Ahmad v. Town of Springdale
Ahmad v. Town of Springdale
Opinion of the Court
¶1 Dawud Ahmad,
FACTS
¶2 The following facts derive primarily from the trial court’s findings of fact that are unchallenged and, therefore, verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). For background, in 2006, the town adopted the International Building Code (IBC) after Washington adopted the IBC as the state building code. RCW 19.27.031. Muslim America owned real property at North 610 Main Street in Spring-dale, where Mr. Ahmad resided in a home with outbuildings. One outbuilding, a shed without a foundation, sanitation facilities, or utilities, was apparently used at relevant times as living quarters for Mr. Imán. Mr. Hatem identifies himself as secretary general for Muslim America and authorized as counsel to practice Islamic law.
¶3 The town issued an unsafe structure notice at North 610 Main Street to Mr. Ahmad, Dawud Ahmad & Associates, noting an occupied outbuilding violated the building
¶4 After answering the writ applications, the town’s counsel discovered Muslim America owned the property and the shed and moved to join Muslim America as a necessary party. Mr. Ahmad objected on behalf of Muslim America, arguing Muslim America refused to be joined because it was not a necessary party, and because joinder violated exercise of religion principles. The court disqualified Mr. Ahmad, a nonlawyer, from representing Muslim America and struck his pleadings. In June 2010, attorney Robert Simeone made a limited appearance for the sole purpose of filing Muslim America’s refusal to be joined as a necessary party and the same day he withdrew. The trial court granted the joinder. Muslim America did not seek reconsideration or review of the joinder order, and it failed to file an affidavit or present evidence of its status as a nonprofit corporation or its beneficial interest in support of the writ applications.
¶5 At the writ applications hearing, Mr. Ahmad argued if the town issued a code violation or tried to enforce the code against him or Muslim America’s property, they could (as a remedy) “knock down the ordinance by a constitutional challenge in the infraction court.” Report of Proceedings (July 9, 2010) at 38. Muslim America did not appear for the
¶6 The individual plaintiffs appealed to the Washington Supreme Court. The town requested attorney fees and costs based on frivolous action. Muslim America did not respond. The trial court awarded the town attorney fees and costs, finding the individual plaintiffs and Muslim America had failed to support the writ claims with any rational argument. The individual plaintiffs then amended their appeal notice to include an assignment of error to attorney fees; Muslim America then separately appealed solely the attorney fees award. After consolidating the direct appeals and denying direct review, the Supreme Court transferred the matter to this court.
ANALYSIS
A. Jurisdiction and Standing
¶7 The issue is whether the trial court erred in exercising jurisdiction over the writ applications and in denying the individual plaintiffs standing to assert the applications for and act on behalf of Muslim America in resisting its joinder as a necessary party.
¶8 We review standing and jurisdiction issues de novo. Knight v. City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011) (standing); Young v. Clark, 149 Wn.2d 130, 132, 65 P.3d 1192 (2003) (jurisdiction).
¶10 Next, regarding standing, a party waives a standing issue by not raising it at trial. State v. Cardenas, 146 Wn.2d 400, 404-05, 47 P.3d 127, 57 P.3d 1156 (2002). The individual plaintiffs failed to argue standing below. Moreover, corporations appearing in court must be represented by an attorney; the individual plaintiffs appearing pro se fail to meet this requirement. Cottringer v. Emp’t Sec. Dep’t, 162 Wn. App. 782, 787, 257 P.3d 667, review denied, 173 Wn.2d 1005 (2011).
¶11 Mr. Imán and Muslim America next argue the court erred in joining Muslim America as a necessary party under CR 19. But, Muslim America’s appeal of the attorney fees award does not bring up for review the joinder order, and the individual plaintiffs fail to support their passing reference to a “coerced joinder” with any authority or legal argument. And, an appeal of an award of attorney fees does not bring up for review the merits of an underlying decision not timely appealed. Bushong v. Wilsbach, 151 Wn. App. 373, 376-77, 213 P.3d 42 (2009). Thus, we need not consider this claim. RAP 2.4(b); Cowiche Canyon Conservancy, 118 Wn.2d at 809.
¶12 Nevertheless, a person who is subject to service of process and whose joinder will not deprive the court of
B. Writ Applications
¶13 The individual plaintiffs contend the trial court erred in denying their writ applications. They argue the court should have exercised equity to grant the writ applications, prohibit the town from enforcing its building code, and mandate the town to enact and apply an exemption to the building code to Muslim America’s property.
¶14 A writ of mandamus requires a state official “to comply with law when the claim is clear and there is a duty to act.” RCW 7.16.160; Paxton v. City of Bellingham, 129 Wn. App. 439, 444, 119 P.3d 373 (2005) (citing In re Pers. Restraint of Dyer, 143 Wn.2d 384, 398, 20 P.3d 907 (2001)). Mandamus is an extraordinary remedy not available when there is a “plain, speedy and adequate remedy in the ordinary course of law.” RCW 7.16.170; Paxton, 129 Wn. App. at 444-45. A writ of mandamus will not issue where an act to be performed is a discretionary act. State ex rel. Heavey v. Murphy, 138 Wn.2d 800, 805, 982 P.2d 611 (1999).
¶16 We review the superior court’s determination as to the availability of an adequate remedy at law for abuse of discretion. River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). We do not disturb the court’s decision “unless the superior court’s discretion was manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Id.
¶17 Under chapter 19.27 RCW the town had the legal authority and duty to pass and enforce the IBC. Thus, it was not acting in excess of its jurisdiction in sending the unsafe structure notice. Whether to enact an exemption for buildings used by Muslim America was a discretionary matter for the town council to decide under RCW 19.27-.042(1). This statute provides, “[T]he legislative authorities of cities . . . may adopt an ordinance or resolution to exempt from state building code requirements buildings whose character . . . has been changed ... to provide housing for indigent persons.” (Emphasis added.) A writ of mandamus cannot compel a discretionary act, and Mr. Iman failed to name a state officer relating to their application for writ of mandamus. The individual plaintiffs seemingly conceded a remedy at law exists for them when Mr. Ahmad argued it could appeal any enforcement proceeding against them or Muslim
C. Costs and Attorney Fees
¶18 The issue is whether the trial court erred in granting the town’s request for costs and attorney fees under RCW 4.84.185. Mr. Imán and Muslim America contend the action was not frivolous.
¶19 A court may award attorney fees only when authorized by a contract, a statute, or a recognized ground in equity. Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 70, 847 P.2d 440 (1993). Here, the town sought an award of reasonable attorney fees and costs under RCW 4.84.185, which allows attorney fees to the prevailing party in defending against a frivolous action. The purpose of RCW 4.84.185 is to discourage abuse of the legal system by providing for award of expenses and legal fees to any party forced to defend itself against meritless claims asserted for the purposes of harassment, delay, nuisance, or spite. Biggs v. Vail, 119 Wn.2d 129, 134-36, 830 P.2d 350 (1992).
¶20 The standard of review for attorney fees in frivolous lawsuits is abuse of discretion, examining the trial court’s decision whether a case, taken as a whole, is advanced without reasonable cause. RCW 4.84.185; State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998). Under this standard, we will reverse a trial court’s decision only where the trial court’s granting of attorney fees is untenable or manifestly unreasonable. Ermine v. City of Spokane, 143 Wn.2d 636, 641, 23 P.3d 492 (2001).
¶21 A judge is to consider all evidence presented at the time of the motion to determine whether the action
¶22 Here, the writs were advanced without reasonable cause. Individual plaintiffs failed to assign error to the findings of fact either in the writ action or in the order for attorney fees. Individual plaintiffs assert their action was not frivolous because they raised possibly valid constitutional free exercise claims. But no building code enforcement against individual plaintiffs is before us. And, considering Mr. Ahmad’s writ hearing argument, he was aware a plain, speedy, and adequate remedy at law is available to resist an enforcement action.
¶23 Muslim America argues it was wrongly ordered to pay attorney fees considering it was an unwilling participant in the individual plaintiffs’ writ applications. Muslim America, however, did not appeal its joinder; it appealed solely the attorney fee costs award. As noted, an appeal of an award of attorney fees does not bring up for review the merits of an underlying decision not timely appealed. Bushong, 151 Wn. App. at 376-77. Moreover, Muslim America did not respond to the town’s request for attorney fees. An objection would have given the trial court an opportunity to address the issue and correct any possible errors. See Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983) (the reason issues may not be raised for the first time on appeal is to afford the trial court an opportunity to correct errors, thereby avoiding unnecessary appeals). By comparison, a defendant waives the right to assert an affirmative defense by failing to raise the defense below. In re Rapid Settlements, Ltd., 166 Wn. App. 683, 695, 271 P.3d 925 (2012). Therefore, we decline review.
¶24 In sum, the writ actions were not supported by rational argument on the law or the facts. Because an
¶25 Citing RAP 18.9 and RCW 4.84.185, the town requests an award of its attorney fees and costs for defending a frivolous appeal. An appeal is frivolous if it raises no debatable issues on which reasonable minds might differ and it is so totally devoid of merit that no reasonable possibility of reversal exists. Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 619, 94 P.3d 961 (2004) (citing Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980)).
¶26 The individual plaintiffs and Muslim America raise issues under article I, section 11 of the Washington Constitution, the First Amendment to the United States Constitution, and the federal Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, 2000cc-5. Since discretion assumes that two decision-makers may reach a different outcome, the Court of Appeals and trial court remain free to decide differently as to whether the same claims are frivolous. Ermine, 143 Wn.2d at 650. Because we cannot say the individual plaintiffs’ religious and federal based appeal arguments are entirely frivolous, we exercise our discretion and deny the town’s RCW 4.84.185 attorney fee request.
¶27 The town as prevailing party is entitled to costs predicated upon compliance with RAP 14.4.
¶28 Affirmed.
Mr. Ahmad died in May 2012.
Dissenting Opinion
¶29 (dissenting) — Muslim America did nothing to further this litigation or otherwise impose costs to the town of Springdale. Thus, the trial court erred in imposing sanctions against Muslim America. Muslim America also was free to challenge the joinder decision in
¶30 Appealability of the Joinder Ruling. Respondent argues that Muslim America lacks the ability to challenge the joinder ruling under RAP 2.4(b). The plain language of that rule proves otherwise. The critical final sentence of that rule states:
A timely notice of appeal of a trial court decision relating to attorney fees and costs does not bring up for review a decision previously entered in the action that is otherwise appealable under rule 2.2(a) unless a timely notice of appeal has been filed to seek review of the previous decision.
RAP 2.4(b) (emphasis added).
¶31 Counsel for respondent quite properly agreed at oral argument that the joinder order was not appealable as a matter of right. A joinder ruling is not an appealable order. RAP 2.2(a) lists 13 classes of rulings that are appealable as a matter of right; joinder of a party is not included within any of those categories. Thus, under the plain terms of the underlined language of RAP 2.4(b), the bar on fee rulings bringing up other appealable decisions is inapplicable to this situation. Muslim America could not appeal the joinder order but was free to challenge that ruling once there was an order from which it could
¶32 Sanction Order. Muslim America was sanctioned for something it did not do. The decision affirming that ruling stands our frivolous litigation statute on its head. For that
¶33 RCW 4.84.185 provides that in a civil proceeding where the judge finds that an action, claim, or defense “was frivolous and advanced without reasonable cause,” the court may require payment to the prevailing party of its reasonable expenses, including attorney fees “incurred in opposing such action.” The two quoted provisions state the operative aspects of this case: (1) the frivolous action must be advanced without cause and (2) reimbursement is for the expenses incurred in opposing the action. Muslim America did nothing to advance the case, and Springdale’s expenses were not incurred by opposing anything Muslim America did. There is no basis for sanctioning Muslim America.
¶34 Washington courts have consistently applied the statute in accordance with the basic principle that it reimburses a party for the costs of frivolous litigation imposed on it by another party. E.g., Skimming v. Boxer, 119 Wn. App. 748, 756, 82 P.3d 707 (2004). If there was some evidence that Muslim America had done something to cause this litigation, or evidence of agency or a similar respondeat superior type of liability, then it would be possible to uphold the trial court’s order. However, there is no such evidence in this record and respondent has never claimed otherwise.
¶35 Instead, the record clearly reflects, and the parties certainly agree, that Muslim America took no part in this litigation other than a brief one day appearance to file an objection to the joinder. It did nothing to advance the litigation. Springdale incurred no costs because of Muslim America. For both reasons, the statutory requirements for imposing a fee award under RCW 4.84.185 were not met
¶36 I respectfully dissent.
Reconsideration denied February 6, 2014.
Review granted for petitioner Muslim America at 180 Wn.2d 1013 (2014); order rescinded and review dismissed September 4, 2014.
Although the order denying the writs was appealable and would have brought up the joinder ruling, Muslim America could not have appealed from that ruling because it was not an aggrieved party as it did not oppose the ruling. RAP 3.1 (“Only an aggrieved party may seek review by the appellate court.”).
Because the statute is inapplicable to Muslim America in this case, I do not reach the difficult constitutional questions that would arise from involuntarily adding a religious organization to a lawsuit and then sanctioning it for being there.
Reference
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- Dawud Ahmad v. The Town of Springdale
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