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2813 DEC 30 AH 9; ||
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE FERGUSON FIRM, PLLC,
DIVISION ONE
Respondent,
No. 69220-8-1
vs. (Linked with No. 68329-2-1)
TELLER & ASSOCIATES, PLLC
PUBLISHED OPINION
Defendant,
and
BRIAN J. WAID, d/b/a LAW OFFICE
OF BRIAN J. WAID
Appellant Attorney Lien
Claimant. FILED: December 30, 2013
Dwyer, J. — The Ferguson Firm, PLLC (Ferguson), sued Teller &
Associates, PLLC (Teller), over a fee dispute.1 Brian J. Waid d/b/a Law Office of
Brian J. Waid (Waid) represented Ferguson throughout much of the dispute, but
eventually withdrew because of a conflict with the firm's principal, Sandra
Ferguson. Soon after withdrawing, Waid filed an attorney's lien in the amount of
$78,350.85 for legal services provided to Ferguson. Thereafter, Ferguson
moved for a summary dismissal of Waid's lien, which the trial court granted. The
1Sandra Ferguson and Stephen Teller are principals oftheir eponymous law firms. The
firms, not the individuals, were parties to the case in which Waid represented Ferguson.
Nevertheless, ouropinion will use last names and gendered pronouns when referring to the firms,
as well as to the individuals.
No. 69220-8-1 (Linked with No. 68329-2-l)/2
court also directed the clerk to disburse to Ferguson the sum of $78,350.85 held
in the court registry, together with accrued interest. Waid then filed a notice of
appeal from that order and—more than three weeks after the order was
entered—filed a motion to stay the disbursement to Ferguson of the funds in the
court registry and for approval of a supersedeas bond. The trial court denied
Waid's motion, holding that—because the funds had already been disbursed—
the motion was moot. Although Waid's motion was moot when the trial court
considered it, money remains in the court registry to which Waid's lien could
attach.2 Thus, the issue of the propriety of the trial court's ruling on the validity of
Waid's lien is not moot. Because the trial court erroneously ruled that the money
in the court registry was not "proceeds" of Ferguson's action against Teller, we
reverse the trial court's order invalidating Waid's lien and remand to the trial court
for further proceedings.
I
Sandra Ferguson is the principal ofThe Ferguson Firm, PLLC. Her firm
began representing a group ofclients in an employment discrimination case
(hereinafter underlying matter) in August 2009. The clients agreed to a
contingency fee arrangement but were unable to advance litigation costs and so,
with their consent, Ferguson approached multiple law firms, seeking a co-
counsel willing to advance litigation costs and able to represent the clients in the
event that she was suspended from practicing law by the Supreme Court.
Stephen Teller's firm, Teller &Associates, PLLC, was one of the firms that
1This was confirmed by counsel for the parties at oral argument in this court.
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No. 69220-8-1 (Linked with No. 68329-2-l)/3
Ferguson approached. After negotiating with Ferguson, Teller agreed to jointly
represent the clients and to advance all litigation costs. While Teller and
Ferguson were jointly representing the clients, Ferguson was, in fact, suspended
from practicing law for 90 days and subsequently withdrew from the case. See In
re Disciplinary Proceeding Against Ferguson. 170 Wn.2d 916, 246 P.3d 1236
(2011). During the period of Ferguson's suspension, the clients—represented
solely by Teller—accepted a settlement offer.
Subsequently, Ferguson and Teller disputed the manner in which the
contingent fee resulting from the settlement should be divided, and Ferguson
served a notice of lien for attorney fees on Teller. On May 4, 2011, Ferguson
hired Waid to represent her in the fee dispute with Teller. The fee agreement
between Ferguson and Waid provides that Waid "shall have a lien against any
proceeds recovered by, or on behalf of, [Ferguson] in connection with the claims
arising out of [the fee dispute with Teller], including pursuant to RCW 60.40.010,
et seq." Waid invoiced Ferguson each month for services provided with no
objection from Ferguson.
On May 27, 2011, Ferguson, seeking 90 percent ofthe contingent fee,
sued Teller to resolve the fee dispute. Both parties agreed to deposit the full
amount of the contingent fee—$530,107.58—into the superior court registry. On
January 30, 2012, the superior court granted Teller's motion for summary
judgment, dismissing all of Ferguson's claims and ordering that the disputed
funds be divided equally between Ferguson and Teller.
On February 9, Teller filed a motion seeking the disbursement ofthe
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funds, which required that Ferguson's response be filed by noon on February 15.
However, Ferguson had retained a new attorney to replace Waid and wanted the
new attorney to prepare the opposition papers, so long as an additional three
weeks was granted to prepare the response. On February 10, Ferguson
threatened to bring a legal malpractice claim against Waid. Waid then informed
Ferguson that he was required to withdraw from representation. Waid filed a
notice of withdrawal, moved for permission to withdraw immediately, and moved
to continue the hearing on Teller's motion pursuant to Ferguson's instructions.
The court granted Ferguson's request for an additional 30 days and authorized
Waid's immediate withdrawal.
On February 14, Waid filed an attorney's lien in the amount of $78,350.85.
On February 16, the trial court entered an order of partial disbursement in which
it determined that Teller was entitled to receive his 50 percent share, but ordered
that $101,000.74 of Ferguson's share would remain in the court registry until
further notice because issues relating to the calculation of fees, costs, and
interest had not yet been resolved. The trial court also ordered that an additional
$78,350.85 would remain in the registry until further court order in order to
protect Waid's lien. Lastly, it ordered that the remaining portion of Ferguson's 50
percent share—$85,702.20—be disbursed to her. Ferguson, on the same day,
filed an emergency motion in this court to stay the order of partial disbursement.
Our commissioner granted a temporary stay and directed the parties to provide
additional briefing on the issue.
On February 21, Ferguson appealed from the trial court's summary
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judgment order and the related orders granted in favor of Teller. She additionally
moved the trial court to set a supersedeas bond amount in order to stay the
partial disbursement to Teller. On March 22, our commissioner issued a ruling
extending the temporary stay an additional 14 days and informing Ferguson that
she was required to post a bond, cash, or alternate security approved by the trial
court in order to stay enforcement of the order. Ferguson and Teller then agreed
that $290,905.53 of the amount on deposit in the court registry would serve as
Ferguson's supersedeas bond pending the outcome of the appeal. They also
agreed that $78,350.85, representing the amount ofWaid's lien, would remain in
the registry pending further order of the trial court.3
Thereafter, on July 12, Ferguson moved to have the trial court summarily
set aside Waid's attorney's lien. On July 30, the trial court granted the motion
and directed the clerk to disburse to Ferguson the sum of $78,350.85 held in the
court registry, together with accrued interest. The order stated, in pertinent part,
as follows:
The $530,107.58 in attorneys' fees do not represent
"proceeds" received by Ferguson after arbitration or mediation due
to services performed by Mr. Waid. RCW 60.40.010(d). The funds
were earned by Teller and Ferguson well before Mr. Waid was
retained.
The funds that are currently in dispute were not obtained by
a "judgment" on behalfof Ferguson against Teller. RCW
60.40.010(e). Wilson v. Henkle, 45 Wn. App. 162, 170, 724 P.2d
1069 (1986). Teller, the adverse party, consistently maintained that
Ferguson was entitled to half of the attorneys' fees that were
generated in the Underlying Matter. Ferguson retained Mr. Waid in
her unsuccessful effort to obtain 90% of the fees.
3Waid was not a party to this agreement.
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Waid filed a notice of appeal from that order.
On August 22, Waid filed a motion to stay disbursement to Ferguson of
the funds in the court registry representing Waid's attorney's lien and for approval
of a supersedeas bond. However, Ferguson had previously withdrawn the funds.
The trial court denied Waid's motion in an order issued on August 30, ruling that
the motion was moot. The next day, Waid filed an amended notice of appeal to
include the August 30 order.
II
Ferguson contends that Waid may not appeal from the July 30 order. This
is so, Ferguson reasons, because the order does not constitute a "final judgment"
and because here there was no "action" pertaining to Waid. We disagree.
A party may appeal as of right "[a]ny written decision affecting a
substantial right in a civil case that in effect determines the action and prevents a
final judgment or discontinues the action." RAP 2.2(a)(3). Furthermore, pursuant
to RAP 3.1, a party must be "aggrieved" to be permitted to seek review. "An
aggrieved party is one whose proprietary, pecuniary, or personal rights are
substantially affected." Cooper v. City of Tacoma, 47 Wn. App. 315, 316, 734
P.2d541 (1987).
The July 30 order meets the criteria of RAP 2.2(a)(3). It is a written
decision that affects Waid's substantial right to monetary relief and determined
the action with respect to Waid's attorney's lien. Moreover, it is immaterial that
Waid was not a named party to the fee dispute between Ferguson and Teller.
No. 69220-8-1 (Linked with No. 68329-2-l)/7
In rare cases, a person who is not formally a party to a case
may have standing to appeal a trial court's order because the order
directly impacts that person's legally protected interests. Thus, in
the case of In re Guardianship of Laskv, 54 Wn. App. 841, 848-50,
776 P.2d 695 (1989), we held that an attorney was an "aggrieved
party" for purposes of appealing from an order imposing sanctions
against him but was not an "aggrieved party" for purposes of
appealing from an order removing him as the legal guardian of an
incompetent adult. See also State v. G.A.H., 133 Wn. App. 567,
575-76, 137 P.3d 66 (2006) (Department of Social and Health
Services could appeal, even though not a named party, because
juvenile court ruling ordered department to assume responsibility
for minor's welfare); Breda v. B.P.O. Elks Lake City 1800 SO-620,
120 Wn. App. 351, 353, 90 P.3d 1079 (2004) (sanctioned attorney
became "aggrieved party" for purposes of appealing sanctions
imposed directly against him); Splash Design. Inc. v. Lee. 104 Wn.
App. 38, 44, 14 P.3d 879 (2000) (same).
Polygon Nw. Co. v. Am. Nat'l Fire Ins. Co.. 143 Wn. App. 753, 768-69, 189 P.3d
777 (2008); accord Mestrovac v. Dep't of Labor & Indus.. 142 Wn. App. 693, 704,
176 P.3d 536 (2008) ("'Aggrieved' has been defined to mean '"a denial of some
personal or property right, legal or equitable, or the imposition upon a party of a
burden or obligation. (quoting G.A.H.. 133 Wn. App. at 574 (quoting State v.
A.M.R.. 147 Wn.2d 91, 95, 51 P.3d 790 (2002)))), aff'd on other grounds sub
nom. Kustura v. Dep't of Labor & Indus. 169 Wn.2d 81, 233 P.3d 853 (2010)).
Waid has standing to appeal and the July 30 order is appealable.
Ferguson also contends that Waid may not appeal from the August 30
order. Again, we disagree. Appeal is authorized by RAP 2.2(a)(3).
A party may appeal as of right "[a]ny written decision affecting a
substantial right in a civil case that in effect determines the action and prevents a
final judgment or discontinues the action." RAP 2.2(a)(3). Here, the August 30
order was a written decision that affected Waid's right to assert an attorney's lien.
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It also, in effect, determined the action by declaring moot Waid's motion to stay
disbursement. The trial court's determination that his motion was moot meant
that Waid had no alternative recourse in this action by which Waid could seek to
obtain the disbursed funds. Accordingly, the August 30 order is appealable as a
matter of right pursuant to RAP 2.2(a)(3).4
Ill
Waid contends that the trial court erred in invalidating his lien. This is so,
he reasons, because the money that Ferguson received from working on the
underlying matter constitutes "proceeds" pursuant to the applicable statute. We
agree.
"The interpretation and meaning of a statute is a question of law subject to
de novo review." Bennett v. Seattle Mental Health. 166 Wn. App. 477, 483, 269
P.3d 1079, review denied. 174 Wn.2d 1009 (2012). "The goal of statutory
interpretation is to discern and carry out legislative intent." Bennett. 166 Wn.
App. at 483. "Absent ambiguity, a statute's meaning is derived from the
language of the statute and we must give effect to that plain meaning as an
expression of legislative intent." Bennett. 166 Wn. App. at 484.
4 Although the August 30 order is appealable, the trial court did not err when it held that
Waid's motion to stay was moot. CR 62 provides, in pertinent part, "Upon the filing ofa notice of
appeal, enforcement ofjudgment is stayed until the expiration of14 days after entry of judgment."
CR 62(a). Judgment on the validity ofWaid's attorney's lien was entered on July 30, yet he
waited until August 22 to bring a motion to stay enforcement ofthe order. Pursuant to CR 62,
Waid had no reason to expect that the funds would still be in the registry of the court22 days
after entry ofthe disbursement order. Unsurprisingly, thefunds had, in fact, been disbursed in
the interim. Thus, the trial court did not err by denying his motion as moot. However,
notwithstanding the fact thatWaid's motion to stay disbursement was moot at the time that it was
considered by the trial court, the question ofwhether Waid's lien is valid is not moot because
money remains in the court registry to which Waid's lien could attach.
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An attorney may sue a client for unpaid fees, but an attorney also has the
option of asserting a lien to ensure payment without resorting to a lawsuit to
recover those fees. See RCW 60.40.010(1). Once an attorney's lien attaches to
an action, that lien "is superior to all other liens" and "is not affected by settlement
of the parties until the lien is satisfied in full." Smith v. Moran. Windes &Wong.
PLLC. 145 Wn. App. 459, 466-67, 187 P.3d 275 (2008). RCW 60.40.010
provides, in pertinent part, as follows:
(1) An attorney has a lien for his or her compensation, whether
specially agreed upon or implied, as hereinafter provided:
(d) Upon an action, including one pursued by arbitration or
mediation, and its proceeds after the commencement thereof to the extent
of the value of any services performed by the attorney in the action, or if
the services were rendered under a special agreement, for the sum due
under such agreement; and
(e) Upon a judgment to the extent of the value of any
services performed by the attorney in the action, or ifthe services
were rendered under a special agreement, for the sum due under
such agreement, from the time of filing notice of such lien or claim
with the clerk of the court in which such judgment is entered, which
notice must be filed with the papers in the action in which such
judgment was rendered, and an entry made in the execution
docket, showing name of claimant, amount claimed and date of
filing notice.
(5) For the purposes of this section, "proceeds" means any
monetary sum received in the action.
(Emphasis added.)
The attorney's lien statute provides that an attorney has a lien "upon an
action . . . and its proceeds," which means "any monetary sum received in the
action." RCW 60.40.010 (1)(d), (5). Here, Waid's lien arose when Waid filed suit
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on behalf of Ferguson. Furthermore, Ferguson received a monetary sum in the
action—50 percent of the $530,107.58 contingent fee generated by the clients'
decision to settle the underlying matter. The plain language of the statute
establishes that "any monetary sum received in the action" constitutes
"proceeds." Ferguson received a monetary sum and, therefore, received
"proceeds" to which the lien attaches.
Nevertheless, Ferguson contends that Waid's lien is invalid because he
failed to obtain a judgment in her favor in the underlying matter. In support of this
contention, Ferguson cites to two cases in which we held that a former version of
RCW 60.40.0105 did not authorize a lien when the attorneys failed to obtain a
monetary judgment in favor of their clients. See Wilson v. Henkle. 45 Wn. App.
162, 170, 724 P.2d 1069 (1986); see ajso Suleiman v. Cantino. 33 Wn. App. 602,
606-07, 656 P.2d 1122 (1983). Neither case guides our analysis. The previous
version of the statute, in effect when Wilson and Suleiman were decided,
required attorneys to obtain a monetary judgment in favor of their clients. Now,
however, the amended statute requires only that Ferguson obtained "proceeds"
in the action. "Proceeds" are defined as "any monetary sum received in the
action." Ferguson received a monetary sum in the action and, therefore,
received "proceeds." Thus, the trial court erred by invalidating Waid's lien.
Although the trial court correctly denied Waid's motion to stay the
disbursement of the funds as moot, the question of whether Waid's lien is valid is
5 RCW 60.40.010 was amended in 2004. Laws of 2004, ch. 73, § 2 (effective June 10,
2004).
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not moot. Here, the trial court erred in determining that Waid's lien was invalid.
Accordingly, we reverse the trial court's July 30 order invalidating Waid's lien and
remand for a determination of what amount, if any, of the funds remaining in the
court registry are rightfully Waid's.
Reversed and remanded.
We concur:
\9or^L:
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