Opinion
No. 54412-8-I
Filed: May 16, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-35684-2. Judgment or order under review. Date filed: 06/10/2004. Judge signing: Hon. Anthony P Wartnik.
Counsel for Appellant(s), Michelle Geri Farris, Attorney at Law, PO Box 27428, Seattle, WA 98165-2428.
Mark Douglas Kimball, Skyline Tower, 10900 NE 4th St Ste 950, Bellevue, WA 98004-5888.
Counsel for Respondent(s), Eric Jay Neal, Cole Lether Wathen Leid PC, 1000 2nd Ave Ste 1300, Seattle, WA 98104-1082.
Rick J. Wathen, Cole Lether Wathen Leid PC, 1000 2nd Ave Ste 1300, Seattle, WA 98104-1082.
Ali Shekarchi appeals the trial court's decision to dismiss his lawsuit against Allstate Insurance Company (Allstate) under CR 37 for failure to comply with court orders and the case schedule order. Shekarchi contends the trial court did not comply with the requirements of Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 41 P.3d 1175 (2002), and consider lesser sanctions on the record. The record supports the trial court's findings that Shekarchi willfully and repeatedly disregarded court orders. The decision to dismiss Shekarchi's lawsuit under CR 37 was not an abuse of discretion and the court complied with Rivers. We affirm.
FACTS
Ali Shekarchi owns a home in Washington that is insured by Allstate. On April 20, 2002, Shekarchi's home was damaged by a fire and he filed a claim with Allstate. Allstate denied Shekarchi's claim because Allstate determined Shekarchi intentionally caused the fire and misrepresented material facts.
On December 16, 2002, Shekarchi filed a lawsuit against Allstate for breach of contract, bad faith denial of coverage, and violation of Washington's Consumer Protection Act. The trial court issued an order setting the case schedule. The case schedule order set the trial date for May 17, 2004, and established a number of deadlines including disclosure of potential primary witnesses by December 15, 2003; discovery cutoff on March 29, 2004; exchange of witness and exhibit lists by April 26, 2004; hearing dispositive pretrial motions by May 3, 2004; and complying with the settlement conference requirement by May 10, 2004.
Allstate noted Shekarchi's deposition for March 29, 2004, the last day before discovery cutoff. Shekarchi wanted to postpone his deposition until after the settlement conference on April 13 and informed Allstate that he would not appear for the deposition on March 29. Allstate filed a motion to compel Shekarchi to attend the deposition and requested $750 in attorneys' fees and costs. On March 26, Shekarchi filed a motion for a protective order, seeking to postpone his deposition to April 14.
Shekarchi explained that he resided in California and was unable to travel to Washington until the settlement conference. On April 6, the trial court ordered Shekarchi to appear in Washington for his deposition on April 9 and pay $750 for attorneys' fees and costs to Allstate. In a separate order, the court denied Shekarchi's motion for a protective order and ordered Shekarchi to pay $500 for attorneys' fees and costs to Allstate.
Shekarchi appeared for his deposition on April 9. Shekarchi did not pay the court ordered attorneys' fees and costs to Allstate. During his deposition, Shekarchi informed Allstate that he had filed for bankruptcy. On April 26, Shekarchi's attorney, Mark D. Kimball, filed a motion to withdraw as Shekarchi's attorney. Over Shekarchi's objection, the court entered an order permitting Kimball to withdraw on May 6.
On May 7, Allstate timely filed a motion to dismiss Shekarchi's lawsuit under CR 37 for failure to comply with court orders and the case schedule order. Allstate's motion to dismiss was noted to be heard on the first day of trial, May 17. When Allstate subsequently received the order allowing Kimball to withdraw as Shekarchi's lawyer, Allstate served Shekarchi by mail in Irvine, California, the address provided in the notice of withdrawal. The trial court granted Allstate's motion to shorten time to hear the motion to dismiss on the first day of trial.
CR 6(e) requires an additional 3 days notice when serving documents by mail.
On May 11, the court notified Kimball that Allstate had filed a motion to dismiss under CR 37. That same day, Kimball called Shekarchi about the motion to dismiss. Shekarchi received a written copy of the motion by express mail on May 12. On May 13, Kimball, on behalf of Shekarchi, filed a response to the motion to dismiss. The court heard the motion to dismiss on the first day of trial and dismissed Shekarchi's lawsuit with prejudice. The trial court denied Shekarchi's motion for reconsideration. In his notice of appeal, Shekarchi designates the May 17, 2004 Order of Dismissal and the June 10, 2004 order denying his motion for reconsideration. Subsequently on November 18, 2004, the trial court entered a Supplemental Order of Dismissal (supplemental order). The supplemental order includes additional findings of fact and conclusions of law supporting the decision to dismiss. A commissioner granted Allstate's motion to supplement the record with the November 18, 2004 supplemental order.
Sheckarchi asserts this court should not consider the supplemental order because Allstate did not comply with RAP 7.2(e). We disagree. The trial court's supplemental order clarified but did not change the trial court's decision on appeal. See State v. Vailencour, 81 Wn. App. 372, 914 P.2d 767 (1996); In re Marriage of Stern, 68 Wn. App. 922, 927, 846 P.2d 1387 (1993).
Shekarchi's reliance on Clallam Deputy Sheriff's Guild v. Bd. of Clallam County Comm'rs, 92 Wn.2d 844, 601 P.2d 943 (1979), is misplaced. In Clallam, the Court addressed whether the trial court had post-appeal authority to enter judgment under RAP 7.2(b), not RAP 7.2(e). Id. at 853.
ANALYSIS Order of Dismissal
Shekarchi contends the trial court erred in dismissing his lawsuit under CR 37 for failure to comply with court orders and the case schedule order. Shekarchi argues the trial court did not comply with the requirements of Rivers, 145 Wn.2d 674, and consider lesser sanctions on the record. The abuse of discretion standard governs review of the trial court's decision to dismiss Shekarchi's lawsuit as a sanction for violation of discovery orders. Rivers, 145 Wn.2d at 684; see also, State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 236, 88 P.3d 375 (2004); Wagner Dev., Inc. v. Fidelity Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977 P.2d 639 (1999). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992). Under the abuse of discretion standard, this court gives deference to the trial judge. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). Before dismissing a lawsuit under CR 37, Rivers requires a trial court to consider on the record whether (1) the refusal to obey the discovery order was willful or deliberate; (2) the party's actions substantially prejudiced the opponent's ability to prepare for trial; and (3) a lesser sanction than dismissal of the action in its entirety would have sufficed. Rivers, 145 Wn.2d at 686. The trial court's reasoning with respect to each factor must be clearly stated for meaningful review. Id. at 685.
When a party fails to comply with a court order, CR 37(b)(2)(C) authorizes the trial court to impose sanctions, including dismissal:
[T]he court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
. . . .
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party.
The May 17, 2004 order describes the reasons for dismissal as follows:
1. Plaintiff has failed to comply with three Orders of this Court pursuant to CR 37;
2. Plaintiff has failed to comply with multiple deadlines including, but not limited to those imposed by this Court's pre-trial order, the Case Scheduling Order, and the Civil and Local Rules; and
3. Plaintiff's failures to comply mandate dismissal of this action.
CP at 138-39.
In the November 18, 2004 supplemental order, the trial court entered more detailed findings and conclusions describing the reasons for dismissing Shekarchi's lawsuit and its consideration of lesser sanctions.
1. Plaintiff has failed [to] comply with this Court's Case Scheduling Order, the Pre-Trial Order, and two discovery orders of April 6, 2004.
2. This Court on April 6, 2004 imposed a lesser discovery sanction of terms in the amount of $1,250. Plaintiff willfully failed to comply with those orders.
3. Plaintiff never submitted a Primary Witness List as required by the Case Scheduling Order and the King County Local Rules.
4. Plaintiff failed to timely disclose the fact that he was in bankruptcy during the pendency of this lawsuit.
5. Plaintiff failed to timely exchange witness and exhibit lists as required by this Court's Pre-Trial Order. When Plaintiff did submit a list, albeit untimely, the list was incomplete and named witnesses not previously disclosed.
6. Several pre-trial documents filed on Plaintiff[']s behalf were in violation of CR 11 in that they were not signed by Plaintiff but by his former attorney whom had previously withdrawn as counsel of record.
7. Plaintiff's failures to comply were willful and substantially prejudiced Allstate's ability to prepare its defense.
8. In light of Plaintiff's previous failure to comply with a lesser sanction, this Court has determined that lesser sanctions will not deter Plaintiff from future willful disregard of this Court's orders and that Allstate will continue to be substantially prejudiced in its defense if this matter is not dismissed.
CP at 984-85.
The trial court's supplemental order complies with Rivers. The trial court found that Shekarchi's repeated and willful failure to comply with court orders and the case schedule order resulted in substantial prejudice to Allstate's ability to prepare for trial. In the order, the court notes it previously and unsuccessfully imposed lesser sanctions and concluded that lesser sanctions would not deter Shekarchi 'from future willful disregard of this Court's orders and that Allstate will continue to be substantially prejudiced in its defense if this matter is not dismissed.' The record establishes Shekarchi did not comply with the court orders to pay attorneys' fees and costs, did not comply with nearly every substantive court deadline including failing to file the potential primary witness list and filing an untimely and incomplete witness and exhibit list, with witnesses not previously disclosed. We conclude the trial court's decision to dismiss Shekarchi's lawsuit against Allstate complied with Rivers and was not an abuse of discretion.
Shekarchi filed a petition for Bankruptcy under Chapter 7 in February 2004. In attempting to justify his failure to comply with the court ordered terms, Shekarchi relies on a bankruptcy code provision for an automatic stay on creditors for pre-petition debts. See 11 U.S.C. sec. 362. But nothing in that section applies to post-petition court ordered sanctions, and Shekarchi has cited no legal authority supporting his position. Arguments that are not supported by citation to legal authority will not be considered on appeal. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(a)(5). Furthermore, Allstate is not a creditor. See 11 U.S.C. sec. 101(10).
CP at 985.
Motion to Shorten Time
Shekarchi argues the trial court erred in granting Allstate's motion to shorten time to hear the motion to dismiss on the first day of trial. In his notice of appeal, Shekarchi does not designate the May 10, 2004 Order Shortening Time. Although Shekarchi assigns error to the Order Shortening Time in his opening brief, he presents no argument until his reply brief. We do not consider issues and arguments raised for the first time in a reply brief. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(c). Nonetheless, we conclude the trial court did not abuse its discretion in granting Allstate's motion to shorten time. See Murphy, 151 Wn.2d at 236-37.
Shekarchi also assigns error to the trial court's order denying his motion for reconsideration. But Shekarchi does not address this issue in his opening brief or in his reply brief. When a party does not present any relevant argument on an issue to which he or she has assigned error, that issue is effectively abandoned and we need not address it. R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 505, 903 P.2d 496 (1995); see also RAP 10.3(a)(5).
This deficiency in Shekarchi's notice of appeal is not merely one of form, it is substantive. Compare CTVC of Hawaii, Co. v. Shinawatra, 82 Wn. App. 699, 706, 919 P.2d 1243 (1996), with State v. Olson, 74 Wn. App. 126, 128, 872 P.2d 64 (1994).
Under CR 6(d), the trial court has discretion to grant a motion to shorten time for good cause. Murphy, 151 Wn.2d at 236. This court will not overturn a trial court's decision to shorten time unless the challenging party shows prejudice. Id. To establish prejudice, the challenging party 'must show a lack of actual notice, a lack of time to prepare for the motion, and no opportunity to submit case authority or provide countervailing oral argument.' Id. at 236-37.
Shekarchi had actual notice of the motion to dismiss, submitted a response and presented argument in opposition to the motion to dismiss. Allstate timely filed the motion to dismiss Shekarchi's lawsuit on May 7 to be heard the first day of trial, May 17. After Allstate received notice that the trial court approved Shekarchi's lawyer's request to withdraw, Allstate served Shekarchi by mail at the address provided in the notice of withdrawal in Irvine, California. Because service of pleadings by mail requires an additional three-days notice, Allstate filed a motion to shorten time to hear the motion to dismiss as originally noted for May 17. On May 10, the trial court granted Allstate's motion to shorten time. On May 11, Kimball contacted Shekarchi about Allstate's CR 37 motion to dismiss. Shekarchi received the motion by express mail on May 12. On May 13, Kimball, on behalf of Shekarchi, filed a response to Allstate's motion to dismiss. The court specifically notes in the order of dismissal that it considered Shekarchi's response. On this record, Shekarchi fails to show he was prejudiced by the trial court's decision to grant the motion to shorten time.
Shekarchi also argues Allstate should have filed its motion to dismiss earlier and Allstate should have anticipated the need to serve Shekarchi by mail in California. These arguments are speculative and unpersuasive. See Andrews v. Munro, 102 Wn.2d 761, 765, 689 P.2d 399 (1984); Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 468, 45 P.3d 594 (2002).
CONCLUSION
The trial court's decision to dismiss Shekarchi's lawsuit against Allstate under CR 37 for failure to comply with court orders meets the requirements of Rivers and was not an abuse of discretion. Shekarchi willfully and repeatedly disregarded court orders and the record supports the trial court's findings and conclusions that Allstate was prejudiced and that lesser sanctions would not suffice. We affirm.
SCHINDLER, APPELWICK and AGID, JJ.