Opinion
No. 61613-7-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-07468-1, Charles W. Mertel, J., entered April 23, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Jonathan Bander appeals the King County Superior Court's dismissal of a lawsuit he filed against the Washington Blues Society (WBS) and its officers. The court properly granted summary judgment in favor of WBS because Bander's King County lawsuit violated a Snohomish County Superior Court order prohibiting Bander from filing a lawsuit against WBS president Rhea Rolfe until he satisfied certain conditions. We affirm.
FACTS
Bander was a member of WBS, a non-profit organization whose mission is to "promote, preserve, and advance the culture and tradition of blues music as an art form." Evidence presented to the trial court shows that in the summer of 2004, Bander paid for and prepared a barbeque for a "peace concert" sponsored by WBS at Gasworks Park in Seattle. He did not charge for the food, but asked for donations that he claimed would go to another non-profit organization known as "Seattle Peace Concerts," a food bank, workers who helped him provide the food, and for legal, medical, or other financial assistance for musicians.
John Gulla and Joy Kelly were WBS board members. Bander had dated Kelly and had helped Gulla to defend himself in a legal proceeding in superior court. According to Gulla, Bander stopped helping him after a court commissioner threatened to fine Bander for practicing law unlawfully.
In 2005, Bander offered to provide free food for another peace concert sponsored by WBS. But Bander became angry because he believed that Gulla and Kelly made defamatory statements about him to other WBS members. In May 2005, Bander confronted WBS president Rhea Rolfe and said he would never volunteer for the Blues Society again. Rolfe, therefore, believed that Bander no longer intended to provide food for the concert, and WBS arranged for someone else to cater the event.
Approximately one week after the August 14, 2005, peace concert, Bander sued Gulla, Kelly, and Rolfe in Snohomish County Superior Court. Bander asserted numerous claims, including defamation, negligent misrepresentation, perjury, undue influence, malicious prosecution, and intentional interference with a business expectancy. Bander claimed that he had "valid contractual relationships and/or business expectancies with the Seattle Peace Concerts, Washington Blues Society, and others."
Bander's complaint against each of the defendants was dismissed without prejudice. In Kelly's case, the complaint was dismissed because Bander failed to comply with an order requiring him to file a more definite statement of his claims. The complaint against Gulla was dismissed after Bander failed to pay sanctions for abusive discovery. Similarly, Bander's complaint against Rolfe was dismissed because he failed to pay sanctions assessed after he violated discovery and other rules. The Snohomish County court indicated that Bander would not be permitted to refile his complaint against Rolfe until he paid the sanctions.
In May 2007, Bander filed a complaint in King County against the WBS, "John and Jane Doe 1-10," and WBS's current or past "Directors, Officers, employees, volunteers, or agents of defendant WBS," asserting claims of defamation, intentional interference with contractual relationships or business expectancies, and negligent misrepresentation. He also claimed that WBS unlawfully denied him access to corporate records, including a list of WBS members and their addresses, which he wanted so he could contact members about holding a special meeting to recall certain officers and directors of WBS. Bander had not yet paid the sanctions imposed in the Snohomish County case.
In an effort to satisfy Bander, WBS announced in its newsletter that it would hold a special meeting on February 12, 2008, for members to decide whether any of the current board members should be recalled. Bander, however, asked the King County court to temporarily restrain WBS from holding the special election. In response, WBS asked the court to deny Bander's motion, dismiss his complaint, and sanction Bander. The court denied Bander's request for a restraining order, but reserved the other issues for later determination.
Later, WBS asked the court to: grant it summary judgment; dismiss Bander's complaint; enter judgment against Bander for the attorney fees it incurred in responding to his motion for a temporary restraining order and for having to bring the motion to dismiss; and enjoin him from commencing any other action against WBS or its members, officers, and directors without first complying with the order entered in Snohomish County. The King County court granted WBS' motion, sanctioned Bander, and dismissed his complaint. This appeal followed.
After WBS responded to the appellant's brief, Bander filed a motion asking this court to strike respondents' brief and sanction respondents for making factual assertions that are not supported by evidence in the record. Bander has failed to establish that the respondents' briefing warrants sanctions. His motion is denied.
ANALYSIS
The trial court granted the motion for summary judgment because the complaint against WBS and its officers and directors was substantially similar to Bander's action against WBS president Rhea Rolfe in Snohomish County. Because Rolfe was a WBS officer responsible for the alleged actions that Bander complained of in his King County complaint, the court concluded that Bander's King County action violated the April 4, 2006, Snohomish County court order that prohibited him from filing another action against Rolfe until after he paid the sanctions that that court had imposed. Bander argues that the trial court erred by granting summary judgment and dismissing his King County complaint because the Snohomish County order applied only to Rolfe, as an individual, and not to WBS.
A trial court may grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The same standard applies when this court reviews orders granting summary judgment. The court must consider facts and reasonable inferences in the light most favorable to the nonmoving party, and summary judgment should be granted only if, considering the evidence presented, reasonable persons could reach but one conclusion.
Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006).
Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002).
The Snohomish County court ordered Bander to pay Rolfe's attorney $1,400 not later than 30 days after March 16, 2006. If he failed to pay the sanctions as required, the order indicated that the court would dismiss all of Bander's claims against Rolfe "without need for further notice to Plaintiff or separate action by the Court." The Snohomish County order prohibited Bander from filing any other claims against Rolfe until he paid the sanctions and proved that Rolfe's attorney had received the payment.
Bander contends that his King County complaint did not violate the Snohomish County order because Rolfe was not named as a defendant in the King County case. But the defendants in Bander's King County action were WBS and its "current or prior Directors, Officers, employees, volunteers, or agents of defendant WBS." Rolfe was the president of WBS when Bander sued her in Snohomish County, and she was its president when he filed his suit in King County. Therefore, when Bander filed his King County action, he violated the Snohomish County order prohibiting him from suing Rolfe unless he first paid the judgment entered in Snohomish County.
Because we conclude that the trial court properly dismissed Bander's King County complaint, we need not address his other arguments. We consider instead the respondent's request for attorney fees on appeal.
WBS asks this court to order Bander to pay its attorney fees because his appeal is frivolous. RAP 18.9(a) allows this court to order a party to pay terms for filing a frivolous appeal. An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there was no reasonable possibility of reversal. In determining whether an appeal is frivolous, the court considers the record as a whole and resolves doubt in favor of the appellant.
Yurtis v. Phipps, 143 Wn. App. 680, 697, 181 P.3d 849 (2008).
Yurtis, 143 Wn. App. at 697.
Bander's appeal is frivolous. Bander sued Rolfe and the others in Snohomish County and asserted numerous claims without stating specifically what the defendants did to warrant the claims. His case was dismissed after he was sanctioned for failing to comply with orders for a more definite statement, for abusive discovery, and violations of discovery and other procedural rules. He was ordered not to refile his claims against Rolfe without first paying the sanctions. Despite not paying the sanctions, Bander filed another lawsuit against the officers of WBS, which included Rolfe. Bander claims that the two lawsuits are distinguishable, but both were based upon actions by WBS officers involving WBS activities.
Both Bander and WBS cite Yurtis v. Phipps in support of their arguments regarding attorney fees. In Yurtis, the appellant was sanctioned for pursuing a frivolous appeal after she attempted in 2008 to relitigate claims that arose in 1991.
143 Wn. App. 680, 181 P.3d 849 (2008).
The original dispute began when Yurtis refused to satisfy liens on property she sold, as was required by the purchase and sale agreement. The buyers sued Yurtis for specific performance. In 1993, the trial court granted specific performance and ordered that the liens be satisfied. Phipps, the closing agent, satisfied the liens, and the sale closed. Yurtis then sued Phipps. The trial court granted summary judgment in Phipps's favor after finding that his actions were consistent with the previous orders. The court found Yurtis's claims against Phipps to be frivolous and awarded him his fees and costs.
Yurtis appealed. A commissioner of the Court of Appeals dismissed the appeal after concluding it was essentially a relitigation of the issues presented in the lawsuit brought by the buyers. The commissioner awarded sanctions to Phipps for having to defend against a groundless appeal. Yurtis's motion to modify and subsequent petition for review were denied, and a mandate terminating appellate review was issued in 1998. In 1999, Yurtis filed a motion to recall the mandate. That motion was denied, as was a motion for discretionary review in the Washington State Supreme Court. Yurtis was sanctioned again, but she petitioned for certiorari in the United States Supreme Court. Remarkably, in 2003, she filed a second motion in the Washington State Court of Appeals to recall the mandate terminating review, and when that was denied, she petitioned again for discretionary review in the Washington State Supreme Court. In a ruling denying that motion, the commissioner of that court stated, "[W]hile Ms. Yurtis may firmly believe in her cause, her seemingly ceaseless pursuit of this litigation continues to be both abusive and frivolous, warranting further sanctions."
Yurtis, 143 Wn. App. at 686.
While Bander's conduct may not be as egregious as Yurtis's, sanctions are warranted. Bander did not comply with sanctions orders and filed his King County lawsuit against WBS and its officers. Although he argues that the Snohomish County order does not bar the King County lawsuit because the two cases are distinct, the defendants' wrongful acts alleged by Bander to support his Snohomish County claims were the same as those he relied upon to support nearly identical claims in the King County case. Under these circumstances, Bander's appeal is frivolous, and RAP 18.9(a) sanctions in the amount of WBS's reasonable attorney fees incurred on appeal are ordered against Bander in favor of WBS. The amount shall be determined by a commissioner of this court.
CONCLUSION
The decision of the trial court is affirmed. The court did not err by granting WBS's motion for summary judgment. We award attorney fees and costs to WBS in an amount to be determined by a commissioner of this court.