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Jc Aviation Investements, Llc, V. Htp, Inc. ( 2021 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    JC AVIATION INVESTMENTS, LLC, a )                       No. 82337-0-I
    Washington limited liability company,  )
    )
    Respondent, )
    )
    v.                 )
    )
    HYTECH POWER, LLC, a Washington )
    limited liability company,             )                UNPUBLISHED OPINION
    )
    Defendant,  )
    )
    HTP, INC., a Washington corporation, )
    )
    Appellant.  )
    BOWMAN, J. — HTP Inc. timely appealed the trial court’s order holding it
    and its principal, Henry Dean, in contempt. Dean moved to amend HTP’s notice
    of appeal to add him as a party. Because Dean failed to show he is a necessary
    party to the appeal, we deny his motion to amend. And because HTP assigned
    no error and made no argument in support of its appeal, we affirm the trial court’s
    order holding HTP in contempt.
    FACTS
    HyTech Power LLC (HyTech) is a Washington limited liability company
    that develops internal combustion assistance (ICA) technology to enhance diesel
    engine performance. JC Aviation Investments LLC (JCAI) is the majority
    member of the company and HTP holds a minority member position. Dean is the
    executive chair of HTP’s board.
    Citations and pin cites are based on the Westlaw online version of the cited material.
    No. 82337-0-I/2
    In May 2020, HyTech sought a preliminary injunction against HTP, Dean,
    and other HTP agents for conducting ICA testing despite the board suspending
    all HyTech business operations. On June 16, 2020, the trial court granted the
    preliminary injunction, enjoining both HTP and Dean1 from “conducting HyTech’s
    business operations or using any of [HyTech]’s products, assets, contact lists,
    and any other proprietary information in any way.”
    In October 2020, HyTech moved the trial court to enforce the preliminary
    injunction. HyTech explained that the enjoined parties continued to pursue ICA
    related testing in violation of the injunction. On November 3, 2020, the trial court
    granted HyTech’s motion. It ordered HTP and Dean to produce “all documents in
    their control or possession that relate to or refer to any testing, occurring on or
    after June 16, 2020, connected with the ICA Technology or the potential use or
    sale of ICA Technology.” It also required HTP to state in writing whether it
    possessed any of HyTech’s property.
    One month later in December 2020, JCAI moved the trial court for an
    order holding HTP and Dean in contempt for violating the preliminary injunction.
    JCAI asserted that the enjoined parties knowingly violated the preliminary
    injunction by continuing to conduct testing after the June 2020 injunction. On
    December 31, 2020, the court granted the motion. The court issued an order
    finding that the enjoined parties “participated in a coordinated, persistent, and
    well-funded effort to appropriate, replicate, test, and sell to third parties HyTech’s
    1
    The preliminary injunction and subsequent enforcement actions involve not only HTP
    and Dean but also Evan Johnson, Bernard Van Maren, and Van Maren’s company Acamar
    Investments. Because this appeal involves only HTP and Dean, we refer to only them.
    2
    No. 82337-0-I/3
    [ICA] technology in knowing and willful violation of the Preliminary Injunction.”
    HTP timely appealed the contempt order. But in June 2021, the court
    appointed a general receiver to manage HyTech’s assets.2 The receiver
    instructed HTP’s attorney not to pursue the appeal. As a result, HTP did not file
    an opening brief.3
    Dean did not file a notice of appeal. On July 27, 2021, Dean moved this
    court to amend HTP’s notice of appeal to include him as an appellant.4 HyTech
    opposed the motion. A commissioner referred Dean’s motion to this panel for
    consideration.
    ANALYSIS
    Motion To Amend
    Citing no authority, Dean argues that we should amend HTP’s notice of
    appeal to “designate him as an individual appellant, along with [HTP], now that
    2
    HTP suggests the order appointing a receiver and its subsequent petition for bankruptcy
    operate to stay its appeal to this court. Under RCW 7.60.110(1)(a), certain actions against a
    person over whose property the receiver is appointed are automatically stayed. Even assuming
    that provision applies to HTP’s appeal, the stay “automatically expires as to the acts specified in
    subsection (1)(a)” 60 days after the entry of the order of appointment unless “before the
    expiration of the [60]-day period the receiver, for good cause shown, obtains an order of the court
    extending the stay.” RCW 7.60.110(2). Here, the court issued its order appointing a receiver on
    June 4, 2021. The record shows no order extending the stay. Any stay associated with the order
    appointing a receiver expired August 3, 2021.
    HTP petitioned for bankruptcy on August 24, 2021. Generally, the filing of a bankruptcy
    petition operates as a stay of judicial, administrative, or other actions against the debtor. 
    11 U.S.C. § 362
    (a)(1). But a state court has authority to decide whether the automatic stay applies
    to its proceedings. Lockyer v. Mirant Corp., 
    398 F.3d 1098
    , 1106 (9th Cir. 2005). And HTP fails
    to explain how its appeal from a contempt order qualifies as a judicial, administrative, or other
    action against it for purposes of the automatic stay. HTP has not established that the bankruptcy
    proceedings stay resolution of its appeal.
    3
    On October 14, 2021, HTP moved to “continue consideration by appellate panel”
    because it filed for bankruptcy protection and applied for the appointment of special counsel.
    According to HTP, if the bankruptcy court appoints special counsel, that lawyer may choose to
    pursue its appeal. We deny HTP’s motion to continue.
    4
    Dean also filed his own appellate brief “in order to preserve his rights.”
    3
    No. 82337-0-I/4
    HTP is in receivership.”
    A party must file a timely notice of appeal to be entitled to relief. Genie
    Indus., Inc. v. Mkt. Transp., Ltd., 
    138 Wn. App. 694
    , 707, 
    158 P.3d 1217
     (2007).
    Under RAP 5.3(i), when there are multiple parties on a side of a case and fewer
    than all the parties on that side timely file a notice of appeal, “the appellate court
    will grant relief only (1) to a party who has timely filed a notice, (2) to a party who
    has been joined as provided in this section or (3) to a party if demanded by the
    necessities of the case.”
    Joinder under the “necessities of the case” is appropriate only in “narrow
    and unusual circumstances.” RAP 5.3(i)(3); Genie, 138 Wn. App. at 708. The
    “necessities of the case” means “ ‘an absolute necessity; that is to say, one
    arising from the inherent nature of the case in that no judgment rendered could,
    under any circumstances, be valid as to one of the parties and not as to the
    others.’ ” In re Parentage & Support of M.K.M.R., 
    148 Wn. App. 383
    , 388-89,
    
    199 P.3d 1038
     (2009)5 (quoting Mon Wai v. Parks, 
    46 Wn.2d 138
    , 140, 
    278 P.2d 676
     (1955)). Such cases are rare. M.K.M.R., 148 Wn. App. at 389.
    Dean does not explain why he is a necessary party to HTP’s appeal. An
    order that applies to multiple parties does not necessarily create a joint right or
    obligation between them. See Genie, 138 Wn. App. at 714-15. Because Dean
    fails to show why the order holding HTP and Dean in contempt necessarily
    creates a joint right or obligation between them, we deny his motion to amend
    5
    Internal quotation marks omitted.
    4
    No. 82337-0-I/5
    HTP’s notice of appeal.6
    HTP’s Appeal
    HTP filed a timely notice of appeal but did not file an opening brief. An
    appellant must support their notice of appeal with a “concise statement of each
    error a party contends was made by the trial court” and argument in support of
    the issues presented for review. See RAP 10.3(a)(4), (6). We seldom “ ‘address
    issues that a party neither raises appropriately nor discusses meaningfully with
    citations to authority.’ ” CalPortland Co. v. LevelOne Concrete LLC, 
    180 Wn. App. 379
    , 392, 
    321 P.3d 1261
     (2014) (quoting Saviano v. Westport Amusements,
    Inc., 
    144 Wn. App. 72
    , 84, 
    180 P.3d 874
     (2008)); see also RAP 10.3(g) (the
    appellate court will only review a claimed error included in an assignment of error
    or clearly disclosed in the associated issue). Because HTP assigns no error and
    makes no argument, we affirm the trial court’s order holding HTP in contempt.
    WE CONCUR:
    6
    On November 2, 2021, HTP moved “for joinder of HTP, Inc. in Henry Dean’s brief” on
    appeal. Because we deny Dean’s motion to amend HTP’s notice of appeal to designate him as
    an individual appellant, we do not consider his appellate brief, and HTP’s motion to join his brief is
    moot.
    5
    

Document Info

Docket Number: 82337-0

Filed Date: 11/8/2021

Precedential Status: Non-Precedential

Modified Date: 11/8/2021