Opinion
No. 35788-7-II.
January 29, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-2-00794-0, Theodore F. Spearman, J., entered December 8, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Van Deren, J.
Robert Bonneville appeals the dismissal of his Land Use Petition Act (LUPA) appeal from a county land use decision. Bonneville argues that the superior court erred in dismissing the appeal for his failure to meet the litigation schedule because (1) he inadvertently, rather than willfully, disregarded court orders; and (2) his failure to meet the schedule did not prejudice the County. Bonneville also maintains that the court failed to explicitly consider lesser sanctions before dismissing the case. Finding no reversible error, we affirm.
FACTS
After an administrative hearing examiner denied Robert Bonneville's land use petition, Bonneville appealed the decision to the Kitsap County Superior Court. Bonneville and the County stipulated to a scheduling order with the following dates:
1. By July 17, 2006[,] . . . County shall submit to the Court a certified copy of the record for judicial review pursuant to RCW 36.70C.110. [Bonneville] shall . . . reimburse the County for the costs of preparing the administrative record before the record is submitted to the court.
2. By July 17, 2006[,] . . . Bonneville shall submit to the court a verbatim transcript of the administrative hearing. [Bonneville] shall provide a copy of the transcript to [the County] by July 10, 2006[,] for correction of error prior to filing.
3. By August 16, 2006[,] [Bonneville] shall serve and file his brief.
4. By September 15, 2006[,] the [County] shall serve and file its brief.
5. By September 29, 2006[,] [Bonneville] shall serve and file his reply brief. [Bonneville's] reply brief may be in strict reply only.
6. The hearing on the merits shall be held on September 25, 2006.
Clerk's Papers (CP) at 24-25.
On August 28, 2006, the County filed a motion to dismiss due to Bonneville not complying with the scheduling order's requirements. The trial court heard the motion on September 8; Bonneville did not appear. The court issued an order dismissing the appeal.
On November 20, 2006, Bonneville contacted the County to point out that he was out of town from approximately August 14, 2006, until approximately September 6, 2006. Bonneville also stated that he had previously told counsel for the County that he would be out of town. The County agreed to vacate the order of dismissal and allow Bonneville adequate time to respond to the motion to dismiss. The motion was re-noted for December 8, 2006.
On November 21, 2006, approximately two-and-a-half months after Bonneville returned to town, he began making inquiries to obtain the administrative record and transcript of the hearing. The administrative record and transcript were due to be filed on July 17, 2006. In the County's supporting documents to its motion, it argued that the trial court should not allow Bonneville a grace period because "he was out of town after these materials were required to be filed." CPat41.
The trial court heard the motion to dismiss on December 8. The court found that (1)
Bonneville failed to comply with the scheduling order, (2) the County was prejudiced by this failure, and (3) Bonneville "willfully disregarded the scheduling requirements (without excuse=wil[l]ful)." CP at 109. The trial court dismissed Bonneville's appeal.
ANALYSIS
The legislature intended the Land Use Petition Act to "reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures . . . in order to provide consistent, predictable, and timely judicial review." RCW 36.70C.010.
I. Standard Of Review
We review a lower court's order imposing sanctions for a party's failure to comply with discovery orders for an abuse of discretion. Will v. Frontier Contractors, Inc., 121 Wn. App. 119, 128, 89 P.3d 242 (2004). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or untenable reasons. Will, 121 Wn. App. at 128.
II. Involuntary Dismissal Under Civil Rule 41(b)
A trial court may dismiss an action under CR 41(b) when the record shows that (1) the party's failure to comply with the court order was willful or deliberate, (2) the party's failure substantially prejudiced the opponent's ability to prepare for trial, and (3) the trial court explicitly considered a lesser sanction. Will, 121 Wn. App. at 129 (courts do not resort to dismissal lightly); see also Conom v. Snohomish County, 155 Wn.2d 154, 160-61, 118 P.3d 344 (2005). Moreover, to enable us to review the dismissal meaningfully, the trial court must explicitly discuss each element on the record. Will, 121 Wn. App. at 133.
We have applied the same analysis to dismissals under CR 41(b) (failure to prosecute the action) as dismissals under CR 37(b) (failure to provide discovery). See Will, 121 Wn. App. at 129 (citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997) (applying the explicit consideration requirement to dismissal under CR 37(b), failure to follow discovery order)).
1. Willful or Deliberate Refusal
The trial court found that Bonneville willfully failed to meet the scheduled deadlines. Bonneville argues that his failure to meet the deadlines was inadvertent, not willful.
Bonneville missed deadlines of July 17 and August 16. Yet the County sent him an invoice, which he received on July 6, 2006, for preparing the administrative record. As of August 28, 2006, Bonneville "ha[d] not responded to the invoice and ha[d] not contacted [Karen Ashcraft] regarding the invoice." CP at 37. Because Bonneville did not pay before the deadlines expired, the County was relieved of its responsibility to submit the record, as required by the court order. See RCW 36.70C. 110(3) (noting such a failure is "grounds for dismissal of the petition"). Further, as of August 28, 2006, Bonneville had yet to provide a hearing transcript or file his brief. Because of Bonneville's failure to meet any of the deadlines, the County could not possibly prepare for the hearing scheduled for September 26.
Where a party fails to comply with a court order and offers no `"reasonable excuse or justification,'" we deem the failure willful. Will, 121 Wn. App. at 129 (quoting Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 686-87, 41 P.3d 1175 (2002). In his search for a reasonable excuse or justification, Bonneville advances two arguments. First, he reasons that the County intentionally moved to dismiss because it knew he was out of the country between August 14, 2006, and September 6, 2006, and, thus, would not be able to meet the deadlines. Although Bonneville initially advanced this argument before the trial court, he withdrew it at the December 8, 2006 hearing. We generally do not consider arguments a party has not advanced below. State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975). We decline to do so here.
Second, Bonneville maintains that he inadvertently violated the order because he "received numerous invoices from [Kitsap County] during the relevant time frames relating to . . . document requests . . . and was confused as to what related to what." Br. of Appellant at 8. We have excused a party's failure to meet a deadline when the failure was the result of confusion regarding deadlines. Will, 121 Wn. App. at 129 (holding that "counsel's failure to understand the requirements of CR 5 and CR 15" was not willful; rather, it was a product of misunderstanding of an unclear law). Unlike the confusion in Will, Bonneville stipulated to an order that contained specific dates. Will, 121 Wn. App. at 129 (finding "no indication that the trial court ordered Will to file and serve the complaint within a set amount of time").
In Apostolis v. City of Seattle, Division One rejected an attorney's excuse that he did not file his brief on time because the clerk had "lost" the case file. Apostolis v. City of Seattle, 101 Wn. App. 300, 304-05, 3 P.3d 198 (2000) (finding that the clerk did not lose the file; it was checked out). The court reasoned, in part, that the attorney had missed known deadlines, had failed to follow up with the clerk, did not ask for an extension of time from the court, and waited three weeks before checking with a clerk regarding the missing file. Apostolis, 101 Wn. App. at 305.
Bonneville's pattern of delay is similar. He did not ask about obtaining a record or transcript of the administrative hearing until November 20, 2006 (127 days after the materials were due and 97 days after his brief was due). Moreover, although Bonneville was out of town when the County moved to dismiss, he was in town on the deadline dates. The trial court found Bonneville sophisticated and knowledgeable about "the LUPA laws and procedure." Report of Proceedings (RP) at 17. The court concluded that "if [Mr. Bonneville] had been 30 days, maybe 40 days, maybe even 60 days late on this," he would have his day in court, "but he has let too much time go by before correcting the errors that I'm sure he was aware of." RP at 17. In short, Bonneville did not persuade the trial court that his "confusion" caused his complete failure to meet the deadlines. Because we are similarly unpersuaded, we hold that the trial court did not err in finding Bonneville's conduct willful.
2. Prejudice
The trial court found that Bonneville's delay prejudiced the County. "In determining the proper sanction," the court must have considered whether Bonneville's failure to comply with the order prejudiced the County's ability to prepare for trial. Will, 121 Wn. App. at 131; see also Conom, 155 Wn.2d at 160-61.
The County asserts that Bonneville's untimely payment for the record and failure to deliver his brief by the deadline prejudiced its ability to prepare for trial. Essentially, the County argues that without a record, brief, or transcript, it could not prepare for the hearing. We agree. But the question remains whether the trial court could have alleviated the prejudice by setting a new trial date and timeline and assessing terms against Bonneville for his unjustified delay.
The trial court found the answer in LUPA's policy to establish "uniform, expedited appeal procedures . . . and timely judicial review." RCW 36.70C.010. A hearing on the merits following the initial hearing must be set within "sixty days of the date set for submitting the local jurisdiction's record, absent a showing of good cause for a different date or a stipulation of the parties." RCW 36.70C.090. The parties stipulated to a hearing date of September 26, 2006; Bonneville's delay rendered this date impossible.
And failure to pay a county for preparing the administrative record relieves it of responsibility to submit the record and is grounds to dismiss the petition. RCW 36.70C.110; Kitsap County Local Rule 40(b)(6)(B)(vii).
Yet courts must require parties to strictly adhere to LUPA's statutory time limits to preserve the finality of administrative decisions and further LUPA's purposes. RCW 36.70C.080(1) (requiring "initial hearing shall be set no sooner than thirty-five days and no later than fifty days after the petition is served on the parties"); Conom, 155 Wn.2d at 162. We disagree with Bonneville that he is the only one prejudiced by his delay. Sleasman v. City of Lacey, 128 Wn. App. 617, 624, 116 P.3d 446 (2005), rev'd on other grounds, 159 Wn.2d 639 (2007). Sleasman does not solve Bonneville's problem. Requiring the initial hearing within 35 to 50 days ensures that "the uniform, expedited appeal procedures of LUPA are accomplished." Conom, 155 Wn.2d at 162. The legislature has charged the County with promptly resolving and seeking finality in its land use decisions. Because these decisions affect not only the land use applicant, but surrounding land owners and occupants, Bonneville's delay can reach far beyond his interests. We conclude that the trial court did not err in finding prejudice to the County based on LUPA's expedited review policy.
3. Lesser Sanctions Considered
Bonneville argues that the trial court did not explicitly consider lesser sanctions. The record shows otherwise. The trial court considered making "[Bonneville] . . . pay for his laziness," and providing him with "20 days to comply with all of the requirements of the scheduling order that have been delayed or not complied with." RP at 6. The court then reasoned that "if [Bonneville] had been 30 days, maybe 40 days, maybe even 60 days late on this," he would have his day in court, "but he has let too much time go by." RP at 17. In reasoning this, the court weighed the extent of delay against the curative effect of a lesser sanction, concluding that Bonneville's extended delay warranted no remedy other than dismissal. We find no abuse of discretion in this analysis.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Houghton, C.J.
Van Deren, J.