Barr v. Day , 124 Wash. 2d 318 ( 1994 )

Utter, J.

(concurring in concurrence/dissent) — Apart from the question whether the majority’s discussion of attorney fees is or is not dicta, I agree with the concurrence/ dissent that the majority should not have reached the issue of attorney fees at all. The majority claims that it "must” review the issue of attorney fees. Majority, at 326. The only two issues before us, however, are whether Mrs. Barr’s claims are collaterally estopped and whether guardians ad litem are immune from liability. See Day’s Pet. for Review; Stamper and Stocker’s Pet. for Review; Barr’s Response to Pets, for Review. The majority’s assertion that it was obligated to reach the issue of attorney fees is therefore unfounded.

In addition, we will generally decide a case only on the basis of issues set forth by the parties in their briefs unless we give parties the opportunity to present written argument on the issue raised by the court, RAP 12.1, or believe it would serve the ends of justice to waive the opportunity to be heard, RAP 1.2(c). Here, Mrs. Barr may have had a strategic reason for not alleging that Stamper and Day were entitled to be paid only quantum meruit and/or for only assigning error only to a limited portion of the trial court’s disposition of the case. Also, Stamper and Day were deprived of an opportunity to respond to the issue which they could not know this court would consider. For the sake of fairness to all parties, I believe the court should not have reached the issue, and that if the court felt compelled to reach the issue, it should have provided the parties with an opportunity to comment. This would have ensured the opinion had the approval of at least one party, and that we had the opportunity to consider all pertinent aspects of the issue. As another court has noted, it is a "premise of our adversarial system . . . that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

I thus concur with the concurrence/dissent that the majority should not have resolved the issue of attorney fees.