Carl Cook, V. Curtis Alan Thompson

• Court: Court of Appeals of Washington
• Decided: November 21, 2022
• Docket: 83505-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CARL COOK, No. 83505-0-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CURTIS ALAN THOMPSON,

Respondent.

DÍAZ, J. — Carl Cook appeals from the trial court’s denial of his petition for

an antiharassment protection order. Cook does not establish that the trial court

abused its discretion in denying the petition. Therefore, we affirm.

I. FACTS

Cook and Curtis Thompson are former friends and own neighboring

properties in Everett. Thompson resides at his property (Thompson Property), and

Cook describes his as a “jobsite” for a housing development. Cook and Thompson

were parties to a now concluded legal dispute over Cook’s failed attempts to claim

ownership of and evict Thompson from the Thompson Property (Property Dispute).

In the Property Dispute, Cook claimed that he took ownership of the

Thompson Property via a trustee’s sale. In December 2020, the Snohomish

County Superior Court ruled against Cook in the Property Dispute, finding that

Thompson owned the Thompson Property, that the trustee’s sale was invalid, and

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83505-0-I/2

that Cook lacked standing to evict Thompson. 1

In October 2021, Cook petitioned for an antiharassment protection order

against Thompson. In support of his petition, Cook alleged that on September 20,

2021, he “walked over to the [Thompson P]roperty from [his] housing development

next door to take pictures,” as he did “on a monthly basis to document the state of

the [Thompson P]roperty.” He attested that he “found that the garage door was

unlocked so [he] lifted it open and took a picture.” He alleged that “[s]econds later[,]

Mr. Thompson came rushing out of the door on the left inside the garage, saying

‘You’re dead’, coming right at [Cook] with a baseball bat and started whanging,

whanging on [Cook’s] head,” striking him several times with the baseball bat. He

also alleged that Thompson had harassed him by “[f]iling DFI case,” “standing at

front of property yelling abuse,” and calling a project inspector and “yelling

obscenities close to [Cook’s] face in front of” the inspector.

Thompson responded and attested that, on September 20, 2021, he was in

his home when he heard a noise coming from the garage. When he went to

investigate, he saw that Cook had opened the garage door and was inside.

According to Thompson, when he asked Cook what he was doing, Cook grabbed

a baseball bat and looked like he was going to attack Thompson, so Thompson

attempted to take the bat and it was during the ensuing struggle that Cook got

injured. Thompson also attested that in the year since the superior court’s ruling

1 This court later affirmed the superior court. See Cook v. Thompson, No. 82152-1-I, slip op. at 1 (Wash. Ct. App. Nov. 8, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/821521.pdf, review denied, 199 Wn.2d 1011 (2022).

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against Cook in the Property Dispute, Cook had continued to claim he owned the

Thompson Property and had repeatedly trespassed thereon.

Following a hearing, a commissioner denied Cook’s petition, determining

that harassment had not been proven by a preponderance of the evidence. A

superior court judge then summarily denied Cook’s motion for revision. Cook

appeals pro se.

II. DISCUSSION

A. Standard of Review and Legal Standards

When an appeal is taken from an order denying revision of a court

commissioner’s decision, we review the superior court’s decision, not the

commissioner’s. In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573

(2010). Where, as here, the superior court simply denies revision, we treat the

court as having adopted the commissioner’s findings, conclusions, and rulings as

its own. Grieco v. Wilson, 144 Wn. App. 865, 877, 184 P.3d 668 (2008).

“[I]f the court finds by a preponderance of the evidence that unlawful

harassment exists, a civil antiharassment protection order shall issue prohibiting

such unlawful harassment.” Former RCW 10.14.080(3) (2019). 2 “‘Unlawful

harassment’ means a knowing and willful course of conduct directed at a specific

person which seriously alarms, annoys, harasses, or is detrimental to such person,

2 The legislature repealed RCW chapter 10.14 effective July 1, 2022, as

part of legislation that reorganized various civil protection order statutes into a new RCW chapter. See LAWS OF 2021, ch. 215, §§ 1, 170(64)-(93); see also chapter 7.105 RCW. Because that legislation was not yet in effect at the time of the proceedings below, we refer herein to the relevant, but since repealed, statutes as if still in effect.

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and which serves no legitimate or lawful purpose.” Former RCW 10.14.020(2)

(2011). “‘Course of conduct’ means a pattern of conduct composed of a series of

acts over a period of time, however short, evidencing a continuity of purpose.”

Former RCW 10.14.020(1) (2011).

We review a trial court’s decision whether to grant an antiharassment

protection order for abuse of discretion. See Trummel v. Mitchell, 156 Wn.2d 653,

669-70, 131 P.3d 305 (2006) (reviewing modifications to an antiharassment order

for abuse of discretion). The trial court abuses its discretion when its decision is

manifestly unreasonable, or when it exercises its discretion on untenable grounds

or for untenable reasons. In re Parentage of T.W.J., 193 Wn. App. 1, 6, 367 P.3d

607 (2016).

B. Protection Order Denial

Cook raises several challenges to the trial court’s denial of his petition for

an antiharassment protection order, but he fails to show an abuse of discretion.

Cook first contends that the trial court erred to the extent it considered the

Property Dispute in deciding whether to grant Cook’s petition. But in determining

whether an alleged course of conduct “serves no legitimate or lawful purpose” such

that it may constitute unlawful harassment, see former RCW 10.14.020(2), the

court should consider multiple factors, including (1) whether “[a]ny current contact

between the parties was initiated by the respondent only or was initiated by both

parties”; (2) whether “[t]he respondent is acting pursuant to any statutory authority,

including . . . acts which are reasonably necessary to . . . [p]rotect

property . . . interests”; and (3) whether “[t]he respondent’s course of conduct has

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the purpose or effect of unreasonably interfering with the petitioner’s privacy or the

purpose or effect of creating an intimidating, hostile, or offensive living environment

for the petitioner.” Former RCW 10.14.030 (1987).

Here, it is undisputed that the parties’ confrontation on September 20, 2021

began with Cook photographing the Thompson Property and opening the garage

door. Thus, whether the Thompson Property belonged to Cook or Thompson and

the reasonableness of Cook’s belief that the property was his were relevant to the

above factors. 3 If, on the one hand, Cook owned the Thompson Property and

Thompson had no right to be there as Cook alleged, then perhaps Thompson

“initiated” the contact, and perhaps Thompson’s presence on the property

unreasonably interfered with Cook’s privacy. If, on the other hand, Thompson was

the rightful owner, then it would be reasonable to conclude that Thompson was

acting to defend his property from a trespasser. The trial court did not err by

considering the outcome of the Property Dispute. 4

Cook next argues that the commissioner decided the matter “based on

considerations other” than the evidence. Specifically Cook notes that, at the

hearing on his petition, the commissioner indicated she knew the judge who

presided over the Property Dispute “very well” and remarked that she “serve[d]

under him and other judges.” Cook also asserts that the commissioner “grant[ed]

3 Indeed, even Cook began his argument before the commissioner by discussing the Property Dispute. 4 To the extent that Cook objects to the trial court’s consideration of the

Property Dispute on evidentiary grounds, that objection lacks merit because the Rules of Evidence did not apply to the proceedings below. See ER 1101(c)(4) (evidence rules “need not be applied” in protection order proceedings under Chapter 10.14 RCW).

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leave to [Thompson] to argue ownership while denying [Cook] the same latitude,”

and that this combined with the commissioner’s comments about the judge

changed the case “to not be about the threat which Mr. Thompson poses, nor the

injuries which [Cook] has suffered, but rather to be about the politics of supporting

[the judge].”

Cook mischaracterizes what happened at the hearing. The transcript

reveals that the commissioner gave Cook an appropriate amount of latitude to

argue about ownership. And, while the commissioner’s comments about the judge

were dicta, 5 the gist of the commissioner’s remarks was that she was not going to

allow Cook to relitigate an issue that, again, had been finally determined in a

separate proceeding. It was far from error for the commissioner to respect that

prior decision. Cf. Scholz v. Wash. State Patrol, 3 Wn. App. 2d 584, 594, 416 P.3d

1261 (2018) (doctrine of issue preclusion bars relitigation of an issue in a

subsequent proceeding involving the same parties).

In the remainder of his opening brief, Cook argues, in essence, that the

evidence he presented below should have been sufficient to warrant entry of an

antiharassment protection order. For example, Cook variously argues that

Thompson’s “vicious attempt to take [Cook]’s life . . . and prior threatening

behavior . . . must surely meet” the standard for unlawful harassment, that

Thompson’s actions “could not have been a response for protection of what he

perhaps considered his property”; that the trial court denied his petition “in

5 “Dicta” refers to a statement that is not necessary to the court’s decision

in a case. Protect the Peninsula’s Future v. City of Port Angeles, 175 Wn. App. 201, 215, 304 P.3d 914 (2013).

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opposition to the evidence, and antithetical to the normal course of handling of

such cases”6; and that “[t]here is no need for judicial interpretation that a physical

and violent attack which was intended to end the life of the victim, qualifies as

‘Unlawful Harassment.’ ”

Cook’s argument fails for several reasons. First, Cook’s argument assumes

that a single assault is enough to establish harassment, but he cites no authority

to support that proposition, and the authority in fact suggests otherwise. See State

v. Alvarez, 74 Wn. App. 250, 259-60, 872 P.2d 1123 (1994) (concluding that

criminal harassment requires proof of only a single act, and distinguishing the civil

antiharassment statute by pointing out that the civil statute requires a “course of

conduct” and “continuity of purpose”).

Second, as discussed, Thompson attested in response that Cook

trespassed onto Thompson’s property, that Cook was the first aggressor, and that

Thompson acted in defense of his property and of his person. Regardless of

whose account of the September 20, 2021 incident this court would itself believe, 7

Cook’s arguments must be rejected because they invite us to reweigh the

competing evidence, which we will not do. See State v. Living Essentials, LLC, 8

6 Initial capitalization omitted. 7 In support of his account of the September 20, 2021 incident, Cook relies

in large part on a probable cause report prepared by the sheriff’s deputy who arrested Thompson in connection with the incident. But Cook did not file that report until he moved for revision, so it was not before the commissioner and will not be considered in determining the merits of Cook’s appeal. See In re Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999) (superior court judge’s review of a commissioner’s ruling is limited to the evidence and issues presented to the commissioner); see also In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993) (pro se litigants on appeal are held to the same standards as attorneys and are bound by the same rules of procedure and substantive law).

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Wn. App. 2d 1, 14, 436 P.3d 857 (2019) (“[T]he reviewing court ‘defer[s] to the trier

of fact regarding witness credibility or conflicting testimony.’ ” (second alteration in

original) (quoting Weyerhaeuser v. Tacoma-Pierce County Health Dep’t, 123 Wn.

App. 59, 65, 96 P.3d 460 (2004))); Nguyen v. City of Seattle, 179 Wn. App. 155,

163, 317 P.3d 518 (2014) (where trial court has weighed the evidence, “[w]e will

not substitute our judgment for that of the trial court, even if we might have resolved

the factual dispute differently”).

Third, and relatedly, we also will not second-guess the trial court’s

determination that, even taking into consideration Cook’s allegations of

harassment apart from the September 20 incident, the evidence was insufficient

to establish unlawful harassment. 8 See Thompson v. Hanson, 142 Wn. App. 53,

60, 174 P.3d 120 (2007) (we defer to the trial court’s evaluation of the

persuasiveness of the evidence).

In short, Cook does not show that the trial court was “manifestly

unreasonable” or exercised its discretion “on untenable grounds or for untenable

reasons” in adopting the commissioner’s decision denying Cook’s petition for an

antiharassment protection order. T.W.J., 193 Wn. App. at 6. Reversal is not

required.

8 Cook has filed a motion to file a supplemental brief in which he attempts

to advise this court of alleged harassment that has occurred since the trial court’s order at issue in this appeal. This court does not take evidence except under the limited circumstances set forth in RAP 9.11, which Cook neither addresses nor satisfies. See State v. Elmore, 139 Wn.2d 250, 302, 985 P.2d 289 (1999) (“appellate court is confined to evidence presented to the trial court” except where criteria set forth in RAP 9.11(a) are satisfied). The motion is hereby denied.

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C. Fees on Appeal

Thompson requests fees on appeal as a sanction against Cook for filing a

frivolous appeal.

Under RAP 18.9, this court can award fees for a frivolous appeal. Reid v.

Dalton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004). In considering whether to

do so, five considerations guide us:

(1) a civil appellant has a right to appeal, (2) we resolve any doubts about whether an appeal is frivolous in the appellant’s favor, (3) we consider the record as a whole, (4) an unsuccessful appeal is not necessarily frivolous, and (5) 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.

Protect the Peninsula’s Future, 175 Wn. App. at 220.

While Cook’s appeal is not successful, we note the record reflects that

Thompson was arrested for felony assault in connection with the September 20,

2021 incident, and, although it is undisputed that no charges have been filed, it is

also undisputed that the Snohomish County Sheriff’s Office referred the matter for

prosecution. This provided some basis for Cook to proceed with an appeal.

Although we discern no error in the trial court’s determination that Thompson’s

conduct did not constitute unlawful harassment, we are unpersuaded under the

circumstances, and given the relevant considerations, that sanctions are

warranted here. Thus, we deny Thompson’s request for fees on appeal.

We affirm.

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WE CONCUR: