Opinion
No. 58909-1-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-2-25332-6, Jeffrey M. Ramsdell, J., entered September 8, 2006.
Reversed and remanded by unpublished per curiam opinion.
In this case, we hold that filing a "note for arbitration" was the equivalent of noting the case for trial and precluded the trial court from dismissing the case for want of prosecution under CR 41(b)(1). The trial court gave no indication that dismissal was based upon anything other than want of prosecution, and the note for arbitration was filed before the motion to dismiss was heard. Neither has Motel 6 shown that Black did not properly note the case for arbitration. Under these circumstances, the court did not have the inherent authority to dismiss the case. The decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.
Facts
In October 2002, Ruth Black sued Motel 6 for tortious conduct, alleging that the motel in SeaTac where she and her family stayed in August 2001 was infested with bedbugs. In February 2003, she filed a statement of arbitrability, and the case was assigned to an arbitrator. In July 2003, the arbitrator entered a notice of settlement based upon his understanding that the parties had settled the case. The notice of settlement advised the parties that the case could be dismissed on the clerk's motion if an order dismissing all claims was not entered promptly after the notice of settlement was filed.
Ruth Black sued on her own behalf and as the guardian of Nicholas Donaldson, a minor. For convenience, we refer to the appellants as Black.
Black's lawyer apparently had agreed to the settlement without Black's approval. Therefore, the agreement was never finalized, and no order dismissing the case was entered. Instead, Black's lawyer withdrew from the case. A new lawyer representing Black filed a notice of appearance on February 6, 2004.
No further action was taken until November 8, 2005, when Motel 6 filed a motion to dismiss for want of prosecution under CR 41(b)(1). Black opposed the motion. She claimed that she filed a "note for arbitration setting" on November 16, 2005, which she claimed was the equivalent of noting the matter for trial. Based upon Black's assertion, Motel 6 withdrew its motion to dismiss.
Nearly a year later, on August 15, 2006, Motel 6 learned from the arbitration department of the King County Superior Court that Black had not filed a "note for arbitration" in November 2005 as she indicated she had. Moreover, Motel 6 was told that Black would need to pay additional fees and get a judge's permission to reactivate the case. Motel 6 informed Black of the arbitration department's requirements and agreed to give Black time to comply before a hearing on a second motion to dismiss was held.
The next day, Motel 6 filed its second motion to dismiss for want of prosecution and scheduled a hearing without oral argument for September 1, 2006. On August 30, 2006, Black filed a note for arbitration setting and a response to Motel 6's motion to dismiss. Black asked the court to grant permission to transfer the case to arbitration and, if merely filing the note was not sufficient to transfer the case, she asked for a continuance to complete whatever steps were necessary. On September 8, 2006, the trial court granted Motel 6's motion and dismissed Black's case with prejudice.
Standard of Review
Black contends that the trial court was required to deny Motel 6's motion to dismiss because she filed a note for arbitration before the hearing on the motion, and noting the case for arbitration was equivalent to noting the case for trial. Motel 6 argues that dismissing the case was within the court's discretion. We, therefore, must first determine the correct standard of review.
CR 41(b) allows a case to be dismissed involuntarily if it is not prosecuted diligently:
For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him or her.
(1) Want of Prosecution on Motion of Party. Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross claimant, or third party plaintiff neglects to note the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after 10 days' notice to the adverse party. If the case is noted for trial before the hearing on the motion, the action shall not be dismissed.
Dismissal for lack of prosecution is mandatory under CR 41(b)(1) unless the case is noted for trial before the motion to dismiss is heard. Snohomish County v. Thorp Meats, 110 Wn.2d 163, 167, 750 P.2d 1251 (1988). The converse also is true. That is, if the case is noted for trial before the hearing on a motion to dismiss for want of prosecution, the case may not be dismissed. Thorp Meats, 110 Wn.2d at 168-69. A decision to dismiss under CR 41(b) is discretionary only if dismissal is for violation of a court rule or order, or is for something more than the want of prosecution alone. Thorp Meats, 110 Wn.2d at 167; see also Apostolis v. City of Seattle, 101 Wn. App. 300, 305, 3 P.3d 198 (2000).
Although Motel 6 agrees that "where CR 41(b)(1) applies, dismissal is mandatory and the exercise of judicial discretion is not permitted," it nevertheless argues that this court should review the dismissal in this case under an abuse of discretion standard. Brief of respondent, at 6. In support of its argument, Motel 6 cites Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 41 P.3d 1175 (2002), and Will v. Frontier Contractors, Inc., 121 Wn. App. 119, 89 P.3d 242 (2004). But both of those cases involved involuntary dismissals for violations of court orders or rules. See Rivers, 145 Wn.2d at 677 (dismissal for failure to comply with a discovery order and case schedule deadlines); Will, 121 Wn. App. at 128 (dismissal for failure to file and serve amended complaint as required by CR 5 and CR 15).
In this case, the issue before this court is whether Black's filing a note for arbitration was the equivalent of noting the case for trial and, therefore, precluded dismissal for want of prosecution under CR 41(b)(1). Whether a court rule applies to the facts in a case is a question of law that is reviewed de novo. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 4040 (2001). Therefore, we review the trial court's decision to dismiss de novo.
Both parties essentially agreed below that the trial court's decision was not a matter of discretion. Motel 6 argued that dismissal was mandatory because Black had not properly noted the case for arbitration. Black argued dismissal was prohibited because she had filed her note for arbitration before the hearing on the motion to dismiss.
The Trial Court Should Not Have Dismissed Black's Case
Black's case was a civil action seeking only a money judgment of less than $35,000 and, therefore, was subject to mandatory arbitration, which meant arbitration was required before the case could proceed to trial. See former RCW 7.06.020(1) (1987) (civil actions are subject to mandatory arbitration where the sole relief sought is a money judgment for less than $15,000, or less than $35,000 if authorized by the county's superior court). Therefore, Black argues, noting the case for arbitration was the equivalent of noting it for trial. Black's argument is logical and is supported by an analogous opinion from this court. See Foss Maritime Co. v. Seattle, 107 Wn. App. 669, 27 P.3d 1228 (2001).
RCW 7.06.020(1) was amended in 2005 to allow arbitration in cases asserting claims for money judgments up to $50,000.
In Foss, the City of Seattle issued a deficiency assessment to Foss for business and occupation taxes. Foss appealed the assessment to the City's hearing examiner, who affirmed the assessment. Foss paid the assessment, but also timely filed an application for writ of review in King County Superior Court. The company took no further action until two years later, when it filed a motion for writ of review.
The City opposed Foss's motion and asked the court to dismiss the case based upon the two-year delay. The trial court denied Foss's motion for a writ and dismissed the case without prejudice.
On appeal, Foss argued that dismissal was improper under CR 41(b)(1) because it filed its motion for writ of review before the City asked the court to dismiss the case. This court agreed, treating Foss's motion for writ of review as the equivalent of noting the case for trial: "Foss moved for issuance of the writ, issuance of a trial date, establishment of a case schedule and assignment of a judge. With this motion, Foss effectively noted the case for trial." Foss, 107 Wn. App. at 674. Similarly, because Black's case was subject to mandatory arbitration, she effectively noted her case for trial when she noted her case for arbitration.
Motel 6 does not contend that filing the note for arbitration was not the equivalent of noting the case for trial. Rather, the partnership argues that merely filing a note for arbitration was not sufficient to avoid dismissal because more was required to "properly" note the case for arbitration.
In support of its argument, Motel 6 cites King County LMAR 2.1. Under section "a" of that rule, if a party believes its case is suitable for mandatory arbitration, it must promptly file a statement of arbitrability. The remaining portion of King County LMAR 2.1(a) provides that if the time indicated on the case schedule for filing such a statement has passed, a party needs the court's permission to transfer the case to arbitration. None of the other sections of King County LMAR 2.1 is at all relevant.
Black timely submitted a statement of arbitrability in February 2003 and, in her note for arbitration, she asked the court to reassign the case to an arbitrator. She, therefore, complied with the relevant portions of King County LMAR 2.1.
As further support for its argument that Black did not properly note her case for arbitration, Motel 6 relies upon information it received from someone in the court's arbitration department. Motel 6 claims that a representative of that department indicated Black needed to pay a fee and receive the court's permission to proceed with arbitration. But a statement by an unnamed, unsworn source in the arbitration department does not constitute persuasive authority for Motel 6's argument that Black improperly noted her case for arbitration.
As Black contends, there is no procedure set forth in the King County Local Rules either for noting a case for trial or noting a case for arbitration. A trial date is assigned when the case is filed and a case schedule is issued. See KCLR 4. If a party files a statement of arbitrability and the case is transferred to the arbitration department, the arbitrator sets the date for the hearing. LMAR 5.1 ("An arbitration hearing may be scheduled at any reasonable time and place chosen by the arbitrator"). Therefore, when Black filed the note for arbitration and asked the court to assign the case to an arbitrator, she properly noted her case for arbitration.
Motel 6 argues that the trial court's decision to dismiss in this case is supported by Polello v. Knapp, 68 Wn. App. 809, 847 P.2d 20 (1993). The petitioner in that case argued that the trial court should have dismissed the respondent's case, and the appellate court agreed. But in Polello, the respondent's "case was not noted for trial before the CR 41(b)(1) hearing. The exception to mandatory nondismissal [was] therefore inapplicable." Polello, 68 Wn. App. at 816.
Motel 6 argued below that dismissal was mandatory under CR 41(b)(1), although the partnership also essentially offered evidence to show that dismissal was warranted for reasons other than the want of prosecution. For example, Motel 6 informed the court that Black claimed she filed a note for arbitration in November 2005 when, in fact, she had not done so. Therefore, if the trial court had dismissed Black's case based upon something more than want of prosecution, the decision to dismiss might have been within the court's discretion. But the trial court did not indicate that it dismissed Black's case for anything other than the want of prosecution, and Black had essentially noted her case for trial before the motion to dismiss was heard. Under the circumstances, nondismissal was mandatory.
The only possible indication that the court based its decision on something other than want of prosecution is its dismissal "with prejudice," when CR 41(b)(1) provides that a dismissal for want of prosecution should be "without prejudice."
Conclusion
Motel 6 has not established that Black failed to properly note her case for arbitration, or that filing the note for arbitration and asking the court to appoint an arbitrator were not the equivalent of noting the case for trial. Under these circumstances, the trial court erred when it dismissed Black's case. The decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.
Because Motel 6 is not the prevailing party, its request for attorney fees on appeal is denied.