Norman Cohen, App. v. Ralph Carr, Jr. And Michael Flynn, Res. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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NORMAN COHEN, NO. 72718-4-1
Appellant, DIVISION ONE
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RALPH CARR, JR. and MICHAEL UNPUBLISHED OPINION
FLYNN,
Respondents.
FILED: January 25, 2016
Spearman, C.J. — Norman Cohen appeals from the summary judgment dismissal
of his lawsuit against Ralph Carr, Jr. and Michael Flynn. Finding no error, we affirm.
FACTS
Between 1998 and 2000, Cohen represented Carr in an employment law
matter. On March 29, 2006, the Supreme Court disbarred Cohen for conduct
related to his representation of Carr and ordered him to pay Carr $8,118.75 in
restitution.
Cohen did not pay Carr. In 2010, Carr retained Flynn to file suit against
Cohen and Cohen's wife Verlaine Keith-Miller in King County Superior Court
Cause No. 10-2-34254-1 SEA. The complaint sought a judgment on the restitution
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order against Cohen and to set aside Cohen's alleged fraudulent transfer of real
property to Keith-Miller.
After receiving service of the complaint, Cohen sent Carr a written
statement of his intention to appear and defend in the suit. However, neither
Cohen nor Keith-Miller ever filed a notice of appearance. Carr moved for default
without providing notice to Cohen or Keith-Miller. Concluding that neither Cohen
nor Keith-Miller had appeared in the action, a superior court commissioner
entered a default judgment and issued a writ of garnishment against Keith-Miller's
earnings. Cohen and Keith-Miller successfully vacated the default judgment and
quashed the writ of garnishment based on lack of notice. All earnings garnished
by Keith-Miller's employer were returned to her.
Cohen and Keith-Miller subsequently filed answers and asserted
counterclaims for Civil Rule (CR) 11 sanctions. However, neither Cohen nor Keith-
Miller asserted that the garnishment was wrongful. The parties ultimately reached
a settlement in which Keith-Miller paid Carr $12,000 and all claims arising from
the case were dismissed with prejudice.
In 2013, Cohen filed suit against Carr and Flynn in King County Superior
Court Cause No. 13-2-38375-6 SEA. Cohen's complaint alleged that the earlier
garnishment by Carr was wrongful and that Flynn violated the Rules of
Professional Conduct (RPC) in bringing the prior suit. The parties filed competing
motions for summary judgment. The superior court granted Carr and Flynn's
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motion and dismissed the action. The superior court denied Cohen's motion for
reconsideration. Cohen appeals.
DECISION
We review a summary judgment order de novo, engaging in the same
inquiry as the superior court.1 Lvbbert v. Grant County. 141 Wash. 2d 29, 34, 1 P.3d
1124 (2000). We view the facts and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Lvbbert. 141 Wash. 2d at 34. If the
plaintiff "'fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden
of proof at trial,'" summary judgment is proper. Young v. Key Pharmaceuticals,
Inc.. 112 Wash. 2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex v. Catrett. 477
U.S. 317, 106 S. Ct. 2548, 2552, 91 Led2d 265 (1986)).
We review the denial of a motion for reconsideration for abuse of
discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wash. 2d
674, 685, 41 P.3d 1175 (2002). A court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or reasons. In re
Marriage of Horner. 151 Wash. 2d 884, 893, 93 P.3d 124 (2004).
1 In both his opening and his reply brief, Cohen refers to pleadings from No. 10-2-34254-
1 SEA that were not part of the record on appeal in No. 13-2-38375-6 SEA. Carr and Flynn
moved to strike those portions of Cohen's brief. We grant the motion, as RAP 9.12 limits this
court's review of a superior court order granting or denying summary judgment to evidence
presented to the superior court. Dewar v. Smith. 185 Wash. App. 544, 566, 342 P.3d 328, review
denied, 183Wn.2d 1024(2015).
No. 72718-4-1/4
Cohen first contends that the superior court erred in making findings of fact
in a summary judgment order. Cohen points to the first paragraph in the summary
judgment order, which states:
The above entitled court having read both parties motions for
respective summary judgments, each party's response, and each
party's reply, and having read and reviewed the exhibits and
declarations attached thereto, and the Court having reviewed the files
and pleadings herein, the Court hereby makes the following findings
and issues the following order....
Clerk's Papers (CP) at 209. (Emphasis added). However, despite the inclusion of
this language, the superior court did not make findings as to disputed facts.
Instead, the superior court properly summarized the background of the case and
determined that Carr and Flynn were entitled to dismissal as a matter of law.
Moreover, even had the recitations been intended as findings, because our review
is de novo they would be "'merely superfluous and of no prejudice.'" Gates v. Port
of Kalama, 152 Wash. App. 82, 87 n.6, 215 P.3d 983 (2009) (quoting State ex rel.
Carroll v. Simmons, 61 Wash. 2d 146, 149, 377 P.2d 421 (1962)). Cohen also
contends the superior court failed to view the evidence in a light most favorable to
him as the nonmoving party. Again, our de novo standard of review renders this
claim immaterial.
Cohen argues that the superior court erred in dismissing his claim for
wrongful garnishment. However, Cohen waived this claim by failing to assert it as
a counterclaim in the prior suit. CR 13(a), which governs compulsory
counterclaims, states:
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A pleading shall state as a counterclaim any claim which at the time
of serving the pleading the pleader has against any opposing party, if
it arises out of the transaction or occurrence that is the subject matter
of the opposing party's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire
jurisdiction.
A party who fails to assert a compulsory counterclaim is barred from asserting the
claim in a subsequent action. Krikava v. Webber, 43 Wash. App. 217, 219, 716 P.2d
916(1986).
Cohen's claim for wrongful garnishment was a compulsory counterclaim
under CR 13(a). Because it was based on the fact that Keith-Miller's earnings
were garnished following a default judgment that was later vacated, it was mature
and available to Cohen at the time he filed his answer. It also necessarily arose
out of the judgment that was the subject of the prior suit. Finally, the claim did not
require the presence of third parties because both Cohen and Carr were parties to
the prior suit. Accordingly, Cohen waived the claim by failing to assert it in the
prior suit and the superior court properly granted summary judgment.2
Consequently, we need not address the merits of Cohen's claim that Carr is
collaterally estopped from relitigating the issue of whether the garnishment was
wrongful.
2 The superior court declined to bar Cohen's wrongful garnishment claim as a
compulsory counterclaim, citing RCW 6.26.040, which provides that an action for damages
arising from a prejudgment writ of garnishment "may be brought by way of a counterclaim in the
original action or in a separate action. . . ." (Emphasis added). However, chapter 6.26 RCW
applies only to writs issued prior to a judgment. Here, the writ was issued after a judgment.
Such writs are governed by chapter 6.27 RCW, which does not contain an equivalent provision.
We may affirm the superior court's summary judgment decision on any ground supported by the
record. LaMon v. Butler. 112 Wash. 2d 193, 200-01, 770 P.2d 1027 (1989).
No. 72718-4-1/6
Cohen contends that the superior court "fail[ed] to recognize that Carr's
liability is not predicated solely on RCW 6.26.040 [but] also based on a conversion
theory, negligence per se theory, an outrageous conduct theory, and on the
theory that violations of some criminal statutes give rise to civil liability." Br. of
Appellant at 7-8. Cohen did not plead any of these claims in his complaint or
address them in his motion for summary judgment. A new theory of liability not
properly raised in the superior court may not be raised for the first time on appeal.
RAP 2.5(a).
Cohen also claims the superior court erred in dismissing his claim against
Flynn for allegedly violating the RPC. However, it is well settled that violations of
the RPC do not give rise to a civil cause of action. Hizev v. Carpenter, 119 Wash. 2d
251, 259-60, 830 P.2d 646 (1992); Behnke v. Ahrens. 172 Wash. App. 281, 297,
294 P.3d 729 (2012). Rather, "breach of an ethics rule provides only a public, e.g.,
disciplinary, remedy and not a private remedy." Hizev, 119 Wash. 2d at 259 (citing 1
R. Mallen & J. Smith, Legal Malpractice § 6.27 (3d ed. 1989)). Because Cohen
failed to show he had a viable cause of action, the superior court properly
dismissed this claim.
Cohen appears to claim that Flynn was judicially estopped from seeking
summary judgment dismissal on this ground because "Flynn prepared, signed and
served Carr's case No. 10-2-34254-1 which is a lawsuit seeking money judgment
for appellant's violation of the RPC's [sic]. . . ." Br. of Appellant at 6. "Judicial
estoppel is an equitable doctrine that precludes a party from asserting one
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position in a court proceeding and later seeking an advantage by taking a clearly
inconsistent position.'" Arkison v. Ethan Allen. Inc.. 160 Wash. 2d 535, 538, 160 P.3d
13 (2007) (quoting Bartlev-Williams v. Kendall, 134 Wash. App. 95, 98, 138 P.3d
1103 (2006)). Cohen misapprehends the nature of the earlier suit. Carr sued
Cohen for a judgment on a restitution order, not for Cohen's violations of the RPC
in representing him. Because Flynn's position was not inconsistent with the prior
suit, judicial estoppel does not apply.
Both parties request attorney fees on appeal. RAP 18.9(a) authorizes this court
to order a party who files a frivolous appeal to pay attorney fees and costs to the
opposing party. Because Cohen's appeal is frivolous, we exercise our discretion and
grant Carr and Flynn their reasonable attorney fees and costs on appeal upon
compliance with RAP 18.1(d).
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