Muffin Faye Anderson v. Comcast Center Xfinity Home Security

• Court: Court of Appeals of Washington
• Decided: November 20, 2017
• Docket: 75176-0
• Status: Unpublished

Opinion

COURT OFrILtU STATE OFAPPEALS 01V1 WASHINGTON 2011 HOY 20 Ati 8:53

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

MUFFIN FAYE ANDERSON, No. 75176-0-1 Appellant, DIVISION ONE V.

COMCAST CABLE/XFINITY HOME SEC., UNPUBLISHED OPINION

Respondent. FILED: November 20, 2017

SPEARMAN, J. — An appeal is frivolous if no debatable issues are

presented upon which reasonable minds might differ and it is so devoid of merit

that there is no reasonable possibility of reversal. Anderson appeals several

orders entered after the trial court dismissed her case against Comcast

Cable/XFinity Home Security,(Comcast) on res judicata grounds. In her appeal,

she reiterates her underlying claims against Comcast, but presents no facts or

arguments creating a reasonable possibility of reversal of her post-judgment

motions for relief.

FACTS

Muffin Faye Anderson was a customer of Comcast. She experienced

problems with her Comcast service and billing. Comcast would periodically turn No. 75176-0-1/2

off her security system, cable, and internet. Anderson objected to the

increasingly high bills for features that she contends she did not sign up for.1

Anderson filed a complaint in King County Superior Court on June 26,

2015. She also filed two amended complaints soon after. Anderson asserted

claims for breach of contract and anticompetitive activities.

The trial court granted Comcast's motion to dismiss on October 30, 2015.

The court dismissed with prejudice, finding that the doctrine of res judicata

precluded Anderson's claims, and that she failed to state a claim.2 Then,

Anderson suffered a stroke on September 1, 2015 which led to hospitalization

and a period of incapacity.

On February 12, 2016, the trial court denied Anderson's motion to vacate

and stay her case. In the next two months, Anderson filed an additional four

motions that are not at issue in this appeal. On April 8, 2016, the trial court

denied Anderson's motion for a new trial. On the same day, the court denied

Anderson's motion to seal medical records because "[n]o basis for sealing was

stated." Clerk's Papers(CP)at 141.

Anderson then appealed numerous orders in the case. On April 19, 2016

she filed a notice of appeal of the October 30, 2015 order of dismissal, the

1 Respondent includes additional facts in its appellate brief, but fails to cite to documents included in the record before this court. 2 Respondent asserts, without citation to the record before this court, that the res judicata finding was based on the May 29, 2015 dismissal of a case brought by Anderson in small claims court making the same claims against Comcast.

2 No. 75176-0-1/3

February 12, 2016 denial of her motion to vacate, and the two April 8, 2016

orders denying a new trial and the motion to seal. Anderson then appealed an

April 21, 2016 order denying her motion to reschedule trial.

A Commissioner of this court ruled that the appeal of the October 30, 2015

order of dismissal and the February 12, 2016 denial of the motion to vacate were

untimely under RAP 5.2(a), which requires that a notice of appeal be filed in the

trial court within 30 days after the entry of the decision that the party seeks to

review. RAP 5.2(a). Additionally, the Commissioner denied Anderson's motion to

enlarge time for a notice of appeal. The Commissioner ruled that the two April 8,

2016 orders and the April 21, 2016 order were timely appealed. Neither party

sought to modify the Commissioner's ruling.3

DISCUSSION

Anderson timely seeks review of three trial court orders: an order denying

a new trial, an order denying a motion to reschedule trial, and an order denying a

motion to seal medical records.4 Anderson argues that Comcast breached its

contract, engaged in anticompetitive activities, and that her ongoing illness made

her unable to defend against Comcast's motions.

3 We note that it appears that Anderson did not comply with RAP 5.1 when she failed to file in the trial court her notice of appeal of the April 8,2015 denial of the motion to seal, or the April 21, 2015 denial of the motion to reschedule trial. But this irregularity was not raised by respondent, and respondent did not request to modify the Commissioner's ruling, so we consider both orders on appeal. 4 In its briefing, Comcast declined to take a position on Anderson's appeal of the order denying the motion to seal and provided no argument as to why this court should affirm the order denying the motion to reschedule trial.

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We review a CR 59(a) motion for new trial under an abuse of discretion

standard. Lian v. Stalick, 106 Wn. App. 811, 823,25 P.3d 467(2001). It appears

that the trial court considered Anderson's motion to reschedule trial as a CR 60

motion to vacate, which we also review for abuse of discretion. Barr v.

MacGin:Ian, 119 Wn. App. 43, 46, 78 P.3d 660(2003). We also consider the

denial of a motion to seal for abuse of discretion. In re Marriage of Treseler &

Treadwell, 145 Wn. App. 278, 283, 187 P.3d 773(2008).

Citing RAP 18.9(c), Comcast moves to dismiss Anderson's appeal of the

order denying her motion for a new trial, arguing that it is frivolous. An appeal is

frivolous if, considering the entire record, no debatable issues are presented

upon which reasonable minds might differ and it is so devoid of merit that there is

no reasonable possibility of reversal. In re Guardianship of Wells, 150 Wn. App.

491, 504, 208 P.3d 1126 (2009).

The trial court denied Anderson's motion for a new trial because she failed

to state a basis for relief under CR 59. A CR 59 motion may be granted for

irregularity in the proceedings, misconduct, accident or surprise, newly

discovered evidence, excessive or erroneous damages, lack of evidence to

justify the verdict, or because substantial justice has not been done. The motion

must be filed within ten days after the entry of judgment. CR 59(b). In her CR 59

motion, filed more than ten months after her case was dismissed, Anderson

apparently sought relief from the dismissal of her lawsuit due to res judicata. But

in her motion before the trial court and her briefing to this court, she fails to

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identify facts supporting a CR 59 motion, or to provide argument on any grounds

for a new trial. We agree with Comcast that Anderson's appeal of this order is

frivolous.

The trial court denied Anderson's motion to reschedule trial because she

failed to state a basis for relief under CR 60, and because it was duplicative of

motions already rejected by the Court. A CR 60(b) motion may be granted on a

number of grounds, including for mistake, inadvertence, surprise, or excusable

neglect. Anderson suffered a stroke on November 1, 2015, and has had limited

function since then. But she sought to vacate an order entered on October 30,

2015, before her stroke. She provides no evidence of incapacity on that date. In

addition, Anderson availed herself of the opportunity to oppose the October 30

order. So even with her evidence of illness and incapacity, there is no reasonable

possibility of reversal on this order. We conclude that Anderson's appeal of the

denial to reschedule trial is frivolous.

Finally, the trial court denied Anderson's motion to seal medical records

because she did not provide a basis to seal the records. After a hearing, a court

may order records sealed if it is "justified by identified compelling privacy or

safety concerns that outweigh the public interest in access to the court record."

GR 15. In neither her motion to seal below, nor in her briefing to this court, does

Anderson identify any compelling privacy orsafety concerns. Accordingly, we

conclude there was no error in denying the motion and that her appeal 'of the

denial is frivolous. No. 75176-0-1/6

We dismiss Anderson's appeal as frivolous under RAP 18.9(c). ) — Cre.e. t.........e..„, WE CONCUR: J 1%

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