Opinion
No. 48082-1-I.
Filed: February 19, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of King County Docket No: 99-2-19565-5 Judgment or order under review Date filed: 12/29/2000
Counsel for Appellant(s), James M. Caraher, James Caraher Associates, 4301 S Pine # 543, P.O. Box 1242, Tacoma, WA 98401-1242.
Counsel for Respondent(s), Ruth Nielsen, Nielsen Law Office Inc. P.S., P.O. Box 31119, Seattle, WA 98103-1119.
Kris Alexander's personal injury case was dismissed by an order entered by a Special Master which found that the parties had not filed a confirmation of joinder, and had not filed an answer or default.
In fact, when this order was entered, a confirmation of joinder had been filed and the defendant had answered the complaint. It was an abuse of discretion to deny the motion to vacate.
FACTS
In 1997 Kris Alexander sued Connelly Skis after he was injured in a waterskiing accident. In 1999 Alexander filed suit in Pierce County. Connelly answered the complaint but objected to venue. The Pierce County court granted Connelly's motion to change venue and transferred the case to King County.
According to the King County Superior Court Order Setting Civil Case Schedule issued for this case, the deadline for filing a "Confirmation of Joinder of Parties" was February 1, 2000. If a confirmation of joinder was not filed, the parties were required to appear for a status conference the week of February 14. The order explained that status conferences for Seattle cases were held at 9:30 a.m. on Thursdays in Room E942 of the King County Courthouse.
Alexander did not file a Confirmation of Joinder, nor did he appear at the status conference on February 17. Connelly's counsel appeared. The Special Master entered an order that found that Alexander had failed to appear; that he had not filed a confirmation of joinder; and ordered Alexander to immediately comply with a previous January 6 order compelling discovery and terms to Connelly's counsel. The court scheduled the next status conference hearing for March 16. Connelly was excused from attending the March hearing.
In December 1999, Connelly filed a motion to compel discovery because of Alexander's late and incomplete responses to interrogatories and requests for production. The court granted the motion and ordered Alexander to provide the outstanding discovery within five days and to pay Connelly's attorney fees for bringing the motion.
Status Conference hearings took place on March 16 and in April and May. Each time, Alexander did not appear and the court entered an order finding that the Confirmation of Joinder still had not been filed. At the status conference on May 25, the Special Master's order rescheduled the conference to August 3, unless by July 27 the case was "in compliance with the Case Schedule and answers/defaults obtained," and a Confirmation of Joinder and a Statement of Arbitrability were filed. The order also required Alexander to pay sanctions of $50. According to the order, failure to comply could result in dismissal or sanctions.
A Confirmation of Joinder was signed by both parties and filed on June 16. The first box on the form was checked. It states: "[t]he parties make the following joint representations". Under this box a notice appears: "A case status conference as noted in the case scheduling order will be canceled only if this box is checked and all parties have either signed this form or given their telephonic authority for signature." (emphasis in original). CP 192. The parties do not dispute that an answer was also filed on April 7, 1999.
The final rescheduled status conference took place on August 3. The Special Master found that the parties had failed to appear, that "[a] Confirmation of Joinder/Issues/Blood Testing . . . has not been filed or was not joined and signed by all parties" and that there was "[n]o answer/default." The Special Master dismissed Alexander's action without prejudice. CP 33. Although the order of dismissal was without prejudice, the dismissal effectively terminated the plaintiff's case because the statute of limitations had expired.
In the months following the August 3 order, the parties continued to prepare for trial. Alexander and Connelly both filed witness lists. Connelly sent Alexander answers to his interrogatories. Connelly also sent stipulations for the release of Alexander's medical records. Alexander filed a demand for a jury trial.
In October, the parties continued to discuss and correspond regarding discovery. On October 18, Connelly's lawyer sent Alexander's lawyer a letter stating: "We have confirmed with the court that this case has been dismissed. We were made aware of this when we received a Order on Non-compliance Hearing dated August 3, 2000."
Counsel wrote: "I presume that you have received a copy of the same order from the court. We do not intend to do any discovery until this case is back on the trial calendar." CP 133. Alexander's counsel claims that he was unaware of the dismissal until he received Connelly's October 18 letter. On November 15, Alexander filed a motion to vacate the Special Master's order based on the Special Master's failure to find that his conduct was intentional and to consider lesser sanctions. He also pointed out that the requirements of the May 25 order had been complied with at the time the August 3 order was entered; the Confirmation of Joinder had been filed and the complaint had been answered.
However, the address for both plaintiff and defense counsel is on the order of dismissal.
Connelly, in response to Alexander's motion acknowledged that "[w]hether or not this matter was properly dismissed is unclear to defense counsel." Connelly, however, opposed Alexander's motion and outlined the various deficiencies in the plaintiff's conduct during the course of the litigation, including his failure to appear for five status conferences and his continual delay in responding to discovery requests. If the court vacated the dismissal, Connelly requested a new trial date be set because the case was not ready to proceed to trial in January.
On November 29, the court entered an order denying the motion to vacate. In its order, the court found that "the plaintiff, through counsel, failed to respond to five Status Conference settings, failed to comply with the procedural rules for the bringing of the instant motion or even to serve and provide to the court a proposed order, and that the above numbered cause having been transferred from another county for defect of venue, and, Defendant having shown that Plaintiff has not yielded to discovery, in order to be prepared for trial." The court concluded that 'the plaintiff's instant motion should be and therefore hereby is denied, and that the 3 August 2000 order of this court dismissing this numbered cause but without prejudice remains the order of this court. Plaintiff can bring a cause of action afresh to prosecute correctly under the rules and statutes governing litigation.' CP 179.
Alexander moved for reconsideration, requesting that the court hear oral argument on the matter. The court denied his motion and Alexander appeals the order denying his motion to vacate.
DISCUSSION
An appellate court will generally not disturb the trial court's disposition of a motion to vacate unless that court abused its discretion. Pederson's Fryer Farms, Inc. v. Transamerica Ins. Co., 83 Wn. App. 432, 454, 922 P.2d 126 (1996).
Alexander moved to vacate the dismissal pursuant to CR 60(b)(1). The Special Master's August 3, 2000 order was based on erroneous findings. It is undisputed that the confirmation of joinder and answer had, in fact, been filed before July 27. The trial court's order does not address the findings of the Special Master's order, or the grounds to vacate under CR 60(b)(1), but instead denies the motion to vacate on other grounds. Although trial courts have the authority to dismiss actions under both the civil and local rules for noncompliance with court orders, the issue before the court was whether the Special Master's order of dismissal was based on a mistake, not whether the case could have been dismissed for other reasons. When a trial court considers dismissal for failure to comply with the civil rules, it must be apparent from the record that the trial court explicitly considered whether a lesser sanction would have sufficed, and whether the disobedient party's refusal to obey order was willful or deliberate and substantially prejudiced the opponent's ability to prepare for trial. See Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.
Connelly relies on Luckett v. Boeing, 98 Wn. App. 307, 989 P.2d 1144 (1999) to support the trial court's order. In Luckett, the plaintiff's case was dismissed because a confirmation of joinder had not been filed and the court denied a motion to vacate. Unlike the plaintiff in Luckett, Alexander had complied with the May 25 order and filed a confirmation of joinder and an answer before entry of the August 3 order. Connelly urges this court to affirm the court's ruling on the basis that the motion was not brought within a reasonable time. See LaMon v. Butler, 112 Wn.2d 193, 200-201, 770 P.2d 1027 (1989) (this court may affirm a trial court's order on any basis supported by the record). Under CR 60 (b), the motion to vacate had to be brought within a "reasonable" time, and in any event, not more than one year after the entry of the final order. CR60(b)(11). Alexander filed his motion approximately 3-months after the entry of the order dismissing his case. This is not an unreasonable amount of time for filing a motion to vacate. . . .
We reverse the trial court's order denying plaintiff's motion to vacate the August 3 order of dismissal and remand for trial.
WE CONCUR: AGID, J., COLEMAN, J.