All Things Eastside: Out and About by Vasi Rusu

My blog has already turned three years old.  It’s probably time it started talking.

I created the blog when I realized I had a lot to say, but once I did, I had a hard time figuring out what was important enough that it be my first post.  My latest musings on stories in the news or events in my life just didn’t seem to make the cut.  Plus, it had to tie into the title.  Later posts could meander, but the first one had to hit the target.

I now have a subject that is worthy both in importance and its subject.  It involves a matter in which there is a lot of money at stake (one way lawyers measure importance), and addresses a substantive and fundamental legal issue and how a court addressed (misaddressed?) it.

First, I will provide some background.  I am a lawyer who has been working on a case since 1998, which involves claim by a subcontractor to be paid over a million dollars for its work on a large construction project (with interest and legal fees, the claim may be over $7 million now).  As you can imagine, in that amount of time there have been lots of key moments, but none where so many themes that originally inspired this blog converge.

The event was a decision by the Washington Court of Appeals, Div. II, which purported to decide the case based on a typo in a party’s name which had gone unnoticed (or at least unaddressed) for twelve years, through a trial, two dismissals, remands and subsequent appeals).  The typo was typing “Business Services of America II, Inc.” instead of “Business Service America II, Inc.”  The appellate court did so purportedly based on the “lack of capacity” of the named plaintiff.  (There was no entity by the name of the party, because as I mentioned before, the name contained a typo.  It was as if Microsoft sued Apple for millions of dollars for patent infringement, but the complaint said “Micrasoft” and Apple got the court to dismiss on that basis.)

While the result was bad, the “reasoning” (or lack thereof) was worse.  There are court rules addressing what happens when the named party does not have “capacity to sue.”  There are rules requiring the other side to timely raise the issue or it is waived, and if it is timely raised, the other party has an opportunity to address it before any adverse action can be taken by the court.  You would think an appellate court would cite and discuss these rules, and the prior appellate opinions applying these rules, when it purported to decide an action based on “lack of capacity.”  You would be wrong, oh so wrong.  If you think I’m kidding, here is the link to the unpublished opinion by the court failing to do its job, or at least doing it poorly:

https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=473160MAJ

The opinion does not cite CR 9 on capacity, CR 12 on dismissal motions based on lack of capacity, CR 15 and 60 allowing amendments to address objections to capacity, or CR 25 addressing transfers of claims while the action was pending, as occurred here.  The defendant, WaferTech, raised its objection to the named plaintiff’s “capacity” for the first time on appeal, despite numerous court decisions and learned legal treatises on civil procedure stating that such an objection may never be raised for the first time on appeal, as it has been waived.  When a defendant in a prior Washington case attempted to do what WaferTech did here (raising an objection to capacity on appeal), not only did the court deny it, but sanctioned the defendant for raising a frivolous issue.  Dearborn Lumber Co. v. Upton Enterprises, Inc., 34 Wn.App. 490, 493-4, 662 P.2d 76 (1983).

The good news is the appellate court is considering my motion for reconsideration, so this travesty may be short-lived.  You can be sure I will post updates following further court rulings.

If you think the point of this blog post was to say “a court made a (dumb) ruling with which I disagree,” I have failed.  That would not be extraordinary or worthy of my first blog post.  My point is a court issued an opinion that failed basic requirements of logic and decision-making with which it is tasked.  A law student who produced the opinion for a writing assignment on legal reasoning would get an “F,” while a young associate at a law firm who turned it in to a partner as a legal research memo on “capacity” would soon be updating his or her resume (or at least have his or her weekend plans destroyed).

Under established law, whether the named plaintiff had “capacity” was the first step in the legal analysis.  It is just a data point.  The next question any court should ask, as any first year law student is taught, is what should the court do with such a data point.  Does it fit into any legal argument or legal rule that allows courts to act:  enter a judgment, dismiss a claim or action, or some other action?

The appellate court did not do so.  It stopped at the data point.  It didn’t even have the courtesy to pay lip service to the dismissal argument and say “dismissed.”  It just affirmed the trial court, which had also not dismissed based on the data point.  That left the parties in legal limbo, with the named plaintiff unable to proceed, but the action not terminated by a dismissal or judgment.  (There was a summary judgment entered in 2013, which was timely appealed, but the appellate court never addressed the summary judgment, so that cannot be said to have terminated the action.)

Another theme, besides poor legal reasoning and decision-making by courts, that converged here was perceived or reputational competence.  I went to a highly-regarded law school (NYU) and have worked on large matters with other accomplished lawyers.  Now I am a solo practitioner in a suburb of Seattle, while my opposing counsel is with a major firm in Portland, assisted by a well-known Seattle appellate lawyer.  Should courts take these disparities in reputational competence into account?  No.  Do they?  Maybe.

A motion for reconsideration is telling the appellate court that after (1) considering an issue for about a year, (2) reading hundreds of pages of briefing, and (3) sitting through oral argument and who knows how many conferences to review the case, it messed up.  That is a tough putt.  When I made my motion, I had a law professor co-sign my motion. (I wrote it, with some input from the professor, related mainly to my style of presentation, not the substance of my arguments.)  It took the appellate court two days to realize it may have made a mistake.  If it had been just me signing it, I doubt it would have gotten the serious consideration it apparently did.