Russell v. Maas

272 P.3d 273, 166 Wash. App. 885
CourtCourt of Appeals of Washington
DecidedMarch 5, 2012
DocketNo. 65523-0-I
StatusPublished
Cited by12 cases

This text of 272 P.3d 273 (Russell v. Maas) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Maas, 272 P.3d 273, 166 Wash. App. 885 (Wash. Ct. App. 2012).

Opinion

Becker, J.

¶1 Under Mandatory Arbitration Rule 7.1(a), only an “aggrieved party” may appeal an arbitration award through, a request for trial de novo. This requirement is satisfied when an attorney files a request for trial de novo on behalf of an aggrieved client.

¶2 The issue presented by this appeal arose when an arbitrator found in favor of Robert Russell, plaintiff in a personal injury suit. Counsel for defendant Debra Maas filed a request for trial de novo.

¶3 Russell’s injury occurred when he fell off a ladder while painting Maas’s house, in which he and Maas lived together. Russell believed that Maas did not really want to contest the arbitrator’s decision. Counsel for Russell tried to get Maas to admit this by taking her deposition. At the deposition, counsel for Maas objected that the questions asked of Maas impinged upon confidential attorney-client communications. He instructed her not to answer such questions. The deposition ended quickly.

¶4 Russell then moved to strike Maas’s request for trial de novo. He alleged that it had been filed because Maas’s insurer demanded it, not because she wanted it. Maas opposed the motion. Her declaration said she did not object to trial de novo and she felt her attorney was representing her best interests.

¶5 The court scheduled oral argument on the motion and asked that the clients be present in addition to counsel. At the hearing, counsel for Russell argued that the request by Maas for a trial de novo should be struck because she did not personally sign it.

¶6 The trial court decided it was necessary to undertake a factual inquiry to determine what Maas wanted to do. Over her lawyer’s objections, Maas was sworn in to testify. [888]*888By this time, Maas also had independent counsel who was advising her on coverage issues; this attorney participated by telephone.

¶7 Maas was questioned first by opposing counsel and then by the court.

[Counsel for Russell]: At any time since you learned of the arbitrator’s decision in this case has it been your personal desire to have this case appealed and put in front of a jury?
A: I’ve — on a personal level I’ve gone back and forth. My own conclusion is I’m not sure that I care. I was hoping a decision would have been made or would have been accepted but it’s not and I accept that.
Q: I’m unclear. You accept the arbitrator’s decision?
A: I —
Q: Or you accept the de novo request?
A: Both.
Q: Well, the question is, did you request a trial de novo? Did you do that? Did you want that?
A: I did not do that. But did I — I don’t know how to answer the second question. It was — I did not direct anyone to make that happen.

¶8 The court asked Maas if she had been threatened with loss of insurance coverage:

Is it your concern, Ms. Maas, that if you were to do something else other than where we are today that you would lose your insurance coverage?
MS. MAAS: I don’t know and it’s a concern that I don’t know.
THE COURT: I don’t know how else to ask this in a way other than have you been threatened that you might lose your insurance coverage if you were not to proceed?
MS. MAAS: No.

¶9 Unpersuaded that Maas was the individual who made the decision to request a trial de novo, the court [889]*889granted Russell’s request to strike the request, thus leaving the arbitration award intact. The court awarded Russell attorney fees and costs under MAR 7.3. Maas appeals these rulings.1

¶10 Application of court rules to the facts is a question of law reviewed de novo on appeal. Mee Soon Kim v. Pham, 95 Wn. App. 439, 441, 975 P.2d 544, review denied, 139 Wn.2d 1009 (1999). The Mandatory Arbitration Rules, like any other court rules, are interpreted as though they were drafted by the legislature and are construed consistent with their purpose. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001).

¶11 Under the Mandatory Arbitration Rules, an aggrieved party may request trial de novo:

Within 20 days after the arbitration award is filed with the clerk, any aggrieved party not having waived the right to appeal may serve and file with the clerk a written request for a trial de novo in the superior court along with proof that a copy has been served upon all other parties appearing in the case.

Former MAR 7.1(a) (2001);2 see RCW 7.06.050.

¶12 A notice for trial de novo filed by a nonaggrieved party is a nullity. Wiley, 143 Wn.2d at 347. It is undisputed that Maas was an aggrieved party, while her attorney was not. The question here is whether a request for trial de novo signed only by the aggrieved party’s attorney is effective.

¶13 Once a party has designated an attorney to represent the party in regard to a particular matter, the court and the other parties to an action are entitled to rely upon that authority until the client’s decision to terminate it has been brought to their attention. Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978). Absent fraud, the [890]*890actions of an attorney authorized to appear for a client are generally binding on the client. Haller, 89 Wn.2d at 545-47; Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 679, 41 P.3d 1175 (2002). For example, under MAR 5.4, clients who are represented by counsel at the mandatory arbitration hearing need not attend the hearing personally to preserve their right to request a trial de novo. Trowbridge v. Walsh, 51 Wn. App. 727, 730, 755 P.2d 182 (1988).

¶14 An attorney may not, however, surrender a substantial right of a client without special authority granted by the client. Graves v. P.J. Taggares Co., 94 Wn.2d 298, 303, 616 P.2d 1223 (1980). For example, an attorney needs the client’s express authority to accept service of process, Ashcraft v. Powers, 22 Wash. 440, 443, 61 P. 161 (1900); to settle or compromise a claim, Grossman v. Will, 10 Wn. App. 141, 149, 516 P.2d 1063 (1973); and to waive a jury trial, Graves, 94 Wn.2d at 305.

¶15 Russell contends that a request for a trial de novo surrenders a substantial right and accordingly falls into the category of actions for which a client’s express authority is required. We disagree. Unlike settling a claim, filing an appeal does not terminate a litigant’s rights to recovery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Crossroads Mgmt., LLC v. Ridgway
540 P.3d 82 (Washington Supreme Court, 2023)
Amanda Butler, V. James Finneran
Court of Appeals of Washington, 2022
Kathleen Hanson, V. Jose Luna-ramirez
496 P.3d 314 (Court of Appeals of Washington, 2021)
In the Matter of the Estate of Clara v. Larson
Court of Appeals of Washington, 2019
Tamara Zaitsev v. Shawn Keller, Dds
Court of Appeals of Washington, 2017
Dan's Trucking, Inc. v. Kerr Contractors, Inc.
332 P.3d 1154 (Court of Appeals of Washington, 2014)
In re the Welfare of H.Q.
330 P.3d 195 (Court of Appeals of Washington, 2014)
Ha v. Signal Electric, Inc.
332 P.3d 991 (Court of Appeals of Washington, 2014)
Judy Ha v. Signal Electric
Court of Appeals of Washington, 2014
Tatham v. Rogers
170 Wash. App. 76 (Court of Appeals of Washington, 2012)
Engstrom v. Goodman
271 P.3d 959 (Court of Appeals of Washington, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
272 P.3d 273, 166 Wash. App. 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-maas-washctapp-2012.