Harbor Enterprises, Inc. v. Gunnar Gudjonsson

Citation803 P.2d 798,116 Wn.2d 283
Decision Date24 January 1991
Docket NumberNo. 56078-1,56078-1
PartiesHARBOR ENTERPRISES, INC., a corporation; Wes-Pac Boat Company, a general partnership; Dale R. Lindsey; and Keith Lindsey, Respondents, v. Gunnar GUDJONSSON, individually; Helga Gudjonsson, individually; the marital community of Helga and Gunnar Gudjonsson, and/or Gunnar Gudjonsson, d/b/a their own names and in the names of any business entity, Appellants. En Banc
CourtUnited States State Supreme Court of Washington

David S. Teske & Associates, David S. Teske, Karl Eric Dickman, Seattle, for appellants.

Talmadge, Friedman & Cutler, Philip A. Talmadge, Mikkelborg, Broz, Wells & Fryer, Margaret Doyle Fitzpatrick, Julie M. Johnson, Seattle, for respondents.

BRACHTENBACH, Justice.

This case arises from the operation of a crab fishing vessel. The owner of the vessel, Dale R. Lindsey, a plaintiff, and defendant husband, Gunnar Gudjonsson, as master, entered into an oral agreement for the vessel's operation. A fuel supplier, Harbor Enterprises, Inc., was another plaintiff. Plaintiffs sued for various debts claimed due from defendants who counterclaimed. The merits involve contract and admiralty law. A consolidated case concerns a contempt citation against one defense counsel; it will be considered after resolution of the main case.

The case was tried to the court. After a pretrial hearing defendants filed an affidavit of prejudice, asserting (1) their right to an automatic disqualification and (2) disqualification for actual prejudice. In fairness we note that the claim of actual prejudice was not directed at the judge per se,but arose because plaintiffs alleged in their trial brief inadmissible and prejudicial facts about defendant husband's character. The trial court correctly and accurately ruled that such material would not and did not prejudice it in fact. No appeal is taken from that ruling.

The dispositive issue is whether the affidavit of prejudice was timely filed pursuant to a statutory right to disqualify a judge without a showing of actual prejudice. If the affidavit was timely, the subsequent trial was of no legal effect. A second issue arises from plaintiffs' claim that the affidavit was not timely under a local court rule. In fact, the rule cited by plaintiffs is not the local rule in effect; even if it were it would be in conflict with the statute and therefore not controlling. We hold: (1) the affidavit was filed timely, and (2) the local court rule cited by plaintiffs is not the rule in effect. Therefore, we reverse.

Under our statutes, RCW 4.12.040 and .050, a litigant has the right to disqualify a trial judge, without establishing actual prejudice, if the statutory requirements of RCW 4.12.050 are met. The statute speaks of prejudice, but in reality the litigant who exercises this right seeks a change of judge despite the absence of prejudice.

The history of our prior holdings and amendments to the statute is traced in Marine Power & Equip. Co. v. Department of Transp., 102 Wash.2d 457, 463, 687 P.2d 202 (1984). The effect of a timely affidavit is clear from the statute and our application thereof. State v. Cockrell, 102 Wash.2d 561, 565, 689 P.2d 32 (1984) aptly summarizes the rule:

Once a party timely complies with the terms of these statutes, prejudice is deemed established "and the judge to whom it is directed is divested of authority to proceed further into the merits of the action." State v. Dixon, 74 Wash.2d 700, 702, 446 P.2d 329 (1968). Under the plain wording of the rule, the judge loses all jurisdiction over the case.

Cockrell, at 565, 689 P.2d 32.

A timeliness requirement qualifies the statutory right. RCW 4.12.050 provides in relevant part:

Y(3)27 Provided, That such motion and affidavit is filed and called to the attention of the judge ... before the judge presiding has made any order or ruling involving discretion....

The parties focus entirely upon whether the judge had made any discretionary ruling before the motion and affidavit were filed.

Before examining the record to determine whether discretionary rulings were made, fairness to the able and experienced trial judge dictates a description of the muddled state of this lawsuit when it confronted the judge at pretrial hearing. 1

A pretrial hearing immediately preceded trial. A second amended complaint had been filed 10 days before the pretrial hearing. Defendants' amended answer was filed 2 days before pretrial. Trial briefs by both parties, 121 pages, were inexcusably late, plaintiffs' was filed at pretrial, defendants' at start of the trial. Discovery was not complete despite an earlier discovery order and sanctions. The trial court expressed dismay at the lack of preparation and ill-will exhibited between counsel. Six lawyers were present at pretrial, but not defendants' lead attorney. One lawyer who argued the content and intent of a pleading had not read the document. One attorney at pretrial was unable to answer the court's inquiries because an essential file had not been brought to court.

This disconcerting hindrance to orderly disposition on the merits continues on appeal. The trial court made 54 findings of fact and 15 conclusions of law. Yet, defendants in their assignments of error make no specific reference to any finding or conclusion by number. RAP 10.3(g). Only by searching the text and the appendix can one ascertain the basis of the appeal. As to one major conclusion of law defendants reference one specific conclusion in the statement of issue and argue another in the text. They attempt to correct this by an untimely statement of "errata."

Defendants, challenging the findings of fact, assert that the findings are entitled to weight, but the ultimate determination of facts rest with the appellate court. An absolutely erroneous statement; counsel should read Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959) and its hundreds of progeny. Plaintiffs' brief is equally deficient. They argue, in 9 pages of asserted facts, that there is substantial evidence to support the findings but cite not a single reference to the record. This is a remarkable violation of RAP 10.3(a)(4).

To return to the pretrial setting, plaintiffs' untimely trial brief stated, apparently for the first time, three motions to be heard at pretrial: (1) motion for judgment of dismissal of certain counterclaims, (2) motion to strike amended answer, and (3) motion for summary judgment on certain additional counterclaims. The trial court's consideration of these three motions is the heart of determining whether it had made any discretionary ruling before the affidavit was filed.

At the outset of the pretrial hearing, the court noted that it continued to receive voluminous briefs and documents right up to that moment and that defendants complain bitterly about lack of notice, including even lack of service of one motion.

The trial court spent a great portion of the prehearing trying to sort out the exact status of the multiple claims of both sides. The following quotations from the record demonstrate the lack of any discretionary ruling:

THE COURT: ...

Frankly, on the third motion, which is really a motion for summary judgment, it seems to me that the only thing I can do is reserve judgment on it, in view of the complaints about notice and so on. But there's another reason. It isn't just the notice requirements. I'm going to defer that because with this amount of paper and the time I've had to devote to it, I really don't feel comfortable in making a ruling about it at this time anyway....

Pretrial Motions (Feb. 6, 1989), at 5.

THE COURT: Maybe I better defer that, too, because it sounds like really a request for declaratory judgment or a request for summary judgment.

Pretrial Motions (Feb. 6, 1989), at 8.

THE COURT: ...

Eventually I may decide, indeed, that this is something that not only could have been but should have been and must have been brought right here and now otherwise you're foreclosed, but I'm not going to do that today.

. . . . .

THE COURT: You haven't been harmed by my deferring it, so that's over.

Pretrial Motions (Feb. 6, 1989), at 9.

THE COURT: I don't know if that's right or not. Certainly I want more briefing than that ...

THE COURT: None of this is indexed. You've complained bitterly about how each of you did not have notice about what the other was doing.

This stuff has been coming out of word processing machines just as fast as it can. I've tried to go through it. I'm not satisfied to just do the best I can with what I've got to work with today. I have little confidence in the way it's come to me and the way it's been argued.

I'd rather stop, see where we are tomorrow morning, and see whether or not I should grant or deny this motion....

I don't know at this point whether you claim it's a jury or non jury case. You're dealing with, traditionally, admiralty matters, I think, 100 percent here.

Pretrial Motions (Feb. 6, 1989), at 40-41.

THE COURT: ...

In any event, I want to know the answer to a more basic question, as to whether or not the question about shares, wage claims, so to speak, whether all that's properly before the Superior Court, because if it is, it's going to stay here; if it isn't, it's not. I haven't ruled on that yet.

Pretrial Motions (Feb. 6, 1989), at 44.

From the record quoted, the trial court made no rulings on plaintiffs' three motions. Any doubt is removed by the trial court's statement on the first day of trial, after declining to allow the change of judge that: "The Court still has not ruled at least on the main three motions yesterday morning." Pretrial Motions (Feb. 7, 1989), at 34. The trial court thereafter heard further argument and then ruled. Pretrial Motions (Feb. 7, 1989), at 34-54.

The issue of discretionary rulings, however, is complicated by another colloquy at the pretrial. Near the end of the hearing the following occurred:

THE COURT: Is it...

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