "other cause."  See State v. Stenger, 111 Wn.2d 516, 521-22, 760 P.2d 

357 (1988) (defendant was prosecutor's former client).  But the mere appearance of 

impropriety is insufficient to remove a prosecutor because the appearance of fairness 

doctrine does not apply to the executive duties of a prosecutor. State v. Finch, 137 

Wn.2d 792, 810, 975 P.2d 967 (1999). 

       Here, Mr. Lee has never represented Officer Doyle.  A prosecutor may not be 

disqualified from an action by his opponent's lawsuit filing or bar complaint.  See State 

                                               5 

No.  29212-6-III 
Doyle v. Lee

v. Sinclair, 46 Wn. App. 433, 437, 730 P.2d 742 (1986) (a criminal defendant's filing of

a formal complaint against his lawyer with the Washington State Bar Association does

not create a conflict of interest in violation of the Code of Professional Responsibility 

sufficient to force the recusal of the attorney).  Thus, Mr. Lee was properly allowed to 

personally defend his office.  Accordingly, the trial court did not err by allowing Mr. Lee

to pursue his summary judgment motion to dissolve the preliminary injunction.

                       B.  Summary Judgment Continuance Request

       The issue is whether the trial court erred in not granting Officer Doyle's summary-

judgment continuance request to engage in discovery.  A court has broad discretion to 

grant or deny a continuance that we review for a manifest abuse of discretion.  Colwell 

v. Holy Family Hosp., 104 Wn. App. 606, 615, 15 P.3d 210 (2001).

       During the hearing on Mr. Lee's motion to quash the subpoena relating to Mr. 

Mitchell, Officer Doyle argued the summary judgment hearing should be continued.  

The trial court declined to rule on the motion because it was not properly before the 

court. Officer Doyle stated that he would file a continuance motion, but the record does 

not show this was accomplished.  Generally, a properly noted motion is filed with the 

opposing party and the court.  CR 5(a) and (e).  The trial court requested that Officer

Doyle properly note his continuance motion so it could consider the matter.  Because 

Officer Doyle did not properly request a continuance and failed to properly note his 

                                               6 

No.  29212-6-III 
Doyle v. Lee

motion, the trial court had no opportunity to exercise its discretion.  Therefore, this 

issue is not properly before us.  

                             C.  Summary Judgment Dismissal

       The issue is whether the trial court erred in granting Mr. Lee's motion for 

summary judgment dismissal of Officer Doyle's complaint and dissolving the injunction.  

Ordinarily, a trial court's decision to grant an injunction and its decision regarding the 

terms of the injunction are reviewed for an abuse of discretion. Kucera v. Dep't of 

Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000). But here, because the injunction is 

being reviewed as an appeal from a summary judgment order dissolving it and its 

validity involves solely questions of law, our review is de novo. Mains Farm 

Homeowners Assoc. v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).

       A party seeking an injunction must show: "(1) that he has a clear legal or 

equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, 

and (3) that the acts complained of are either resulting in or will result in actual and 

substantial injury to him." Tyler Pipe Indust, Inc. v. Dep't of Revenue, 96 Wn.2d 785, 

792, 638 P.2d 1213 (1982) (citing Port of Seattle v. Int'l Longshoremen's & 

Warehousemen's Union, 52 Wn.2d 317, 319, 324 P.2d 1099 (1958)).

       Here, conditions changed significantly between April 8, 2010, when the ex parte 

TRO was granted and July 16, 2010, when the order dissolving the preliminary 

injunction and dismissing the case was entered.  The trial court reviewed the Sierra 

                                               7 

No.  29212-6-III 
Doyle v. Lee

County documents that were not available when the TRO was issued; it decided a 

sustained finding of dishonesty existed resulting in adverse consequences to Officer

Doyle.  Under Brady, a prosecutor is required to disclose exculpatory evidence, 

including an officer's dishonesty.  373 U.S. at 87.  Mr. Lee complied with the Brady

mandates by giving the documents to numerous affected defense attorneys.  Given our 

review of this record and the relevant authorities, the trial court did not err in dissolving 

the injunction and dismissing Officer Doyle's complaint.   

                                      D.  Cross-Appeal

       On cross-appeal, Mr. Lee first contends injunctive relief was wrongly granted 

and that the trial court erred in not entering written findings of fact and conclusions of 

law before sealing the court file.  While Officer Doyle agrees with Mr. Lee's contention 

regarding written findings and conclusions, a case is moot when limited to abstract 

principles or questions, the substantive questions in the trial court no longer exist, or a 

court can no longer provide effective relief. Spokane Research & Defense Fund v. City 

of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005).  Assuming Mr. Lee's arguments 

are correct, we cannot provide effective relief.  The trial court dissolved the preliminary 

injunction and unsealed the trial court file.  While this court stayed those rulings 

pending this appeal, those rulings are affirmed for the reasons discussed above.  Thus, 

                                               8 

No.  29212-6-III 
Doyle v. Lee

no further relief can be afforded by this court.  Therefore, the issues are moot.  

       Next, Mr. Lee contends this court improperly sealed its court file because no 

compelling privacy or safety concern outweighs the public interest in access to the 

court record.  Under GR 15(g), "records sealed in the trial court shall be sealed from 

public access in the appellate court subject to further order of the appellate court."  

Based on this rule, it was reasonable for our clerk to seal this court's file.  And, this 

court revisited the issue after Mr. Lee moved to modify the clerk's ruling by unsealing

this court's record except the clerk's papers and report of proceedings.  Moreover, 

because the dissemination of information was central to this appeal, this court 

necessarily sealed portions of its record pending this decision.    

       Mr. Lee argues this court was required to submit written findings of fact and 

conclusions of law addressing the factors in Seattle Times Co. v. Ishikawa, 97 Wn.2d 

30, 640 P.2d 716 (1982) before sealing its file. But CR 52(a)(5) partly states, 

"[f]indings of fact and conclusions of law are not necessary: . . [on] decisions of 

motions."  In In re Marriage of Treseler and Treadwell, 145 Wn. App. 278, 290, 187 

P.3d 773 (2008), Division One of this court held that a trial court did not commit error 

by deciding a motion to seal without also entering findings and conclusions.  Moreover, 

in its ordinary role as a reviewing court, an appellate court does not make findings of 
fact.2 See King County Emp. Ass'n v. State Emp. Retirement Bd., 54 Wn.2d 1, 5, 336 

       2 The records sealed on appeal in this case were records that had been sealed 
in the trial court and were governed by GR 15(g). This case does not require us to 
consider the process to be followed if a request to seal a record were to be raised for 

                                               9 

No.  29212-6-III 
Doyle v. Lee

P.2d 387 (1959) ("appellate court - not a trier of the facts . . . has no power to enter any 

findings of fact.") Accordingly, this court was not required to enter written findings and 

conclusions before sealing its file.  

                                      E.  Attorney Fees

       Mr. Lee requests attorney fees on appeal.  He argues case law supports an 

award of attorney fees when a preliminary injunction is dissolved.  A court, in exercising 

its discretion, may award attorney fees when a party prevails in dissolving an injunction.  

Cornell Pump Co. v. City of Bellingham, 123 Wn. App. 226, 232, 98 P.3d 84 (2004).  In 

Cecil v. Dominy, 69 Wn.2d 289, 418 P.2d 233 (1966), our Supreme Court discussed 

the rationale for awarding attorney fees to parties who prevail in dissolving a wrongful 

injunction. Even so, the effect of our holding, assuming the trial court's order is to 

unseal the record on appeal, as ordered by our Clerk on February 17, 2011.

              Because the trial on the merits had for its sole purpose a 
       determination of whether the injunction should stand or fall, and was the 
       only procedure then available to the party enjoined to bring about 
       dissolution of the temporary injunction, the case comes within the rule that 
       a reasonable attorney's fee reasonably incurred in procuring the 
       dissolution of an injunction wrongfully issued represents damages 
       suffered from the injunction.

Cecil, 69 Wn.2d at 291.  Although Officer Doyle argues public attorneys may not 

recover attorney fees, "a county prosecutor . . . may recover investigation and trial 

costs, as well as attorney fees."  State ex rel. Evergreen Freedom Foundation v. Nat'l 

Educ. Ass'n, 119 Wn. App. 445, 451 n.6, 81 P.3d 911 (2003).

the first time in this court.  

                                              10 

No.  29212-6-III 
Doyle v. Lee

       Because the purpose of the proceedings below and on appeal was to dissolve

an injunction and because we hold Mr. Lee prevails here in seeking to affirm the trial 

court's order dissolving the injunction, he is entitled to attorney fees reasonably 

expended on appeal.  While the parties dispute whether a bond was or should have 

been posted, the amount of recovery is not affected by a bond amount since the award 

of attorney fees is not based on the bond statute, but is based on a rule of equity. 

Ritchie v. Markley, 23 Wn. App. 569, 575, 597 P.2d 449 (1979).  Given this analysis, 

we grant Mr. Lee's attorney fee request.    

       Affirmed.

                                                    ________________________________
                                                    Brown, J.

WE CONCUR:

_____________________________                       ________________________________
Sweeney, J.                                         Siddoway, J.

                                              11