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Hilger v. Green12/19/2001
Luann and Daniel Hilger appeal the denial of their affidavit of prejudice and seek remand to a different trial court. We reverse.
In October 1999, the Hilgers filed a personal injury action against Lisa and 'John Doe' Green. A November 1998 case schedule set the discovery cutoff for August 26, 1999, and trial for December 1999.
On August 16, 1999, the Hilgers filed a note for arbitration. Later, on August 18, 1999, both parties signed a stipulation extending the discovery cutoff. The trial court signed the order on stipulation.
In January 2000, an arbitration award was filed. Later that month, the Greens filed a request for trial de novo and a new case schedule issued in February 2000.
The Hilgers filed an affidavit of prejudice in March 2000. In April 2000, the Hilgers filed their motion for recusal and/or to reinstate the rejected affidavit of prejudice. The trial judge denied the Hilgers' motion on the ground that she had already made discretionary rulings in the case.
Affidavits of Prejudice and the Exercise of Discretion
In a superior court proceeding, a party has a right to one change of judge upon timely filing of an affidavit of prejudice. RCW 4.12.040, .050; State v. Dennison, 115 Wn.2d 609, 619, 801 P.2d 193 (1990). An affidavit of prejudice is timely if 'filed before the trial judge has been called upon to make a ruling involving {his or her} discretionary powers{.}' Dennison, 115 Wn.2d at 619; see also RCW 4.12.050. A court does not exercise its discretion 'where a certain action or result follows as a matter of right upon a mere request; rather, the court's discretion is invoked only where . . . {it} may either grant or deny a party's request.' Rhinehart v. Seattle Times Co., 51 Wn. App. 561, 578, 754 P.2d 1243, review denied, 111 Wn.2d 1025 (1988), cert. denied, 490 U.S. 1015 (1989).
Orders and rulings that do not involve discretion include 'the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail{.}' RCW 4.12.050. But the '{g}rant or denial of a continuance is a discretionary ruling because the court must consider various factors, such as diligence, materiality, due process, a need for an orderly procedure, and the possible impact of the result on the trial.' State v. Guajardo, 50 Wn. App. 16, 19, 746 P.2d 1231 (1987), review denied, 110 Wn.2d 1018 (1988); accord Rhinehart, 51 Wn. App. at 578.
The Hilgers contend that the trial court erred by refusing to accept their affidavit of prejudice. They argue that extending discovery cutoff falls within the meaning of 'arranging the calendar' and, therefore is not a 'discretionary' ruling under RCW 4.12.050. We review questions of law de novo. Ed Nowogroski Ins., Inc. v. Rucker, 137 Wn.2d 427, 436-37, 971 P.2d 936 (1999).
The Hilgers rely on State ex rel. Floe v. Studebaker, 17 Wn.2d 8, 134 P.2d 718 (1943), where the Washington Supreme Court stated: 'We do not believe it can be said that the court is required to exercise discretion when asked to make an order involving preliminary matters such as continuing a case, or for consolidation, where all the parties have stipulated that such order be made.' Floe, 17 Wn.2d at 17. In Floe, the parties signed a stipulated order consolidating two actions for trial. Floe, 17 Wn.2d at 9. 'The Floe court held that for purposes of an affidavit of prejudice such orders did not invoke the court's discretion{.}' State v. Parra, 122 Wn.2d 590, 599, 859 P.2d 1231 (1993) (explaining Floe, 17 Wn.2d 8).
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