Engstrom v. Goodman
| Decision Date | 05 March 2012 |
| Docket Number | No. 66557–0–I.,66557–0–I. |
| Court | Washington Court of Appeals |
| Parties | Denise V. ENGSTROM, a married person, Respondent, v. Rebecca Harsten GOODMAN, N.R. Goodman, N. Rebecca Goodman, Nancy Rebecca Goodman, Nancy R. Goodman, R.N. Goodman, Rebecca N. Goodman, Rebecca H. Goodman, Rebecca Conrad–Goodman, Rebecca Conrad, Rebecca Hjortshoj–Goodman, Appellant,andJohn Doe Goodman, individually and as wife and husband, and their marital community composed thereof, Defendant. |
OPINION TEXT STARTS HERE
Mark Gregory Olson, Attorney at Law, Everett, WA, for Appellant.
Debora A. Dunlap, McGaughey Bridges Dunlap PLLC, Bellevue, WA, for Respondent.
¶ 1 Denise Engstrom, plaintiff in this personal injury suit, prevailed at mandatory arbitration. The attorney for defendant Rebecca Hardesten 1 signed and submitted a request for a trial de novo. Counsel for Engstrom moved to strike the request on the ground that Hardesten had not authorized it. The trial court denied the motion and sanctioned counsel for Engstrom for communicating directly with Hardesten, a represented party, in order to obtain declarations supporting the motion. We affirm these rulings. Hardesten is entitled to proceed to trial de novo.
¶ 2 The arbitrator found Hardesten liable for damages incurred by Engstrom in a car accident. Hardesten's attorney filed a timely request for trial de novo on October 25, 2010.
¶ 3 On November 3, 2010, Hardesten personally sent an e-mail to Engstrom's attorney, John Williams, in which she said she did not agree to a new trial and she did not wish to be represented by her attorney.
¶ 4 Engstrom served requests for admission asking whether Hardesten had authorized or consented to the request for trial de novo. Hardesten's attorney objected on the basis of attorney-client privilege and did not provide answers.
¶ 5 Under MAR 7.1(a), a request for trial de novo after an award in mandatory arbitration must be filed by an “aggrieved party.” Engstrom took the position that the request for trial de novo, filed by Hardesten's attorney and not signed by Hardesten herself, was a nullity unless Hardesten herself authorized or consented to the filing. Engstrom's attorney, Williams, prepared a declaration for Hardesten stating that she did not authorize or consent to the filing. Hardesten signed the declaration. Williams signed his own declaration. Armed with these declarations, Engstrom moved to strike Hardesten's request for trial de novo.
¶ 6 Hardesten's attorney withdrew. Represented by new counsel, Hardesten moved to strike the declarations of Williams and Hardesten as improperly obtained in violation of the rules of professional conduct. Hardesten also moved for sanctions against Williams. After a hearing on December 17, 2010, the trial court granted Hardesten's motions and denied Engstrom's motion to strike the trial de novo.
¶ 7 Williams withdrew a few days later. Engstrom, through her new attorney, brings the trial court rulings before us on discretionary review. 2
¶ 8 Engstrom presented the declarations of Hardesten and Williams to the trial court to prove that the request for trial de novo was filed without Hardesten's consent. The trial court struck the declarations, finding that they contained information Williams obtained in violation of the rule against communicating with a represented party when her attorney was not present.3 Engstrom contends the declarations should not have been stricken as they provided key admissible evidence that Hardesten did not want a trial de novo. We review a trial court's ruling on a motion to strike for an abuse of discretion. King County Fire Prot. Dist. No. 16 v. Hous. Auth. of King County, 123 Wash.2d 819, 826, 872 P.2d 516 (1994). Likewise, we review a trial court's decision to admit or exclude evidence for abuse of discretion. City of Kennewick v. Day, 142 Wash.2d 1, 5, 11 P.3d 304 (2000).
¶ 9 The Hardesten and Williams declarations are not in the appellate record. Instead, the record contains two pages, mostly blank, one for each declaration, each marked with the title of the document (“Declaration of John M. Williams” and “Declaration of Rebecca Hardesten”). Each page is labeled “Snohomish County Clerk's Office: Documents Removed.” 4
¶ 10 How these documents came to be “removed” is a topic in itself. Counsel for Hardesten drafted the order striking the declarations with a finding that the declarations should be “removed from the court file by the clerk.” 5 The final order, however, shows the quoted phrase lined out. Instead, the sentence (with a handwritten interlineation) reads, “The declarations shall therefore be stricken from consideration in the motion to strike trial de novo.” 6 The transcript of the hearing on December 17, 2010, confirms that the change was the result of a deliberate decision by the court. Hardesten's counsel asked the trial court to “expunge” the declarations from the court file to prevent the possibility that the judge who would eventually preside over the trial de novo would see them and be prejudiced against Hardesten. Counsel claimed she had been able to get a court in a different county to “expunge” prejudicial documents. The court refused this request: 7
¶ 11 Although the finding that directed removal of the documents was deleted, the order as drafted by counsel for Hardesten contained similar language on the next page granting the motion “with the instruction to the court clerk to remove these declarations from the court file.” 8 It appears that the judge overlooked this second reference to removal, with the result that the court clerk acted upon it and removed the declarations. This was clearly not the trial court's intention. Counsel should have alerted the court to the discrepancy to ensure that all parts of the order were consistent and reflected the court's ruling.
¶ 12 As shown by the transcript of the oral ruling, the trial court correctly understood that granting a motion to “strike” does not have the effect of physically altering the documents or removing them from the file. See GR 15(b)(7): “A motion or order to strike is not a motion or order to seal or destroy.” Court records can be sealed in some circumstances using the procedures in GR 15. But they cannot be destroyed unless destruction is expressly permitted by statute. GR 15(h). The rules make no provision for having documents “removed.” By “striking” the declarations, the court merely declared them inadmissible as evidence, with the effect that they would not be considered in support of Engstrom's motion to strike the request for trial de novo. For future reference, counsel and court personnel who were involved in removing the declarations from the record are advised to consult the rules and case law concerning court records.
¶ 13 One reason for maintaining the integrity of court records is that having the underlying documents in the record is essential to appellate review of a trial court ruling. Appellate review is not hampered in this case, however, because the record elsewhere includes sufficient documentation of how Williams obtained Hardesten's declaration and what it said. Engstrom's “Motion to Strike De Novo Appeal” acknowledges as an “undisputed” fact that Hardesten contacted Williams to advise him that she “was seeking independent counsel.” The motion quotes the contents of the Hardesten declaration.9
¶ 14 The record also includes a later declaration by Williams stating that he received an “unsolicited electronic mail” from Hardesten on November 3, 2010.10 Attached to this declaration is a copy of the e-mail, in which Hardesten invited Williams to contact her:
John,
I do not agree to a new trial.
I am not happy with these events, with my lawyers, or with Unitrin [Hardesten's insurance company] pursuing this further. I can not imagine how Ms. Engstrom would want more than the existing settlement, and although I do not agree with it, I would rather leave it as is, than open this case back up.
I am consulting with third party attorneys, but feel free to contact me further as I do not wish to be represented by Mr. Welchman.11
After receiving this e-mail, Williams obtained from Hardesten her signed declaration stating that she did not authorize her attorney to request a trial de novo:
1. I am the named Defendant in the above-captioned case. My current name is Rebecca Hardesten.
2. It is my understanding that this case was arbitrated on October 5, 2010 and an award was entered for the Plaintiff Denise Engstrom.
3. It is now my understanding that my attorney at that time, Philip Welchman, appealed the arbitration award by filing a Request for a Trial De Novo.
4. I did not authorize Mr. Welchman to appeal the arbitration award by filing the Request for a Trial De Novo, nor did I consent to it in any manner.
5. It is my belief that my insurance company, Unitrin, told Mr. Welchman to appeal the arbitration award.
6. I was under the impression that I was Mr. Welchman's client, however, it appears that he was really representing Unitrin Insurance.
7. I am currently seeking independent counsel, but have not retained an attorney to date.12
These documents show that plaintiffs attorney Williams communicated directly with defendant Hardesten.
¶ 15 Williams contends it was error to strike the declarations because the matters communicated were not protected by the attorney-client privilege. This argument is misplaced. The motion and order to strike the declarations were based on ex parte communications with a represented party, not the attorney-client privilege.
¶ 16 The rules of professional conduct prohibit attorneys from communicating with a represented party:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer...
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...to grant such motions so long as the moving party has an opportunity to include argument in its briefing. Engstrom v. Goodman, 166 Wash.App. 905, 909 n. 2, 271 P.3d 959 (2012). Because Yuri had this opportunity, we decline to grant the motion to ...
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...under then-existing law as decided in Russell v. Maas , 166 Wash. App. 885, 887, 272 P.3d 273 (2012), and Engstrom v. Goodman , 166 Wash. App. 905, 908, 271 P.3d 959 (2012). In both cases, an insured defendant apparently had qualms about their appointed lawyer's request for trial de novo fo......
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Table of Cases
...Proceeding Against, 152 Wn.2d 393, 98 P.3d 477 (2004): 1.2(1), 1.2(2), 1.2(3), 7.3(1), 14.2(1)(a) Engstrom v. Goodman, 166 Wn. App. 905, 271 P.3d 959, review denied, 175 Wn.2d 1004 (2012): 9.4(4), 9.6(1) Eriks v. Denver, 118 Wn.2d 451, 824 P.2d 1207 (1992): 2.4(3), 3.6, 11.1, 14.2, 14.2(2),......
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§9.6 - Investigations Through Electronic Social Media and Other Public Internet Sources
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§9.4 - The "No Contact" Rule
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