                                                                              FILED 

                                                                    FEBRUARY 18,2016 

                                                                 I n the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


ROBERT W. CRITCHLOW, individually             )
and d/b/a CRITCHLOW LAW OFFICE,               )         No. 33038-9-111
                                              )
                     Appellant,               )
                                              )
       v.                                     )
                                              )         OPINION PUBLISHED IN PART
DEX MEDIA WEST, INC., a foreign               )
corporation,                                  )
                                              )
                     Respondent.              )

       FEARING, J. - Following the acceptance and filing of an offer ofjudgment from

Dex Media West, Inc. (Dex), plaintiff Robert Critchlow failed to appear for two

scheduled hearings, and a newly assigned trial court judge dismissed Critchlow's case

with prejudice. Critchlow appeals the dismissal and an earlier judge's recusal. We

reverse the trial court's dismissal of the complaint and direct judgment to be entered in

favor of Critchlow for the sum stated in the offer ofjudgment. In the unpublished portion
No. 33038-9-III
Critchlow v. Dex Media West


of the opinion, we remand to the trial court for imposition of lesser sanctions against

Critchlow for his failure to appear at the hearings.

                                          FACTS

       The underlying facts bear little importance on appeal. Robert Critchlow, a

Spokane attorney, contracted with Dex to create a website, publish advertising in a

telephone book, deliver Internet service, and provide phone service that included usage
                                                                                          t
                                                                                          I
tracking. Without Critchlow's knowledge, Dex recorded all his phone calls. One who

called Critchlow heard a message from Dex informing him or her of the call being

recorded.

                                       PROCEDURE
                                                                                          I
       On July 11,2014, Robert Critchlow sued Dex, in Spokane County Superior Court,

for common law and statutory privacy violations, misrepresentation of services, and

violation of the Washington Consumer Protection Act, chapter 19.86 RCW. On July 11,

the superior court presiding judge entered an order that scheduled a case status

conference for October 10 and assigned Critchlow's case to Judge Annette Plese. The

order commanded the parties: "to attend a Case Status Conference before your assigned

judge on the date also noted above." Clerk's Papers (CP) at 7.

      On July 15,2014, Judge Plese opted to recuse herself, and she signed an order of

recusal. Judge Plese identified no reason for the disqualification. Robert Critchlow


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No. 33038-9-111
Critchlow v. Dex Media West


denies receiving a copy of the recusal order then. On July 16, the presiding judge

appointed another superior court judge, Judge Michael Price, to preside over Critchlow's

suit. Judge Price thereafter entered all further orders.

       On September 25,2014, Dex sent Robert Critchlow a CR 68 offer ofjudgment for

$5,000, which amount was to include any reasonable attorney fees and costs incurred to

date. On October 2, Critchlow recorded an acceptance ofDex's offer.

       The status conference remained scheduled for October 10,2014. On October 8,

Dex sent Robert Critchlow a copy of the recusal order and the order of pre assignment.

Critchlow immediately sent a letter to Judge Plese objecting to her recusal, the case's

reassignment to another judge, and the lack of notice. In the letter, Critchlow stated that

he would not attend the October 10 status conference, and he requested a response to his

letter or a hearing to address his protestation.

       Neither Robert Critchlow nor one of his attorneys appeared at the October 10

status hearing. The superior court thus issued an order to show cause as to why the

complaint should not be dismissed. The order stated, "If the plaintiff and defendant, or

an attorney on their behalf, does not appear before this court on [November 7, 2014, at

8:30 a.m.], this matter will be dismissed." CP at 22. Robert Critchlow and his counsel

deny receiving a copy of the order to show cause.

       On October 17,2014, Dex informed Robert Critchlow that Judge Price entered an


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No. 33038-9-III
Critchlow v. Dex Media West


order to show cause. Dex also attached a proposed judgment and requested a W -9 tax

form from Critchlow so that Dex could issue him a check. On October 20, Critchlow

filed a formal objection to Judge Plese's recusal. On October 21, Judge Plese sent a letter

responding to Critchlow's objection and informing him that the recusal stood.

      On November 7, 2014, neither Robert Critchlow nor his counsel appeared at the

show cause hearing, and the trial court dismissed his case with prejudice. On November

19, Alan McNeil, one of Critchlow's attorneys, wrote a letter to the trial court:

             At Mr. Critchlow's request, due to his unavailability, I appeared at
      your courtroom for what I had been told was a status hearing set for
      November 7, 2014 at 8:30 AM. No one was at your courtroom when I
      arrived and the door was locked.
              · .. I did in fact attempt to appear on behalf of plaintiff.
              · .. I believe the only thing remaining to do on this case is to
      formally enter the judgment. Plaintiff sent defendant a draft of a proposed
      judgment; but, apparently defendant has some qualms about the language
      of plaintiff's proposed Judgment.

Ex. 3, App. A (additional evidence brought in by commissioner's ruling of June 1,2015).

      On December 3,2014, Dex's counsel wrote to the court:

             I attended the November 7, 2014 8:30 a.m. show cause hearing
      arriving in your courtroom at approximately 8: 15 a.m. In your absence,
      Ashley, one of your courtroom clerks noted that Mr. Critchlow was not
      present and waited until 8:45 a.m. to allow Mr. Critchlow plenty of time to
      arrive. At 8:50 a.m., Ashely [sic] walked into the entry hallway outside
      your courtroom and called out Mr. Critchlow's name. Neither Mr.
      Critchlow, Mr. McNeil nor Mr. Lee answered, as none were present in or
      outside of your courtroom which was open and unlocked.
              · .. Between 9:00 a.m. and 9:10 a.m., I observed Mr. McNeil
      walking down the third floor hallway. I watched him to determine whether

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No. 33038-9-111
Critchlow v. Dex Media West


       1 needed to return to your courtroom. He did not enter your courtroom at
       that time.
               An Offer of Judgment was filed by Defendant with this court on
       September 25, 2014. An Acceptance was filed by Plaintiff on October 2,
       2014. The Defendant did not agree to the language in the Judgment and
       proposed a revised Judgment which was ignored by Mr. Critchlow along
       with the request that he provide an executed W-9. Neither the judgment
       nor the W-9 have been forthcoming.

Ex. 3, App. B.

                                  LA W AND ANALYSIS

                                          Recusal

       Robert Critchlow contends that Judge Annette Plese erred by recusing herself on

her own motion. He argues that (1) the judge needed to afford each party an opportunity

to object before the disqualification, and (2) the judge needed to disclose a reason for the
                                                                                               I
recusal. We decline to address whether Judge Plese held the power to disqualify herself

without presenting a reason and without earlier notice to the parties. Because we hold

that the offer ofjudgment ends the litigation and because Robert Critchlow does not

argue that he would have rejected the offer ofjudgment if Judge Plese continued to

preside over the suit, our resolution of this assignment of error lacks no practical import

on the outcome of the suit. Principles ofjudicial restraint dictate that if resolution of

another issue effectively disposes of a case, we should resolve the case on that basis

without reaching the first issue presented. Wash. State Farm Bureau Fed'n v. Gregoire,



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No. 33038-9-III
Critchlow v. Dex Media West


162 Wn.2d 284,307,174 P.3d 1142 (2007); Hayden v. Mut. ofEnumclaw Ins. Co., 141

Wn.2d 55, 68, 1 P.3d 1167 (2000).

                                    Offer of Judgment

       Robert Critchlow next assigns error to the trial court's dismissal of his case with

prejudice. Critchlow argues that, due to his acceptance of the CR 68 offer ofjudgment,

the court held a ministerial duty to enter a judgment. Critchlow also argues that the trial

court erred by dismissing his suit without finding prejudice to Dex and without first

reviewing whether a lesser sanction would address his failures to appear. We first

address whether a judgment should be entered as a result ofDex's offer ofjudgment and

Critchlow's acceptance of the offer. We hold that a judgment should be entered. We

later address whether sanctions other than dismissal should be entered.

       CR 68 governs offers ofjudgment and provides, in pertinent part:

              [A] party defending against a claim may serve upon the adverse
      party an offer to allow judgment to be taken against the defending party for
      the money or property or to the effect specified in the defending party's
      offer, with costs then accrued. If within 10 days after the service of the
      offer the adverse party serves written notice that the offer is accepted, either
      party may then file the offer and notice of acceptance together with proof of
      service thereof and thereupon the court shall enter judgment.

Robert Critchlow relies on the command that "the court shall enter judgment" to argue

that simply filing the offer and acceptance of offer, pursuant to CR 68, imposes a

ministerial duty on the court to enter a judgment. Dex contends that the trial court may


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No. 33038-9-111
Critchlow v. Dex Media West


not enter a judgment because Robert Critchlow and it had not yet agreed on the form or

content of the judgment. We agree with Critchlow.

       We know from experience that parties continue to discuss the format of an

agreement after having reached an agreement, with or without a precipitating formal offer

ofjudgment. Sometimes a defendant even demands terms inserted into a final written

document, which terms the parties never earlier discussed or placed in writing. This

additional dickering does not preclude an enforceable agreement or the entering of a

judgment after an offer ofjudgment. Rather than insisting on additional terms after the

acceptance of the offer, the defense should incorporate all terms in the offer ofjudgment.

       CR 68 sets forth a procedure for defendants to offer to settle cases before trial.

Lietz v. Hansen Law Offices, PSC, 166 Wn. App. 571, 581, 271 PJd 899(2012). The

rule aims to encourage parties to reach settlement agreements and to avoid lengthy

litigation. Dussault v. Seattle Pub. Sch., 69 Wn. App. 728, 732, 850 P.2d 581 (1993). A

Rule 68 offer is not simply an offer of settlement, but an offer that judgment can be

entered on specified terms. Real Estate Pros, PC v. Byars, 2004 Wy 2, 90 PJd 110, 113

(Wyo. 2004). If the offer is accepted, the court automatically enters judgment in favor of

the offeree, Real Estate Pros, PC v. Byars, 2004 Wy 2, 90 P.3d at 113.

       When interpreting a CR 68 offer ofjudgment, we look at the parties' objective

manifestations for contract formation, not their unexpressed subjective intentions to later


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No. 33038~9·III
Critchlow v. Dex Media West


add other terms to the offer. Wash. Greensview Apartment Assocs. v. Travelers Prop.

Cas. Co. ofAm., 173 Wn. App. at 679; Lietz v. Hansen Law Offices, PSC, 166 Wn. App.

at 587. In Washington Greensview Apartment Associates, Travelers attempted to argue

that the parties never reached mutual assent because they did not reach an agreement with

regard to reasonable attorney fees and costs. The court still enforced the terms stated in

the offer ofjudgment.

       CR 68 does not hint of the need or even possibility of the parties to continue to

negotiate terms of the settlement or the form of a judgment. Instead, the rule imposes an

obligation on the trial court to enter a judgment for the amount offered. Thus, we direct

the trial court to enter an unadorned judgment in favor of Robert Critchlow against Dex

in the amount of $5,000 without any costs or attorney fees awarded.

       We issue no ruling on whether Robert Critchlow or one of his attorneys must

submit a W·9 form or the ramifications of any failure to timely tender the form. The

need for such a form is a question otherwise controlled by federal tax law and not a

subject to be inserted into the judgment in favor of Critchlow. If need be, the parties may

litigate the need for a W-9 form by a motion after the filing of the judgment.

                                      Attorney Fees

      Robert Critchlow requests attorney fees under the Washington Consumer

Protection Act (CPA), chapter 19.86 RCW. RCW 19.86.090 allows a prevailing party on


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No. 33038-9-II1
Critchlow v. Dex Media West


a consumer protection claim to recover reasonable attorney fees. Critchlow, however,

waived any recovery of reasonable attorney fees when accepting the offer ofjudgment

that expressly excluded any such recovery.

       Washington's CR 68 is virtually identical to Federal Rule of Civil Procedure 68.

Lietz v. Hansen Law Offices, PSC, 166 Wn. App. at 580 (2012). Thus, in the absence of

controlling state authority, Washington courts look to federal interpretations of the

equivalent rule. Johnson v. Dep't ofTransp. , 177 Wn. App. 684, 692 n.5, 313 P.3d 1197

(2013), review denied, 179 Wn.2d 1025 (2014); Lietz, 166 Wn. App. at 580; Hodge v.

Dev. Servs. ofAm., 65 Wn. App. 576, 580, 828 P.2d 1175 (1992). Consistent with its

purpose of promoting settlements, CR 68 allows defendants to make lump-sum offers

that are inclusive of attorney fees. Radeckiv. Amoco Oil Co., 858 F.2d 397, 401 (8th Cir.

1988). When the offer ofjudgment reads that the offered amount includes all reasonable

attorney fees and costs, the plaintiff may not recover reasonable attorney fees and costs,

beyond the offered amount, even if a statute affords recovery for fees and costs. Wilson

v. Nomura Sec. Int'l, Inc., 361 F.3d 86, 90 (2d Cir. 2004).

       The offeror of a judgment is the master of its offer. A defendant, if it wishes,

deserves the opportunity to avoid payment of an indeterminate amount of attorney fees

by offering a lump sum in total. The offeree is the master of his acceptance of an offer of

judgment. The offeree remains at liberty to reject the offer if he desires payment of an


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No. 33038-9-111
Critchlow v. Dex Media West


additional sum for reasonable attorney fees. Robert Critchlow chose to accept Dex's

offer ofjudgment that did not afford additional recovery for fees.

       We note that CR 68 directs that the offer ofjudgment be for "money or

property... with costs then accrued." Therefore, the rule may require the offeror to pay

court costs to the offeree despite the language of the offer. We render no ruling on this

issue, since Robert Critchlow does not advance this contention. This court does not

review issues not argued, briefed, or supported with citation to authority. RAP 10.3(a);

Valente v. Bailey, 74 Wn.2d 857,858,447 P.2d 589 (1968); Avellaneda v. State, 167 Wn.

App. 474, 485 n.5, 273 P.3d 477 (2012).

       We vacate the trial court's dismissal of Robert Critchlow's complaint. We remand

for entry ofjudgment in favor of Robert Critchlow against Dex in the sum of $5,000 and

for entry of such sanctions, if any, other than dismissal, that the court deems appropriate

for Robert Critchlow's violation of the court order to show cause.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

OpInIOns.


                                         Sanctions

      Robert Critchlow next contends that the trial court lacked discretion to dismiss the

case, because once he filed the CR 68 offer and acceptance, the trial court had a

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No. 33038-9-I11
Critchlow v. Dex Media West


ministerial duty to enter the judgment. Our ruling on the enforcement of the offer of

judgment compels our adoption of the argument. Absent an enforceable judgment, we

would otherwise remand the case to the trial court to address whether Dex suffered

prejudice as a result of Mr. Critchow's failure to attend the hearings and whether a lesser

sanction is more appropriate. A trial court exercising its authority to dismiss a case for

violation of court orders and rules must explicitly find that a party's failure to comply

was willful and prejudiced the opposing party. Woodhead v. Disc. Waterbeds, Inc., 78

Wn. App. 125, 131-32,896 P.2d 66 (1995).

       The trial court had yet to enter a judgment by the day of the status conference.

Robert Critchlow needed to obey the court order to appear both at the status conference

and the show cause hearing, despite having accepted an offer ofjudgment. We thus

remand for the entry of appropriate sanctions short of dismissal of the case.

       We note that Robert Critchlow objected to the recusal of Judge Annette Plese and

Judge Michael Price will preside upon remand. Therefore, Robert Critchlow could claim

prejudice resulting from our failure to address the recusal of Judge Plese. We remand

anyway to the second assigned judge since the failure to appear before Judge Price cannot

be excused by demanding another judge. Regardless of whether Critchlow had a pending

objection to the first judge's recusal, Judge Price deserved the courtesy of an appearance

and obedience to his court order.


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No. 33038-9-111
Critchlow v. Dex Media West


                                     CONCLUSION

       We reverse the trial court's dismissal of Robert Critchlow's complaint. We

remand for entry ofjudgment in favor of Robert Critchlow against Dex in the sum of

$5,000 and for entry of such sanctions, if any, other than dismissal, that the court deems

appropriate for Robert Critchlow's violation of the court order to show cause.




WE CONCUR: 





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