Paul H. King v. Steve Rice ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PAUL KING,
No. 67759-4-1
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION, , r>
STEVE RICE and BARBARA RICE,
individually and the marital community
thereof, dba SUNLIGHT
CONSTRUCTION,
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Respondent. FILED: June 10, 2013
U1
Appelwick, J. — King failed to note his tort claims against Rice for trial for
over two years after this court remanded the matter to the trial court. Rice
requested dismissal for want of prosecution pursuant to CR 41(b)(1). On the
facts here, application of CR 41(b)(1) is mandatory. We affirm the trial court's
dismissal of King's claims. We also grant Rice's request for attorney fees.
FACTS
Paul King filed an action for damages based on the destruction of a
modular living unit on a parcel of real property King sold to Steve and Barbara
Rice (Rice) in 2004. This court reversed the trial court's summary judgment
order dismissing King's complaint and remanded for further proceedings in King
v. Rice. 146 Wn. App. 662, 191 P.3d 946 (2008). This court issued the mandate
in July 2009.
On July 29, 2011, Rice filed a motion to dismiss for want of prosecution
under CR 41(b)(1), noting a hearing with oral argument for August 17. On
August 15, King filed a response to Rice's motion to dismiss, as well as a
No. 67759-4-1/2
"MOTION TO ENTER JUDGMENT ON REMAND," and a "MOTION TO SET A
NEW TRIAL SCHEDULE." In support of his response, King filed his own
declaration and the declaration of Roger Knight, who described himself as King's
"long time assistant." In his response, King argued that (1) the case was
originally noted for trial in November 2006; (2) Rice caused the delay by filing a
summary judgment motion which was granted and then ultimately reversed on
appeal; (3) Rice caused further delay by engaging in abusive collection practices
forcing King to file for bankruptcy; (4) King was precluded by the bankruptcy
action from acting in the case until January 2011; (5) King "contacted the clerk's
office several times to get a new case schedule;" and (6) King had noted his
motion for a new trial for consideration without oral argument on August 31, 2011.
King did not appear at the hearing on Rice's motion to dismiss on August
17, 2011. Knight appeared and informed the court that King was incarcerated
and that Knight had rubberstamped King's signature on the motion papers with
King's authorization. The trial court did not allow Knight to argue on King's behalf.
In its written order granting Rice's motion and dismissing King's claims without
prejudice, the trial court found:
Although a motion to set new trial schedule (sub 304) is on file, and
noted for August 31, 2011, the court notes it is "rubberstamped"
and thus in violation of CR 11. The court finds that Mr. King has
not noted this matter for trial per CR 41(b)(1), and therefore he has
not "cured" any reasons to avoid involuntary dismissal.
No. 67759-4-1/3
The trial court denied King's motion for reconsideration.1
King appeals.
DISCUSSION
Where the provisions of CR 41(b)(1) apply, dismissal for want of
prosecution "is mandatory; there is no room for the exercise of a trial court's
discretion." Snohomish County v. Thorp Meats. 110 Wn.2d 163, 167, 750 P.2d
1251 (1988). In ruling on a motion to dismiss under CR 41(b)(1), "the trial court
may not generally consider the merits of the case nor the hardship which
application of the rule may bring." Id. CR 41(b) provides:
For failure of the plaintiff to prosecute or to comply with these rules
or any order of the court, a defendant may move for dismissal of an
action or of any claim against him or her.
(1) Want of Prosecution on Motion of Party. Any civil action
shall be dismissed, without prejudice, for want of prosecution
whenever the plaintiff, counterclaimant, cross claimant, or third party
plaintiff neglects to note the action for trial or hearing within 1 year
after any issue of law or fact has been joined, unless the failure to
bring the same on for trial or hearing was caused by the party who
makes the motion to dismiss. Such motion to dismiss shall come on
for hearing only after 10 days' notice to the adverse party. If the
case is noted for trial before the hearing on the motion, the action
shall not be dismissed.
"The circumstances mandating dismissal are: (a) the matter has not been noted for
trial or hearing within 1 year after any issue of law or fact has been joined and (b)
the failure to note the matter was not caused by the party moving for dismissal."
Polello v. Knapp, 68 Wn. App. 809, 815, 847 P.2d 20 (1993). For the purposes of
1King assigns error to the denial of his motion for reconsideration, but offers no
separate argument in support of his assignment. We therefore do not address it.
See RAP 10.3(a)(4), (6).
No. 67759-4-1/4
CR 41(b)(1), "an issue of law or fact is joined when, among other circumstances, a
case is remanded from an appeal." Bus. Servs. of Am. II, Inc. v. WaferTech, LLC,
174 Wn.2d 304, 310, 274 P.3d 1025 (2012). "[T]he final sentence of CR 41(b)(1)
means precisely what it says, a case shall not be dismissed for want of
prosecution if it is noted for trial before the hearing on the motion to dismiss."
Thorp Meats. 110 Wn.2d at 167.
While both parties have filed lengthy briefs discussing matters outside the
record and allegations of misconduct not directly relevant to the dismissal order on
appeal, our review is limited to whether the provisions of CR 41(b)(1) apply,
making dismissal mandatory.2 Whether a court rule applies to the facts in a case
is a question of law that we review de novo. Wiley v. Rehak, 143 Wn.2d 339, 343,
20P.3d404(2001).
King argues that his claims against Rice cannot be considered as "joined"
for purposes of the 1 year time limit of CR 41(1)(b) until his bankruptcy case was
dismissed in December 2010. He claims that he was unable to note the matter for
trial while his bankruptcy case was pending based on the automatic stay
provisions of 11 U.S.C. § 362(a). But, the bankruptcy stay does not apply to an
action brought by, rather than against, a debtor and does not prevent the
2 Rice has filed a motion to strike verbatim reports of proceedings of hearings
held in January and February 2010 provided by King, based on alleged violations
of various court rules. But, even if the reports were properly considered, they do
not support King's claim that Rice caused the failure to note the matter for trial.
Rice has also filed a motion to supplement the record with various documents to
demonstrate misconduct on King's part. But, the documents are not directly
relevant to our review of trial court's dismissal pursuant to CR41(1)(b). We deny
Rice's motions.
No. 67759-4-1/5
application of CR 41(b)(1). Polello. 68 Wn. App. at 813 (automatic stay of 11
U.S.C. § 362(a) did not apply to debtor's personal injury suit against another party
and dismissal under CR 41(b)(1) was mandatory where conditions were met); see
also. In re White v. Citv of Santee. 186 B.R. 700, 704 (9th Cir. 1995) (automatic
stay does not prevent trustee or debtor in possession from prosecuting action
initiated by debtor and pending at time of bankruptcy).
Here, King's tort claims against Rice were joined for the purposes of CR 41
(b)(1) when this court remanded the case to the superior court and issued the
mandate in July 2009. Bus. Servs. of Am. II, 174 Wn.2d at 310. It is undisputed
that King did not note the matter for trial before Rice filed the motion to dismiss in
July 2011. Thus, the matter had been joined for more than one year without
having been noted for trial.
King also claims that CR 41(b)(1) does not apply, because Rice caused the
delay. King claims that Rice initiated "supplemental proceedings" following
remand in an improper attempt to collect on certain judgment amounts, forcing him
to file bankruptcy. But, King does not claim, and the record does not indicate, that
his ability to note the matter for trial was somehow conditioned on his payment of
any judgment claimed by Rice or prevented by any supplemental proceedings
initiated by Rice after the remand. Cf., State ex rel. Dawson v. Superior Court for
Kittitas County. 16 Wn.2d 300, 304, 133 P.2d 285 (1943) (where defendant
caused court to enter order staying proceedings until plaintiff made certain
payments, defendant was precluded from moving to dismiss for want of
prosecution under rule predating adoption of CR 41(b)(1)). And, King provides no
No. 67759-4-1/6
explanation for his failure to note the matter for trial for eight months after his
bankruptcy proceedings were finally dismissed. King fails to demonstrate that Rice
caused the delay.
King does not claim that he noted the matter for trial before the hearing on
Rice's motion to dismiss. Instead, King claims that the trial court erred in its
determination that his motion to set a new trial schedule was filed in violation of CR
11. He argues that the exception in CR 41(b)(1) "would have [been] triggered" if
the motion had been granted.
CR 11(a) provides in pertinent part:
Every pleading, motion, and legal memorandum of a party
represented by an attorney shall be dated and signed by at least one
attorney of record in the attorney's individual name, whose address
and Washington State Bar Association membership number shall be
stated. A party who is not represented by an attorney shall sign and
date the party's pleading, motion, or legal memorandum and state
the party's address. ... If a pleading, motion, or legal memorandum
is not signed, it shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant. If a
pleading, motion, or legal memorandum is signed in violation of this
rule, the court, upon motion or upon its own initiative, may impose
upon the person who signed it, a represented party, or both, an
appropriate sanction.
Individuals appearing in court on behalf of another party must be licensed to
practice law. Llovd Enters., Inc. v. Lonqview Plumbing & Heating Co.. 91 Wn. App.
697, 701, 958 P.2d 1035 (1998). The right to pro se representation is narrow,
limited, and personal. State v. Hunt, 75 Wn. App. 795, 805, 880 P.2d 96 (1994). A
grant of a power of attorney does not authorize a person to appear in court on
behalf of another party. Jd.
No. 67759-4-1/7
It is undisputed that Knight is not licensed to practice law, that King did not
sign the motion papers requesting a trial schedule, and that Knight
"rubberstamped" King's signature on the motion papers. Accordingly, the motion
papers violated CR 11's requirement that a pro se party "shall sign" the motion.3
King claims that he was entitled to an opportunity to remedy his omission and the
trial court should have continued the matter "for one or two weeks" to allow him an
opportunity to sign the papers. But, where, as here, the plaintiff fails to note a
matter for trial before the hearing on a motion to dismiss pursuant to CR 41(b)(1),
dismissal is mandatory and it is error to grant additional time for a party to note the
lawsuit for trial. Polello, 68 Wn. App. at 817 (where conditions for mandatory
dismissal were met, trial court erred by granting plaintiff additional two weeks to
note matter for trial). Because the trial court correctly found that King had not
noted the matter for trial before the hearing on Rice's motion to dismiss, dismissal
was mandatory pursuant to CR 41(b)(1).
Rice requests attorney fees under RAP 18.1 based on the underlying
purchase and sale agreement providing, "If Buyer or Seller institutes suit against
the other concerning this agreement, the prevailing party is entitled to reasonable
attorneys' fees and expenses." Rice also relies on the provision in the escrow
agreement stating, "If you are the prevailing party in any action or proceeding
between you and some or all of the parties to this escrow, you shall be entitled to
all costs, expenses, and reasonable attorney's fees expended or incurred in
3King fails to identify any relevant Washington authority supporting his claim that
CR 11 allows a pro se party to authorize a nonlawyer to sign on his or her behalf.
No. 67759-4-1/8
connection therewith." As the prevailing party, Rice is entitled to receive fees on
appeal.
Affirmed.
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WE CONCUR:
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