Opinion
No. 36246-5-II.
May 13, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 99-5-00555-1, Kitty-Ann van Doorninck, J., entered March 19, 2007.
Reversed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Hunt, J.
C.W. appeals a Pierce County Superior Court order imposing sanctions for the late filing of an affidavit of prejudice. He contends that when the judge received the affidavit, she lost the authority to order sanctions. We agree.
A commissioner of this court initially considered this matter and referred it to a panel of judges.
Under RCW 4.12.040 and .050, a party in a superior court proceeding is entitled to one change of judge upon timely filing of an affidavit of prejudice. See also In re Marriage of Tye, 121 Wn. App. 817, 820, 90 P.3d 1145 (2004); Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283, 285, 803 P.3d 798 (1991). An affidavit of prejudice is timely if filed "before the judge presiding has made any order or ruling involving discretion." RCW 4.12.050. There are no other time constraints. See State v. Parra, 122 Wn.2d 590, 597, 859 P.2d 1231 (1993) (holding that an affidavit filed within 45 minutes of trial was timely).
A motion and affidavit seasonably filed "presents no question of fact or discretion. Prejudice is deemed to be established by the affidavit." Tye, 121 Wn. App. at 820 (quoting LaMon v. Butler, 112 Wn.2d 193, 202, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989)). After it is filed, the judge to whom it is directed no longer has authority to act in the matter. State v. French, 88 Wn. App. 586, 599, 945 P.2d 752 (1997).
C.W. filed his motion and affidavit of prejudice in court before the newly assigned judge had an opportunity to make any discretionary ruling. The judge agreed that she was required to disqualify herself. However, she found that C.W.'s delay in filing the affidavit was "very prejudicial" to the other parties, awarded fees to the mother ($500) and the guardian ad litem ($112.50), and then accepted the affidavit of prejudice. Report of Proceedings at 4. The affidavit became effective when it was filed. The trial judge did not have discretion to postpone acceptance, and she had no further ability to act in the case. Accordingly, the order imposing sanctions is invalid.
The motion came 10 days after the guardian ad litem filed a declaration in support of additional time and fees, noting it before the judge involved here.
See Marine Power Equip. Co. v. Indus. Indem. Co., 102 Wn.2d 457, 464, 687 P.2d 202 (1984) (citing State ex. rel. Talens v. Holden, 96 Wash. 35, 40, 164 P. 595 (1917)).
C.W. requests attorney fees and costs for this appeal "[p]ursuant to applicable authority." Br. of Appellant at 6. In Washington, each party in a civil action must pay its own attorney fees and costs, unless imposition on the other party is authorized by contract, statute, or a recognized ground in equity. See In re Impoundment of Chevrolet Truck, 148 Wn.2d 145, 160, 60 P.3d 53 Page 3 (2002). C.W. identifies no such authority. In any case, as the court below imposed sanctions sua sponte, an award of fees against the respondents would be inappropriate.
We reverse the order imposing sanctions, and we deny the request for fees and costs.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and VAN DEREN, A.C.J., concur.