Buckley v. Snapper Power Equipment Co.
| Decision Date | 24 June 1991 |
| Docket Number | No. 24910-0-I,24910-0-I |
| Citation | 813 P.2d 125,61 Wn.App. 932 |
| Parties | Atheana BUCKLEY, Appellant, v. SNAPPER POWER EQUIPMENT COMPANY, Respondent. |
| Court | Washington Court of Appeals |
William Johnston, Bellingham, for Atheana Buckley.
Steven Fitzer, Tacoma, for Snapper Power Equipment Co.
Atheana Buckley, a minor, appeals the trial court's approval of a settlement in her personal injury case against respondent, Snapper Power Equipment Company, alleging the trial court erred in: (1) failing to recuse itself after engaging in ex parte communication; (2) denying her parents' motion to be appointed guardians ad litem for purposes of this appeal; and (3) approving a settlement of the minor's claims against respondent for $30,000. We affirm.
Atheana Buckley was seriously injured in a lawnmower accident when she was 6 years old. The accident occurred when Atheana's older sister Heather, then 11 years old, was mowing the family's lawn using a rear-engine riding mower while Atheana played on the lawn. No adults were present. Heather states that the mower hit a depression and reared up, causing her to lose steering control and run over Atheana's foot. A police accident report made at the scene states that the father and Heather explained that Atheana ran in front of the mower to pick up a stick and Heather was unable to stop the mower in time to avoid the accident.
The mower was manufactured by respondent Snapper Power Equipment Company ("Snapper"). The owners' manual states that no minors should be allowed to operate the mower, except responsible teenagers with mature judgment, and then only under close supervision. It also states that children should not be allowed in the yard when the mower is operated.
Appellant's main theory of liability against Snapper is that the company marketed the grass catcher attachment to the mower without adequately marketing a front load carrier attachment, which appellant claims is necessary to balance the weight of the grass and keep the mower stable. Appellant claims that in 1985, the year of Atheana's accident, Snapper sold 53,949 grass catchers and only 329 front load carriers. The Buckleys did not own a front load carrier, and at the time of Atheana's accident Heather was using the grass catcher attachment. The owners' manual states that failure to use a weighted front load carrier while using the grass catcher may result in a loss of steering control. Two statements in the manual say this is a concern when operating the mower on slopes, while a third statement does not mention slopes. Appellant's lawn is virtually flat. Snapper contended that it was physically impossible for the mower to behave in the manner alleged by sister Heather.
The guardian ad litem estimated Atheana's damages at $500,000-$750,000. Atheana settled her claim against her parents and sister under their homeowners' insurance policy for $75,000, and settled with the retailer of the mower for $25,000. The only remaining defendant was respondent Snapper. Snapper initially proposed a $6,000 settlement. Atheana's guardian ad litem, believing her case to be weak, recommended that the trial court approve the settlement, but her attorney argued against it. The trial court rejected the proposed settlement.
The following day, Snapper's attorney telephoned the guardian ad litem and asked if he could ethically ascertain the judge's opinion concerning an acceptable settlement figure. The guardian ad litem then telephoned the judge without the knowledge or participation of plaintiff's counsel, and posed the question to the judge. The judge responded that $30,000 would be an acceptable settlement amount. The guardian ad litem conveyed this information to Snapper's attorney, who consulted his client and promptly offered $30,000. Snapper's attorney saw plaintiff's counsel that evening, June 1, 1989, and related all of these events to him.
At the hearing on the proposed $30,000 settlement on June 9, 1989, the guardian ad litem again argued for the settlement and plaintiff's attorney again argued against it. Plaintiff's counsel, prompted by the court, complained that defense counsel had negotiated directly with the guardian ad litem rather than with himself. However, plaintiff's counsel did not complain about the ex parte communication between the guardian ad litem and the trial court, although he had learned of that communication on the day it occurred. The trial court adopted the report of the guardian ad litem recommending approval of the settlement. The trial court stated that plaintiff's case was weak because there was no slope in the lawn and because of the apparent inconsistency between Heather's statements in the police report and her later testimony as to how the accident occurred.
Plaintiff raised the ex parte communication issue for the first time on August 25, 1989, at a hearing on a motion for reconsideration. She requested that the settlement be vacated and another judge appointed. The motion was denied. Plaintiff later moved to have her parents appointed guardians ad litem for purposes of appeal, and this motion was also denied.
Plaintiff subsequently obtained an order directing transfer of the $30,000 Snapper settlement proceeds from the court registry to a blocked account at Horizon Bank for the benefit of the minor. The order also directed transfer of another $25,000 from the court registry to Horizon Bank for benefit of the minor. Plaintiff thereafter obtained an order to disburse $6,139.27 from her funds at Horizon Bank for costs and attorney's fees associated with the litigation.
The parents correctly argue that they may appeal as next friend of their minor child despite the appointment of a guardian ad litem. In in RE ivarsson, 60 wash.2d 733, 736-38, 375 P.2d 509 (1962), a minor's grandmother and her husband sought to appeal a decision authorizing the payment of certain fees and expenses out of the minor's estate. Respondent argued that the appointment of a guardian ad litem precluded an appeal by a next friend. The court disagreed, stating that an appellate court "will not dismiss a meritorious appeal by a 'next friend' in [a guardianship] proceeding merely because a guardian ad litem has been appointed." Ivarsson, 60 Wash.2d at 738, 375 P.2d 509. While in Ivarsson the guardian ad litem's fee was one of the items in dispute, the court did not restrict its holding to cases of a conflict of interest between the guardian ad litem and the ward, but rather stated more broadly that "a guardian ad litem may make a mistake in judgment, which brings about a situation which should be reviewed by an appellate court[.]" Ivarsson, 60 Wash.2d at 737, 375 P.2d 509.
Respondent's reliance on Battyany v. McNeley, 83 Wash. 666, 670, 145 Pac. 978 (1915) is misplaced. In Battyany, a father who was guardian of his minor children attempted to appeal a trial court decision on their behalf. The court refused to hear the father's appeal not because a guardian ad litem had been appointed for the sons, but because the father's interests were adverse to the sons' in the litigation in question. In the present case, the parents have no interests adverse to their daughter's in proceeding against Snapper. They therefore may appeal the trial court's decision as her next friend. 1
The trial court communicated directly with the guardian ad litem, and indirectly with defense counsel, concerning a settlement amount that would be acceptable to the trial court. The communication took place without the knowledge or participation of plaintiff's counsel, and therefore it was a prohibited ex parte communication under the Code of Judicial Conduct (CJC) 3(A)(4), 2 and the trial court should have recused itself pursuant to CJC 3(C)(1). 3
If appellant has not waived the error, the trial court's failure to recuse itself would be reversible error because it prevented appellant from having a fair hearing. CR 59(a)(1), governing grounds for a new trial or reconsideration, provides that a decision may be vacated for an irregularity in the proceedings which materially affects the substantial rights of a party, preventing that party from having a fair trial. Such irregularities include those caused by the trial court itself. See Morris v. Nowotny, 68 Wash.2d 670, 673-74, 415 P.2d 4 (1966) ().
Snapper's argument that no prejudice to appellant resulted from the ex parte contact is unconvincing. Any party who, through ex parte communication with the trial court, learns the court's opinion of a reasonable settlement amount, has an obvious and unfair advantage over his or her opponent.
However, appellant did not raise the issue of ex parte communication or request disqualification of the trial judge until her motion for reconsideration. Under some circumstances, an issue may be preserved for appeal even though it was not raised until a motion for reconsideration. See Newcomer v. Masini, 45 Wash.App. 284, 287, 724 P.2d 1122 (1986); see also Rotta v. Early Indus. Corp., 47 Wash.App. 21, 23-24, 733 P.2d 576, review denied, 109 Wash.2d 1012 (1987). However, this is not the case where the moving party seeks to disqualify the trial judge.
[A] litigant who for the first time during trial learns of grounds for disqualification must promptly make his objection known, as by moving for a mistrial. He may not, after learning of grounds for disqualification, proceed with the trial until the court rules adversely to him and then claim the judge is disqualified.
(Citations omitted.) Williams & Mauseth Ins. Brokers, Inc. v. Chapple, 11 Wash.App. 623, 626, 524 P.2d 431 (1974); accord, State v. Bolton, 23 Wash.App. 708, 714-15, 598 P.2d 734 (1979) ...
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§59.6 Analysis
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