Facts:  Respondent Business Services of America II, Inc. filed suit against petitioner WaferTech, L.L.C. in the Superior Court for Clark County following a construction contract dispute.  The trial court dismissed Business Services of America II’s claims and awarded WaferTech attorney fees.  Upon appeal, the Washington Court of Appeals affirmed in part and reversed in part, affirming the dismissal of most of Business Services of America II’s claims but reversing and remanding with respect to a lien foreclosure claim.  The trial court subsequently entered a stipulation and order for return of exhibits.  Neither party responded to the order.  Two years later, Business Services of America II’s attorney filed a notice of intent to withdraw.  The notice inaccurately stated that the case had been dismissed and judgment entered against Business Services of America II.  One year later, Business Services of America II, under new ownership, moved to try the remanded lien claim and the case was noted for trial.  However, the trial court subsequently granted WaferTech’s motion for dismissal, ruling that Business Services of America II’s dilatoriness and deception constituted unacceptable litigation practices.  Upon appeal, the Washington Court of Appeals reversed, holding that Washington State Court Rule 41(b)(1), which states that a case shall not be dismissed if it is noted for trial before the hearing on the motion to dismiss, prohibits dismissal.  WaferTech appealed this decision to the Supreme Court of Washington.

Question(s):  Did Business Services of America II engage in unacceptable litigation practices permitting an exception to the rule of Washington State Court Rule 41(b)(1)?

Conclusion:  Justice Chambers’ opinion for the Court affirmed the Washington Court of Appeals, concluding that Business Services of America II’s lack of response to the trial court’s order and the inaccurate information in the notice of withdrawal filed by its attorney did not constitute the sort of unacceptable litigation practices that would give rise to an exception to the rule of Washington State Court Rule 41(b)(1).

Docket No. 85654-1 (from Court of Appeals Division II Case No. 39921-1)

Petitioner: WaferTech L.L.C.

(Counsel: Howard Mark Goodfriend, James T. McDermott, and Aaron D. Goldstein)

Respondent: Business Services of America II, Inc.

(Counsel: Eric Ronald Hultman)

Briefs:

Argument: Tuesday, November 8, 2011 1:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, April 19th, 2012

Prevailing Party: Business Services of America II, Inc. (Respondent)

Vote: 7-2

Citation: Pending

Court: Madsen2 Court (2011)

Madsen
(Dissent)

Johnson

Alexander

Chambers
(Majority)

Owens

Fairhurst

Johnson

Stephens

Sweeney
(Pro Tem)

Opinion

Dissent