Aguirre v. AT & T WIRELESS SERVICES
| Decision Date | 13 November 2001 |
| Docket Number | No. 46876-6-1-I.,46876-6-1-I. |
| Citation | 109 Wash.App. 80,33 P.3d 1110 |
| Court | Washington Court of Appeals |
| Parties | Jeananne AGUIRRE, Individually, and on behalf of all the members of the Class of Persons similarly situated, Respondents, v. AT & T WIRELESS SERVICES, a foreign corporation, Respondent, Kathleen Sanders, as class representative, Appellant. |
Ben Shafton, Morse & Bratt, Vancouver, for Appellant.
Laura Buckland, Seattle, for Respondent AT & T Wireless Services.
David Elliott Breskin, Daniel Foster Johnson, Short, Cressman & Burgess, Seattle, William W. Houck, Law Office of William W. Houck, Issaquah, for Jeananne Aguirre.
Kathleen Sanders appeals the King County Superior Court orders approving a settlement in a class action lawsuit (Aguirre settlement), denying her motion to intervene, and granting AT & T's motion to disapprove of her request to opt out the entire Clark County class that she represents. Sanders was a class member under the Aguirre statewide class action. She was also the class representative of a similar class action initiated in Clark County. The Aguirre class action included all members of the Clark County class who did not choose to opt out of the Aguirre settlement.
Sanders chose to opt out of the Aguirre settlement. She also attempted to opt out the entire Clark County class under her representation. Sanders has no interest in the Aguirre settlement after choosing to opt out. Sanders has no right to opt out the entire Clark County class. Her position as Clark County class representative does not improve her lack of standing. She therefore has no right to intervene or appeal the judgment approving the Aguirre settlement. We affirm.
AT & T Wireless may have been charging city taxes to customers living outside city limits. Two customers initially complained. Appellant, Kathleen Sanders, brought a claim in Clark County Superior Court on January 5, 1998, on behalf of herself and all other similarly situated Clark County residents. Plaintiff, Jeananne Aguirre, filed a similar suit on March 25, 1998, in King County Superior Court on behalf of all similarly situated persons within the State of Washington. The Aguirre class was certified consisting of all affected AT & T customers within the state on July 30, 1998. The Sanders' class was certified on April 29, 1999, to include all affected Clark County residents and Sanders was named as the Clark County class representative.
By February 3, 2000, AT & T and Aguirre on behalf of the statewide class agreed to a settlement. King County Superior Court Judge Bates gave preliminary approval to the settlement. Judge Bates' order required class wide notice and provided a schedule for class members to opt out. The order provided,
13. Any Class member who has not requested exclusion, or who is not otherwise excluded, may appear and show cause why the proposed settlement of the Litigation should or should not be approved as fair, reasonable and adequate, or why the proposed final Order and Judgment should or should not be entered....
Notice was sent individually to current AT & T customers and summary notice was twice published in ten major area newspapers.
On April 14, 2000, Sanders sent a letter to the Aguirre settlement claims manager, opting herself out of the settlement and attempting to opt out the entire Clark County class.1 On the same day she sent the letter, Sanders filed a notice of intent to present argument in Aguirre and filed an objection to the Aguirre settlement. On May 15, 2000, she filed a brief in opposition to the settlement. On May 16, 2000, Sanders filed a motion to intervene in the case.
On May 17, 2000, a hearing was held pending final approval of the settlement. King County Superior Court Judge McDermott heard argument from Ben Shafton, Sanders' counsel, concerning objections to the Aguirre settlement and Sanders' motion to intervene. The court denied her motion to intervene and gave final approval of the Aguirre settlement. AT & T moved to disapprove of Sanders' opting out of the entire Clark County class. This motion was granted. Sanders appeals the denial of the motion to intervene, the final judgment and order of dismissal, and the granting of the motion to disapprove of Sanders' attempt to opt out the entire Clark County class.
Appellant makes numerous arguments regarding the equity of the Aguirre settlement with AT & T. After choosing to opt herself out of the settlement agreement, however, Sanders has no standing to object to the settlement, its fairness or lack thereof, or the parties agreed upon procedure of notification.
RAP 3.1 provides that only an "aggrieved party" may seek appellate review. An aggrieved party is one whose proprietary, pecuniary, or personal rights are substantially affected. Sheets v. Benevolent & Protective Order of Keglers, 34 Wash.2d 851, 855, 210 P.2d 690 (1949). Those who are not parties to an action may not appeal. In re Guardianship of Lasky, 54 Wash.App. 841, 850, 776 P.2d 695 (1989). Individuals who have elected to opt out of a settlement are not parties and have no standing to appeal. See Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C.Cir.1993)
.
Sanders is not a party to this action because she chose to opt out from the Aguirre settlement. By opting out of the Aguirre class action, she has preserved her right to pursue a separate action against AT & T. The settlement, thus, has no affect on her proprietary, pecuniary, or personal rights and she has no standing to contest it as an individual.
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