Opinion
No. 37357-2-II.
December 23, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-2-00800-1, Theodore F. Spearman, J., entered January 15, 2008.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Bridgewater, JJ.
David Devin appeals the trial court's reinstatement of an action against him under CR 41(b)(2)(B). He contends that the court misinterpreted the rule and misunderstood relevant facts. He also argues he received improper notice of the reinstatement hearing. We affirm.
FACTS
On March 30, 2004, Mark Hendrix filed a personal injury complaint against David Devin. On June 5, 2006, the trial court sent notice to Hendrix's attorney of record that the matter would be dismissed for want of prosecution. On July 11, 2006, the trial court dismissed the case on a clerk's motion for want of prosecution. CR 41(b)(2)(A).
The record does not indicate whether the clerk also sent the order of dismissal to Hendrix's attorney. Hendrix did not take a position regarding his attorney's receipt of this order.
CR 41(b)(2)(A) states:
Notice. In all civil cases in which no action of record has occurred during the previous 12 months, the clerk of the superior court shall notify the attorneys of record by mail that the court will dismiss the case for want of prosecution unless, within 30 days following the mailing of such notice, a party takes action of record or files a status report with the court indicating the reason for inactivity and projecting future activity and a case completion date. If the court does not receive such a status report, it shall, on motion of the clerk, dismiss the case without prejudice and without cost to any party.
Hendrix filed a motion for reinstatement pursuant to CR 41(b)(2)(B) on December 5, 2007. He asserted that he did not receive notice of the dismissal from his attorney. He informed the court that the Washington State Bar Association disbarred his attorney on April 18, 2007. Hendrix stated that he first learned of the dismissal in the summer of 2007.
CR 41(b)(2)(B) states:
Mailing Notice; Reinstatement. The clerk shall mail Notice of impending dismissal not later than 30 days after the case becomes eligible for dismissal because of inactivity. A party who does not receive the clerk's notice shall be entitled to reinstatement of the case, without cost, upon motion brought within a reasonable time after learning of the dismissal.
On December 14, 2007, the parties appeared for a hearing. Devin claimed that he received improper notice of the reinstatement hearing. He also argued that the bar association disbarred Hendrix's attorney of record 18 months after the court dismissed the action.
The trial court rejected this argument and reinstated the action. The court found that Hendrix properly sent notice to Devin's address of record on December 4, 2007, via regular United States mail. It found that "whatever was happening to [the attorney], it ended up with him being disbarred" and that the parties are "entitled to [their] day in court." Report of Proceedings at 7.
Devin appeals.
ANALYSIS
The trial court dismissed this action in July 2006 for lack of prosecution pursuant to CR 41(b)(2)(A). The trial court clerk sent the required notice to plaintiff's counsel of record, John B. Jackson, III, that the case would be dismissed within 30 days. After the dismissal, Hendrix asked the trial court to reinstate his action under CR 41(b)(2)(B). The trial court did so, implicitly reasoning that Hendrix did not receive notice of the dismissal of his suit and that the trial court's notification to Hendrix's attorney of record was insufficient notice to Hendrix. Hendrix contends that the trial court did not abuse its discretion by reinstating the case.
I. Standard of Review
We review the trial court's decision on a motion for reinstatement under CR 41(b)(2)(B) for an abuse of discretion. Plouffe v. Rook, 135 Wn. App. 628, 632, 147 P.3d 596 (2006). "A court abuses its discretion when its decision is based on untenable grounds or for untenable reasons." Plouffe, 135 Wn. App. at 633. "A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
II. CR 41(b)(2)(B)'s Requirements
The first issue is whether the trial court had the power to reinstate the case under CR 41(b)(2)(B) when a party to the action did not know of the dismissal, even though the trial court notified his attorney of record that the case was to be dismissed. We, therefore, must examine whether the trial court's decision to grant reinstatement was based on an erroneous view of the requirements of CR 41(b)(2)(B).
Interpretation of a court rule is a question of law, subject to de novo review. Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997). In determining the meaning of a court rule, we apply the same principles used to determine the meaning of a statute. City of Bellevue v. Hellenthal, 144 Wn.2d 425, 431, 28 P.3d 744 (2001). Foremost, we consider the plain language of the rule and construe the rule in accord with the intent of the drafting body. See [ Hellenthal, 144 Wn.2d at 431]. If the rule's meaning is plain on its face, the court must give effect to that plain meaning as an expression of legislative intent. Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004).
Gourley v. Gourley, 158 Wn.2d 460, 466, 145 P.3d 1185 (2006) (emphasis added).
In Plouffe, Division One of our court reasoned that "the plain and unambiguous language of [CR 41(b)(2)(B)] requires the [trial] court to reinstate a lawsuit dismissed on the clerk's motion for want of prosecution if the party does not receive notice of the dismissal and the motion is filed within a reasonable time after learning of the dismissal." Plouffe also held that "[w]hen the party receives the notice of dismissal and what constitutes a reasonable time depend on the facts and circumstances of each case." 135 Wn. App. at 635-36.
The plain language of CR 41(b)(2)(B) allows a court to reinstate an action in cases in which a party did not receive notice of the dismissal. CR 41(b)(2)(B) ("A party who does not receive the clerk's notice shall be entitled to reinstatement of the case . . . upon motion brought within a reasonable time after learning of the dismissal."). In contrast, CR 41(b)(2)(A) permits a trial court to notify an attorney of an impending dismissal. CR 41(b)(2)(A) (stating "the clerk of the superior court shall notify the attorneys of record by mail that the court will dismiss the case for want of prosecution").
The civil rules, in other circumstances, distinguish between the actual party to a proceeding and the party's attorney of record. E.g., CR 5(b) (distinguishing between service on a party and service on an attorney); CR 39(a)(1)(A) (stating that a waiver of jury trial should be signed by a party or their attorney of record).
Here, even though Hendrix's attorney may have received notice of the clerk's dismissal, Hendrix, a party to the action, did not receive such notice. The plain language of the rule, therefore, clearly permitted the trial court to reinstate the action upon motion by Hendrix. See Hellenthal, 144 Wn.2d at 431; see also Arborwood, 151 Wn.2d at 367 (stating that the court must give effect to plain meaning as an "expression of legislative intent"). Because the rule states that absent notice "a party shall be entitled to reinstatement" if they move to reinstate within a reasonable time, we hold that the trial court did not abuse its discretion in reinstating the case.
Our holding should not be interpreted to remove an attorney's obligation to notify a client of actions in his or her case. Washington Rule of Professional Conduct 1.4. Neither should it be read to excuse Hendrix's attorney's actions in the matter.
Although Devin argues that the motion to reinstate should not have been granted because the incident giving rise to the lawsuit occurred close to seven years ago, Devin does not argue that Hendrix's motion was untimely based on the time elapsed between the date Hendrix asserts he learned of the dismissal and the date he filed for reinstatement. CR 41(b)(2)(B) (stating the motion for reinstatement should be "brought within a reasonable time after learning of the dismissal.").
III. Notice of Reinstatement Motion
Devin also argues that he did not receive sufficient notice of the reinstatement motion. The record reflects that Hendrix deposited his motion in the mail on December 4, 2007. CR 6(d) requires service of motions "not later than 5 days" before the hearing date (here, December 14, 2007). If a party serves pleadings by mail, the rule adds three days to the five-day period. CR 6(e). When the time prescribed is less than seven days, intermediate Saturdays, Sundays, and legal holidays are not included in the computation. CR 6(a). Here, the trial court heard the motion on December 14, 2007, eight business days after the mailing date. Thus, Devin's argument regarding inadequate notice fails.
We affirm.
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.
Houghton, J. and Bridgewater, J., concur.