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Barrett v. Freise11/24/2003
n on that date, rather than, as John and Jeff contend, on March 25, 1997, when Freise submitted his summary of time and costs to the guardian ad litem. The record fully supports the trial court's finding. The summary of time and costs submitted to the guardian ad litem in March 1997 is not a final billing or accounting for the proceeds of the UIM settlement. In fact, it contains no mention of the receipt and distribution of those proceeds. Rather, it is a summary of the time and services performed by Mr. Freise and other members of his law firm with respect to all of the claims that Freise had been pursuing for the Barrett family, and of the costs posted to the account with respect to all of the claims. It was provided to the guardian ad litem shortly after Freise received the letter signed by John and Jeff telling him that he was fired, and was sent in contemplation that the guardian ad litem would be involved in the resolution of the brewing dispute between Freise and John Barrett regarding whether Jeff was bound to the contingency fee agreement or could elect an hourly fee arrangement, instead. Shortly after her appointment in December 1996 or early January of 1997, the guardian ad litem was apprised of all the aspects of the personal injury claims including the receipt and disbursement of the UIM settlement funds which had taken place the previous May. The guardian ad litem did not indicate any objection to this; in fact, she expressly stated that she thought that Freise should continue to represent Jeffrey in the personal injury case.
The trial court rejected the contention that Freise should have arranged for the appointment of a guardian before consummating the UIM settlement and distributing the funds, and also found that to the extent that Freise may have failed in any duty to Jeff in this respect, Jeffrey suffered no damages. The court expressly found that the funds paid over to JoLynn from the UIM settlement proceeds were used to provide necessary family and child support and medical treatment for Jeffrey with the minor exception previously noted that was taken care of during the overall property distribution in the marital dissolution case. Moreover, the court expressly found that the contingency fee paid to Freise from the UIM settlement proceeds was reasonable in all the circumstances a finding to which no error is assigned. See Finding of Fact 10, Clerk's Papers at 15. These findings are supported by substantial evidence in the record. Accordingly, they are verities for this appeal.
John and Jeff Barrett provide no authority for their contention that the 45-day statute of limitation was tolled, due to Jeff's mental disability, until 45 days after John Barrett, Jr., was appointed to serve as Jeff's limited guardian. Their reliance upon the general tolling statute, RCW 4.16.190 is misplaced. RCW 4.16.190 is limited by its own terms to the actions 'mentioned' in Ch. 4.16. RCW. The statute here at issue has its own chapter, Ch. 4.24.RCW. Accordingly, we affirm the trial court's ruling that the time period for contesting the contingency fee for the UIM settlement had elapsed nearly a year before the petition was filed. Cf., Green v. Dunkin, 67 Wn.2d 451, 453-54, 407 P.2d 985 (1965) (Because Ch. 4.16 RCW did not mention, nor by inference refer to persons having a cause of action against a municipality or the sovereign state; RCW 4.16.190 was not applicable; actions against counties were governed by Ch. 36.45 RCW, and notwithstanding disability of claimants due to their minority, their failure to commence suit within 3 months of county's rejection of their claim forever barred their lawsuit).
The Trial Court's Order In Limine
On June 8, 1998, the trial court judge
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