Muffin Faye Anderson v. Comcast Center Xfinity Home Security ( 2017 )

COURT OFrILtU
STATE OFAPPEALS 01V1
WASHINGTON
2011 HOY 20 Ati 8:53
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MUFFIN FAYE ANDERSON,
No. 75176-0-1
Appellant,
DIVISION ONE
V.
COMCAST CABLE/XFINITY HOME
SEC., UNPUBLISHED OPINION
Respondent. FILED: November 20, 2017
SPEARMAN, J. — An appeal is frivolous if no debatable issues are
presented upon which reasonable minds might differ and it is so devoid of merit
that there is no reasonable possibility of reversal. Anderson appeals several
orders entered after the trial court dismissed her case against Comcast
Cable/XFinity Home Security,(Comcast) on res judicata grounds. In her appeal,
she reiterates her underlying claims against Comcast, but presents no facts or
arguments creating a reasonable possibility of reversal of her post-judgment
motions for relief.
FACTS
Muffin Faye Anderson was a customer of Comcast. She experienced
problems with her Comcast service and billing. Comcast would periodically turn
No. 75176-0-1/2
off her security system, cable, and internet. Anderson objected to the
increasingly high bills for features that she contends she did not sign up for.1
Anderson filed a complaint in King County Superior Court on June 26,
2015. She also filed two amended complaints soon after. Anderson asserted
claims for breach of contract and anticompetitive activities.
The trial court granted Comcast's motion to dismiss on October 30, 2015.
The court dismissed with prejudice, finding that the doctrine of res judicata
precluded Anderson's claims, and that she failed to state a claim.2 Then,
Anderson suffered a stroke on September 1, 2015 which led to hospitalization
and a period of incapacity.
On February 12, 2016, the trial court denied Anderson's motion to vacate
and stay her case. In the next two months, Anderson filed an additional four
motions that are not at issue in this appeal. On April 8, 2016, the trial court
denied Anderson's motion for a new trial. On the same day, the court denied
Anderson's motion to seal medical records because "[n]o basis for sealing was
stated." Clerk's Papers(CP)at 141.
Anderson then appealed numerous orders in the case. On April 19, 2016
she filed a notice of appeal of the October 30, 2015 order of dismissal, the
1 Respondent includes additional facts in its appellate brief, but fails to cite to documents
included in the record before this court.
2 Respondent asserts, without citation to the record before this court, that the res judicata
finding was based on the May 29, 2015 dismissal of a case brought by Anderson in small claims
court making the same claims against Comcast.
2
No. 75176-0-1/3
February 12, 2016 denial of her motion to vacate, and the two April 8, 2016
orders denying a new trial and the motion to seal. Anderson then appealed an
April 21, 2016 order denying her motion to reschedule trial.
A Commissioner of this court ruled that the appeal of the October 30, 2015
order of dismissal and the February 12, 2016 denial of the motion to vacate were
untimely under RAP 5.2(a), which requires that a notice of appeal be filed in the
trial court within 30 days after the entry of the decision that the party seeks to
review. RAP 5.2(a). Additionally, the Commissioner denied Anderson's motion to
enlarge time for a notice of appeal. The Commissioner ruled that the two April 8,
2016 orders and the April 21, 2016 order were timely appealed. Neither party
sought to modify the Commissioner's ruling.3
DISCUSSION
Anderson timely seeks review of three trial court orders: an order denying
a new trial, an order denying a motion to reschedule trial, and an order denying a
motion to seal medical records.4 Anderson argues that Comcast breached its
contract, engaged in anticompetitive activities, and that her ongoing illness made
her unable to defend against Comcast's motions.
3 We note that it appears that Anderson did not comply with RAP 5.1 when she failed to
file in the trial court her notice of appeal of the April 8,2015 denial of the motion to seal, or the
April 21, 2015 denial of the motion to reschedule trial. But this irregularity was not raised by
respondent, and respondent did not request to modify the Commissioner's ruling, so we consider
both orders on appeal.
4 In its briefing, Comcast declined to take a position on Anderson's appeal of the order
denying the motion to seal and provided no argument as to why this court should affirm the order
denying the motion to reschedule trial.
3
No. 75176-0-1/4
We review a CR 59(a) motion for new trial under an abuse of discretion
standard. Lian v. Stalick, 106 Wash. App. 811, 823,25 P.3d 467(2001). It appears
that the trial court considered Anderson's motion to reschedule trial as a CR 60
motion to vacate, which we also review for abuse of discretion. Barr v.
MacGin:Ian, 119 Wash. App. 43, 46, 78 P.3d 660(2003). We also consider the
denial of a motion to seal for abuse of discretion. In re Marriage of Treseler &
Treadwell, 145 Wash. App. 278, 283, 187 P.3d 773(2008).
Citing RAP 18.9(c), Comcast moves to dismiss Anderson's appeal of the
order denying her motion for a new trial, arguing that it is frivolous. An appeal is
frivolous if, considering the entire record, no debatable issues are presented
upon which reasonable minds might differ and it is so devoid of merit that there is
no reasonable possibility of reversal. In re Guardianship of Wells, 150 Wash. App.
491, 504, 208 P.3d 1126 (2009).
The trial court denied Anderson's motion for a new trial because she failed
to state a basis for relief under CR 59. A CR 59 motion may be granted for
irregularity in the proceedings, misconduct, accident or surprise, newly
discovered evidence, excessive or erroneous damages, lack of evidence to
justify the verdict, or because substantial justice has not been done. The motion
must be filed within ten days after the entry of judgment. CR 59(b). In her CR 59
motion, filed more than ten months after her case was dismissed, Anderson
apparently sought relief from the dismissal of her lawsuit due to res judicata. But
in her motion before the trial court and her briefing to this court, she fails to
4
No. 75176-0-1/5
identify facts supporting a CR 59 motion, or to provide argument on any grounds
for a new trial. We agree with Comcast that Anderson's appeal of this order is
frivolous.
The trial court denied Anderson's motion to reschedule trial because she
failed to state a basis for relief under CR 60, and because it was duplicative of
motions already rejected by the Court. A CR 60(b) motion may be granted on a
number of grounds, including for mistake, inadvertence, surprise, or excusable
neglect. Anderson suffered a stroke on November 1, 2015, and has had limited
function since then. But she sought to vacate an order entered on October 30,
2015, before her stroke. She provides no evidence of incapacity on that date. In
addition, Anderson availed herself of the opportunity to oppose the October 30
order. So even with her evidence of illness and incapacity, there is no reasonable
possibility of reversal on this order. We conclude that Anderson's appeal of the
denial to reschedule trial is frivolous.
Finally, the trial court denied Anderson's motion to seal medical records
because she did not provide a basis to seal the records. After a hearing, a court
may order records sealed if it is "justified by identified compelling privacy or
safety concerns that outweigh the public interest in access to the court record."
GR 15. In neither her motion to seal below, nor in her briefing to this court, does
Anderson identify any compelling privacy orsafety concerns. Accordingly, we
conclude there was no error in denying the motion and that her appeal 'of the
denial is frivolous.
No. 75176-0-1/6
We dismiss Anderson's appeal as frivolous under RAP 18.9(c).
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