Mitchell v. Washington State Institute

• Court: Washington Court of Appeals
• Writing for the Court: Van Deren
• Citation: Mitchell v. Washington State Institute, 225 P.3d 280, 153 Wash.App. 803 (Wash. App. 2009)
• Decision Date: 22 December 2009
• Docket Number: No. 38777-8-II.
• Parties: Kevin Michael MITCHELL, Appellant, v. WASHINGTON STATE INSTITUTE OF PUBLIC POLICY, Respondent.

225 P.3d 280

153 Wash.App. 803

Kevin Michael MITCHELL, Appellant, v. WASHINGTON STATE INSTITUTE OF PUBLIC POLICY, Respondent.

No. 38777-8-II.

Court of Appeals of Washington, Division 2.

December 22, 2009.

Kevin M. Mitchell, Aberdeen, WA, pro se.

Dierk Jon Meierbachtol, Attorney General's Office, Olympia, WA, for Respondent.

VAN DEREN, C.J.

¶ 1 Kevin Michael Mitchell appeals an order partially vacating the judgment arising from his Public Records Act (PRA)¹ claim against the Washington State Institute for Public Policy (WSIPP) and sanctioning him under CR 11. Mitchell argues that (1) substantial evidence does not support many of the trial court's findings of fact or that they are contrary to law; (2) CR 78(e) is an exclusive remedy for all issues collateral to a cost bill, thereby barring WSIPP's CR 60 motion to vacate the portion of his judgment related to the cost award and for sanctions under CR 11; (3) CR 60 cannot apply to fraud in a cost bill; (4) CR 11 does not apply to cost bills; and, even if CR 60 and CR 11 do apply, (5) the trial court could not vacate the cost award under the PRA or void Mitchell's assignment of his judgment. We affirm.

FACTS

¶ 2 Mitchell is an inmate at the Stafford Creek Corrections Center (SCCC). He filed a PRA request for documents in WSIPP's possession as part of a study WSIPP conducted on behalf of the Department of Corrections (DOC). WSIPP forwarded the request to DOC, believing that DOC owned the records. Mitchell sued WSIPP.

¶ 3 WSIPP later acknowledged its error in forwarding the request to DOC and asked that the court not impose the statutory minimum fine of five dollars per day for its transgression. The trial court found that WSIPP did not comply with the PRA, that its error was in good faith, and imposed a penalty of five dollars per day for the 445 days WSIPP withheld the records.

¶ 4 On November 14, 2008, the trial court ordered WSIPP to pay Mitchell the accumulated fine of $2,225 and awarded Mitchell costs, directing him to submit a cost bill to the court clerk. On the same day, SCCC received an envelope addressed to Mitchell. The envelope was stamped with the word "LEGAL" and had a return address of "King, Brian M. & Assoc., Atty, P.O. Box 98254, Lakewood, WA 98496." Clerk's Papers (CP) at 27 (emphasis omitted). The envelope contained a cover letter to Mitchell from the "Law Offices of Brian M. King & Associates, Attorneys at Law" that was signed by a paralegal named "Phuk Diocee."² CP at 25 (emphasis omitted). It also contained an invoice from a corporation named "NRGETX," a copy of which Mitchell eventually submitted to the trial court to support his cost bill. CP at 26. The invoice included charges for "typeservice" and "common law publishing," totaling $898.43. CP at 26. DOC seized the letter and did not present it to Mitchell because it could not confirm the existence of the designated law offices.

¶ 5 On November 20, Mitchell mailed three documents to the trial court that the clerk filed on November 25:(1) an assignment of judgment to a corporation, MCS Global Incorporated; (2) a judgment summary listing the amount of the judgment ($2,225.00) plus costs and attorney fees ($1,374.66); and (3) a cost bill listing the clerk's filing fee ($200.00), process server fee ($60.00), postage costs ($16.23), "[c]ommon law publication/[l]egal [t]ypeservice fees" ($898.43), and a statutory attorney fee ($200.00). CP at 10. On December 1, the clerk filed a copy of the NRGETX invoice, which Brian David Matthews³ had mailed to the trial court.

¶ 6 On December 10 and 11, DOC forwarded the intercepted envelope and its contents to the attorney general and WSIPP's counsel. WSIPP discovered that there was a Washington state lawyer named Brian M. King, but that he did not perform legal work for Mitchell. WSIPP determined that NRGETX was a Washington corporation located at "6709 Marshall Ave., SE, in Auburn Washington," that had a registered agent listed as "`Patrick Alan'" and directors "`Patrick Alan'" and "`Brian David.'" CP at 15-16. "MCS Global Legal Services" also listed the name "`Patrick Alan'" as the registered agent and was located at the same address as NRGETX. CP at 16. It listed officers or directors, including "`Patrick Alan'" and Mitchell. CP at 16. Patrick Alan Mitchell is Mitchell's father, who at the time lived at 6709 Marshall Ave. SE, Auburn WA 98092. "`Patrick Alan'" is also the registered agent for the "`Prisoner Art Fund,'" the "`Alyssa Destiny Eldridge Reparation Fund,'" and the "`Church of Interdimensional Anunnaki.'" CP at 17.

¶ 7 On December 12, WSIPP moved to vacate Mitchell's cost award and for sanctions under CR 11. Mitchell responded with many of the same arguments he raises on appeal. Matthews provided a copy of his process server license that included his name and the name of "MCS Global Inc." CP at 83. Mitchell claimed that Jeffery Randall McKee served process on WSIPP for him. If so, McKee served process using Mitchell's process server license.

¶ 8 On January 13, 2009, the trial court vacated part of Mitchell's judgment and granted CR 11 sanctions against him. The amended order allowed costs for the clerk's filing fee ($200.00) and postage ($16.23) but no additional costs. CP at 86. The trial court imposed CR 11 sanctions against Mitchell of $2,316.86. The trial court then ordered that the balance, $124.37, be paid solely to Mitchell and not to the assignee of his judgment.

¶ 9 Mitchell appealed. Pending appeal, on January 26, Mitchell moved under CR 59 and RAP 7.2(e) for the trial court to reconsider its order vacating the judgment in part and imposing CR 11 sanctions. Mitchell relied solely on Matthews's declaration to support his motion. Matthews's materials included: (1) several of his own declarations; (2) a copy of NRGETX's certificate of incorporation; (3) a contract between NRGETX and Mitchell that appears to be signed by Patrick A. Mitchell and Mitchell; (4) the NRGETX invoice; (5) and a declaration from Sean Brooks Skirlaw, Mitchell's typist at SCCC. In these documents:

• Matthews acknowledged that the law office shown on the envelope and cover letter DOC intercepted did not exist. Matthews also provided an explanation for the particular words used on the envelope and cover letter. He explained that he acted on his own to send the NRGETX invoice to Mitchell using the phrase "`King, Brian M. & Assoc. Atty'" on the envelope. CP at 107-08 (emphasis omitted). Matthews further explained that "`King'" referred to his sovereignty, "`Brian M.'" referred to his first name and last initial, "`Assoc.'" referred to his fraternal and religious association with Mitchell, and "`Atty'" was actually pronounced "`uh-tea'" and was the way members of the association referred to one another. CP at 108. Finally, he explained that the cover letter from the "`Law offices of Brian M. King & Associates, Attorneys at Law'" was "a novelty/gag/joke only" and that he knew the law office did not exist. CP at 108.

• Matthews acknowledged that he stamped the envelope with the word "`Legal Mail'" because it was of a "legal nature" and that, as the "underlying correspondence was coming from a non-approved legal source, . . . [it] would be intercepted and opened in Mr. Mitchell's presence." CP at 108-09.

• Matthews claimed that "Mitchell did not instruct, order, request (or the like) me to send in the NRGETX invoice . . . through any "`. . . auspices of a fictional law firm . . .'" and . . . Mitchell had no knowledge whatsoever that I would convey the same as I did." CP at 109 (emphasis omitted).

• The type service costs incurred were apparently to pay for typing by Skirlaw, a "volunteer" of NRGETX, who was incarcerated in the same DOC facility as Mitchell. CP at 106.

• The "[c]ommon [l]aw [r]esearch/[p]ublishing" expenses were for "research and publication of applicable Washington State Supreme Court case laws/opinions respecting violations of the Public Records Act, RCW 42.56 et seq., and potential remedies thereunder." CP at 107.

¶ 10 On April 16, the trial court issued findings of fact and conclusions of law as part of a corrected order granting the WSIPP's motion to vacate and for CR 11 sanctions. On May 15, the trial court issued another corrected order modifying the April 16 order.

¶ 11 Mitchell appeals the modified order.

ANALYSIS

I. Trial Court Findings

¶ 12 Mitchell asks us to conduct a "de novo review of the documentary evidence in order to see-through the alleged findings made by the trial court."⁴ Supp. Br. of Appellant at 1. Barring new findings of fact by our court, Mitchell argues that the trial court erred in two of its findings and abused its discretion in nine findings because substantial evidence does not support the findings. These arguments fail.

A. Standard of Review

¶ 13 We review de novo questions of law and a trial court's conclusions of law.⁵ Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 880, 73 P.3d 369 (2003). And we review findings of fact⁶ "under a substantial evidence standard." Pardee v. Jolly, 163 Wash.2d 558, 566, 182 P.3d 967 (2008). "Substantial evidence is evidence that would persuade a fair-minded person of the truth of the statement asserted." Cingular Wireless, L.L. C. v. Thurston County, 131 Wash.App. 756, 768, 129 P.3d 300 (2006).

¶ 14 We defer to the fact finder and "consider all of the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority." Cingular Wireless, 131 Wash.App. at 768, 129 P.3d 300. And "[w]e reserve credibility determinations for the fact finder and do not review them on appeal." J.L. Storedahl & Sons, Inc. v. Cowlitz County, 125 Wash.App. 1, 11, 103 P.3d 802 (2004). In the end, "A trial court's findings of fact must justify its conclusions of law."⁷ Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 353, 172 P.3d 688 (2007).

B. Findings of Fact

¶ 15 Mitchell challenges the...