Raj Bains And Law Offices Of Raj Bains, Res. v. Mark Taylor, App. ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RAJ BAINS, an individual, and ) No. 76515-9-1
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LAW OFFICES OF RAJ BAINS, ) co -4
a Professional Services Corporation, ) CI 111
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Respondents, ) pi
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MARK TAYLOR, ) UNPUBLISHED OPINION co
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Appellant. ) FILED: December 24, 2018
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MANN, A.C.J. — In an action for contempt of a court order, the order must be
strictly construed in favor of the contemnor and the contemnor's acts must constitute a
plain violation of the order. Mark Taylor appeals an order of contempt finding that he
intentionally violated a court order approving a settlement agreement reached in
litigation with Raj Bains and the Law Offices of Raj Bains (Bains). Because the trial
court erred in concluding that Taylor violated the court order, we reverse. We also
reverse the trial court's award of attorney fees and costs to Bain and remand for an
award of attorney fees to Taylor for the underlying litigation and this appeal.
No. 76515-9-1/2
Raj Bains practices family law in King County. Until October 2011 Bains's then
wife, Elizabeth, was the business manager for Bain's law office. In April 2011, Elizabeth
contracted with Taylor to create a website for Bains's law firm. The domain name,
bainslawoffice.com, was purchased by Bains in 2004 with the intent of creating a
website, bainslawoffice.com, for his firm. In September 2011, Bains discovered that
Elizabeth and Taylor were having an affair and fired Taylor. Bains and Elizabeth
dissolved their marriage by decree in January 2014. The website bainslawoffice.com
was never completed.
In March 2014 Taylor purchased the domain name bainslawoffice.com. Taylor
then created a separate website linked by a different domain name where he posted
information about Bains's divorce proceedings, his prior misdemeanor conviction, his
address, a Guardian ad Litem report that included a psychological evaluation, and other
information. Taylor posted similar information on a website with a domain name that
was one letter different then Bains's law firm website. Taylor also engaged in other
harassing behavior.
Bains filed a lawsuit against Taylor alleging several causes of action including
that Taylor tortuously interfered with his business by infiltrating his website. Bains
obtained a temporary restraining order preventing Taylor from posting information about
him on the internet. The trial court then partially granted Bains's motion for a
preliminary judgment after finding that Taylor "engaged in a pattern of surveilling,
harassing, and vexing Plaintiff." The court also found "the Defendant's intent in every
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action he has taken with Plaintiff has been to injure Plaintiff in some way—whether
legally, emotionally, or mentally."
After settlement negotiations, on February 5, 2016, the parties entered into a CR
2(A) settlement agreement incorporating language from the preliminary injunction order
as well as a separate agreement and release. An agreed final order was entered by the
King County Superior Court on May 23, 2016, imposing conditions on the parties and
incorporating the CR 2(A) agreement.
The agreed final order included the condition:
Mark Taylor, or anyone working on behalf of Defendant Mark Taylor, shall
not activate, update or otherwise post, any information about Plaintiff Raj
Bains on a website that deceives the public into thinking that it is a website
owned by, operated by, or endorsed by Plaintiff Raj Bains or any business
he operates, including the Bains Law Office. This includes, but is not
limited to, the websites bainslawoffice.com, bainslawoffices.com,
bainslawfirm.com, and any derivations thereof.
Seven months later, on December 15, 2016, Bains discovered that his law firm's
Google listing was changed from his website bainslawfirm.com to bainslawoffice.com.
He also discovered that the domain name bainslawoffice.com was directed to
attorneyrajbainssuspension.com, a website created by Taylor that include detailed
information about Bains's suspension from law practice, his previous divorce, and other
negative information about Bains.
On January 9, 2017, Bains filed and served a motion for order to show cause for
contempt of the agreed final order.
On January 13, 2017, Taylor's counsel e-mailed Bains's counsel and notified him
that the settlement agreement required advanced written notice of a complained breach
before a court filing. Taylor's counsel instructed Bains to strike the motion and provide
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written notice of the complaint. Bains's counsel responded that the motion served as
written notice, and stated they would strike the show cause hearing if Taylor agreed to
"cease and desist using bainslawoffice.com to direct traffic to his website about all
things Raj Bains." Taylor declined to discontinue his use of the domain name
bainslawoffice.com to direct to the website attorneyrajbainssuspension.com. Bains
proceeded with the contempt motion.
At the February 3, 2017, show cause hearing, Taylor denied having changed the
website associated with Bains Law Firm's Google listing and argued that directing the
domain name bainslawoffice.com to the website attorneyrajbainssuspension.com was
not a violation of the agreed final order.
On February 17, 2017, the trial court issued an order of contempt. The court's
order concluded that Taylor "intentionally disobeyed the Agreed Court Order dated May
23, 2016 and is in contempt." Pursuant to the CR 2(A) agreement, the trial court
awarded Bains his attorney fees and court costs in the amount of $1,335. The trial
court further sanctioned Taylor $100 for each day from the date of the contempt order
that he continued to violate the agreed final order. In order to comply, Taylor needed to
"cease and terminate bainslawoffice.com to be associated with redirect to
attorneyrajbainsuspension.com."
Taylor appeals.
Taylor argues that the trial court erred in concluding that he intentionally violated
the agreed final order. We agree.
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No. 76515-9-1/5
A.
Contempt of court means the intentional "[d]isobedience of any lawful judgment,
decree, order, or process of the court." RCW 7.21.010(1)(b). "Whether contempt is
warranted in a particular case is a matter within the sound discretion of the trial court;
unless that discretion is abused, it should not be disturbed on appeal." Trummel v.
Mitchell, 156 Wn.2d 653, 671-72, 131 P.3d 305 (2006). An abuse of discretion is
present if there is a clear showing that the exercise of discretion was manifestly
unreasonable, or based on untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d
12, 26, 482 P.2d 775(1971).
Where the trial court bases its contempt finding on a court order, the order "must
be strictly construed in favor of the contemnor" and acts of the contemnor "must
constitute a plain violation of the order." Dep't of Ecology v. Tiger Oil Corp., 166 Wn.
App. 720, 768, 271 P.3d 331 (2012). "The purpose for this rule is to protect persons
from contempt proceedings based on violation of judicial decrees that are unclear or
ambiguous, or fail to explain precisely what must be done." Graves v. Duerden, 51 Wn.
App. 642, 647-48, 754 P.2d 1027 (1988). The moving party has the burden of proving
contempt by a preponderance of the evidence. In re Marriage of James,79 Wn. App.
436,442, 903 P.2d 470(1995).
B.
Bains argued below, and the trial court agreed, that the agreed final order
prohibited Taylor from "using" the domain name bainslawoffice.com—a domain name
legally owned by Taylor. The trial court erred.
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Nothing in the agreed final order prohibits Taylor from owning or using the
domain name bainslawoffice.com.1 To the contrary, the agreed final order prohibits
Taylor from "activat[ing], updat[ing] or otherwise post[ing]" information about Bains "on a
website that deceived the public into thinking it is a website" owned, operated or
endorsed by Bain. The order then provides a non-exclusive list of websites that
includes "bainslawoffice.com," "bainslawoffices.com" and "bainslawfirm.com." The
order is silent as to Taylor's "use" or ownership of the domain name
bainslawoffice.com.2
While Taylor did activate, update, and post information on his website
"attorneyrajbainssuspension.com" these actions did not violate the plain language of the
agreed final order for two reasons. First, while the order prohibits Taylor from posting
on a list of websites including "bainslawoffice.com," "bainslawoffices.com" and
"bainslawfirm.com," the website "attorneyrajbainssuspension.com" does not fall within
this list and is not a reasonable derivation of that list. Thus, the agreed final order does
not prohibit Taylor from posting on "attomeyrajbainssuspension.com."
Moreover, even if the agreed final order did prohibit Taylor from posting
information on attorneyrajbainssuspension.com, the order only prohibits posting if the
posts "deceived the public into thinking it is a website" owned, operated, or endorsed by
Bain. The homepage for Taylor's website attorneyrajbainssuspension.com contains an
1 A "domain" is a registered name, and the right to own a "website." A "website" on the other
hand is the location where information related to the domain is hosted. See e.g., What's the Difference
between a Domain, Website, and Hosting?, Hover (Apr. 28, 2016), https://www.hover.com/blog/whats-
the-difference-between-a-domain-name-website-and-hosting/[https://perma.cc/7736-8XM8].
2 As Taylor correctly points out, the website bainslawoffice.com does not exist and never has
existed. As a result, Taylor has not activated, updated, or posted information on the website
bainslawoffice.com.
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No. 76515-9-1/7
express disclaimer stating: "This website is not authorized, endorsed, licensed,
approved, recommended, published, maintained, edited or managed by Raj(Ku!raj
Singh) Bains or any of his affiliates, agents, or representatives." There is no evidence
that the public would be deceived into thinking the website was in any way owned,
operated, or endorsed by Bains.
While Taylor's actions may continue his unfortunate history of harassing Bains,
we are bound to strictly construe the language of the agreed final order in Taylor's favor.
Strictly construing the language of the agreed final order in favor of Taylor, we conclude
that Taylor did not violate the final order by using the domain name bainslawoffice.com
to direct traffic to the website attorneyrajbainsuspension.com. Dep't of Ecology, 166
Wn. App. at 768. The trial court's decision expanding the plain term of the agreed final
order to prohibit Taylor's "use" of the domain name bainslawoffice.com was based on
untenable grounds and an abuse of discretion. Graves, 51 Wn. App. at 648.
C.
Bains also argued below, and the trial court agreed, that Taylor had associated
the domain bainslawoffice.com with Bains's Google business listing. Taylor contends
that this finding was not supported by substantial evidence. We agree.
"Findings of fact are reviewed under a substantial evidence standard, defined as
a quantum of evidence sufficient to persuade a rational fair-minded person the premise
is true." Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369(2003). Here, the only evidence that Taylor had associated the domain name with
Bains's directory was Bains's supposition that Taylor was the only one who would have
done so. The supposition alone is insufficient to support the trial court's finding.
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No. 76515-9-1/8
III.
Because we reverse the contempt order on the merits, we also reverse the trial
court's award of attorney fees and costs to Bains.
The CR 2(A) agreement includes a provision for attorney fees and costs: "in the
event either party is forced to move this Court for an Order enforcing this agreement as
a result of the other parties' conduct, said party shall be entitled to court costs and
reasonable attorney's fees." On remand, the trial court should award Taylor his attorney
fees and costs incurred below and on appeal. See RAP 18.1; see also West Coast
Stationary Engineers Welfare Fund v. City of Kennewick, 39 Wn. App. 466,477,694
P.2d 1101 (1985)("a contractual provision for an award of attorney fees at trial supports
an award of attorney fees on appeal under RAP 18.1.").
Reversed.
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WE CONCUR:
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