Opinion
Nos. 49182-2-I, c/w 50310-3-I.
Filed: August 26, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 002315236, Hon. James Doerty, 00, 0, 0000, Judgment or order under review.
Counsel for Appellant(s), William P. Wilson (Appearing Pro Se), 16219 N.E. 19th Pl., Bellevue, WA 98008.
Counsel for Respondent(s), Gary C. Bergan, 970 5th N.W. Ste 3, P.O. Box 1304, Issaquah, WA 98027.
Matthew D. Dubin, The Law Offices of Eugene N. Bolin Jr., Ste 108, 200 1st Ave W, Seattle, WA 98119.
Rochelle Parask (Appearing Pro Se), 9710 41st Ave South, Seattle, WA 98118.
When a trial court dismisses a lawsuit as a sanction for violation of court rules or orders, it must set forth on the record whether a less severe sanction would suffice, whether the opposing party was prejudiced by the conduct and whether the failure to comply with court orders or rules was willful. Here, the trial court dismissed the plaintiff's lawsuit, without making these findings. Therefore, we reverse and remand.
William Wilson, acting pro se, filed a lawsuit in King County in December of 2000. He sued defendant Donald Ball, along with various attorneys and a trust. He asserted numerous causes of action such as fraud, breach of fiduciary duty, racketeering, and theft. With respect to defendant Ball, he claimed that Ball knowingly purchased stolen real property from a fraudulent trust created in his name. On July 9, 2001, the trial court issued a show cause order, requiring all parties to appear at a hearing and show cause why Wilson's claims should not be dismissed because he had not filed a confirmation of service, and why he should not be sanctioned for failing to move for default. The order also required the defendants to show cause why they should not be sanctioned for failing to answer the complaint. The court set the show cause hearing for July 31.
According to the case schedule, the Confirmation of Service was due approximately one month after the complaint was filed on January 4, 2001. This document, confirming service on all parties, is not in the record.
Prior to the issuance of the show cause order, on May 17, Wilson had filed a Confirmation of Joinder as required by the case schedule. On the first page of that document Wilson checked the box marked "[t]he parties make the following joint representations". On the signature page of the document, Wilson wrote "authorized by telephone" and wrote the name of attorney representing Ball, as well as another attorney representing lawyer Rochelle Parask. On June 6, Parask's attorney filed an objection to the confirmation of joinder, pointing out that contrary to the document, all parties had not been served, all mandatory pleadings had not been filed and additional defenses would be raised. After the show cause order was entered, on July 25 and July 17, both Ball's attorney and Parask's attorney filed responses to the show cause order informing the court that neither attorney had authorized Wilson to file the confirmation of joinder making joint representations on their behalf.
CP 76.
CP 77.
The show cause hearing took place on July 31. Wilson provides a narrative report on the hearing, but there is no verbatim report of the proceeding in the record. Following the hearing, the trial court entered an order of dismissal. In its order the court noted that both parties appeared for the hearing. The court did not check the box entitled "[a] Confirmation of Service, showing service on all named parties, has not been filed", nor did it check the box finding that "[m]andatory pleadings" had not been filed and there was no motion for default. Instead, the court wrote in "court finds plaintiff had lied to the court and forged signatures of counsel to documents." The court dismissed Wilson's lawsuit with prejudice. Ten days later, on August 20, Wilson moved for reconsideration arguing that the impropriety of the confirmation of joinder was due to his misunderstanding the form. Another ten days after that, an attorney, Richard McKinney, filed a motion to set aside the dismissal on behalf of Wilson, contending that the court lacked a legal basis to dismiss the lawsuit. Ball responded to the motion for reconsideration, arguing that the motion should be denied because it was untimely and had not been properly served on opposing parties. He also pointed out that the issues raised in the July 9, 2001 show cause order were the failure to file the confirmation of service and the failure to move for default, and thus argued that the lawsuit was not dismissed because of the perjury or forgery but because of the failure to follow the case schedule and court rules.
CP 120.
CP 120.
The court denied Wilson's motion for reconsideration, stating: "[a]t the show cause hearing the dismissal was based on the Plaintiff's failure to comply with the case schedule, provide a credible reason for not doing so, or that he would at any reasonable time in the future be able to do so." Wilson appeals. Trial courts are authorized under the civil rules to dismiss cases based on non-compliance with court rules or orders. CR 41(b). Likewise, KCLR 4(g) provides that a case may be dismissed due to the failure to comply with the case schedule. However, dismissal is only justified where a party has acted in willful and deliberate disregard of court orders and the efficient administration of justice, and the opponent's ability to prepare for trial has been substantially prejudiced. Anderson v. Mohundro, 24 Wn. App. 569, 575, 604 P.2d 181 (1979). A trial court's order dismissing an action for non-compliance with a court scheduling order and local court rules is reviewed for abuse of discretion; i.e., whether its decision is manifestly unreasonable or based on untenable grounds. Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 129, 896 P.2d 66 (1995).
CP 192.
In Woodhead, the trial court dismissed the plaintiff's case under CR 41(b) for the failure to effect service on the defendants and to comply with the case scheduling order, together with deliberate attempts to mislead the court. The court also found that these actions were willful and prejudiced the defendants. This court upheld the dismissal, noting that when dismissing an action under CR 41(b), "a trial court must consider on the record whether a lesser sanction would suffice, in addition to making clear on the record whether the factors of willfulness and prejudice are present." Woodhead, 78 Wn. App. at 132.
In Woodhead, this court affirmed the dismissal even though the trial court did not make an explicit finding with respect to whether a lesser sanction would have been appropriate. The appellant failed to provide evidence in the record on appeal of the trial court's failure to make required findings. Additionally, the record in Woodhead revealed that the trial court considered lesser sanctions. While the circumstances in this case might justify dismissal with prejudice, on this record we cannot determine whether the trial court found willfulness and prejudice were present.
From the appellant's narrative report of proceedings, it appears that the trial court considered monetary sanctions.
Accordingly, we must reverse and remand.
We reject Wilson's argument that the court violated his right to counsel by denying his request to continue the show cause hearing. McKinney acknowledged in his declaration that he was contacted by Wilson only a few days before the July 31 hearing and that he did not represent Wilson at the time. McKinney orally requested that the hearing be rescheduled because of his vacation. The court denied this request. In its order on the motion to set aside the dismissal the court made a finding that at the July 31 hearing, Wilson appeared pro se and orally requested a continuance on the grounds that he was trying to obtain counsel. The court further found that no letter of intent to file a notice of appearance had been filed. There is no authority supporting Wilson's position that a denial of a request for a continuance in these circumstances constitutes an abuse of discretion or amounts to a violation of his right to counsel. State v. Woods, 143 Wn.2d 561, 579, 23 P.3d 1046 (2001) (the appellate court reviews a ruling on a motion for a continuance for an abuse of discretion).
We reverse and remand.