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Harbor Enterprises Inc. v. Gudjonsson

January 24, 1991

HARBOR ENTERPRISES, INC., ET AL, RESPONDENTS,
v.
GUNNAR GUDJONSSON, ET AL, APPELLANTS



En Banc. Brachtenbach, J. Dore, C.j., Utter, Dolliver, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.

Author: Brachtenbach

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.

[1] 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.

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

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.*fn1

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 rests 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 nine 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 ...


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