Opinion
No. 90895–8.
03-31-2015
In re the MARRIAGE OF Richard Todd WIXOM, Respondent, and Linda Buchholz Wixom, Respondent, and Robert E. Caruso, Petitioner.
RULING DENYING REVIEW
¶ 1 The Spokane County Superior Court ruled that Richard Wixom and Robert Caruso, his attorney, violated CR 11 and held them jointly liable for $55,000 in attorney fees and costs incurred by Mr. Wixom's former wife during a proceeding to modify residential placement of the couple's children. Both Mr. Wixom and Mr. Caruso appealed, represented by Mr. Caruso. Finding that a conflict of interest was created when Mr. Caruso advanced the argument that his client alone should be liable for the sanctions, Division Three of the Court of Appeals disqualified Mr. Caruso from further representation of Mr. Wixom in this appeal. In re Marriage of Wixom, 182 Wash.App. 881, 332 P.3d 1063 (2014). The court also struck those portions of the brief in which Mr. Caruso argued any sanctions should be imposed only against his client. Mr. Wixom and Mr. Caruso were each granted time to submit briefing to address the question of upon whom sanctions should be imposed, assuming the court upheld the award of attorney fees and costs. And the court directed that if Mr. Caruso wished to argue that sanctions should only be imposed upon his client, he was required to do so through independent counsel and could not be self-represented on this issue.
¶ 2 Mr. Caruso retained counsel, and during the course of reviewing the transcript of the trial court proceedings, his counsel concluded that the trial court judge should have been disqualified. He filed a motion for reconsideration of the Court of Appeals decision, which the court described as a request to file a brief seeking disqualification of the trial court judge. The court denied this motion for reconsideration, stating, “The brief would assert a new issue into the appeal. Any such motion for disqualification should have been made before the trial court and before rulings by the trial court.” Mr. Caruso now seeks this court's review.
¶ 3 This court will grant discretionary review of an interlocutory Court of Appeals decision only if that court (1) has committed an obvious error which would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of proceedings, or so far sanctioned such a departure by a trial court, as to call for the exercise of this court's revisory jurisdiction. RAP 13.5(b).
¶ 4 Mr. Caruso argues that the issue of whether the trial judge was disqualified because his impartiality could reasonably be questioned under CJC 2.11(A) can be raised for the first time on appeal. RAP 2.5(a) generally provides that the appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise certain claimed errors for the first time in the appellate court, including “lack of trial court jurisdiction.” RAP 2.5(a)(1). Mr. Caruso argues his claimed error falls within this exception.
¶ 5 It does not. A party who has reason to believe that a judge should be disqualified because the judge's impartiality might reasonably be questioned “must act promptly to request recusal and ‘cannot wait until he has received an adverse ruling and then move for disqualification.’ ” In re Swenson, 158 Wash.App. 812, 818–19, 244 P.3d 959 (2010) (quoting State v. Carlson, 66 Wash.App. 909, 917, 833 P.2d 463 (1992) ). A party must use due diligence in discovering possible grounds for recusal and then act upon this information by promptly seeking recusal. Sherman v. State, 128 Wash.2d 164, 205 n. 15, 905 P.2d 355 (1995). Here, the trial judge explained to all the parties in open court the circumstance in which his daughter called Mr. Caruso. He had Mr. Caruso's telephone number and “Bob” written on a piece of paper as a result of calling his bailiff from home to get counsel numbers, and his daughter mistook it for the telephone number of a different “Bob” who was a dog breeder from whom they were making a purchase. His daughter had a short but confusing telephone conversation with Mr. Caruso. The trial judge was not asked to disqualify himself, and based on the facts that were placed on the record it is doubtful his impartiality could reasonably be questioned. Mr. Caruso fails to show that the Court of Appeals erred or departed from accepted practice by refusing to review this claim of error that was not raised in the trial court.¶ 6 The motion for discretionary review is denied.