IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MUFFIN ANDERSON, )
) No. 75174-3-1
Appellant, )
) DIVISION ONE ••
V. ) CJ1
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(
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SUSAN LARSEN, ) UNPUBLISHED OPINION
)
Respondent. ) FILED: October 2, 2017
)
BECKER, J. — The trial court did not abuse its discretion in denying
appellant's requests for a stay or relief under CR 60(b) because she has not
shown how her alleged illness impacted or impeded her ability to prosecute her
case. We affirm.
Appellant Muffin Anderson is a Seattle homeowner. She sued her next
door neighbor, respondent Susan Larsen, in summer 2015. She alleged claims
for trespass, encroachment on her property, malicious erection of a spite fence,
and emotional distress. Anderson filed her complaint pro se and has
represented herself through the entire proceedings, including this appeal.
Anderson states that she suffered a stroke on September 1, 2015. She
made at least nine filings between September 2015 and March 2016 for the
purpose of seeking a continuance due to this stroke. She filed several motions to
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stay or to stop proceedings and letters from her doctors. Meanwhile, Larsen
moved for summary judgment.
The court held a hearing on March 18, 2016. The trial court granted
Larsen's motion for summary judgment and denied Anderson's request for a
stay. The court explained that it was denying Anderson's request for a stay
because the evidence she submitted was insufficient and because she had not
been prejudiced in her ability to pursue the case:
But at one point, Ms. Anderson had asked for a... stay of the
proceedings. And she had asserted that she had some health
concerns going on, and she attached a letter that was purported to
be from her doctor's office.
. . . The letter. .. in relevant part, said, my client feels that
she can't maintain this lawsuit and . .. therefore, she's asking that it
be stayed. 1 just thought that information. .. was not sufficient, and
that's why I denied the motion to stay.
... I would also note for the record that Ms. Anderson has
asserted that she's had some health issues and that, because of
that, she's requested a stay.
The .. . record also is going to support the fact that, despite
Ms. Anderson saying that she has health concerns, that actually
has not stopped her from filing motions. It hasn't stopped her from
filing a response that includes. .. a number of different documents
to the defense motion for summary judgment.
So as to whether an actual stay is warranted in this case,. ..
it doesn't seem like it's warranted because Ms. Anderson does not
appear to have been at all prejudiced in her ability to pursue this
action.
Anderson thereafter filed several motions for relief: for a new trial, to
strike the summary judgment order and stay proceedings under CR 60(b)(1) and
(9), to seal medical documents, and to vacate the order of dismissal and stay
proceedings. The court denied these motions on April 6, 2016.
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On April 12, 2016, Anderson filed a motion "to reschedule trial," alleging
that she was a "person of unsound mind" under CR 60(b)(2). The court denied
this motion the same day it was filed.
On April 19, 2016, Anderson filed seven separate notices of appeal from
the two Orders of March 18, three orders of April 6, the order from April 12, and
an earlier February order denying her motion to vacate and stay.
It appears that not all of Anderson's notices of appeal were timely. A
notice of appeal must be filed in the trial court within 30 days after the entry of the
decision of the trial court that the party filing the notice wants reviewed. RAP
5.2(a). An appeal from the motion to vacate does not bring the final judgment up
for review or extend the time for a notice of appeal. RAP 2.4(c); RAP 5.2(e).
Anderson filed all of her notices of appeal on April 19. Therefore, it appears that
only the notices of appeal from the orders on April 6 and 12 were timely. Even if
we assume all of Anderson's notices of appeal were timely, however, we would
still deny her appeal for the reasons explained below.
As a threshold matter, Larsen argues that we should reject Anderson's
appeal because her brief does not provide assignments of error or cite to the
record or legal authority. See RAP 10.3(a). Anderson does not provide
assignments of error, but she does refer to some evidence in the record and to
legal authority, including cases, statutes, and a court rule. Although Anderson's
brief is inept, we have accepted it.
We review the trial court's decision under CR 60(b)(1),(2), and (9)for
abuse of discretion. In re Marriaae of Tang, 57 Wn. App. 648, 653, 789 P.2d 118
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(1990). We will not overturn the decision unless the trial court exercised its
discretion on untenable grounds or for untenable reasons. Tang, 57 Wn. App. at
652. An appeal from the denial of a CR 60(b) motion is not a substitute for an
appeal and is limited to the propriety of the denial, not the impropriety of the
underlying order. Bjurstrom v. Campbell, 27 Wn. App. 449,450-51, 618 P.2d
533(1980). We also review a trial court's denial of a motion to continue a
summary judgment proceeding for an abuse of discretion. Barkley v. GreenPoint
Mortg. Funding, Inc., 190 Wn. App. 58, 71, 358 P.3d 1204 (2015), review denied,
184 Wn.2d 1036 (2016).
"On motion and upon such terms as are just, the court may relieve a party
. . . from a final judgment, order, or proceeding for the following reasons:.. .(1)
mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a
judgment or order;(2)for erroneous proceedings against a... person of
unsound mind, when the condition of such defendant does not appear in the
record, nor the error in the proceedings;. . .[or](9) unavoidable casualty or
misfortune preventing the party from prosecuting or defending." CR 60(b)(1),(2)
and (9).
On appeal, Anderson attacks the court's denial of a stay. She claims she
was denied the opportunity to have her case heard or was denied a full and fair
hearing on the merits of her claim because she had a stroke and could not
participate in the proceedings.
In its oral ruling, the trial court explained that it was denying Anderson's
request for a stay because the evidence she submitted was insufficient and
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because she had not been prejudiced in her ability to pursue the case. These
reasons are not untenable. They are supported by the record, which shows that
Anderson participated in the proceedings during the time period she alleges she
was incapacitated. As mentioned, she made at least nine filings during this time.
Anderson has not explained how her alleged illness impacted or impeded
her ability to prosecute her case. She has not shown that she was prevented
from prosecuting or that her mind was unsound. CR 60(b)(2) and (9). Nor has
she shown that there was a mistake, excusable neglect, or an irregularity in
obtaining the orders granting summary judgment and denying a continuance.
CR 60(b)(1). The trial court did not abuse its discretion in denying Anderson's
request for relief under CR 60(b) or her request for a stay.
Anderson also contends that the trial court refused her medical reports or
refused to seal the medical reports. The court did accept and consider the letters
from Anderson's doctors written to the court. The record reflects that Anderson
also sent what she described as confidential medical documents directly to the
court, but the court returned the documents to her unread because Anderson did
not want the opposing party to see the documents. Anderson has not explained
how this return of medical documents was improper, given her refusal to show
them to the opposing party.
Larsen requests an award of attorney fees because, she argues,
Anderson's appeal is so devoid of merit that it is frivolous. We agree. An appeal
is frivolous "if no debatable issues are presented upon which reasonable minds
might differ, and it is so devoid of merit that no reasonable possibility of reversal
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exists." Chapman v. Perera, 41 Wn. App. 444, 455-56, 704 P.2d 1224, review
denied, 104 Wn.2d 1020 (1985); see also ROW 4.84.185. By this standard,
Anderson's appeal is frivolous. Larsen's request for attorney fees is granted,
subject to compliance with RAP 18.1(d).
Affirmed.
WE CONCUR:
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Muffin Faye Anderson v. Susan A. Larsen
Combined Opinion