IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of: )

NATHAN BROWN III, )

Appellant, )

and )

Ml K. BROWN, )

Respondent. )

DIVISION ONE

No. 71398-1-1

UNPUBLISHED OPINION

FILED: June 15, 2015

Dwyer, J.—Nathan Brown appeals the dismissal of his petition for a

parenting plan modification as a sanction, as well asthe imposition of terms, for

his failure to comply with the court's case scheduling orders. Because hefails to

establish any error orabuse of discretion in the trial court's rulings, we affirm.

Because his appeal isfrivolous, 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 ordersfinding 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 bytelephone for a pretrial conference, butfailed to file

any pleadings required bythe ordersetting 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 forterms 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 complywith the scheduling orders, but explained that he

believed the case was simple, that the onlywitnesses 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 courtfound
No. 71398-1-1/3

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 courtordersfor abuse ofdiscretion. Apostolis v. City of

Seattle, 101 Wn. App. 300, 303-04, 3 P.3d 198 (2000) (trial court "mayimpose

such sanctions as itdeems appropriate for unexcused violations of its scheduling

orders"); Woodhead v. Discount Waterbeds, Inc., 78Wn. 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"). Atrial court

abuses its discretion only if its decision is manifestly unreasonable or exercised

on untenable grounds orfor untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.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 Wn. App. at 304; Woodhead, 78 Wn. 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 isjustified 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
No. 71398-1-1/4

Wn. App. at 304; Woodhead. 78 Wn. App. at 130. Disregard of a court order

without reasonable excuse or justification is deemed willful. Rivers v. WashState Conference of Mason Contractors, 145 Wn.2d 674, 686-87, 41 P.3d 1175

(2002); Apostolis, 101 Wn. App. at 304; Woodhead, 78 Wn. 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, 67Wn. App. 755, 759, 840

P.2d 223 (1992), rev'd on other grounds, 123 Wn.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 groundsfor imposition of sanctions, including dismissal, or
No. 71398-1-1/5

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 Wn. App.

777, 789-99, 6 P.3d 583 (2000), affd, 144 Wn.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 Wn. 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 paytermsfor 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 Wn. App.

at 132-33 (rejecting argumentthat client should not be held accountable for

attorney's failure to complywith 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 Wn. 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 ofthe 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 Wn.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 properlysegregate the fees she incurred
No. 71398-1-1/7

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 Wn. App. at 134

(rejecting cases requiring findings regarding amount ofsanction 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 herindependent

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

isfrivolous. RAP 18.9. An appeal isfrivolous 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 Wn.2d 427, 443, 730 P.2d 653 (1986).

Nathan's appeal presents no debatable issues. Mi is entitled to an award offees

and costs on appeal, subject to her compliancewith RAP 18.1. Upon such

compliance, a commissioner ofthis courtwill enter an appropriate order.
No. 71398-1-1/8

Affirmed.

We concur:

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