Opinion
No. 34160-3-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 02-2-02979-9, Diane M. Woolard, J., entered November 10, 2005.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
Lori Maze and Debra Tsugawa, pro se, appeal the trial court's denial of their motion to reinstate their breach of contract claim against Country Mutual Insurance Company. Their claim was dismissed on a clerk's motion for want of prosecution under CR 41(b)(2) and they contend that they are entitled to reinstatement because they did not receive the clerk's notice of dismissal. We agree, reverse, and remand for reinstatement.
FACTS
In mid 2001, a fire occurred at the Maze and Tsugawa residence. They filed an insurance claim with Country Mutual. The insurance company denied their claim, asserting that its investigation had shown that Maze and Tsugawa had "concealed material facts and intentionally set the fire." Clerk's Papers (CP) at 25.
Clerk's papers indicate the date of the fire variously as June 13, 2001, or July 13, 2001. For purposes of this appeal, the actual date of the fire is not relevant.
On July 15, 2002, Maze and Tsugawa, acting pro se, filed a breach of contract claim against Country Mutual asserting $117,425.00 in damages. Maze and Tsugawa listed the address of their fire-damaged residence in Clark County as their address in the complaint. On August 28, Country Mutual filed an answer, alleging arson and denying breach of contract. Country Mutual's certificate of service shows that its answer was served on Maze and Tsugawa at their post office box address.
Maze and Tsugawa list this same post office box address on their appellate pleadings.
On June 18, 2004, the Clark County Superior Court Clerk, acting under CR 41(b)(2), filed a clerk's notice for dismissal for want of prosecution. The required notice to Maze and Tsugawa was sent to their fire-damaged residence and was returned marked "undeliverable" by the post office. On July 30, 2004, an order of dismissal was filed.
On June 29, 2005, Maze and Tsugawa filed a motion for reinstatement, asserting that they (1) had not received the dismissal notice, (2) had discovered the dismissal when reviewing the trial court's web page, (3) planned further discovery, and (4) anticipated case completion in 90-120 days. Country Mutual acknowledged that the dismissal notice was returned marked as "[u]ndeliverable as [a]ddressed," but argued that (1) the notice was properly sent to the address listed in the complaint; (2) Maze and Tsugawa were responsible for informing the trial court of any change of address; and (3) Country Mutual was prejudiced by the long delay in the matter. CP at 27. Country Mutual's certificate of service also shows that its opposition to the motion was served on Maze and Tsugawa at their post office box address.
The trial court denied Maze and Tsugawa reinstatement, finding that they were obligated to inform the court of their mailing address and had not done so. Maze and Tsugawa filed a motion under CR 60(b)(1) seeking relief from the trial court's order. They argued that they listed their updated address on a case cover sheet filed with the clerk's office in 2002, and that any error on their part should be viewed as "[e]xcusable [n]eglect under CR 60. CP at 32. The trial court denied their motion.
The trial court's findings relevant here are identical in both orders denying relief.
Maze and Tsugawa appeal.
ANALYSIS
Maze and Tsugawa contend that the trial court abused its discretion in (1) denying their motion to reinstate under CR 41(b)(2)(B) and (2) denying their motion for relief under CR 60. Country Mutual asserts that the trial court properly denied reinstatement because Maze's and Tsugawa's "unjustified failure to inform the court of [their] accurate mailing address as required by the rules was not grounds for reinstatement, and was not a basis under CR 60(b)(1) for vacating the court's order denying reinstatement." Br. of Resp't at 4.
We review a trial court's decision on a motion for reinstatement under CR 41(b)(2)(B) for an abuse of discretion. Plouffe v. Rook, 135 Wn. App. 628, 632, 147 P.3d 596 (2006). "A court abuses its discretion when its decision is based on untenable grounds or for untenable reasons." Plouffe, 135 Wn. App. at 633. "A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993).
The issue here is whether the trial court's decision to deny reinstatement was based on an erroneous view of the requirements of CR 41(b)(2)(B).
Interpretation of a court rule is a question of law, subject to de novo review. Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997). In determining the meaning of a court rule, we apply the same principles used to determine the meaning of a statute. City of Bellevue v. Hellenthal, 144 Wn.2d 425, 431, 28 P.3d 744 (2001). Foremost, we consider the plain language of the rule and construe the rule in accord with the intent of the drafting body. See [Hellenthal, 144 Wn.2d at 431]. If the rule's meaning is plain on its face, the court must give effect to that plain meaning as an expression of legislative intent. Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004).
Gourley v Gourley, 158 Wn.2d 460, 466, 145 P.3d 1185 (2006).
Division One of this court discussed the history and purpose of CR 41(b)(2)(B) in Plouffe. CR 41(b)(2)(B) was amended in 1997 to specifically address when a party is entitled to reinstatement of a lawsuit dismissed for want of prosecution. CR 41(b)(2)(B) provides:
Mailing Notice; Reinstatement. The clerk shall mail notice of impending dismissal not later than 30 days after the case becomes eligible for dismissal because of inactivity. A party who does not receive the clerk's notice shall be entitled to reinstatement of the case, without cost, upon motion brought within a reasonable time after learning of the dismissal.
Former CR 41(b)(2)(B) (1967) provided:
Mailing Notice. The notice shall be mailed in every eligible case not later than 30 days before June 15 and December 15 of each year, and all such cases shall be presented to the court by the clerk for action thereon on or before June 30 and December 31 of each year. These deadlines shall not be interpreted as a prohibition against mailing of notice and dismissal thereon as cases may become eligible for dismissal under this rule.
Before the 1997 amendment, a motion to vacate a CR 41(b)(2)(B) order of dismissal on a Clerk's motion for want of prosecution was brought under CR 60(b). See Vaughn v. Chung, 119 Wn.2d 273, 283, 830 P.2d 668 (1992) (a party may properly seek relief from a mandatory dismissal under CR 41(b)(2) by bringing a motion under CR 60(b)); Kirschner v. Worden Orchard Corp., 48 Wn. App. 506, 510, 739 P.2d 119 (1987) (when a case is dismissed before the conditions to a dismissal under CR 41(b)(2)(A) are met, the court may properly vacate the order of dismissal under CR 60(b)); Eiden v. Snohomish County Civil Serv. Comm'n, 13 Wn. App. 32, 42-43, 533 P.2d 426 (1975) (a plaintiff can move to vacate a CR 41(b)(2)(A) dismissal under CR 60(b) when the plaintiff's case was dismissed without proper notice to counsel).
The purpose of the 1997 amendment to CR 41(b)(2)(B) was to give a party the right to bring a motion within a reasonable time to reinstate his lawsuit without cost if the party did not receive the clerk's notice of dismissal. "According to the drafters of the 1997 amendment to CR 41(b)(2)(B):
'The Committee had also been concerned that cases could be dismissed because of clerical error in mailing the notice or failure of the post office to forward mail. The last sentence of proposed section (b)(2)(B) addresses this issue.'"
Plouffe, 135 Wn. App. at 633-35.
Thus, Plouffe reasoned that "the plain and unambiguous language of [CR 41(b)(2)(B)] requires the court to reinstate a lawsuit dismissed on the clerk's motion for want of prosecution if the party does not receive notice of the dismissal and the motion is filed within a reasonable time after learning of the dismissal." Division One also held that "[w]hen the party receives the notice of dismissal and what constitutes a reasonable time depend on the facts and circumstances of each case." Plouffe, 135 Wn. App. at 635-36.
Here, the trial court's pertinent findings were that Maze and Tsugawa "had an obligation to keep the court informed of their current mailing address" and they "did not keep the court informed as to the current mailing address." CP at 48. But it is undisputed that Maze and Tsugawa did not receive the notice of dismissal and, in fact, it was returned to the court clerk marked as undelivered. Neither Country Mutual nor the trial court's findings addresses whether there was an unreasonable delay between Maze's and Tsugawa's discovery of the dismissal and their motion for reinstatement. Moreover, Country Mutual does not dispute Maze's and Tsugawa's claim that only three days elapsed between June 26, 2005, when they learned of the dismissal on the trial court's web page, and June 29, 2005, when they filed their motion for reinstatement. Thus, it is undisputed that (1) Maze and Tsugawa did not receive the notice and (2) Maze and Tsugawa sought relief immediately after discovering dismissal of their claim.
Under these circumstances the plain language and clear intent of CR 41(b)(2)(B) requires reinstatement of the claim. The trial court's denial based on its findings that Maze and Tsugawa were obligated to keep the court informed of their mailing address and failed to do so is based on an erroneous view of CR 41(b)(2)(B) and was, therefore, an abuse of its discretion.
Because we reverse the trial court and remand for reinstatement, we do not consider whether Maze's and Tsugawa's CR 60 motion for relief was properly denied.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.