Kurt Benshoof, V. Nathan Cliber

• Court: Court of Appeals of Washington
• Decided: January 21, 2025
• Docket: 86466-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KURT BENSHOOF, No. 86466-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION NATHAN CLIBER, JESSICA OWEN, MAGALIE LERMAN, and OWEN HERMSEN,

Respondents.

MANN, J. — The superior court determined that Kurt Benshoof violated the terms

of a prior court order, found Benshoof in contempt, imposed sanctions, and denied

permission for him to file a new action in superior court. Benshoof appeals, but

primarily challenges the validity of the underlying court order that included a vexatious

litigant finding and restricted Benshoof’s future court filings—an order that Benshoof

previously appealed and we upheld. The law of the case doctrine precludes our

consideration of the majority of Benshoof’s claims on appeal and his remaining

arguments are unavailing. We affirm.

I

After an extensive history of litigation arising out of a September 2021 parentage

action, on March 31, 2023, the King County Superior Court entered an “Order No. 86466-1-I/2

Restricting Abusive Litigation of Kurt Benshoof.”1 The abusive litigation order requires

Benshoof to (1) obtain court approval before filing new legal claims in Washington

superior courts against his former romantic partner Jessica Owen, her attorney Nathan

Cliber, Magalie Lerman, Owen Hermsen, and others; (2) obtain approval before filing

legal claims in any court against the protected individuals by demonstrating good cause

to proceed; and (3) submit a copy of the abusive litigation order with any new lawsuit or

claims filed in any court. The order’s restrictions are effective for five years and the

order provides that violation of its terms may result in a finding of contempt and

sanctions including jail time.

In August 2024, this court affirmed the trial court’s order, denied Benshoof’s

appeal, and awarded Owen, Cliber, Lerman, and Hermsen their attorney fees and costs

on appeal. See Benshoof, No. 85092-0-I, slip op. at 13-14. In January 2024, while that

appeal was pending, Cliber moved for an order of contempt in the trial court. Cliber

alleged that, in violation of the abusive litigation order, Benshoof filed a new lawsuit

against him and others protected by the order in federal district court (Benshoof v.

Admon et al., No. 2:23-cv-01392-JNW (W.D. Wash.)), and brought third-party claims

against him and other protected individuals in another federal case (Seattle Sch. Dist.

No. 1 v. Benshoof, No. 2:23-cv-01829-JHC (W.D. Wash.)), without first obtaining leave

to proceed with his claims or properly calling the court’s attention to the superior court’s

abusive litigation order. Owen also moved for an order of contempt and for sanctions.

Owen alleged that, since entry of the March 2023 order, Benshoof asserted new legal

1 Benshoof’s litigation history is set out in the court’s August 2024 unpublished decision and not

repeated here. See Benshoof v. Cliber, No. 85092-0-I, slip op. at 11 (Wash. Ct. App. Aug. 26, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/850920.pdf.

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claims against her in at least eight separate proceedings, including the proceedings

identified by Cliber, without complying with the abusive litigation order.

The trial court granted Owen’s and Cliber’s motions. The court found that

Benshoof failed to comply with the abusive litigation order by filing “new claims and

causes of action” in the two identified federal cases, without filing motions for leave to

proceed in either case. The court further found that Benshoof did not properly submit

the abusive litigation order: in one case did not file it at all, and in the other, he “buried”

the order among over 2,000 pages of exhibits attached to his complaint “to reduce the

likelihood that the federal court would become aware of the order.”

The trial court found Benshoof in contempt. As a sanction, the court ordered

Benshoof to pay the attorney fees incurred by Cliber and Owen in bringing their motions

for contempt and to pay the fees Cliber incurred in bringing the abusive litigation order

to the attention of the federal court. The court further ordered Benshoof to file a motion

for leave to proceed with his new claims, required by the abusive litigation order, in each

federal case and to file proof of those filings in superior court. If Benshoof failed to file

the required motions, or dismiss his claims, within a week after entry of the contempt

order, the court determined that daily remedial sanctions of $250 per day, per defendant

covered by the contempt order, would apply. The court extended the terms of the

abusive litigation order for an additional year. The trial court later entered findings,

conclusions, and separate orders awarding attorney fees and costs in the amount of

$11,825.00 to Cliber and $11,014.92 to Owen.

Meanwhile, in January 2024, Benshoof moved the trial court for leave to file a

petition for habeas corpus, alleging that Owen, Cliber, and Lerman, “unlawfully

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restrained” Benshoof and the minor child he shares with Owen. The trial court denied

the motion.

Benshoof appeals.

II

Representing himself in this matter, Benshoof does not dispute that after entry of

the abusive litigation order, he filed legal claims against individuals protected by the

order in two federal cases, without advance approval. His primary challenge to the

contempt order is premised on arguments that the underlying abusive litigation order is,

for various reasons, “void ab initio.” But Benshoof previously appealed the abusive

litigation order and the law of the case doctrine precludes him from relitigating

challenges to that order in this appeal.

The law of the case doctrine generally bars “successive reviews of issues that a

party raised, or could have raised, in an earlier appeal in the same case.” In re Est. of

Langeland, 195 Wn. App. 74, 82, 380 P.3d 573 (2016) (emphasis added). The doctrine

promotes “ ‘finality and efficiency of the judicial process by protecting against the

agitation of settled issues.’ ” State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104

(2003) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.

Ct. 2166, 100 L. Ed. 2d 811 (1988)). We retain some discretion under this doctrine,

now partially codified by RAP 2.5, to revisit issues that might have been raised in earlier

appeals. Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).

We generally exercise such discretion, however, only in limited circumstances: when

the prior appellate decision is clearly erroneous and refusing to review a claim of error

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would result in manifest injustice, or when there has been an intervening change in

controlling precedent. Roberson v. Perez, 156 Wn.2d 33, 42, 123 P.3d 844 (2005).

In Benshoof’s prior appeal, we rejected his challenges to the abusive litigation

order on constitutional grounds. Benshoof, No. 85092-0-I, slip op. at 9-13. Observing

that meritless lawsuits are outside the scope of First Amendment protection, and

Washington courts have inherent authority to take measures to control the conduct of

litigants who engage in repeated abusive and frivolous litigation, we determined that the

trial court did not abuse its discretion in entering the abusive litigation order. Benshoof,

No. 85092-0-I, slip op. at 9-11. We noted the unchallenged finding that “after his first

complaint against Owen was dismissed with prejudice, Benshoof filed two additional

complaints against Owen in the United States District Court and the King County

Superior Court, the second of which ‘was nothing short of a re-filing on the exact same

claims previously dismissed.’ ” Benshoof, No. 85092-0-I, slip op. at 10. We also pointed

to the trial court’s finding that the lawsuit giving rise to the entry of the abusive litigation

order was Benshoof’s fifth civil complaint against Owen within a period of nine months.

Benshoof, No. 85092-0-I, slip op. at 11. In addition to being unchallenged, we

concluded that the trial court’s findings, including those about Benshoof’s “extensive

pattern of abusive litigation” and the “significant emotional and financial burden” of his

conduct, were “amply supported by the record.” Benshoof, No. 85092-0-I, slip op. at 11.

In the current appeal, Benshoof reasserts and reframes constitutional arguments

raised in his prior appeal and presents entirely new arguments challenging the abusive

litigation order. Among other things, Benshoof claims: (1) the trial court lacked

“jurisdiction” to impose litigation restrictions absent a finding that he committed domestic

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violence, (2) he was deprived of his right to fair hearing due to attorney and judicial

misconduct, (3) the abusive litigation order was obtained through “perjury and extrinsic

and collateral fraud,” and (4) the abusive litigation order infringes on his constitutional

right to “freely exercise his religious beliefs” and (5) infringes on his right to a jury trial.

Every issue Benshoof asserts was either previously raised, or could have been raised,

in his prior appeal from that order. Benshoof fails to acknowledge his prior appeal and

the law of the case doctrine, much less provide a basis to avoid the doctrine. None of

Benshoof’s arguments lead us to conclude that our prior decision upholding the abusive

litigation order was clearly erroneous and he identifies no intervening change in

controlling precedent. Under the law of the case doctrine, we decline to revisit

Benshoof’s challenge to the abusive litigation order.

III

Benshoof’s only challenges to the contempt order itself pertain to the potential

monetary remedial sanctions and to language warning that future violations of the

abusive litigation order could result in jail time, as a sanction.

Benshoof argues that the monetary sanctions constitute constitutionally

excessive fines. Both the state and federal constitutions prohibit imposition of

excessive fines. CONST. art. I, § 14; U.S. CONST. amend. VIII. A central objective of the

excessive fines clause is to protect individuals against fines so oppressive as to deprive

them of their livelihood. City of Seattle v. Long, 198 Wn.2d 136, 171, 493 P.3d 94

(2021). But it is the collection of a fine, not the imposition, that potentially threatens an

individual’s livelihood. State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992)

(constitutional principles implicated at the point of collection, not when the obligation is

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initially imposed). Here, nothing in the record indicates that Benshoof failed to comply

with the contempt order or that the court collected any remedial sanctions. Benshoof

fails to establish a violation of the excessive fines clause.

Insofar as Benshoof also claims that future potential sanctions contravene what

he refers to as the “Bills of Pains and Penalties” clause, his claim is misplaced.

Benshoof cites article I, section 10, of the United States Constitution, presumably

relying on the prohibition that “[n]o State shall . . . pass any Bill of Attainder.” An

impermissible bill of attainder involves a legislature’s passage of a statute that inflicts a

punishment on specified persons without a judicial trial. See, e.g., SeaRiver Maritime

Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 668 (9th Cir. 2002). Since Benshoof does

not challenge a state legislative enactment that singles out specified individuals for

punishment without a trial, this constitutional provision is inapplicable.

IV

Benshoof next challenges the trial court’s order denying permission to file a

petition for habeas corpus against individuals protected by the abusive litigation order,

alleging unlawful restraint of Benshoof and his minor child. 2 In denying the motion, the

court noted that Benshoof sought to relitigate rulings in the family law matter and that a

writ of habeas corpus is not a substitute or proper vehicle to appeal those decisions.

Benshoof takes issue with the trial court’s reasoning, and maintains that he was seeking

to challenge the superior court’s jurisdiction, not to appeal prior court rulings, and that

the trial court was “estopped” from denying permission to file his proposed petition

because the court previously allowed Benshoof to file new claims against the City of

2 Benshoof makes no specific arguments with respect to the orders awarding attorney fees to

Owen and Cliber.

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Seattle. But, as we previously noted, courts have inherent discretion to “place

reasonable restrictions on any litigant who abuses the judicial process.” Yurtis v.

Phipps, 143 Wn. App. 680, 693, 181 P.3d 849 (2008); Benshoof, No. 85092-0-I, slip op.

at 10. Benshoof fails to appreciate that, regardless of whether habeas was an available

mechanism to pursue his allegations, the trial court simply had discretion under the

abusive litigation order, upheld by this court, to prohibit him from filing yet another

lawsuit against the individuals protected by that order. Benshoof offers no authority

which suggests that it was error, or an abuse of discretion, to deny leave to file his

proposed petition under these circumstances.

V

Finally, Cliber requests an award of attorney fees under RAP 18.9(a), asserting

that Benshoof’s appeal is frivolous. Respondents Owen, Lerman, and Hermsen also

request fees, likewise arguing that the appeal is frivolous. An appeal is frivolous “if the

appellate court is convinced that the appeal presents no debatable issues upon which

reasonable minds could differ and is so lacking in merit that there is no possibility of

reversal.” In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). That

standard is satisfied here because Benshoof’s appeal is primarily a second attempt to

challenge the previously appealed abusive litigation order and the other issues he

raises are clearly without merit. We award attorney fees and costs on appeal to Cliber,

Owen, Lerman, and Hermsen, subject to their compliance with RAP 18.1(d).

Affirmed.

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WE CONCUR:

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