Appeal from Superior Court of Whatcom County. Docket No: 93-2-00801-1. Date filed: 05/05/95. Judge signing: Hon. Michael F. Moynihan.
Authored by Walter E. Webster. Concurring: William W. Baker, C. Kenneth Grosse.
The opinion of the court was delivered by: Webster
WEBSTER, J. -- The trial court dismissed the Greers' case for failure to prosecute pursuant to CR 41(b)(2). But the superior court clerk did not first notify the Greers' attorney, as required by the rule. Because of this procedural error, in combination with the Greers' showing of a prima facie case and the policy in favor of deciding cases on their merits, we hold that the trial court abused its discretion in denying the Greers' motion to vacate the dismissal.
The Greers are members of the Whatcom Meadows Camping Association. Mr. Greer, a Canadian attorney, also served as legal counsel to the Association from 1976 to 1985. The Greers retained two Washington attorneys to sue the Association for failure to pay Mr. Greer's attorney fees. One of the attorneys, John Ludwigson, signed the complaint. The other attorney, J. Robert Cassidy, did not sign the complaint, but his name, address, and bar number appeared on the last page under the designation "of counsel." Ludwigson later withdrew; Cassidy did not.
On January 11, 1995, the Whatcom County Superior Court Clerk notified the Greers that the case would be dismissed for want of prosecution unless, within 30 days, the Greers (1) made action of record or (2) applied to the court in writing showing good cause why it should continue as a pending case. See CR 41(b)(2). The clerk did not provide notice to Cassidy.
The Greers forwarded the notice to Cassidy's Bellingham office, which received it on January 17, 1995. At that time, Cassidy was in California, undergoing diagnosis for heart disease. He had emergency heart surgery on January 20 and recuperated January 21 through February 5. He saw the notice on February 4, drafted a response, and mailed it to his Bellingham office for transcription. He signed the written response on February 13. When his office attempted to file it on February 16, the clerk did not accept it because the court had dismissed the case on February 14.
Cassidy moved to vacate the order of dismissal. The trial Judge denied the motion because (1) there is a substantial likelihood that some of the claims would be barred by the statute of limitations since the matters took place between 1976 and 1985, and (2) there did not appear to be any real effort to proceed with the lawsuit.
Before dismissing a case for want of prosecution under CR 41(b)(2), the superior court clerk must mail notice "to the attorneys of record." CR 41(b)(2)(A); Kirschner v. Worden Orchard, 48 Wash. App. 506, 509, 739 P.2d 119 (1987). Dismissal may be vacated when the notice is defective. Kirschner, 48 Wash. App. at 509 (counsel for one party not notified); Eiden v. Snohomish County Civil Service Comm'n, 13 Wash. App. 32, 533 P.2d 426 (1975).
Here, the Greers argue that the notice was defective because the clerk did not mail it to Cassidy. But the Association contends that Cassidy was not the Greers' attorney of record. The term "attorney of record" is not defined in the rules or by Washington case law. Black's Law Dictionary defines the term as Attorney whose name must appear somewhere in permanent records or files of the case, or on the pleadings or some instrument filed in the case, or on appearance docket. Person whom the client has named as his agent upon whom service of papers may be made. Black's Law Dictionary 129 (6th ed. 1990). According to this definition, Cassidy was an attorney of record because his name appeared in the complaint.
The Association contends that Cassidy was not an attorney of record because he did not sign the complaint as required by CR 11. But CR 11 only requires that every pleading be signed by "at least one attorney of record." (emphasis added). Thus, the rule contemplates that a party could have more than one attorney of record and that only one of them must sign the complaint.
The Association also contends that Cassidy was not an attorney of record because of the "of counsel" designation. Black's defines "of counsel" as A phrase commonly applied in practice to the counsel employed by a party in a cause, and particularly to one employed to assist in the preparation or management of an action, or its presentation on appeal, but who is not the principal attorney of record for the party. Black's, supra, at 1080 (emphasis added). This definition does not mean that Cassidy was not an attorney of record, only that he was not the principal attorney of record. CR 41(b)(2) does not limit the notice requirement to the principal attorney of record. Moreover, once Ludwigson withdrew, Cassidy became the only attorney of record, and should have received notice.
The Association contends that Ludwigson's notice of withdrawal informed the court that Greer was now his own attorney of record because it gave his name and address. CR 71, however, requires that the notice include this information. The Association also contends that other language in the notice informed the court that the Greers did not have counsel. The language, while confusing, is drawn almost directly from CR 71, which provides that, if it would violate the rules of professional responsibility to reveal the client's name and address, service can be made on the court clerk until the clients obtain new counsel. Because the notice revealed the Greers' name and address and stated that doing so did not violate the rules of professional ...