Earl v. XYZPrinting, Inc.

DONALD R. EARL, Appellant, v. XYZPRINTING, INC. Respondent.

No. 47034-9-II

Court of Appeals of Washington, Division 2

July 6, 2016

UNPUBLISHED OPINION

Worswick, J.

Donald Earl, a self-represented litigant, appeals three adverse rulings in his lawsuit against XYZPrinting for an allegedly defective printer: the superior court's order granting summary judgment in favor of XYZPrinting Inc., the superior court's unsigned memorandum opinion denying Earl's motion for reconsideration of the summary judgment order, and the superior court's order imposing fees and costs against Earl as CR 11 sanctions. Earl argues that the superior court erred by (1) delaying Earl's hearing, (2) conducting a hearing telephonically, (3) denying his cross motion for summary judgment, (4) failing to comply with the notice requirement in CR 54(f)(2), (5) denying his motion for reconsideration, (6) granting sanctions against him, (7) awarding XYZPrinting fees and costs in violation of CR 54(d)'s 10-day time limit, (8) failing to sanction XYZ's opposing counsel, (9) denying his motion to compel discovery, and (10) denying his conditional motion to change venue. Most of Earl's arguments either fail or were inadequately preserved for appeal. However, the superior court failed to support the CR 11 sanctions against Earl with sufficient findings of fact and conclusions of law. Consequently we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

Earl purchased a 3-D printer manufactured by XYZPrinting Inc. from an online reseller for $600.33 and received the printer on May 20, 2014. Ten days later, Earl was dissatisfied with the functionality of the printer and contacted XYZPrinting. That same day, Earl began threatening litigation, stating in his second email to XYZPrinting:

As an aside, you REALLY should familiarize yourself with U.S warranty laws. Your "warranty" is in violation of so many laws, you would lose any class action lawsuit filed against you about ten minutes after it was filed. Or. perhaps more accurately, you would lose on summary judgment after spending half a million dollars on attorney fees.

Clerk's Papers (CP) at 126. Despite efforts by XYZPrinting to meet Earl's needs, Earl filed a complaint against XYZPrinting in Jefferson County Superior Court on June 20, 2014, one month after receiving the printer.

Jefferson County, where Earl resides, has one superior court judge. Earl filed an affidavit of prejudice against this judge which required visiting judges to hear this case.

XYZPrinting moved for summary judgment dismissal of Earl's claims on September 15, 2014. Earl filed a cross motion for summary judgment on September 18, a motion for sanctions against XYZPrinting's counsel on October 8, and a motion to compel discovery on October 10.

The motions were scheduled to be heard in Jefferson County by Judge Melly, a visiting judge from Clallam County on October 17, 2014. On October 15, the superior court notified the parties that the hearing could not occur in Jefferson County as scheduled, but offered to give the matter a special setting in Clallam County on October 17. Earl declined the offer and requested that the hearing be continued to a later date in Jefferson County. The next day, the Jefferson County Superior Court's administrator confirmed a special setting for the matter on November 10. The confirmation letter stated in part, "Parties will be in the Jefferson County Superior Court and the Clallam County Visiting Judge will either be here in person or will appear telephonically." CP at 309. On November 7, the parties received confirmation that Judge Melly intended to conduct the hearing telephonically. On November 10, the parties attended the hearing in person and Judge Melly appeared telephonically. At no point did Earl object or otherwise raise any issue regarding the judge's telephonic appearance.

On November 10, after hearing argument from both XYZPrinting and Earl, the superior court granted XYZPrinting's motion for summary judgment, denied Earl's cross motion for summary judgment, denied Earl's motion for CR 11 sanctions against XYZPrinting's counsel, and awarded attorney fees and costs to XYZPrinting as CR 11 sanctions against Earl. The superior court then stayed the attorney fees and costs pending Earl's acceptance of the refund of the purchase price of his printer and dismissal of his lawsuit with prejudice.

Earl moved for reconsideration and to vacate the summary judgment order. The superior court denied his motion for reconsideration in a memorandum opinion filed on December 24. On December 29, Earl filed a notice of appeal with this court seeking review of the superior court's order granting XYZPrinting's summary judgment motion and the court's memorandum opinion denying reconsideration.

On January 16, 2015, XYZPrinting filed its motion to set fees and costs as awarded by the superior court's order granting summary judgment. On January 30, Earl filed a conditional motion for change of venue, and a CR 60 and RCW 4.72 motion to vacate summary judgment. On February 6, a different visiting judge, Judge Olsen, set the fees and costs, specifically finding that Earl filed his litigation in bad faith without factual or legal bases and failed to conduct a reasonable inquiry into the factual and legal basis of his pleadings.

On February 25, Earl filed an amended notice of appeal seeking direct review by our Supreme Court of the order granting XYZPrinting's motion for summary judgment, the memorandum opinion denying reconsideration, and the order setting the amount of fees and costs. The Supreme Court transferred the matter to us on November 4, 2015.

ANALYSIS

I. Jefferson County's Administrative Practices Regarding Affidavit of Prejudice

Earl argues that his constitutional rights were violated by the superior court's delay in hearing Earl's motions after he filed an affidavit of prejudice. We disagree.

As a threshold matter, Earl raises the issue of Jefferson County's administrative practices for the first time on appeal. An appellate court generally will not consider a claimed error that was not raised in the trial court. RAP 2.5(a). However, under RAP 2.5(a)(3), a party may raise for the first time on appeal a manifest error affecting a constitutional right. Before addressing the merits of such a claim, a reviewing court must determine whether there is a constitutional issue at all. In re Detention of Strauss, 106 Wn.App. 1, 11, 20 P.3d 1022 (2001). Although Earl contends that Jefferson County's administrative practices, "[o]n its face" violate the article I, section 10 right to justice without unnecessary delay and the right of access to the courts, this bald assertion is insufficient to demonstrate a constitutional issue.

Earl's right under article I, section 10 is a right to justice without unnecessary delay. King v. Olympic Pipeline Co., 104 Wn.App. 338, 362, 16 P.3d 45 (2000). Here, the delay was necessary pursuant to Earl's statutory right to one change of judge without inquiry. RCW 4.12.040^[1] gives every party the right to a change of judge if the requirements of RCW 4.12.050^[2]are satisfied. Marine Power & Equipment Co., Inc. v. Dep't of Transportation, 102 Wn.2d 457, 459, 687 P.2d 202 (1984). Washington courts have acknowledged the reality that a litigant's statutory right to one change of judge without inquiry may implicate the orderly administration of justice. 102 Wn.2d at 463. Washington courts consistently accord great weight to the party's right to a change of judge. 102 Wn.2d at 463. We hold that the modest delay between Earl's affidavit of prejudice and the motions hearing does not qualify as an error of constitutional magnitude, and therefore, Earl fails to satisfy the manifest constitutional error exception in RAP 2.5(a)(3). As Earl's claim of error is unpreserved and does not meet RAP 2.5(a)(3), we do not address it further.

II. RCW 2.28.030

Earl next argues that by conducting the motions hearing telephonically, the superior court judge violated RCW 2.28.030 and consequently violated Earl's constitutional rights. We hold that Earl also failed to preserve this issue for appeal.

Earl concedes that he was notified nearly a month before the hearing that it was possible the visiting judge would appear telephonically. Furthermore, three days prior to the hearing Earl received confirmation that the judge would appear telephonically. Earl made no objection, at any point, to the hearing arrangements. Because he did not object, Earl failed to preserve this issue, and we do not address it.

III. Earl's Cross Motion for Summary Judgment

Earl next argues that the superior court erred by denying his cross motion for summary judgment. We disagree.

Earl provides no argument or authority to support this assignment of error. Earl simply lists the documents relied on by the trial court in denying his motion and encourages us to conduct a de novo review of the listed filings. Earl does not articulate what his underlying claims are, does not point to any particular evidence supporting those claims, and provides no argument as to why denial of his summary judgment motion was inappropriate. The entirety of his argument on the issue is as follows:

De novo review of the above listed filings will demonstrate Mr. Earl's motion for summary [sic] is exhaustively supported by fact and law throughout, that the Defendant failed to demonstrate any nonfrivolous legal theory in opposition to the motion and, that the facts in this case supporting summary judgment in Mr. Earl's favor are undisputed.

Br. of Appellant 46. In his reply brief, Earl defends his lack of argument, contending that he has fulfilled his duty on appeal by simply designating the documents...