Opinion
No. 52970-6-I.
Filed: October 18, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-2-06858-4. Judgment or order under review. Date filed: 08/05/2003. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Viveca Sanai (Appearing Pro Se), 8711 Talbot Rd., Edmonds, WA 98026.
Cyrus Sanai (Appearing Pro Se), 1021 Lincoln Blvd., No. 219, Santa Monica, CA 90403.
Fredric Sanai (Appearing Pro Se), 660 Second St., No. 7, Lake Oswego, OR 97034.
Ingrid Sanai Buron (Appearing Pro Se), 6225 194th St. S.W., Lynwood, WA 98036.
Daria Sanai (Appearing Pro Se), 510 N.E. 98th St., No. 301, Seattle, WA 98115.
Counsel for Respondent(s), Martin Lowell Ziontz, Attorney at Law, 1915 Pacific Bldg, 720 3rd Ave, Seattle, WA 98104-1868.
Tyna Ek, Attorney at Law, 710 9th Ave, Seattle, WA 98104-2017.
Stephen Murray Todd, Todd Wakefield, 1501 4th Ave Ste 1700, Seattle, WA 98101-3660.
William Richard II Sullivan, Marsh Mundorf Pratt ET AL, 16504 9th Ave SE Ste 203, Mill Creek, WA 98012-6388.
In this case, a court commissioner awarded attorney fees on an improper basis, and the superior court erred in denying the appellants' motion for revision. The commissioner did not reach the question of whether fees should be awarded under CR 11 or on the basis of bad faith litigation. We therefore reverse the denial of appellants' motion for reconsideration and remand for the commissioner to determine whether fees should be awarded on an alternate basis and to make factual findings in support of the granting or denying of fees. We further reverse the superior court's additional award of attorney fees.
FACTS
Because this is an unpublished decision and the parties are well aware of the facts and the long and complicated procedural history of this case, this opinion contains only those facts necessary for an understanding of the issues raised.
The appellants herein filed various complaints in both state and federal court. The suit at issue in this appeal was originally filed in King County Superior Court, and William Sullivan initially represented one of the defendants. The appellants subsequently filed an amended complaint naming Sullivan and his firm, Marsh Mundorf Pratt Sullivan and McKenzie as defendants and sought to disqualify Sullivan from continuing to represent the defendants. According to Sullivan, neither he nor his firm was ever served with the amended complaint. The appellants moved for default, and Sullivan filed a notice of special appearance to oppose the motion. Sullivan also filed a motion for a change of venue to Snohomish County. That motion was granted, and so the King County Superior Court did not rule on the motion for default.
Sullivan and his firm are referred to hereinafter collectively as `Sullivan.'
The appellants then filed a motion seeking to dismiss the causes of action in the amended complaint that were directed at Sullivan. The trial court denied the motion on the basis that a motion seeking to dismiss some but not all causes of action must be brought as a motion to amend the complaint under CR 15, not a motion for voluntary dismissal under CR 41. Instead of filing a motion to amend, the appellants filed another motion for default.
Days later, the appellants filed a motion to amend their complaint to dismiss the claims against Sullivan. In his response, Sullivan did not object to the amendment but did seek an award of fees and terms. Sullivan alleged that the suit against him and his firm was frivolous and that he had expended time (approximately 15 hours) and costs in responding to the appellants' motions. A commissioner granted the motion to amend and awarded Sullivan $3,000. The commissioner explicitly declined to make a finding as to whether Sullivan had been served with the amended complaint. The commissioner also explicitly declined to rule on whether the appellants' claims against Sullivan were frivolous or violative of CR 11. The commissioner indicated that he was granting the fees under CR 41 and CR 15.
The appellants moved for revision of the fee portion of the commissioner's ruling. Judge Gerald Knight initially denied the motion for revision because while the commissioner had issued a letter ruling, no judgment or formal order had yet been entered. The commissioner's order was later entered on June 17, 2003.
On June 26, 2003, appellants re-filed their motion for revision and mailed the motion to Sullivan. Rather than formally noting the motion, the appellants contacted a law clerk to Judge Charles French and obtained the court's permission to have the motion heard on August 8, 2003, at the same time as the court would be hearing a motion on another case involving the parties. Upon learning of this, Sullivan filed an objection to the August 8, 2003 date. Sullivan also communicated with Judge French's law clerk and indicated that he objected to the motion being heard at that time. The law clerk apparently told Sullivan that the court would not hear the motion on August 8. Sullivan indicates that he informed appellants of this communication and informed them by letter that he would not object to the motion being noted for hearing on or prior to July 10, 2003. It is unclear from the record whether the appellants received this letter, and in any event, they did not respond to the letter.
From the record, it does not appear that appellants filed a note for motion for the August 8 hearing date.
In the meantime, the parties entered into a stipulated order dismissing the action in its entirety. The order expressly provided `that said dismissal shall not satisfy or eliminate any judgments issued therein.' The order was filed on August 5, 2003.
On August 6, 2003, the appellants again contacted Judge French's law clerk, indicating that they wished to continue the motion for revision. The law clerk informed Sullivan and the appellants that the court would not entertain the motion on August 8, 2003. On August 8, 2003, appellants appeared and sought an order continuing the motion for revision. Sullivan was not present. Judge French declined to enter an order.
On August 12, 2003, appellants filed a calendar note, noting the motion for revision for August 20, 2003. For reasons that are not clear from the record, the hearing was not held until August 29, 2003. Judge Ellen Fair denied the appellants' motion for revision on various grounds and awarded Sullivan $500 in additional fees for his time spent responding to the motion for revision. The court did not state a basis for the award of fees. This appeal follows.
ANALYSIS
The appellants contend that the court commissioner lacked the authority to hear the motion to amend the complaint or to award fees. Under the Washington State Constitution, commissioners have the authority to perform the same duties as a "judge of the superior court at chambers[.]" This includes the power to hear all motions and actions not requiring a trial by jury, subject to revision by the superior court. And under the Snohomish County Local Civil Rules, commissioners are authorized to hear motions to amend pleadings and to impose sanctions or terms under certain defined conditions.
Const. art. IV, sec. 23.
Peterson v, Dillon, 27 Wash. 78, 67 P. 397 (1901); In re Olson, 12 Wn. App. 682, 531 P.2d 508 (1975).
SCLCR 7(b)(2)(I)(1); SCLCR 7(b)(2)(I)(5).
The appellants contend that the trial court erred in denying their motion for revision of the commissioner's order. Appellants first contend that Judge Knight erred in initially denying the motion for revision as being premature. We disagree. RCW 2.24.050 provides that a motion for revision must be filed `within ten days from the entry of the order or judgment of the court commissioner[.]' Similarly, SCLCR 7(b)(1)(L) provides that a party seeking revision must comply with the statutory time requirements and that the time begins to run upon the filing of the commissioner's written `order.' The commissioner's letter ruling was neither an order nor a judgment. The trial court properly denied the motion on the basis that no order had yet been entered.
Appellants also contend that the court erred in denying their motion for revision on August 29, 2003. The court's first ground for denying the motion for revision was the fact that the action had been dismissed. As appellants point out, RCW 2.24.050 does not on its face bar a motion for revision following the dismissal of an action. Here, the appellants' motion for revision was filed prior to the date that the action was dismissed. The stipulated order of dismissal specifically preserved any judgments previously entered in the action and did not explicitly preclude appellants from pursuing their previously filed motion for revision. Given the unusual procedural posture of this case, we conclude this was not a proper basis for denying the motion for revision.
The trial court's next bases for denying the motion for revision were that the motion for revision was not timely served and not timely noted. RCW 2.24.050 provides in part: `Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner.' If a motion for revision is not filed within ten days of entry of the commissioner's order, the trial court lacks the authority to consider the motion for revision.
See Robertson v. Robertson, 113 Wn. App. 711, 54 P.3d 708 (2002).
But RCW 2.24.050 contains no time period for service of the motion for revision. This is contrasted with, for example, CR 59(b), which provides that a motion for a new trial or reconsideration must be filed and served no later than 10 days after the entry of judgment, and MAR 7.1(a), which provides that a request for a trial de novo must be filed within 20 days after an arbitration award is filed, along with proof that the motion has been served on all parties.
The service requirements of CR 59(a) and MAR 7.1(a) are mandatory and may not be extended. See, e.g., Moore v. Wentz, 11 Wn. App. 796, 799, 525 P.2d 290 (1974) (CR 59(b)); State on Behalf of J.M.H. v. Hofer, 86 Wn. App. 497, 942 P.2d 979 (1997) (MAR 7.1(a)); Nevers v. Fireside, Inc., 133 Wn.2d 804, 947 P.2d 721 (1997) (MAR 7.1(a)).
Because RCW 2.24.050 contains no provision for when the motion for revision must be served, we look to SCLCR 7(b)(2)(B), which provides that all motions, other than motions for summary judgment, must be served on parties at least six court days before the date for hearing. The appellants complied with this rule. The fact that the motion was not served on Sullivan within ten days of the entry of the commissioner's order was not a jurisdictional bar to the court's consideration of the motion for revision, and the court erred in denying the motion on that basis.
SCLCR 7(b)(2)(B) also states that a party must file a note for motions calendar, and SCLCR 7(b)(2)(L) provides that a motion for revision shall be `filed timely and shall be scheduled by the movant to be heard not more than 14 days after the motion is filed.' And appellants apparently did not strictly comply with these rules. But these rules are not jurisdictional. In Buckner v. Berkey Irrigation Supply, we considered a similar issue relating to CR 59(b), and held that the noting of a motion primarily serves to prompt the court to hear or consider the motion. But the ultimate timing of the court's consideration of the motion is at the court's discretion. Nowhere is there any suggestion that the failure to timely note the motion deprives the trial court of the power to hear and decide it.
Buckner v. Berkey Irrigation Supply, 89 Wn. App. 906, 951 P.2d 228 (1998).
Buckner, 89 Wn. App. at 915.
We also noted in Buckner that court rules "contain a preference for deciding cases on their merits rather than on procedural technicalities," and that the improper noting of the motion did not prejudice the opposing party. Here, Sullivan alleged no prejudice. And the fact that the motion was improperly noted was due at least in part to the actions of the court staff. This was not a proper basis for denying the motion for revision.
Buckner, 89 Wn. App. at 914 (quoting Vaughn v. Chung, 119 Wn.2d 273, 280, 830 P.2d 668 (1992)).
Appellants also contend that the commissioner erred in awarding fees under CR 15 and CR 41 and the trial court erred in denying their motion for revision on this basis. CR 41 is inapplicable in this case. The trial court had previously denied the appellants' motion to dismiss under CR 41. The motion before the commissioner was a motion to amend under CR 15, not a motion to dismiss under CR 41. Moreover, while Sullivan contends that CR 41(a)(2) justifies an award of fees, that subsection of the rule applies only after the plaintiff has rested his or her case, a situation not present here. The commissioner improperly awarded fees under CR 41, and the trial court erred in denying appellants' motion for revision on this basis.
The specific language of CR 15 does not authorize the imposition of fees. Assuming without deciding that the court may have the authority under certain circumstances to condition the amendment of a complaint on a payment of terms, that is not what happened in this case. The commissioner did not conditionally grant the motion to amend subject to payment of fees. Rather, he granted the motion to amend unconditionally and at the same time awarded attorney fees to Sullivan for his time in responding to the motion. CR 15 does not authorize an award of attorney fees under these circumstances.
Sullivan contends that the fee award was proper under CR 11. But the commissioner specifically declined to award fees under this rule and made no factual findings on this issue. While Sullivan contends that the award of fees was within the broad equitable powers of the trial court, the broad equitable powers of the trial court do not include the authority to award fees except when authorized by contract, statute, or a recognized ground in equity. It is true that bad faith conduct in litigation is a recognized ground in equity for recovery of attorney fees. But the trial court here made no finding of bad faith on the part of the appellants either. Under the circumstances here, it does not appear that the commissioner found that CR 11 sanctions were inappropriate or that fees were not justified on the basis of frivolous pleadings or bad faith litigation. Rather, the commissioner simply did not reach these issues given his erroneous conclusion that fees could be awarded under CR 15 and CR 41(a). We therefore reverse and remand for the commissioner to make such a determination and for factual findings in support of the award or denial of the motion for fees.
Dempere v. Nelson, 76 Wn. App. 403, 406, 886 P.2d 219 (1994).
Dempere, 76 Wn. App. at 407.
See RCW 4.84.185.
Appellants also contend that the trial court erred in awarding an additional $500 in fees upon denial of the motion for revision. The trial court did not state the basis for this award of fees. Because we reverse the trial court's denial of appellants' motion for revision, we likewise reverse the award of additional fees.
Reversed and remanded.
SCHINDLER, COX, JJ., concur.