Robert W. Critchlow v. Dex Media West, Inc.

FILED
FEBRUARY 18,2016
I n the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ROBERT W. CRITCHLOW, individually )
and d/b/a CRITCHLOW LAW OFFICE, ) No. 33038-9-111
)
Appellant, )
)
v. )
) OPINION PUBLISHED IN PART
DEX MEDIA WEST, INC., a foreign )
corporation, )
)
Respondent. )
FEARING, J. - Following the acceptance and filing of an offer ofjudgment from
Dex Media West, Inc. (Dex), plaintiff Robert Critchlow failed to appear for two
scheduled hearings, and a newly assigned trial court judge dismissed Critchlow's case
with prejudice. Critchlow appeals the dismissal and an earlier judge's recusal. We
reverse the trial court's dismissal of the complaint and direct judgment to be entered in
favor of Critchlow for the sum stated in the offer ofjudgment. In the unpublished portion
No. 33038-9-III
Critchlow v. Dex Media West
of the opinion, we remand to the trial court for imposition of lesser sanctions against
Critchlow for his failure to appear at the hearings.
FACTS
The underlying facts bear little importance on appeal. Robert Critchlow, a
Spokane attorney, contracted with Dex to create a website, publish advertising in a
telephone book, deliver Internet service, and provide phone service that included usage
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tracking. Without Critchlow's knowledge, Dex recorded all his phone calls. One who
called Critchlow heard a message from Dex informing him or her of the call being
recorded.
PROCEDURE
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On July 11,2014, Robert Critchlow sued Dex, in Spokane County Superior Court,
for common law and statutory privacy violations, misrepresentation of services, and
violation of the Washington Consumer Protection Act, chapter 19.86 RCW. On July 11,
the superior court presiding judge entered an order that scheduled a case status
conference for October 10 and assigned Critchlow's case to Judge Annette Plese. The
order commanded the parties: "to attend a Case Status Conference before your assigned
judge on the date also noted above." Clerk's Papers (CP) at 7.
On July 15,2014, Judge Plese opted to recuse herself, and she signed an order of
recusal. Judge Plese identified no reason for the disqualification. Robert Critchlow
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denies receiving a copy of the recusal order then. On July 16, the presiding judge
appointed another superior court judge, Judge Michael Price, to preside over Critchlow's
suit. Judge Price thereafter entered all further orders.
On September 25,2014, Dex sent Robert Critchlow a CR 68 offer ofjudgment for
$5,000, which amount was to include any reasonable attorney fees and costs incurred to
date. On October 2, Critchlow recorded an acceptance ofDex's offer.
The status conference remained scheduled for October 10,2014. On October 8,
Dex sent Robert Critchlow a copy of the recusal order and the order of pre assignment.
Critchlow immediately sent a letter to Judge Plese objecting to her recusal, the case's
reassignment to another judge, and the lack of notice. In the letter, Critchlow stated that
he would not attend the October 10 status conference, and he requested a response to his
letter or a hearing to address his protestation.
Neither Robert Critchlow nor one of his attorneys appeared at the October 10
status hearing. The superior court thus issued an order to show cause as to why the
complaint should not be dismissed. The order stated, "If the plaintiff and defendant, or
an attorney on their behalf, does not appear before this court on [November 7, 2014, at
8:30 a.m.], this matter will be dismissed." CP at 22. Robert Critchlow and his counsel
deny receiving a copy of the order to show cause.
On October 17,2014, Dex informed Robert Critchlow that Judge Price entered an
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order to show cause. Dex also attached a proposed judgment and requested a W -9 tax
form from Critchlow so that Dex could issue him a check. On October 20, Critchlow
filed a formal objection to Judge Plese's recusal. On October 21, Judge Plese sent a letter
responding to Critchlow's objection and informing him that the recusal stood.
On November 7, 2014, neither Robert Critchlow nor his counsel appeared at the
show cause hearing, and the trial court dismissed his case with prejudice. On November
19, Alan McNeil, one of Critchlow's attorneys, wrote a letter to the trial court:
At Mr. Critchlow's request, due to his unavailability, I appeared at
your courtroom for what I had been told was a status hearing set for
November 7, 2014 at 8:30 AM. No one was at your courtroom when I
arrived and the door was locked.
· .. I did in fact attempt to appear on behalf of plaintiff.
· .. I believe the only thing remaining to do on this case is to
formally enter the judgment. Plaintiff sent defendant a draft of a proposed
judgment; but, apparently defendant has some qualms about the language
of plaintiff's proposed Judgment.
Ex. 3, App. A (additional evidence brought in by commissioner's ruling of June 1,2015).
On December 3,2014, Dex's counsel wrote to the court:
I attended the November 7, 2014 8:30 a.m. show cause hearing
arriving in your courtroom at approximately 8: 15 a.m. In your absence,
Ashley, one of your courtroom clerks noted that Mr. Critchlow was not
present and waited until 8:45 a.m. to allow Mr. Critchlow plenty of time to
arrive. At 8:50 a.m., Ashely [sic] walked into the entry hallway outside
your courtroom and called out Mr. Critchlow's name. Neither Mr.
Critchlow, Mr. McNeil nor Mr. Lee answered, as none were present in or
outside of your courtroom which was open and unlocked.
· .. Between 9:00 a.m. and 9:10 a.m., I observed Mr. McNeil
walking down the third floor hallway. I watched him to determine whether
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1 needed to return to your courtroom. He did not enter your courtroom at
that time.
An Offer of Judgment was filed by Defendant with this court on
September 25, 2014. An Acceptance was filed by Plaintiff on October 2,
2014. The Defendant did not agree to the language in the Judgment and
proposed a revised Judgment which was ignored by Mr. Critchlow along
with the request that he provide an executed W-9. Neither the judgment
nor the W-9 have been forthcoming.
Ex. 3, App. B.
LA W AND ANALYSIS
Recusal
Robert Critchlow contends that Judge Annette Plese erred by recusing herself on
her own motion. He argues that (1) the judge needed to afford each party an opportunity
to object before the disqualification, and (2) the judge needed to disclose a reason for the
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recusal. We decline to address whether Judge Plese held the power to disqualify herself
without presenting a reason and without earlier notice to the parties. Because we hold
that the offer ofjudgment ends the litigation and because Robert Critchlow does not
argue that he would have rejected the offer ofjudgment if Judge Plese continued to
preside over the suit, our resolution of this assignment of error lacks no practical import
on the outcome of the suit. Principles ofjudicial restraint dictate that if resolution of
another issue effectively disposes of a case, we should resolve the case on that basis
without reaching the first issue presented. Wash. State Farm Bureau Fed'n v. Gregoire,
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162 Wn.2d 284,307,174 P.3d 1142 (2007); Hayden v. Mut. ofEnumclaw Ins. Co., 141
Wash. 2d 55, 68, 1 P.3d 1167 (2000).
Offer of Judgment
Robert Critchlow next assigns error to the trial court's dismissal of his case with
prejudice. Critchlow argues that, due to his acceptance of the CR 68 offer ofjudgment,
the court held a ministerial duty to enter a judgment. Critchlow also argues that the trial
court erred by dismissing his suit without finding prejudice to Dex and without first
reviewing whether a lesser sanction would address his failures to appear. We first
address whether a judgment should be entered as a result ofDex's offer ofjudgment and
Critchlow's acceptance of the offer. We hold that a judgment should be entered. We
later address whether sanctions other than dismissal should be entered.
CR 68 governs offers ofjudgment and provides, in pertinent part:
[A] party defending against a claim may serve upon the adverse
party an offer to allow judgment to be taken against the defending party for
the money or property or to the effect specified in the defending party's
offer, with costs then accrued. If within 10 days after the service of the
offer the adverse party serves written notice that the offer is accepted, either
party may then file the offer and notice of acceptance together with proof of
service thereof and thereupon the court shall enter judgment.
Robert Critchlow relies on the command that "the court shall enter judgment" to argue
that simply filing the offer and acceptance of offer, pursuant to CR 68, imposes a
ministerial duty on the court to enter a judgment. Dex contends that the trial court may
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not enter a judgment because Robert Critchlow and it had not yet agreed on the form or
content of the judgment. We agree with Critchlow.
We know from experience that parties continue to discuss the format of an
agreement after having reached an agreement, with or without a precipitating formal offer
ofjudgment. Sometimes a defendant even demands terms inserted into a final written
document, which terms the parties never earlier discussed or placed in writing. This
additional dickering does not preclude an enforceable agreement or the entering of a
judgment after an offer ofjudgment. Rather than insisting on additional terms after the
acceptance of the offer, the defense should incorporate all terms in the offer ofjudgment.
CR 68 sets forth a procedure for defendants to offer to settle cases before trial.
Lietz v. Hansen Law Offices, PSC, 166 Wash. App. 571, 581, 271 PJd 899(2012). The
rule aims to encourage parties to reach settlement agreements and to avoid lengthy
litigation. Dussault v. Seattle Pub. Sch., 69 Wash. App. 728, 732, 850 P.2d 581 (1993). A
Rule 68 offer is not simply an offer of settlement, but an offer that judgment can be
entered on specified terms. Real Estate Pros, PC v. Byars, 2004 Wy 2, 90 PJd 110, 113
(Wyo. 2004). If the offer is accepted, the court automatically enters judgment in favor of
the offeree, Real Estate Pros, PC v. Byars, 2004 Wy 2, 90 P.3d at 113.
When interpreting a CR 68 offer ofjudgment, we look at the parties' objective
manifestations for contract formation, not their unexpressed subjective intentions to later
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add other terms to the offer. Wash. Greensview Apartment Assocs. v. Travelers Prop.
Cas. Co. ofAm., 173 Wash. App. at 679; Lietz v. Hansen Law Offices, PSC, 166 Wash. App.
at 587. In Washington Greensview Apartment Associates, Travelers attempted to argue
that the parties never reached mutual assent because they did not reach an agreement with
regard to reasonable attorney fees and costs. The court still enforced the terms stated in
the offer ofjudgment.
CR 68 does not hint of the need or even possibility of the parties to continue to
negotiate terms of the settlement or the form of a judgment. Instead, the rule imposes an
obligation on the trial court to enter a judgment for the amount offered. Thus, we direct
the trial court to enter an unadorned judgment in favor of Robert Critchlow against Dex
in the amount of $5,000 without any costs or attorney fees awarded.
We issue no ruling on whether Robert Critchlow or one of his attorneys must
submit a W·9 form or the ramifications of any failure to timely tender the form. The
need for such a form is a question otherwise controlled by federal tax law and not a
subject to be inserted into the judgment in favor of Critchlow. If need be, the parties may
litigate the need for a W-9 form by a motion after the filing of the judgment.
Attorney Fees
Robert Critchlow requests attorney fees under the Washington Consumer
Protection Act (CPA), chapter 19.86 RCW. RCW 19.86.090 allows a prevailing party on
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a consumer protection claim to recover reasonable attorney fees. Critchlow, however,
waived any recovery of reasonable attorney fees when accepting the offer ofjudgment
that expressly excluded any such recovery.
Washington's CR 68 is virtually identical to Federal Rule of Civil Procedure 68.
Lietz v. Hansen Law Offices, PSC, 166 Wash. App. at 580 (2012). Thus, in the absence of
controlling state authority, Washington courts look to federal interpretations of the
equivalent rule. Johnson v. Dep't ofTransp. , 177 Wash. App. 684, 692 n.5, 313 P.3d 1197
(2013), review denied, 179 Wash. 2d 1025 (2014); Lietz, 166 Wash. App. at 580; Hodge v.
Dev. Servs. ofAm., 65 Wash. App. 576, 580, 828 P.2d 1175 (1992). Consistent with its
purpose of promoting settlements, CR 68 allows defendants to make lump-sum offers
that are inclusive of attorney fees. Radeckiv. Amoco Oil Co., 858 F.2d 397, 401 (8th Cir.
1988). When the offer ofjudgment reads that the offered amount includes all reasonable
attorney fees and costs, the plaintiff may not recover reasonable attorney fees and costs,
beyond the offered amount, even if a statute affords recovery for fees and costs. Wilson
v. Nomura Sec. Int'l, Inc., 361 F.3d 86, 90 (2d Cir. 2004).
The offeror of a judgment is the master of its offer. A defendant, if it wishes,
deserves the opportunity to avoid payment of an indeterminate amount of attorney fees
by offering a lump sum in total. The offeree is the master of his acceptance of an offer of
judgment. The offeree remains at liberty to reject the offer if he desires payment of an
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additional sum for reasonable attorney fees. Robert Critchlow chose to accept Dex's
offer ofjudgment that did not afford additional recovery for fees.
We note that CR 68 directs that the offer ofjudgment be for "money or
property... with costs then accrued." Therefore, the rule may require the offeror to pay
court costs to the offeree despite the language of the offer. We render no ruling on this
issue, since Robert Critchlow does not advance this contention. This court does not
review issues not argued, briefed, or supported with citation to authority. RAP 10.3(a);
Valente v. Bailey, 74 Wn.2d 857,858,447 P.2d 589 (1968); Avellaneda v. State, 167 Wn.
App. 474, 485 n.5, 273 P.3d 477 (2012).
We vacate the trial court's dismissal of Robert Critchlow's complaint. We remand
for entry ofjudgment in favor of Robert Critchlow against Dex in the sum of $5,000 and
for entry of such sanctions, if any, other than dismissal, that the court deems appropriate
for Robert Critchlow's violation of the court order to show cause.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
OpInIOns.
Sanctions
Robert Critchlow next contends that the trial court lacked discretion to dismiss the
case, because once he filed the CR 68 offer and acceptance, the trial court had a
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ministerial duty to enter the judgment. Our ruling on the enforcement of the offer of
judgment compels our adoption of the argument. Absent an enforceable judgment, we
would otherwise remand the case to the trial court to address whether Dex suffered
prejudice as a result of Mr. Critchow's failure to attend the hearings and whether a lesser
sanction is more appropriate. A trial court exercising its authority to dismiss a case for
violation of court orders and rules must explicitly find that a party's failure to comply
was willful and prejudiced the opposing party. Woodhead v. Disc. Waterbeds, Inc., 78
Wash. App. 125, 131-32,896 P.2d 66 (1995).
The trial court had yet to enter a judgment by the day of the status conference.
Robert Critchlow needed to obey the court order to appear both at the status conference
and the show cause hearing, despite having accepted an offer ofjudgment. We thus
remand for the entry of appropriate sanctions short of dismissal of the case.
We note that Robert Critchlow objected to the recusal of Judge Annette Plese and
Judge Michael Price will preside upon remand. Therefore, Robert Critchlow could claim
prejudice resulting from our failure to address the recusal of Judge Plese. We remand
anyway to the second assigned judge since the failure to appear before Judge Price cannot
be excused by demanding another judge. Regardless of whether Critchlow had a pending
objection to the first judge's recusal, Judge Price deserved the courtesy of an appearance
and obedience to his court order.
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CONCLUSION
We reverse the trial court's dismissal of Robert Critchlow's complaint. We
remand for entry ofjudgment in favor of Robert Critchlow against Dex in the sum of
$5,000 and for entry of such sanctions, if any, other than dismissal, that the court deems
appropriate for Robert Critchlow's violation of the court order to show cause.
WE CONCUR:
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