No. 50429-1-IThe Court of Appeals of Washington, Division One.
Filed: July 7, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 00-2-16728-8 Judgment or order under review Date filed: 04/10/2002
Counsel for Appellant(s), Rhys Alden Sterling, Attorney at Law, P.O. Box 218, Hobart, WA 98025-0218.
Counsel for Respondent(s), Julia Parsons Clarke, Attorney at Law, 1201 3rd Ave Fl 40, Seattle, WA 98101-3029.
Kathleen M. O’Sullivan, Perkins Coie LLP, 1201 3rd Ave Fl 40, Seattle, WA 98101-3029.
Michael Joseph Garrison, Attorney at Law, P.O. Box 99186, Seattle, WA 98199-0186.
Lisa Kay Barton, Attorney at Law, 175 NE Gilman Blvd # 100, Issaquah, WA 98027-2904.
SCHINDLER, J.
The trial court dismissed the complaint filed by Osteopathic Medical Services, Inc. (`OSM’) against U.S. West Communications (now Qwest) and others because OSM failed to appear for trial. After the dismissal, OSM filed an amended complaint. Qwest moved to dismiss based on lack of jurisdiction. The trial court granted Qwest’s motion. We affirm.
FACTS
On August 21, 2000, Dale Alsager acting pro se on behalf of OSM filed a complaint against `US West Communications, Interprise Networking Services; US West Interprise America; CM Healthcare Technologies aka Vantage Medical Corporation; Healthmatics aka A-4 Healthmatics and Puget Sound Leasing’.[1] The complaint alleged that OSM contracted with the defendants for the installation of a medical records and practice management computer system and that the system failed to operate properly. OSM sought damages.
When the complaint was filed, OSM received the Order Setting Civil Case Schedule, scheduling the trial for January 14, 2002, and setting other deadlines. The order provided: `All attorneys and parties should make themselves familiar with the King County Local Rules [KCLR] — especially those referred to in this Schedule. In order to comply with the Schedule, it will be necessary for attorneys and parties to pursue their cases vigorously from the day the case is filed.’[2] It also provided: `If you miss your scheduled Trial Date, the Superior Court Clerk is authorized by KCLR 41(b)(2)(A) to present an Order of Dismissal, without notice, for failure to appear at the scheduled Trial Date’[3] and `FAILURE TO COMPLY WITH THE PROVISIONS OF THIS ORDER MAY RESULT IN DISMISSAL OR OTHER SANCTIONS.’[4] Alsager signed the scheduling order acknowledging receipt of it on behalf of OSM.
According to Qwest, OSM did not serve a summons or complaint on any of the defendants.[5] None of the defendants filed a notice of appearance or an answer.
On February 21, 2001, the trial court on its own motion issued an order directing OSM to appear on March 9, 2001, and show cause why its claims should not be dismissed for failure to file a confirmation of service as required by the scheduling order.[6]
The record on appeal shows that OSM did nothing to comply with the case scheduling order. On the trial date, January 14, 2002, none of the parties appeared for trial. The trial court entered an order dismissing the case. The order stated:
THE ABOVE-ENTITLED COURT, by Order Setting Case Schedule dated August 21, 2000, confirmed trial for January 14, 2002. Neither party having appeared for trial, it is now, hereby, ORDERED, ADJUDGED AND DECREED that the above cause is dismissed.[7]
On February 11, 2002, OSM filed an amended complaint and an `amended’ summons.[8] The amended complaint added Alsager as a plaintiff, dropped Healthmatics as a defendant, and increased the amount of damages sought. OSM and Alsager served the summons and amended complaint on Qwest, VantageMed, and Puget Sound Leasing. The defendants filed notices of appearance and directed that all papers and pleadings, except original process, be served on them.[9]
On March 4, 2002, Qwest filed a `Motion to Dismiss, For Lack of Jurisdiction, Amended Complaint Filed After Order of Dismissal Entered’.[10] It argued the trial court lacked jurisdiction because it had dismissed the matter with prejudice on January 14, 2002. Alsager replied to the motion and filed a declaration stating that he `did not vigorously pursue the trial schedule’ because he `fully anticipated that a settlement was possible with all of the defendants and a trial would not be necessary.’[11]
In a letter to the parties, the trial court denied the motion to amend because of OSM’s failure to follow the case schedule, to inform the court that it intended to proceed with the case, or to appear for trial.
On March 19, 2002, counsel appeared on behalf of OSM and Alsager.
By order dated March 21, 2002, the trial court granted Qwest’s motion to dismiss for lack of jurisdiction.
On March 29, 2002, OSM and Alsager filed a motion for reconsideration of the order granting Qwest’s motion to dismiss and a motion for leave to further amend the complaint. They argued that the dismissal of OSM’s complaint on January 14, 2002, was pursuant to CR 41(b)(2) and KCLR 41(b)(2) and was therefore without prejudice. Accordingly, they argued, they were entitled to refile the complaint. Qwest filed a response, arguing that the dismissal was pursuant to CR 40(d) and KCLR 43 and was with prejudice. On April 10, 2002, the court denied the motion for reconsideration and for leave to further amend the complaint. The trial court’s order states that `the operative Civil Rule is CR 40, not CR 41, which applies to clerk action, not judicial.’[12]
On May 9, 2002, OSM and Alsager filed a notice of appeal of the January 14, 2002, order of dismissal; the March 21, 2002, order granting Qwest’s motion to dismiss; and the April 10, 2002, order denying OSM’s and Alsager’s motion for reconsideration.
DISCUSSION
The issue is whether the trial court’s January 14, 2002, dismissal of OSM’s initial complaint was pursuant to CR 40 or CR 41 and whether it was with or without prejudice. OSM contends the dismissal was pursuant to CR 41 and was improper because it was done without notice. It also contends that, because the dismissal was pursuant to CR 41(b), it had to be without prejudice. Qwest contends that the dismissal was pursuant to CR 40 and was with prejudice.
CR 41(b)(2), provides that in a civil case in which no action has occurred during the previous 12 months, the clerk must notify the attorneys of record by mail `that the court will dismiss the case for want of prosecution unless, within 30 days following the mailing of such notice, a party takes action of record or files a status report with the court indicating the reason for inactivity and projecting future activity and a case completion date.’[13] If the court does not receive such a status report, it must, on motion of the clerk, dismiss the case without prejudice and without cost to any party. KCLR 41(b)(2)(E) likewise permits the court to enter an order of dismissal without prejudice for failure to take action during the previous 12 months, although the local rule differs from CR 41 in that it allows the parties 45 days after the mailing of the notice of pending dismissal to file the status report.[14]
Also, pursuant to KCLR 41(b)(2)(A), ‘[i]f the case has not been disposed of within 45 days after the scheduled trial date, the case will be dismissed without prejudice on the clerk’s motion without prior notice to the parties, unless the parties have filed a certificate of settlement. . . .’[15]
CR 40(d) provides that when a case is scheduled and called for trial, it must be tried or dismissed unless good cause is shown for a continuance.
The rule permits the court, upon terms, to reschedule. A dismissal under CR 40(d) is required when a case is neither tried, continued, nor reset.[16] KCLR 43 also provides that ‘[t]he failure of a party seeking affirmative relief . . . to appear for trial on the scheduled trial date will result in dismissal of the claims . . . without further notice.’[17]
While neither CR 40(d) nor KCLR 43 explicitly states whether a dismissal under those rules is with or without prejudice, this court in Wagner v. McDonald held that a dismissal under CR 40(d) operates pursuant to CR 41(b)(3) as an adjudication upon the merits and is a dismissal with prejudice.[18] CR 41(b)(3) provides that a dismissal `not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under rule 19, operates as an adjudication upon the merits.’[19] And the Supreme Court held in In re Detention of G.V. that CR 40(d) permits a dismissal either with or without prejudice.[20] In that case, the Court looked to the procedural posture of the case and the record to determine whether the dismissal was with or without prejudice, concluding that it was with prejudice.
The January 14, 2002, order does not cite which rule the court relied on or state whether the dismissal was with or without prejudice.[21]
However, a review of the record and the procedural posture of the case supports the conclusion that the dismissal was pursuant to CR 40(d) and was with prejudice.
The clearest evidence that the dismissal was pursuant to CR 40(d) is the court’s statement to that effect in its April 9, 2002, order. Further, the January 14 order of dismissal does not indicate that the court was acting on motion of the clerk under CR 41(b)(2). And, there is no evidence in the record that the clerk sent a notice under CR 41(b)(2) to OSM that the case would be dismissed for want of prosecution for the previous 12 months. CR 40(d) requires that when a case is called for trial, one of three things must occur on the scheduled trial date: a final disposition, a continuance, or a resetting. If a case is not tried, continued, or reset, it must be dismissed. Because the January 14 order of dismissal was entered on the scheduled trial date, it is reasonable to conclude that the dismissal was pursuant to CR 40(d). The fact that KCLR 43(a) provides that a party’s failure to appear for trial on the scheduled trial date will result in dismissal without further notice likewise contemplates the trial court’s taking action on the scheduled trial date. If the dismissal was under CR 40(d), then pursuant to CR 41(b)(3), it operated as an adjudication on the merits and was therefore with prejudice.[22]
A trial court has the authority to dismiss an action under CR 41(b) for noncompliance with a court order or court rules.[23] And, it has the discretion to dismiss with prejudice.[24] The trial court also has discretion `to manage its own affairs so as to achieve the orderly and expeditious disposition of cases.’[25] Pursuant to KCLR 4(g)(3), the trial court may impose monetary, or other sanctions as justice requires, if the court finds that an attorney or party has failed to comply with the case scheduling order and has no reasonable excuse.
We review the court’s decision to dismiss with prejudice for an abuse of that discretion.[26] `A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.’[27]
OSM’s failure to comply with court rules and court orders and appear at trial also justified dismissal with prejudice. Although OSM might have been entitled to some leniency because it acted pro se, its complete lack of compliance with court rules and procedures cannot be excused. The case scheduling order is clear and explicit in scheduling the trial date, setting the deadlines, and enumerating what a litigant is required to do.
When OSM failed to comply with the requirements of the case scheduling order and appear on the scheduled trial date, the court acted within its discretion in dismissing with prejudice.
Because the January 14, 2002, order was an adjudication on the merits,[28] once the order was entered, the court lost jurisdiction and could not permit the filing of an amended complaint.[29] Accordingly, the trial court properly granted Qwest’s motion to dismiss and denied OSM’s and Alsager’s motion for reconsideration.
We reject OSM’s and Alsager’s argument that the statement in the case scheduling order providing `If you miss your scheduled Trial Date, the Superior Court Clerk is authorized by KCLR 41(b)(2)(A) to present an Order of Dismissal, without notice, for failure to appear at the scheduled Trial Date’[30] means that only a dismissal without prejudice pursuant to KCLR 41(b)(2)(A) can be entered for failure to appear for trial. This argument ignores CR 40 and KCLR 43 and another part of the case scheduling order which states that failure to comply with the provisions of the order may result in dismissal, without specifying the rule under which the dismissal may occur. We also disagree with OSM’s and Alsager’s argument that the trial court was required to call them pursuant to the case scheduling order provision that states: `Trial is confirmed for 9:00 a.m. on the date on the Schedule. The Friday before trial, the assigned court will contact the parties to determine the status of the case and inform the parties of any adjustments to the Trial Date.’[31] Here, there was no adjustment to the trial date and Alsager did not give the trial court his or OSM’s telephone number. The case scheduling order does not impose a duty on the trial court to contact the parties.
Finally, we reject the appellants’ argument that the trial court erred by dismissing the original complaint for failure to appear at trial because the case was not at issue and no trial could have been had. The only reason the case was not at issue on the scheduled trial date was because OSM failed to serve any of the defendants and failed to comply with the case scheduling order.[32] OSM and Alsager cannot be allowed to use their own failure to act as a basis to obtain reinstatement of their action.
The case the appellants rely on, Swan v. Landgren,[33] is distinguishable. In that case, the trial court set a trial date with 14 days’ notice when the case was not at issue. Under the law in effect when Swan was decided, neither the clerk nor the court had authority to set a trial date until a notice of trial had been served and filed. Accordingly, on appeal, the court reversed, holding that the trial court abused its discretion because the case was not at issue when the court set the trial date. Superior courts now have the authority to enact local rules to schedule cases on the trial calendar without a request from the parties. Pursuant to King County’s local rules, the plaintiff is notified in the case scheduling order and the trial date is set the day the complaint is filed. The trial court may, pursuant to its discretionary authority to manage cases, impose monetary or other sanctions on a party who violates the scheduling order.[34] Attorney fees on appeal
All the respondents request an award of attorney fees on appeal on the ground that this appeal is frivolous.
An appeal is frivolous “if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.”[35] In determining whether an appeal is frivolous, the court considers, in addition to the foregoing definition of `frivolous appeal,’ the following principles: RAP 2.2 gives a civil appellant the right to appeal, all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant, the record should be considered as a whole, and an appeal that is affirmed simply because the court rejects the arguments is not frivolous.[36]
The respondents focus on the fact that the notice of appeal was filed 85 days after the court issued its January 14 order. Given that the January 14 order did not cite the rule the court relied on, nor whether the dismissal was with or without prejudice, debatable issues existed. The appeal was not frivolous.
We affirm the trial court’s orders and deny the respondents’ requests for an award of attorney fees on appeal.
WE CONCUR
APPELWICK and AGID, JJ., concur.
There is no indication in the record about what happened at the hearing if it was held.
(1973).
[W]hen a case set for trial is regularly called for trial, CR 40(d) clearly requires final disposition, a continuance upon a proper showing, or resetting. Civil Rule 41(b)(3) makes it clear that an involuntary dismissal not provided for in CR 41, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party, operates as an adjudication upon the merits unless otherwise specified by the trial court. Id. The United States Supreme Court, construing the comparable Federal Rule of Civil Procedure, has stated: `The authority of a federal court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot be seriously doubted.’ Link v. Wabash R.R., 370 U.S. 626, 639, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
(1994).
(1998)), cert. denied, 531 U.S. 984 (2000).