Archive for the ‘Judge Ann Schindler – Concur in Majority’ Category
May 12, 2010
Clifford Wayne Woodall v. Avalon Care Center
Henry Woodall died in the care of Avalon Care Center of Federal Way. His heirs sought to bring a wrongful death and survival action against Avalon. Mr. Woodall had signed an agreement with Avalon, which required any action for personal injuries or medical negligence to be heard by an arbitrator.
The trial court had determined that even though it would require a claim arising out of the same set of underlying facts to be split, the survival action was subject to arbitration while the wrongful death action was not. The Court of Appeals held that because the heirs were the parties to the wrongful death action, they were not bound by the arbitration clause.
Note to practitioners: Courts like alternative dispute resolution, but look closely at agreements that appear to be one-sided or that deprive people of rights they might otherwise have.
Posted in Arbitration Agreements, Contracts, Division I, Judge Ann Schindler - Concur in Majority, Judge Marlin Appelwick - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals, Wrongful Death | Leave a Comment »
February 23, 2010
Ralph’s Concrete Pumping v. Concord Concrete Pumps
Ralph’s Concrete Pumping (Ralph’s) is a Washington corporation. Concord Concrete Pumps (Concrete) is a British Columbia, Canada corporation.
Ralph’s sued Concrete for breach of contract. Ralph’s served Concord in Canada by mail. Concord acknowledged receipt of the summons and complaint by signing a delivery receipt. Concord did not appear or answer the summons and complaint. Ralph’s got a default judgment against Concrete for $175,000.
Concord then made a special appearance, moving to vacate the default judgment. The motion to vacate was denied and Concord appealed.
The Court of Appeals determined that since the long arm statute, RCW 4.28.150, provided for personal service, and because Ralph’s failed to file an affidavit that established that service could not be made within the State of Washington, the court did not have personal jurisdiction over Concrete. The Court of Appeals held that the default judgment was void.
The Court of Appeals declined to award attorney fees because the statute did not provide them unless service of process was accomplished by personal service.
Posted in Attorney's Fees and Costs, Civil Procedure, Judge Ann Schindler - Concur in Majority, Judge C. Kenneth Grosse - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals | Leave a Comment »
February 9, 2010
December 12, 2004: Timothy Ruiz is driving along State Route 410. He drives through forestland. Earlier on the same day, the Washington State Patrol closes the road because of dangerous trees tend to topple over. Wind speeds reach 75 miles per hour on that day and trees had previously toppled over under such circumstances. As Ruiz passes through, a tree falls and crushes his vehicle. He is injured. He sues the landowner and the state.
The trial court dismisses his lawsuit against the landowner and the state under the Forest Practices Act of 1974 (FPA). The FPA purports to give immunity to all landowners and the state for unharvested timber on land used to grow, harvest or process timber.
Mr. Ruiz argues that the state and the landowner should not be immune because they have allowed a dangerous condition to occur by leaving exposed trees at the edge of a riparian zone. The Court of Appeals states that “[w]hile this argument has some attraction, particularly on the facts her that underscore a collision between the important policy of public safety and that of environmental protection,” public safety loses (at least insofar as the court doesn’t want to stick its neck out too far). This choice is left to the legislature. Poor Mr. Ruiz.
Does this mean that under no circumstances can a landowner be held responsible for dangerous trees that hover over places where people pass? What if they’ve cut it half way down and know that it will inevitably fall and kill someone? Is that what the legislature meant when it enacted the FPA?
Posted in Division I, Governmental Liability, Judge Ann Schindler - Concur in Majority, Judge Ronald Cox - Concur in Majority, Land Use, Tort | Leave a Comment »
January 4, 2010
State v. Scherner
Roger Scherner was convicted of three counts of first degree child molestation. Mr. Scherner is a California resident, who molested several family members who were under age. Evidence of prior molestations of women who were under age when they were molested by him was admitted at his trial over his objections under ER 404(b). He claimed that a statute, RCW 10.58.090, which made such evidence was admissible, was an unconstitutional ex post facto law.
The Court of Appeals affirmed his convictions, holding that the prior molestations were part of a common plan or scheme and that RCW 10.58.090 was not an ex post facto law because it did not change the fact that the State still had to prove that he had committed the prior molestations in order to offer the evidence that he had committed them. The Court of Appeals also rejected arguments based on the Equal Protection Clause, the Due Process Clause and the separation of powers doctrine.
The Court of Appeals also rejected an argument that Bellevue Police Detective Jennifer Robertson had violated RCW 9.07.030 by intercepting telephone conversations where not all parties had consented to the recording.
The Court of Appeals also rejected the argument that the spousal privilege should have prohibited admissions made to Mr. Scherner’s spouse or that admission of that evidence was harmless.
Posted in Constitutional Law, Criminal Law, Division I, Judge Ann Schindler - Concur in Majority, Judge J. Robert Leach - Concur in Majority, Judge Ronald Cox - Draft Majority, Juror Misconduct, WA Court of Appeals | Leave a Comment »
January 4, 2010
State v. Scherner
Roger Scherner was convicted of three counts of first degree child molestation. Mr. Scherner is a California resident, who molested several family members who were under age. Evidence of prior molestations of women who were under age when they were molested by him was admitted at his trial over his objections under ER 404(b). He claimed that a statute, RCW 10.58.090, which made such evidence was admissible, was an unconstitutional ex post facto law.
The Court of Appeals affirmed his convictions, holding that the prior molestations were part of a common plan or scheme and that RCW 10.58.090 was not an ex post facto law because it did not change the fact that the State still had to prove that he had committed the prior molestations in order to offer the evidence that he had committed them. The Court of Appeals also rejected arguments based on the Equal Protection Clause, the Due Process Clause and the separation of powers doctrine.
The Court of Appeals also rejected an argument that Bellevue Police Detective Jennifer Robertson had violated RCW 9.07.030 by intercepting telephone conversations where not all parties had consented to the recording.
The Court of Appeals also rejected the argument that the spousal privilege should have prohibited admissions made to Mr. Scherner’s spouse or that admission of that evidence was harmless.
Posted in Constitutional Law, Criminal Law, Division I, Judge Ann Schindler - Concur in Majority, Judge J. Robert Leach - Concur in Majority, Judge Ronald Cox - Draft Majority, Juror Misconduct, WA Court of Appeals | Leave a Comment »
January 4, 2010
State v. Gresham
Michael Tyronne Gresham was convicted of multiple counts of child molestation in the first degree. He challenged the constitutionality of RCW 10.58.090 under the separation of powers doctrine and he alleged that as applied to him, the statute was an unconstitutional ex post facto law.
RCW 10.58.090 allowed prosecutors to offer evidence of past sex offenses at Mr. Gresham’s trial. The Court of Appeals held that the statute did not violate the separation of powers doctrine because both the courts and the legislature are authorized to amend the rules of evidence, which is what this statute did.
The Court of Appeals also determined that the statute as applied to Mr. Gresham was not an ex post facto law because it did not change the fact that the state still had the burden of proving that he had committed the prior sex offenses. The opinion was issued on the same day as a case from the same court involving the same issues. See State v. Scherner.
Posted in Constitutional Law, Criminal Law, Division I, Judge Ann Schindler - Concur in Majority, Judge J. Robert Leach - Draft Majority, Judge Ronald Cox - Concur in Majority, WA Court of Appeals | Leave a Comment »
September 15, 2009
Ripley v. Lanzer
Oh boy. Lots of goodies. William Lanzer, M.D., an orthopedic surgeon was performing surgery on Katherine Ripley’s left knee. At the end of the procedure, no one could find the number 7 blade from the scalpel used to perform the surgery. Believe it or not, it had fallen off and lodged inside Ms. Ripley’s knee. Eventually, the doctor and hospital staff discovered the location of the blade, but having had a tourniquet on her leg for too long, they had to go back in searching for the blade.
There were arguments at trial about whether medical testimony was required to determine whether Dr. Lanzer had been negligent by dropping a blade in his patient, leaving it there, stitching her up and then having to go back in to get it out. In comes the doctrine of res ipsa loquitur, a Latin phrase which, loosely translated, means “the thing speaks for itself.” The Court of Appeals held that the doctrine of res ipsa applied based on precedent and common sense, which suggests that stuff doesn’t end up left inside someone’s body in the absence of some kind of mistake.
The Court of Appeals reversed summary judgment against the Ripleys, but affirmed summary judgment against the hospital. Interestingly, the Court of Appeals determined that medical testimony was required and that res ipsa did not apply as against the hospital, also a defendant.
Posted in Division I, Judge Ann Schindler - Concur in Majority, Judge Anne Ellington - Concur in Majority, Judge Ronald Cox - Draft Majority, Medical Malpractice, Res Ipsa Loquitur, Tort, WA Court of Appeals | 1 Comment »
September 15, 2009
Seymour v. Wash. State Dept. of Health
Douglas A. Seymour, DDS, was a dentist that was accused by his employees of violating the standard of care for dentists and overbilling his patients. The Dental Quality Commission of the Department of Health did an investigation. As part of the investigation, they conducted warrantless searches of Dr. Seymour’s office and patient files.
At an administrative hearing, Dr. Seymour was found to have violated the standard of care and to have improperly billed patients. The Court of Appeals found that the searches were unconstitutional under the Fourth Amendment to the federal constitution and article 1, section 7 of the state constitution. The case was remanded for hearing without the evidence that was obtained during the warrantless and unauthorized search.
Quote of the case: “Reining in the power of the executive branch in conducting administrative searches is a primary concern of the courts…”
Posted in Administrative Law, Constitutional Law, Division I, Judge Ann Schindler - Concur in Majority, Judge Marlin Appelwick - Concur in Majority, Judge Stephen J. Dwyer - Draft Majority, Medical Malpractice, WA Court of Appeals | Leave a Comment »
