Nathan Brown, Iii v. Mi K. Brown

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: )
DIVISION ONE
NATHAN BROWN III, )
No. 71398-1-1
Appellant, )
UNPUBLISHED OPINION
and )
Ml K. BROWN, )
Respondent. ) FILED: June 15, 2015
Dwyer, J.—Nathan Brown appeals the dismissal of his petition for a
parenting plan modification as a sanction, as well as the imposition of terms, for
his failure to comply with the court's case scheduling orders. Because he fails to
establish any error or abuse of discretion in the trial court's rulings, we affirm.
Because his appeal is frivolous, we award fees on appeal to Mi Brown.
I
Nathan Brown filed a petition to modify the parenting plan providing for his
three sons to reside a majority of the time with his ex-wife Mi Brown.1 Mi
responded and opposed Nathan's petition. Following a hearing, a superior court
commissioner entered orders finding adequate cause for a trial on the petition
and appointing a guardian ad litem (GAL) to prepare a report and
For purposes of clarity, we refer to the parties by their first names. No disrespect is
intended.
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recommendations. After the GAL filed her report, Nathan filed a motion for a
temporary order adopting his proposed parenting plan and "several provisions of
the GAL report," and terminating child support based on the age of the oldest
child and the requested change of residence for the other two children. A
commissioner denied Nathan's request for a change in the children's residential
schedule pending trial, but adopted certain recommendations made by the GAL.
The commissioner also ruled that no child support adjustment was properly
before the court and that the GAL need not file an "interim" report "unless
updates are needed for the trial court."
Over the next several months, Nathan's attorney filed an agreed order of
continuance and appeared by telephone for a pretrial conference, but failed to file
any pleadings required by the order setting the case schedule or the pretrial
conference order. For example, he did not file a witness or exhibit list, a financial
declaration, or a trial brief. Shortly before the trial date, Mi filed a motion to
dismiss the petition for modification with prejudice and for terms based on
Nathan's failure to comply with the case schedule.
On the day set for trial, the court considered Mi's motion to dismiss and
request for terms. In response to the court's questioning, Nathan's attorney
admitted that he did not comply with the scheduling orders, but explained that he
believed the case was simple, that the only witnesses would be the parties and
the GAL, and that the issues were known to the parties based on the initial filings
and discussions during settlement conferences. After describing the range of
possible sanctions and hearing argument on alternatives, the trial court found
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that Nathan's "absolute noncompliance" with court orders and "nothing before the
court which would suggest any . . . mitigating circumstances," justified dismissal
without prejudice and an award of terms. The trial court awarded terms in the
amount of 75 percent of Mi's documented attorney fees.
Nathan appeals.
II
We review a trial court's order dismissing a case and imposing terms for
noncompliance with court orders for abuse of discretion. Apostolis v. City of
Seattle, 101 Wash. App. 300, 303-04, 3 P.3d 198 (2000) (trial court "may impose
such sanctions as it deems appropriate for unexcused violations of its scheduling
orders"); Woodhead v. Discount Waterbeds, Inc., 78 Wash. App. 125, 129, 896
P.2d 66 (1995) (trial court has "discretionary authority to manage its own affairs
so as to achieve the orderly and expeditious disposition of cases"). A trial court
abuses its discretion only if its decision is manifestly unreasonable or exercised
on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
CR 41(b) authorizes a trial court to dismiss an action for noncompliance
with court orders. Apostolis, 101 Wash. App. at 304; Woodhead, 78 Wash. App. at
129. King County Local Civil Rule (KCLCR) 4(g) (1) provides: "Failure to comply
with the Case Schedule may be grounds for imposition of sanctions, including
dismissal, or terms." While disfavored, dismissal is justified when a party willfully
and deliberately disregards reasonable court orders, resulting in prejudice to the
other party, and impairing the efficient administration ofjustice. Apostolis, 101
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Wn. App. at 304; Woodhead. 78 Wash. App. at 130. Disregard of a court order
without reasonable excuse or justification is deemed willful. Rivers v. Wash-
State Conference of Mason Contractors, 145 Wash. 2d 674, 686-87, 41 P.3d 1175
(2002); Apostolis, 101 Wash. App. at 304; Woodhead, 78 Wash. App. at 130.
Appearing pro se in this appeal, Nathan does not identify a reasonable
excuse or justification for his attorney's failure to comply with the court's orders.
Instead, without citation to relevant authority and for the first time on appeal,
Nathan argues that the commissioner's temporary order adopting portions ofthe
GAL report resolved the contested issues in the modification proceeding and
rendered trial unnecessary. He claims it is "a mystery" that neither attorney
moved to dismiss the modification action immediately as the commissioner "was
summarily determining the entire dispute." Br. ofAppellant at 8-9. Nathan
misunderstands the nature of the order. Rather than resolving the issue of
permanent residential placement or ending the litigation, the temporary order
simply provided for the care and placement ofthe children pending trial, as
requested. See, e^, In re Marriage of Greenlaw, 67 Wash. App. 755, 759, 840
P.2d 223 (1992), rev'd on other grounds, 123 Wash. 2d 593, 869 P.2d 1024 (1994).
Accordingly, nothing in the temporary order excused compliance with the trial
court's scheduling orders.
Nathan next contends that the court erred as a matter of law by imposing
both the sanction of dismissal as well as terms, when KCLCR 4(g)(1) is written in
the disjunctive. KCLCR 4(g)(1) provides, "Failure to comply with the Case
Schedule may be grounds for imposition of sanctions, including dismissal, or
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terms." Generally, we presume "or" is used disjunctively unless the drafter's
intent to the contrary is clear. See Guiiosa v. Wal-Mart Stores. Inc.. 101 Wash. App.
777, 789-99, 6 P.3d 583 (2000), affd, 144 Wash. 2d 907, 32 P.3d 250 (2001). Here,
KCLCR 4(g)(3) clearly demonstrates such contrary intent:
Ifthe Court finds that an attorney or party has failed to comply with
the Case Schedule and has no reasonable excuse, the Court may
order the attorney or party to pay monetary sanctions to the Court,
or terms to any other party who has incurred expense as a result of
the failure to comply, or both; in addition, the Court may impose
such other sanctions as justice requires.
In view of this plain language, the court did not exceed its authority by imposing
both a sanction and terms. See also, Woodhead, 78 Wash. App. at 127, 131, 133-
34 (affirming dismissal with prejudice and imposition of terms for failure to comply
with court rules and orders regarding service of process).
We also reject Nathan's claim that the trial court abused its discretion by
imposing terms directly on him when his attorney admitted responsibility for the
failure to follow the court's orders. KCLCR 4(g)(3) authorizes the court to order
either a party or an attorney to payterms for unreasonable failure to comply with
the case scheduling order. And Nathan does not allege fraud or contend that he
did not authorize his attorney to appear on his behalf. Woodhead, 78 Wash. App.
at 132-33 (rejecting argumentthat client should not be held accountable for
attorney's failure to comply with local rule that client did not know).
Nathan also contends that Mi was not prejudiced and that she failed to
sufficiently mitigate her prejudice. Butthe record demonstrates that Mi's attorney
not only prepared and filed the written materials required by the court's orders
and participated in settlement conferences, but also contacted Nathan's attorney
No. 71398-1-1/6
repeatedly by various means in order to encourage or assist him in complying
with the orders and properly preparing the case for trial. And the trial court
specifically considered at the hearing evidence of Mi's attorney's efforts to
prepare her case while Nathan's attorney failed to provide written materials
regarding witnesses, evidence, and exhibits as ordered. Nathan fails to
demonstrate any abuse of discretion in the trial court's determination that Mi was
prejudiced by his unreasonable failure to follow the court's orders. See, e.g.,
Apostolis, 101 Wash. App. at 304-05 (unreasonable failure to file timely briefs and
serve documents as ordered prejudiced responding party by forcing it to submit
written requests for documents, draft briefing without written arguments of
opponent, and participate in hearing on arguments not previously briefed).
Nathan's claim for the first time on appeal that the court failed to
sufficiently warn him and his attorney about possible sanctions is also unavailing.
On the same day Nathan filed his petition, the court entered the case scheduling
order, which states, "Penalties, including but not limited to sanctions set forth in
Local Civil [Rule] 4(g) and Rule 37 of the Superior Court Civil Rules, may be
imposed for failure to comply." Several orders in the record contain similar
language.
Finally, Nathan challenges the amount of the terms imposed, arguing that
the award of 75 percent of Mi's requested attorney fees as terms constitutes
improper fee shifting and is unfair. Relying on Biggs v. Vail, 124 Wash. 2d 193, 876
P.2d 448 M994V and Scott Fetzer Co. v. Weeks, 122Wn.2d 141,859P.2d 1210
(1993), he also argues that Mi failed to properly segregate the fees she incurred
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due to his "bad acts" from those "normally incurred in an action such as this." Br.
of Appellant at 13.
But the trial court awarded attorney fees here as terms under KCLCR
4(g)(4), which provides in pertinent part: "As used with respect to the Case
Schedule, 'terms' means costs, attorney fees, and other expenses incurred or to
be incurred as a result of the failure to comply." Cases concerning the method
for determining reasonableness of an attorney fee award do not apply to the
imposition of terms under KCLCR 4(g)(4). Woodhead, 78 Wash. App. at 134
(rejecting cases requiring findings regarding amount of sanction and method for
determining reasonableness of attorney fee awards as inapplicable to imposition
of terms under local rules). The trial court considered Mi's attorney's billing
records detailing numerous calls, e-mail, and letters to Nathan's counsel
regarding failures to comply with the case schedule as well as her independent
preparation ofthe case for trial. Nathan fails to demonstrate any abuse of
discretion in the court's decision to impose 75 percent of that amount in terms.
Mi requests an award of attorney fees on appeal, arguing that the appeal
is frivolous. RAP 18.9. An appeal is frivolous if it is so totally devoid of merit that
there is no reasonable possibility of reversal. Green River Cmtv. Coll. Dist. No.
10 v. Higher Educ.Pers.Bd., 107 Wash. 2d 427, 443, 730 P.2d 653 (1986).
Nathan's appeal presents no debatable issues. Mi is entitled to an award of fees
and costs on appeal, subject to her compliance with RAP 18.1. Upon such
compliance, a commissioner of this court will enter an appropriate order.
No. 71398-1-1/8
Affirmed.
We concur:
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