FILED OCTOBER 29, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
RYAN L. RUSSELL, ) ) No. 40012-3-III Appellant, ) ) v. ) ) COLUMBIA COUNTY HEALTH ) UNPUBLISHED OPINION SYSTEM/DAYTON HOSPITAL, ) ) Respondent. )
STAAB, A.C.J. — Ryan Russell appeals the trial court’s order granting Columbia
County Health Service’s (CCHS) motion to dismiss her complaint pursuant to CR
41(b)(1). The rule requires dismissal if, within one year of filing a claim, the plaintiff
does not set the case for trial. While acknowledging that she failed to note her case for
trial within one year, Russell argues that her failure to comply with the rule was due to
the actions of CCHS and further suggests that she substantially complied. In response,
CCHS argues that we should decline review because Russell’s brief fails to comply with
the RAPs. Alternatively, CCHS maintains that dismissal was required because Russell
failed to note the case for trial at any time before the hearing on its motion to dismiss, and No. 40012-3-III Russell v. Columbia Health Sys.
CCHS’s refusal to agree on proposed trial dates did not prevent Russell from complying
with the rule.
We conclude that the trial court did not abuse its discretion in dismissing the case
except that the rule provides for dismissal without prejudice and here the case was
dismissed with prejudice. We remand with instructions for the court to modify its order
granting dismissal to comply with the rule.
BACKGROUND
Ryan Russell alleges that she developed work-related shoulder problems in May
2019 while working for CCHS. She filed a claim with the Department of Labor and
Industries (the Department). After accepting her claim and initially providing benefits,
the Department issued subsequent orders finding that CCHS was not responsible for
Russell’s shoulder injury, and closing the claim with no permanent disability award.
Russell appealed these orders.
The administrative appeals judge found that the Department correctly segregated
Russell’s claim for her shoulder injury, affirming the segregation order and dismissing
the appeal of the closing order for failure to present a prima facie case. Russell then filed
a timely petition for review with the Board of Industrial Insurance Appeals (BIIA). The
BIIA affirmed the Department’s orders. Russell then filed a notice of appeal to the
superior court on May 31, 2022.
2 No. 40012-3-III Russell v. Columbia Health Sys.
More than one year later, on July 10, 2023, CCHS filed a motion to dismiss
pursuant to CR 41(b)(1). The motion included a declaration from CCHS’s attorney who
noted that Russell had taken no action since filing her notice of appeal on May 31, 2022,
and failed to note the action for trial within one year as required by CR 41(b)(1). CCHS
noted the motion for a hearing and provided Russell with notice.
On July 17, 2023, Russell’s attorney contacted CCHS’s attorney to find mutually
agreeable dates for a trial. CCHS did not provide any dates, so Russell filed a responsive
pleading titled “Status Report, Response to Defendant’s Motion to Dismiss, and Note for
Trial and Certificate of Readiness.” Clerk’s Papers at 25. This response included a status
report of the case and noted Russell’s available trial dates, but did not set the matter for
trial.
The hearing on CCHS’s motion to dismiss was continued by agreement to
September 20, 2023. After argument by both parties, the court orally granted the
motion. The court later entered a written order granting CCHS’s motion to dismiss
pursuant to CR 41(b)(1) with prejudice on October 4, 2023.
ANALYSIS
1. FAILURE TO COMPLY WITH THE RAPS
As a preliminary matter, CCHS argues that this Court should decline to review
Russell’s appeal because she failed to comply with RAP 10.3(a)(4). This rule provides
that “[t]he brief of the appellant or petitioner should contain . . . [a] separate concise
3 No. 40012-3-III Russell v. Columbia Health Sys.
statement of each error a party contends was made by the trial court, together with the
issues pertaining to the assignments of error.”
We agree that Russell’s brief fails to comply with this rule. Nevertheless,
“‘technical violation[s] of the rules will not ordinarily bar appellate review.’” State v.
Olson, 126 Wn.2d 315, 322, 893 P.2d 629 (1995) (quoting Daughtry v. Jet Aeration Co.,
91 Wn.2d 704, 710, 592 P.2d 631 (1979)). RAP 1.2(a) states that “[c]ases and issues will
not be determined on the basis of compliance or noncompliance with these rules except in
compelling circumstances where justice demands.” In Olson, the Supreme Court held
that:
[A]n appellate court may exercise its discretion to consider cases and issues on their merits. This is true despite one or more technical flaws in an appellant’s compliance with the Rules of Appellate Procedure. This discretion, moreover, should normally be exercised unless there are compelling reasons not to do so. In a case where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the Court is not greatly inconvenienced and the respondent is not prejudiced, there is no compelling reason for the appellate court not to exercise its discretion to consider the merits of the case or issue.
Olson, 126 Wn.2d at 323.
Here, Russell’s brief did not include a section with the assignments of error or
statement of the issues. However, there is only one substantive issue, the issue is argued
in the body of the brief with citations to legal authority, and CCHS’s thorough brief
suggests it was not prejudiced by the technical violation. See Br. of Resp’t.
4 No. 40012-3-III Russell v. Columbia Health Sys.
CCHS argues that Russell’s case should be dismissed pursuant to State v. Perry,
120 Wn.2d 200, 840 P.2d 171 (1992), and State v. Fortun, 94 Wn.2d 754, 626 P.2d 504
(1980). However, in Olson, the Supreme Court noted that in these cases the parties failed
“to raise the issue in any way at all-neither in the assignments of error, in the argument
portion of the brief, nor in the requested relief.” Olson, 126 Wn.2d at 320-21. The court
disagreed that these cases stand for the proposition that an appellate court will strictly
refuse to consider an issue if the appellant fails to assign error. Id.
In this case, Russell failed to raise any issues or assign error in violation of RAP
10.3(a)(4), but she did present argument on the issue with legal citations. Thus, this case
is distinguishable from Perry, 120 Wn.2d 200 and Fortun, 94 Wn.2d 754. Despite the
technical violation, we exercise our discretion and consider the merits of the appeal.
2. ORDER DISMISSING SUPERIOR COURT CASE
Russell argues that the trial court abused its discretion in granting CSHS’s motion
to dismiss pursuant to CR 41(b)(1). We disagree.
This court reviews a trial court’s decision to grant or deny a motion to dismiss
under CR 41 for abuse of discretion. Gordon v. Robinhood Fin., LLC, __ Wn. App. 2d
___, 547 P.3d 945, 955 (2024).
Free access — add to your briefcase to read the full text and ask questions with AI
FILED OCTOBER 29, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
RYAN L. RUSSELL, ) ) No. 40012-3-III Appellant, ) ) v. ) ) COLUMBIA COUNTY HEALTH ) UNPUBLISHED OPINION SYSTEM/DAYTON HOSPITAL, ) ) Respondent. )
STAAB, A.C.J. — Ryan Russell appeals the trial court’s order granting Columbia
County Health Service’s (CCHS) motion to dismiss her complaint pursuant to CR
41(b)(1). The rule requires dismissal if, within one year of filing a claim, the plaintiff
does not set the case for trial. While acknowledging that she failed to note her case for
trial within one year, Russell argues that her failure to comply with the rule was due to
the actions of CCHS and further suggests that she substantially complied. In response,
CCHS argues that we should decline review because Russell’s brief fails to comply with
the RAPs. Alternatively, CCHS maintains that dismissal was required because Russell
failed to note the case for trial at any time before the hearing on its motion to dismiss, and No. 40012-3-III Russell v. Columbia Health Sys.
CCHS’s refusal to agree on proposed trial dates did not prevent Russell from complying
with the rule.
We conclude that the trial court did not abuse its discretion in dismissing the case
except that the rule provides for dismissal without prejudice and here the case was
dismissed with prejudice. We remand with instructions for the court to modify its order
granting dismissal to comply with the rule.
BACKGROUND
Ryan Russell alleges that she developed work-related shoulder problems in May
2019 while working for CCHS. She filed a claim with the Department of Labor and
Industries (the Department). After accepting her claim and initially providing benefits,
the Department issued subsequent orders finding that CCHS was not responsible for
Russell’s shoulder injury, and closing the claim with no permanent disability award.
Russell appealed these orders.
The administrative appeals judge found that the Department correctly segregated
Russell’s claim for her shoulder injury, affirming the segregation order and dismissing
the appeal of the closing order for failure to present a prima facie case. Russell then filed
a timely petition for review with the Board of Industrial Insurance Appeals (BIIA). The
BIIA affirmed the Department’s orders. Russell then filed a notice of appeal to the
superior court on May 31, 2022.
2 No. 40012-3-III Russell v. Columbia Health Sys.
More than one year later, on July 10, 2023, CCHS filed a motion to dismiss
pursuant to CR 41(b)(1). The motion included a declaration from CCHS’s attorney who
noted that Russell had taken no action since filing her notice of appeal on May 31, 2022,
and failed to note the action for trial within one year as required by CR 41(b)(1). CCHS
noted the motion for a hearing and provided Russell with notice.
On July 17, 2023, Russell’s attorney contacted CCHS’s attorney to find mutually
agreeable dates for a trial. CCHS did not provide any dates, so Russell filed a responsive
pleading titled “Status Report, Response to Defendant’s Motion to Dismiss, and Note for
Trial and Certificate of Readiness.” Clerk’s Papers at 25. This response included a status
report of the case and noted Russell’s available trial dates, but did not set the matter for
trial.
The hearing on CCHS’s motion to dismiss was continued by agreement to
September 20, 2023. After argument by both parties, the court orally granted the
motion. The court later entered a written order granting CCHS’s motion to dismiss
pursuant to CR 41(b)(1) with prejudice on October 4, 2023.
ANALYSIS
1. FAILURE TO COMPLY WITH THE RAPS
As a preliminary matter, CCHS argues that this Court should decline to review
Russell’s appeal because she failed to comply with RAP 10.3(a)(4). This rule provides
that “[t]he brief of the appellant or petitioner should contain . . . [a] separate concise
3 No. 40012-3-III Russell v. Columbia Health Sys.
statement of each error a party contends was made by the trial court, together with the
issues pertaining to the assignments of error.”
We agree that Russell’s brief fails to comply with this rule. Nevertheless,
“‘technical violation[s] of the rules will not ordinarily bar appellate review.’” State v.
Olson, 126 Wn.2d 315, 322, 893 P.2d 629 (1995) (quoting Daughtry v. Jet Aeration Co.,
91 Wn.2d 704, 710, 592 P.2d 631 (1979)). RAP 1.2(a) states that “[c]ases and issues will
not be determined on the basis of compliance or noncompliance with these rules except in
compelling circumstances where justice demands.” In Olson, the Supreme Court held
that:
[A]n appellate court may exercise its discretion to consider cases and issues on their merits. This is true despite one or more technical flaws in an appellant’s compliance with the Rules of Appellate Procedure. This discretion, moreover, should normally be exercised unless there are compelling reasons not to do so. In a case where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the Court is not greatly inconvenienced and the respondent is not prejudiced, there is no compelling reason for the appellate court not to exercise its discretion to consider the merits of the case or issue.
Olson, 126 Wn.2d at 323.
Here, Russell’s brief did not include a section with the assignments of error or
statement of the issues. However, there is only one substantive issue, the issue is argued
in the body of the brief with citations to legal authority, and CCHS’s thorough brief
suggests it was not prejudiced by the technical violation. See Br. of Resp’t.
4 No. 40012-3-III Russell v. Columbia Health Sys.
CCHS argues that Russell’s case should be dismissed pursuant to State v. Perry,
120 Wn.2d 200, 840 P.2d 171 (1992), and State v. Fortun, 94 Wn.2d 754, 626 P.2d 504
(1980). However, in Olson, the Supreme Court noted that in these cases the parties failed
“to raise the issue in any way at all-neither in the assignments of error, in the argument
portion of the brief, nor in the requested relief.” Olson, 126 Wn.2d at 320-21. The court
disagreed that these cases stand for the proposition that an appellate court will strictly
refuse to consider an issue if the appellant fails to assign error. Id.
In this case, Russell failed to raise any issues or assign error in violation of RAP
10.3(a)(4), but she did present argument on the issue with legal citations. Thus, this case
is distinguishable from Perry, 120 Wn.2d 200 and Fortun, 94 Wn.2d 754. Despite the
technical violation, we exercise our discretion and consider the merits of the appeal.
2. ORDER DISMISSING SUPERIOR COURT CASE
Russell argues that the trial court abused its discretion in granting CSHS’s motion
to dismiss pursuant to CR 41(b)(1). We disagree.
This court reviews a trial court’s decision to grant or deny a motion to dismiss
under CR 41 for abuse of discretion. Gordon v. Robinhood Fin., LLC, __ Wn. App. 2d
___, 547 P.3d 945, 955 (2024). A court abuses its discretion when its ruling is
“manifestly unreasonable or discretion was exercised on untenable grounds.” Id.
5 No. 40012-3-III Russell v. Columbia Health Sys.
The interpretation of a court rule is a question of law this court reviews de novo.
Bus, Servs. of America II, Inc. v. WaferTech LLC, 174 Wn.2d 304, 307, 274 P.3d 1025
(2012).
Under CR 41(b), a defendant may move to dismiss an action for “failure of the
plaintiff to prosecute or to comply with these rules or any order of the court,” including
want of prosecution. The specific language of the rule provides:
Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff, counterclaimant, cross claimant, or third party plaintiff neglects to note the action for trial or hearing within 1 year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. Such motion to dismiss shall come on for hearing only after 10 days’ notice to the adverse party. If the case is noted for trial before the hearing on the motion, the action shall not be dismissed.
CR 41(b)(1) (emphasis added).
The Supreme Court has held that if the conditions of CR 41(b)(1) are met,
dismissal is mandatory. WaferTech, 174 Wn.2d at 308. Similarly, dismissal is not
allowed “‘if the case is noted for trial before the hearing on the motion’” to dismiss. See
Id. (quoting CR 41(b)(1)).
In this case, Russell filed an appeal in Columbia County Superior Court on May
31, 2022. Russell took no action after filing the case and concedes that she did not note
the matter for trial within one year. Nevertheless, Russell contends that her failure to
comply with the rule should be excused because counsel for CCHS would not provide
6 No. 40012-3-III Russell v. Columbia Health Sys.
agreeable trial dates. Alternatively, Russell suggests that she substantially complied with
the rule by proposing several possible trial dates in response to CCHS’s motion to
dismiss. As CCHS notes, neither CR 41(b)(1) nor any other rule requires parties to agree
on a trial date before the plaintiff can note the case for trial. In addition, proposing trial
dates to the court is not the same as noting the case for trial.
The rule includes mandatory provisions. Its requirements are clear and simple.
Russell failed to show that she complied with the rule and failed to show that CCHS’s
actions prevented her from complying. We find no abuse of discretion when a court
properly applies the plain language of the rule to the undisputed facts.
Finally, we note that the rule provides for dismissal without prejudice. Here, the
order granting dismissal, presented by CCHS and signed by the judge, dismissed the
action with prejudice. Nothing in the record suggests that the judge made independent
findings to support dismissing with prejudice. Consequently, dismissing with prejudice
pursuant to CR 41(1)(b) was an abuse of discretion.
Russell seeks attorney fees on appeal. Since she does not prevail, we decline her
request for fees.
We affirm the trial court’s order dismissing Russell’s case pursuant to CR
41(1)(b), but remand with instructions to amend the order granting dismissal so that it
reflects dismissal without prejudice.
7 No. 40012-3-III Russell v. Columbia Health Sys.
Affirmed and remanded with instructions.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, A.C.J.
WE CONCUR:
_________________________________ Pennell, J.
_________________________________ Cooney, J.