INTHE COURT OF APPEALS OF THE STATE OFWASHINGTON PAUL KING, No. 67759-4-1 Appellant, DIVISION ONE
v. STEVE RICE and BARBARA RICE, individually and the marital community thereof, dba SUNLIGHT CONSTRUCTION, Respondent. 

### UNPUBLISHED OPINION, , r>

FILED: June 10, 2013 U1 Appelwick, J. — King failed to note his tort claims against Rice for trial for


### over two years after this court remanded the matter to the trial court. Rice requested dismissal for want of prosecution pursuant to CR 41(b)(1). On the facts here, application of CR 41(b)(1) is mandatory. We affirm the trial court's 

### dismissal of King's claims. We also grant Rice's requestforattorneyfees.
FACTS 

### Paul King filed an action for damages based on the destruction of a modular living unit on a parcel of real property King sold to Steve and Barbara Rice (Rice) in 2004. This court reversed the trial court's summary judgment 

### orderdismissing King's complaint and remanded for further proceedings in King v. Rice. 146 Wn. App. 662, 191 P.3d 946 (2008). This court issued the mandate inJuly 2009. 

### On July 29, 2011, Rice filed a motion to dismiss for want ofprosecution under CR 41(b)(1), noting a hearing with oral argument for August 17. On August 15, King filed a response to Rice's motion to dismiss, as well as a _—' T- ,- .No. 67759-4-1/2

"MOTION TO ENTER JUDGMENT ON REMAND," and a "MOTION TO SET A 

### NEW TRIAL SCHEDULE." In support of his response, King filed his own declaration and the declaration of Roger Knight, who described himself as King's "long time assistant." In his response, King argued that (1) the case was 

### originally noted fortrial in November 2006; (2) Rice caused the delay byfiling a summaryjudgment motion which was granted and then ultimately reversed on appeal; (3) Rice caused further delay byengaging inabusive collection practices 

### forcing King to file for bankruptcy; (4) King was precluded by the bankruptcy action from acting inthe case untilJanuary 2011; (5) King "contacted the clerk's office several times to get a new case schedule;" and (6) King had noted his motion for a newtrial for consideration withoutoral argumenton August 31, 2011. King did not appear atthe hearing on Rice's motion to dismiss on August 17, 2011. Knight appeared and informed the court that King was incarcerated and that Knight had rubberstamped King's signature on the motion papers with King's authorization. The trial courtdid not allow Knight to argue on King's behalf. In its written order granting Rice's motion and dismissing King's claims without prejudice, the trial courtfound: Although a motion to set new trial schedule (sub 304) is on file, and noted for August 31, 2011, the court notes it is "rubberstamped" and thus in violation of CR 11. The court finds that Mr. King has not noted this matterfor trial perCR 41(b)(1), and therefore he has not "cured" any reasons to avoid involuntarydismissal.No. 67759-4-1/3


### Thetrial court denied King's motionforreconsideration.1 King appeals.
DISCUSSION 

### Where the provisions of CR 41(b)(1) apply, dismissal for want of prosecution "is mandatory; there is no room for the exercise of a trial court's discretion." Snohomish County v. Thorp Meats. 110 Wn.2d 163, 167, 750 P.2d 

### 1251 (1988). In ruling on a motion to dismiss under CR 41(b)(1), "the trial court may not generally consider the merits of the case nor the hardship which application ofthe rule maybring." Id. CR 41(b) provides: For failure ofthe plaintiff to prosecute or to comply with these rules or any order ofthe court, a defendant may move for dismissal ofan action or ofany claim againsthim orher. (1) WantofProsecution on Motion ofParty. Any civil action shall be dismissed, without prejudice, for want of prosecution wheneverthe plaintiff,counterclaimant, cross claimant, or third party 

### plaintiffneglects to note the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after 10 days' notice to the adverse party. Ifthe case is noted for trial before the hearing on the motion, the action shall not be dismissed. "The circumstances mandating dismissal are: (a) the matterhas not been notedfor trial or hearing within 1 year after any issue of law orfact has beenjoined and (b) the failure to note the matter was not caused by the party moving for dismissal." Polello v. Knapp, 68 Wn. App. 809, 815, 847 P.2d 20 (1993). For the purposes of



### 1King assigns error to the denial of hismotion forreconsideration, butoffers no separate argument in support of his assignment. We therefore do not address it. See RAP 10.3(a)(4), (6).No. 67759-4-1/4


### CR41(b)(1),"an issue of law or fact is joined when, among other circumstances, a

case is remanded from an appeal." Bus. Servs. of Am. II, Inc. v. WaferTech, LLC, 

### 174 Wn.2d 304, 310, 274 P.3d 1025 (2012). "[T]hefinal sentence of CR 41(b)(1)
means precisely what it says, a case shall not be dismissed for want of prosecution if it is noted for trial before the hearing on the motion to dismiss." Thorp Meats. 110Wn.2d at 167. While both parties have filed lengthy briefs discussing matters outside the record and allegations ofmisconduct not directly relevantto the dismissal orderon appeal, our review is limited to whether the provisions of CR 41(b)(1) apply, 

### making dismissal mandatory.2 Whethera courtrule applies to thefacts in a case is a question oflawthatwe review de novo. Wiley v. Rehak, 143 Wn.2d 339, 343, 20P.3d404(2001). King argues that his claims against Rice cannot be considered as "joined" for purposes ofthe 1 yeartime limit of CR 41(1)(b) until his bankruptcy case was dismissed in December 2010. He claims that he was unable to note the matterfor trial while his bankruptcy case was pending based on the automatic stay provisions of 11 U.S.C. § 362(a). But, the bankruptcy stay does not apply to an action brought by, rather than against, a debtor and does not prevent the


### 2Rice has filed a motion to strike verbatim reports of proceedings of hearings held inJanuary and February 2010 provided by King, based on alleged violations ofvarious court rules. But, even ifthe reports were properly considered, they do 

### not support King's claim that Rice caused the failure to note the matter for trial. Rice has also filed a motion to supplementthe record with various documents to 

### demonstrate misconduct on King's part. But, the documents are not directly relevantto our review of trial court's dismissal pursuantto CR41(1)(b). We deny Rice's motions.No. 67759-4-1/5 

### application of CR 41(b)(1). Polello. 68 Wn. App. at 813 (automatic stay of 11 U.S.C. § 362(a) did not apply to debtor's personal injury suit against anotherparty and dismissal underCR 41(b)(1) was mandatorywhere conditions were met); see also. In re White v. Citv of Santee. 186 B.R. 700, 704 (9th Cir. 1995) (automatic 

### stay does not prevent trustee or debtor in possession from prosecuting action initiated bydebtorand pending attime ofbankruptcy). Here, King's tort claims against Rice werejoined forthe purposes of CR 41 (b)(1) when this court remanded the case to the superior court and issued the mandate inJuly 2009. Bus. Servs. of Am. II, 174 Wn.2d at 310. It is undisputed that King did not note the matterfor trial before Rice filed the motion to dismiss in July 2011. Thus, the matter had been joined for more than one year without having been notedfor trial. Kingalso claims thatCR 41(b)(1) does not apply, because Rice caused the 

### delay. King claims that Rice initiated "supplemental proceedings" following remand inan improperattemptto collecton certainjudgmentamounts, forcing him 

### to filebankruptcy. But, King does not claim, and the record does not indicate, that his ability to note the matterfor trialwas somehow conditioned on his payment of any judgment claimed by Rice or prevented by any supplemental proceedings initiated by Rice afterthe remand. Cf., State ex rel. Dawson v. Superior Court for Kittitas County. 16 Wn.2d 300, 304, 133 P.2d 285 (1943) (where defendant caused court to enter order staying proceedings until plaintiff made certain 

### payments, defendant was precluded from moving to dismiss for want of prosecution under rule predating adoption of CR 41(b)(1)). And, King provides noNo. 67759-4-1/6 

### explanation for his failure to note the matter for trial for eight months after his bankruptcyproceedingswerefinally dismissed. Kingfails to demonstratethatRice causedthedelay. Kingdoes not claim that he noted the matterfor trial before the hearing on Rice's motion to dismiss. Instead, King claims that the trial court erred in its determination that his motion to set a new trial schedule was filed in violation ofCR 11. He argues that the exception in CR 41(b)(1) "would have [been] triggered" if the motion had been granted. CR 11(a) provides inpertinentpart: Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney ofrecord in the attorney's individual name, whose address and Washington State BarAssociation membership number shall be stated. Apartywho is not represented by an attorney shall sign and 

### date the party's pleading, motion, or legal memorandum and state the party's address.
... If a pleading, motion, or legal memorandum 

### is notsigned, it shall be stricken unless it is signed promptly afterthe omission is called to the attention of the pleader or movant. If a 

### pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction. 

### Individuals appearing incourton behalfofanotherparty mustbe licensedto 

### practice law. Llovd Enters., Inc. v. LonqviewPlumbing & Heating Co.. 91 Wn. App. 697, 701, 958 P.2d 1035 (1998). The right to pro se representation is narrow, 

### limited,and personal. Statev. Hunt, 75 Wn. App. 795, 805, 880 P.2d 96 (1994). A grant of a power of attorney does not authorize a person to appear in court on behalfofanotherparty. Jd.No. 67759-4-1/7


### It is undisputed that Knight is not licensed to practice law, that King did not sign the motion papers requesting a trial schedule, and that Knight "rubberstamped" King's signature on the motion papers. Accordingly, the motion 

### papersviolated CR 11's requirementthat a pro se party "shall sign" the motion.3 King claims that he was entitled to an opportunityto remedy his omission and the
trial court should have continued the matter "for one ortwo weeks" to allow him an opportunity to sign the papers. But, where, as here, the plaintiff fails to note a matterfor trial before the hearing on a motion to dismiss pursuantto CR 41(b)(1), dismissal is mandatory and it is errorto grant additional timefor a partyto notethe lawsuit for trial. Polello, 68 Wn. App. at 817 (where conditions for mandatory dismissal were met, trial court erred by granting plaintiffadditional two weeks to note matter for trial). Because the trial court correctly found that King had not noted the matterfor trial before the hearing on Rice's motion to dismiss, dismissal
was mandatory pursuantto CR 41(b)(1). Rice requests attorney fees under RAP 18.1 based on the underlying 

### purchase and sale agreement providing, "If Buyer or Seller institutes suit against the other concerning this agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses." Rice also relies on the provision in the escrow agreement stating, "If you are the prevailing party in any action or proceeding 

### between you and some or all of the parties to this escrow, you shall be entitled to all costs, expenses, and reasonable attorney's fees expended or incurred in


### 3Kingfails toidentifyanyrelevantWashington authority supporting hisclaimthat CR 11 allows a pro se party to authorize a nonlawyerto sign on his or her behalf.No. 67759-4-1/8


### connection therewith." As the prevailing party, Rice is entitled to receive fees on appeal. Affirmed.



### T WE CONCUR: 

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