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Court of Appeals: Div. III – Assault Was Part of Rape and Thus Cannot Convict for Both Crimes

July 29, 2010

State v. Williams

This is a lovely story about a swell guy (note sarcasm). Floyd Williams was convicted on two counts of rape and one count of second degree assault with sexual motivation, which involved two victims. The cases had been consolidated and tried together. The trial court admitted testimony from the victim of Floyd’s prior rape conviction. Floyd was sentenced to life imprisonment as a persistent offender based on these convictions and the prior rape conviction.

Floyd appealed the admittance of the prior victim’s testimony. In addition, Floyd claimed that the assault charge should have merged with the rape charge.

Evidence Rule 404(b) prohibits evidence of other crimes to show that the defendant acted in conformity with that character-had a propensity to commit this crime. But evidence of prior crimes may be admitted for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Since the facts of the earlier rape were very similar to the facts of both the recent rapes, the trial court held that it showed a common scheme and the prejudice of the testimony was minimal. The Court of Appeals agreed.

Next Floyd argued that he could not be convicted of both assault and rape as the assault was part of the rape and the assault had no independent purpose. Since the assault on the victim before and during the rape is what raised it to the level of First Degree Rape, Floyd couldn’t be convicted of both charges. There was merger of the two crimes and thus the conviction for assault was vacated. Boy, I bet ole Floyd was glad to get that assault off his record. I mean what would his employer think?

Three strikes and you’re out Floyd. Out for life! Floyd also made some Pro-se arguments including that the forensic lab who conducted the tests on the victims had a history of making mistakes. But at trial he argued that the sex was consensual. Nice try Floyd.

Posted in Criminal Law, Division III, Double Jeopardy, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Rules of Evidence, Sentencing, Sex Offender, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Fifth Amendment Violation Was Harmless Error in Conviction of Child Rape

July 4, 2010

State v. Epefanio

Mr. Epefanio was a teacher’s aide and basketball coach at Salk Middle School in Spokane, Washington. Apparently Mr. E had a thing for the young girls at the school. He asked Brianna Summers to help him with the basketball team and they started a sexual relationship when Brianna was 15 years old. Mr. E was 25!

Eventually Brianna got pregnant, moved in with Mr. E, and then the honeymoon was over. Brianna was now 18 years old (probably too old for Mr. E). After the couple separated, Brianna determined that what Mr. E did was wrong. She was older and wiser! She sued the school district and reported Mr. E to the police. Mr. E was charged with Sexual Misconduct in the First Degree and Rape of a Child in the Third Degree.

At the criminal trial, Brianna testified about her sexual history with Mr. E. A friend of Brianna’s testified that she hung out with the couple and witnessed them having sex. Brianna’s boyfriend Jared (she had a boyfriend through all of this?!) testified that he had found out about the relationship, told Brianna’s parents, and then confronted Mr. E in front of Brianna’s parents.

Mr. E moved to dismiss the case after the State rested. The court dismissed the misconduct charge, but not the rape charge. On defense, Mr. E took the stand in his own behalf and denied having sex with Brianna when she was 15. He would never do such a thing! He waited until she was 16 and then knocked her up. When the State attempted to cross-examine Mr. E about Jared’s confrontation, the defense objected as it was outside the scope of direct examination. The court agreed. However, the State called Mr. E as a rebuttal witness and examined him on the same subject (the confrontation) and the court allowed it.

The jury convicted Mr. E and returned a special verdict that the offense was "part of an ongoing pattern of sexual abuse of the same victim under the age of 16 years manifested by multiple incidents over a prolonged period of time." The stand range for this crime is 12 to 14 months, but with the special verdict, the court imposed an exceptional sentence of 20 months. Mr. E also moved for relief from judgment based on the argument that the State violated his Fifth Amendment privilege against self incrimination when he was called as a rebuttal witness. The court denied the motion. Mr. E appealed the conviction and the exceptional sentence.

The Court of Appeals held that there was sufficient and persuasive evidence to convict Mr. E. They also held that it was a violation of Mr. E’s Fifth Amendment right against self incrimination to call him as a rebuttal witness regarding testimony outside the scope of direct examination. HOWEVER, "If the untainted evidence is so overwhelming that it necessarily leads to a finding of the defendant’s guilt, the error is harmless." State v. Koslowski. So even if you remove the tainted evidence (Mr. E’s testimony about his confrontation with Jared), there was still ample evidence to convict him. HARMLESS ERROR!! The Court of Appeals also confirmed the exceptional sentence.

I’m sure the prison population will help Mr. E straighten out his penchant for young girls.

Inmates

Posted in Criminal Law, Division III, Fifth Amendment, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Sentencing, WA Court of Appeals | 1 Comment »

Court of Appeals: Div. III – Victim Turns to Defendant for Hindering Investigation

June 13, 2010

State v. Budik

This is an unusual case in that a victim of a crime ends up being the defendant. Budik left a party with Walton who was a gang member. Walton was driving and Budik was in the passenger seat as they began to leave the party. Eyewitnesses stated that three individuals (Miller, Davis, and Nave) were standing at the passenger window of the vehicle when there were shots fired. Walton was killed and Budik was injured. Witnesses stated that Davis was the shooter and Miller transported him away from the scene. Budik said he did not know who shot him and refused to cooperate with the police. The police found a single shell casing inside the vehicle and determined that the shooter must have shot inside the vehicle and thus Budik must have been able to identify the shooter. Budik stated that he was bent over getting his drink went the shots were fired and thus didn’t see who it was.

Gangmember with gun

However, two days later, Budik told Walton’s mother that Nave was the shooter. Ms. Walton related this to the police and they then charged Budik with First Degree Rendering Criminal Assistance.

"A person is guilty of rendering criminal assistance in the first degree if he . . . renders criminal assistance to a person who has committed or is being sought for murder in the first degree or any class A felony or equivalent juvenile offense." RCW 9A.76.070(1). "Rendering criminal assistance" is defined in relevant part as,

with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime . . . or is being sought by law enforcement officials for the commission of a crime . . . he: . . . .(4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person.

Davis and Miller were charged with murder, but Nave was never charged because there was no direct evidence against him. At Budik’s trial, he stated that he never told Ms. Walton that Nave was the shooter and that he never attempted to mislead authorities or send them in the wrong direction. Detectives in the case attributed difficulties in the investigation to the general fear in the community of gang members. The jury convicted Budik as charged.

Budik appealed claiming that there was no evidence that he intended to prevent the apprehension of the assailants and there was no evidence that the officers relied on his statement or that it actually hindered the investigation. He argued that the evidence only showed that he feared retaliation and that his actions were meant to prevent that retaliation. However, the Court held that based on this motive the jury could infer that his intent was to prevent, hinder, or delay the apprehension and prosecution of the murderers. In addition there is nothing in the statute that requires that the police rely upon the deception. A detective testified that Budik’s testimony would have been key as to Nave’s involvement in the shooting.

Budik then argued that he had a constitutional right to not answer police questions. However, the right to remain silent is a right to not self incriminate. Budik was not a suspect; he was a witness. In addition, Budik was prosecuted for lying, not remaining silent.

Budik made one last argument that he had ineffective assistance of counsel because his attorney did not submit a jury instruction for duress. However, Budik’s argument at trial was not that he was under duress and that was why he refused to cooperate. His argument was that he simply didn’t know who the shooter was. Thus the ineffective assistance of counsel argument failed as well.

So the victim of a shooting goes off to jail. But I’m hoping I will never know the kind of fear that some communities have of cooperating with the police and pointing out criminals. It must be a very lost feeling.

Posted in Confrontation Clause, Criminal Law, Division III, Fifth Amendment, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Bank, Not Decedent, Intended Right of Survivorship; Survivor Not Entitled to Over $234,000

May 3, 2010

Taufen v. Estate of Kirpes

This case is a good example of how amidst all the emotions surrounding death, greed can push the rest aside.

Maria Kirpes was dying of cancer and decided to get her affairs in order. Her assets included her house and several thousand dollars held in investment accounts. She met with her lawyer to have him draft her last will and testament. She planned on leaving a majority of her estate (valued at approximately $575,000) to her late husband’s cousins and a considerable amount to the local church. She also bequeathed her home (valued at approximately $138,000) to her “good friend and handyman” Mr. Yochman.

Ms. Kirpes had a joint account with her former caretaker and so she decided to close that account and open and joint account with Mr. Yochman. She told the banker, Judy Stapleton, that she wanted a joint account with Mr. Yochman. Well Ms. Stapleton took it upon herself to make the account a joint account with right of survivor ship. This would result in Yochman automatically acquiring the monies in the account upon Ms. Kirpes’ death. This is not what Ms. Kirpes intended and Ms. Stapleton acknowledged at trial that Ms. Kirpes did NOT request that the account have a right of survivorship clause.

The will was drafted and then Ms. Kirpes cashed out one of her investment accounts worth over $178,000 and deposited the monies into her joint account. I think you can see the writing on the wall here. Ms. Kirpes died and Mr. Yochman thought he had hit the lottery. At the time of her death, the joint bank account contained over $234,000. Mr. Kirpes took the money via the right of survivorship and also took the house that was left to him. Ms. Kirpes’ estate demanded the money from the joint account be returned to the estate. Yochman gave the money to the estate and then sued for the return of the money. The trial court ruled on behalf of Yochman and the estate appealed.

There is a rebuttable statutory presumption that “[f]unds belonging to a deceased depositor which remain on deposit in a joint account with right of survivorship belong to the surviving depositors unless there is clear and convincing evidence of a contrary intent at the time the account was created.” RCW 30.22.100(3). The estate argued that the contract opening the joint account required a meeting of the minds and since Ms. Kirpes did not intend to open the account with a right of survivorship there was no meeting of the minds.

The amazing thing is that the trial court found that it was Ms. Kirpes’ intention that the account have a right of survivorship. The only fact supporting this supposed intention was the account card that Ms. Kirpes signed to open the account. That card created the rebuttable presumption of intent. However, “[p]resumptions are the ‘bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.’ The sole purpose of a presumption is to establish which party has the burden of going forward with evidence on an issue.” Man, I love that quote!

Well the sunshine of actual facts here are simply that Ms. Stapleton was the one who chose to make the account with a right of survivorship, not Ms. Kirpes. And with that sunshine of facts, disappears the presumption that the money in the account belongs to Yochman. Judgment reversed!

“Presumptions are the ‘bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.”  I just wanted to say that one more time.

Bats

Posted in Division III, Judge Dennis J. Sweeney - Draft Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Teresa C. Kulik - Concur in Majority, Right of Survivorship, WA Court of Appeals, Wills | 3 Comments »

Court of Appeals: Div. III – Court Affirms Termination of Mother’s Parental Rights

April 30, 2010

In re the Welfare of A.G. and L.S.

This was a very sad case. Ms. G is the mother of A.G. (now age 8) and L.S. (now age 5). The State removed the children from Ms. G’s care in 2005 and they were declared dependents in August 2005. In October 2006, Ms. G had another child (M.S.). M.S. never left the care of Ms. G and never lived with A.G. or L.S. In March 2007 the State petitioned to terminate Ms. G’s parental rights as to A.G. and L.S. The petition stated that the reasons for termination were drug and alcohol abuse, neglect of the children, domestic violence, and serious mental health problems. The facts set forth an ugly history. Ms. G made an effort to clean up her act, but the facts reflected that she just wouldn’t go 100% of the way. This was evidenced by her refusal to cooperate with mental health evaluations and urine tests for drugs. In addition, the assessments of the children’s attachment to their mother were not positive.

In the end, the court terminated Ms. G’s parental rights and disallowed any visitation between M.S. and the other two children. Ms. G appealed.

Unfortunately, the Court of Appeals agreed with the trial court and found that the evidence did support the trial court’s findings and affirmed those findings. However, the Court of Appeals did reverse the trial court’s order regarding the visitation between M.S. and the other two children. The court did not have jurisdiction over M.S. because he was not a party to the action. A little silver lining.

What I found strange about this case was the fact that in the midst of terminating the parental rights of the mother as to two of her children, the third child was completely ignored. If she wasn’t a fit parent as to two of the children, then why was she allowed to keep the third?

Posted in Dependancy Gaurdianship Proceedings, Division III, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Parentage, WA Court of Appeals | 1 Comment »

Court of Appeals: Div. III – Prior Acts of Domestic Violence Can Be Considered in Modification of Parenting Plan

April 25, 2010

In re the Marriage of Zigler and Sidwell

This case is a good example of how our state law on modification of parenting plans works. While Washington’s laws in the area of parenting plans are not perfect, we have caught the eye of the rest of the nation with some of our ground breaking cases, such as In re Parentage of L.B. that set forth de facto parentage rights for non-biological parents. Although the details of de facto parentage are still being ironed out in our Supreme Court (oral arguments for In re Marriage of Corbin were heard in early April in regards to the rights of a step-parent), these types of decisions make me proud to be a Washington resident.

The current case, In re the Marriage of Zigler and Sidwell is yet one more of those cases where it would just seem logical that the lower court’s decision was correct. But following the statutory guidelines in family law matters does not mean that a logical result will always be reached.

Kirk Sidwell and Lisa Zigler were marred in 1999, they had a son, Blake, in 2000, and were divorced in 2002. The parenting plan entered with the court made Lisa’s home Blake’s primary residence. The parties agreed to modify the parenting plan in April 2004 and then in December 2004, Kirk filed a motion to modify the agreed parenting plan. The reasons Kirk gave for the modification were:

  • Incidents of domestic violence between Ms. Zigler and her ex-husband, Tim Briggs, that occurred before 2002;
  • Incidents of domestic violence between Ms. Zigler and Mr. Sidwell that apparently occurred between 2002 and 2004;
  • An assault by Ms. Zigler on her daughter, Darci Briggs, in September 2004;
  • Substance abuse by Ms. Zigler’s son, Cory Briggs, in 2004; and
  • Possession of a gun at school by Cory Briggs in 2003.

Kirk’s motion to modify was denied as adequate cause had not been established. Again in March 2006, Kirk and Lisa agreed to modify the parenting plan with some minor adjustments. And then the real fun began! In April 2006, a real brawl took place in Lisa’s home. The altercation involved Lisa, her current husband and two of Lisa’s children. There were punches and biting and an arrest for assault. Kirk again motioned the court to modify the parenting allowing for Blake to reside with him. This time Kirk was successful and the court granted him the modification. Lisa then appealed claiming that the trial judge wrongly considered evidence of family problems from previous to the last entry of a parenting plan: March 2006.

After a determination of adequate cause, a court may modify the parenting plan if it finds: (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child’s health, (3) modification is in the child’s best interest, and (4) the change will be more helpful than harmful to the child. RCW 26.09.260(1), (2)(c). The primary issue on appeal was whether the trial court properly based its decision on "facts that have arisen since the prior . . . plan or that were unknown to the court at the time of the prior . . . plan." RCW 26.09.260(1).

The trial court had transferred Blake’s primary residence to Kirk’s home because of a history of domestic violence at Lisa’s home. This includes ALL of the history, not just the Smack Down that occurred in April 2006. Lisa argued that the statute only allowed the court to consider evidence that had arisen since the last parenting plan had been entered or that the court had not known at the time of entry of that parenting plan. Since Kirk had filed a motion in 2004 alerting the court to the history of domestic violence at that time, Lisa argued that the court did have knowledge of the problems at the entry of the parenting plan in 2006.

However, the Court of Appeals did not agree with Lisa’s view. The statute allows the court to consider "facts that have arisen since the prior [parenting] plan" and "that were unknown to the court at the time of the prior [parenting] plan." So the reasoning is that Kirk’s motion to modify in 2004 is not a “parenting plan”; it is a motion. So the court could consider as “facts that have arisen” all the facts clear back to 2002, when the original plan was entered. Even though there were two agreed orders entered in between there, the court reasoned that the facts involved in those agreed orders were not known to the trial judge.

Lisa also tried to argue that the record did not show a history of domestic violence. Right. She also argued that there was no evidence to support a finding that her home was detrimental to Blake’s health. The court didn’t buy this one either. And finally she argued that the law required that there must be direct evidence of an effect on the minor child from the detriment. The Court of Appeals did not find any statutory requirement for this and stated that even if there was a requirement there was more than enough evidence to infer that the “this nine-year-old boy was likely affected by the extreme dysfunction, including violence…”

This one feels right to me.

Posted in Division III, Family Law, Judge Dennis J. Sweeney - Draft Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Concu in Majority, Parentage, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Indemnity Agreement Was Project Specific; No Help In Paying Claims

April 25, 2010

Carpenter v. Remtech, Inc.

This case involves the signing of an indemnity agreement between two parties. An indemnity agreement is a contract wherein the parties agree to be responsible for some possible future liability. Here the Carpenters entered into an indemnity agreement on May 20, 1999 so that they could secure the bonding of a project in Oregon called the McCormick & Baxter Project. The agreement called for the Carpenters to pay to Hartford Insurance Company any monies that Hartford paid out on the bond. The second party to this action, the Johnsons, had nothing to do with the M&B Project and they were not a party to the agreement.

The Carpenters and the Johnsons did enter into an indemnity agreement on June 8, 1999 in regards to a mutual venture called the Manchester Project. However, the Manchester Project was cancelled and there were never any claims made against the bond nor the indemnity agreement.

There were two claims made against the bond in the M&B Project and Hartford paid those claims. Hartford then sued the Carpenters for reimbursement under the indemnity agreement. The complaint specifically referred to the May 20, 1999 indemnity agreement and when the case was settled the settlement agreement specifically referred to the M&B Project. The Johnsons were not a party to this lawsuit.

However, the Carpenters decided to pursue the Johnsons for a portion of the settlement monies paid to Hartford in the M&B Project. The Carpenters argued that since the language for the indemnity agreement for the Manchester Project was unqualified (it said “will indemnify…from all loss…because of having furnished any Bond”) that the Johnsons were obligated to contribute to the settlement with Hartford on the M&B project. The trial court agreed and the Johnsons appealed.

The Court of Appeals agreed with the Carpenters that an indemnity agreement does provide a right of contribution and makes the parties equally liable for a debt that is subject to the agreement. However, they did not agree with the Carpenters that the Johnsons were equally liable on the debt to the Hartford. The Court pointed out that contribution is either a right of equity or a right of law. Since the contract did not specifically call for contribution, any suit for contribution must be made in equity. And thus a trier of fact must imply an obligation to contribute, but along with this assumption is a second assumption that “the instrument out of which the right to contribution should arise was paid or satisfied by one guarantor for the benefit of both guarantors. So underlying this equitable right is the condition that the party against whom contribution is sought was obligated to pay the principle debt in the first place.”

In addition, the Court held that the Berg context rule also applied:

That rule provides an analytical framework to interpret the language of these general indemnity agreements to determine the intent of these parties when they signed the agreement. To do so, we view the contract as a whole. We include “the subject matter and objective of the contract, all circumstances surrounding its formation, the subsequent acts and conduct of the parties, statements made by the parties in preliminary negotiations, and usage of trade and course of dealings.” Tjart v. Smith Barney, Inc., 107 Wash.App. 885, 895, 28 P.3d 823 (2001). This approach permits us to then “discover the intent of the parties based on their real meeting of the minds, as opposed to insufficient written expression of their intent.”

The Court held that since the Johnsons were not part of the May 20, 1999 agreement that Hartford sued under, that the intent of the parties was that the agreements were project specific, i.e., that they could only be held liable as to claims under each project and not be generally liable for all claims. Since Hartford never sued the Johnsons on the June 8, 1999 indemnity agreement, the Johnsons never incurred any obligation to Hartford. Both the pleadings and the settlement agreement supported this.

Judge Kulik filed a dissent to this opinion stating that the agreements were not project specific and thus the Johnsons were liable for contribution.

Posted in Contracts, Division III, Equity, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Draft Dissent, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Damage Caused by Snowmelt Is Not Covered Under “Surface Water” Policy Exclusion

February 28, 2010

 

Northwest Bedding Co. v. National Fire Ins. Co. of Hardford

As I learned in law school, there is a plethora of cases that deal with insurance companies denying coverage based on definitions of words, like “surface water.”  You would think that after all of this litigation that the insurance policy would clearly define all aspects of coverage and any ambiguous wording.  But perhaps they want to leave it this way so they can deny coverage more easily.

In this case, National Fire insured NW Bedding under an all risk commercial property coverage and general liability insurance policy.  That sounds like it would just about cover anything.  In fact the policy stated that it covered "direct physical loss of or damage to Covered Property . . . caused by or resulting from any Covered Cause of Loss." 

The Spokane area experienced heavy snowfall during the winter of 2007-08.  Imagine that!  In February, the WSDOT diverted snowmelt through trenches in the vicinity of Northwest Bedding.  The water overflowed the trenches onto Northwest Bedding’s property and building, inundated Northwest Bedding’s building and damaged both the building and property.  It’s never good to get bedding wet.  National Fire concluded that the loss was the result of “surface water” and, therefore, excluded from coverage.

Snowmelt

Northwest sued National for damages and a declaratory judgment that the loss was covered.  “A declaratory judgment?!  Here’s a declaration for you:  DENIED!!”  (Only my law school classmates will appreciate this).  The trial court ruled in favor of National, holding that the insurance policy did not provide coverage for this type of damage.  Northwest appealed. 

An "all-risk" policy covers any peril that is not specifically excluded in the policy.  So the magical word in this policy is “surface water,” which was specifically excluded in the policy.  Northwest argued that the damage wasn’t from surface water, but caused by third parties channeling the water onto their property.  National agued that directly or indirectly the damage was caused by surface water from snowmelt.  In addition, National argued that even if the water was diverted, at some point the water escaped the trenches and thus became surface water once again.  Of course the policy does not define “surface water” or “flooding.”  How convenient!  Undefined terms in insurance policies should be given their plain, ordinary, and popular meaning.

Washington courts have characterized "surface water" as follows: The chief characteristic of surface water is its inability to maintain its identity and existence as a body of water. It is thus distinguished from water flowing in its natural course or collected into and forming a definite and identifiable body, such as a lake or pond.

Division III agreed with National that no matter what the water was classified at its origin and in its travel through the trenches, once it escaped the trenches it was surface water and thus excluded from coverage.  I guess Northwest should have opted for that extra Surface Water Protection Policy, which probably excludes “flooding.”

Posted in Division III, Insurance, Insurance Policy Interpretation, Judge Dennis J. Sweeney - Draft Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Concu in Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – “Better Late Than Never” Does Not Apply to Default Order

February 27, 2010

 

Brooks v. University City, Inc.

Brooks worked  for ICT Group and slipped and fell on a patch oil in their parking lot.  The parking lot was leased from University City, Inc.  Brooks sued both ICT and UCI for negligence for failing to properly maintain the parking lot.

On May 3, 2006, Ms. Brooks served ICT with a summons and complaint. ICT did not respond. On July 26, 2006, Ms. Brooks moved for an order of default. On August 10, 2006, the court entered an order of default against ICT. And Ms. Brooks mailed a copy of the order to ICT. On April 17, 2007, Ms. Brooks settled with and dismissed her claims against University City. She then moved for a default judgment against ICT. On November 9, 2007, the trial court entered default judgment against ICT for $313,000 and costs. Around November 17, 2008, Ms. Brooks mailed a copy of the judgment to ICT.  Imagine the sinking feeling in someone’s stomach when they received a $313,000 judgment in the mail.  Whoops!

Bad News

On December 12, 2008, ICT appeared and moved to vacate the default order and judgment. It argued that the default order should be vacated because (1) it did not owe a duty to Ms. Brooks; and (2) it did not appear earlier only because its registered agent mistakenly forwarded the summons and default order to the wrong ICT employee. The trial court refused to vacate the default order because it determined that ICT’s untimely appearance was inexcusable and prejudicial to Ms. Brooks.

The court also denied ICT’s motion to vacate the default judgment. It reasoned that ICT was not entitled to notice of the default judgment because it was in default. And it concluded that ICT’s failure to timely act on the summons and complaint was not an extraordinary circumstance justifying relief from judgment.  Now you want to argue?!  Where were you a year ago?

On appeal, ICT argues that pursuant to CR 55(f)(1), Brooks was required to give them notice of entry of the default judgment because more than one year had passed since service of the summons.

CR 55(f)(1) does provide:

When more than 1 year has elapsed after service of summons with no appearance being made, the court shall not . . . enter a judgment until a notice of the time and place of the application for . . . judgment is served on the party in default, not less than 10 days prior to the entry.

Under the plain language of the rule, the default judgment must be vacated.  However, ICT also argued that the default order should also be set aside as there was excusable neglect: their registered agent just sat on the summons and complaint for a year and didn’t forward it to the legal department.  Yeah, not feeling the “excusable” part here.

Division III agreed with the trial court, that this was not excusable neglect and refused to invade the court’s sound discretion.  So the order of default was not reversed.  So Brooks has a default order, but no judgment.  I was trying to think this through as to the next procedural step.  I guess if you have a default order, but no judgment AND the opposing party is now present, you could just present for judgment and the only thing the opposing party could argue is the amount of damages.  Long way to get there, but I guess it’s better than fighting with some insurance company who is probably going to say your slip and fall in the oil in the parking lot is your own fault.  It’s like punching the face of the tied up bully.  I like!

Duct Tape

Posted in Civil Procedure, Default Order/Judgment, Division III, Judge Dennis J. Sweeney - Draft Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Concu in Majority, Tort, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Court Cannot Add Requirements to Statute for Sex Offender’s Petition

February 17, 2010

 

State v. Hooper

This case is a consolidated appeal wherein two petitioners’ cases appealing the same issue were decided together by the Court of Appeals.

Hooper and Felice were both convicted of sex crimes when they were 13 and 12 years old respectively.  Both were required to register as sex offenders.  In 2008, they both petitioned the court to relieve them of their duties to register as sex offenders.  The trial court denied both petitions because Spokane County Juvenile Court requires that a petitioner who was under 15 when he committed the sex offense produce updated polygraph test results and an updated psychological evaluation before the court will consider relieving a petitioner of his duty to register.  Neither petitioner did this. 

RCW 9A.44.140(4) sets out the requirements for a sex offender to petition for relief to register:

An offender having a duty to register under RCW 9A.44.130 for a sex offense . . . committed when the offender was a juvenile may petition the superior court to be relieved of that duty. The court shall consider the nature of the registerable offense committed, and the criminal and relevant noncriminal behavior of the petitioner both before and after adjudication, and may consider other factors.

The lower court believed that “may consider other factors” granted it authority to require additional conditions before considering a petition.  Division III held that “may consider other factors” to mean the court can think about other things, but it cannot require the petitioner to produce other things. 

The Court went on to say that indeed the requirement of an updated polygraph test and an updated psychological evaluation is a great idea, but unfortunately that is not what the statute requires.  The lower court’s order denying the petitions for failure to provide the test and evaluation was reversed.  However, this does not mean that Hooper’s and Felice’s petitions are granted.  The lower court will still have discretion to deny the petition after giving the statutory considerations.  I bet I can guess what the result of the next hearing will be:

Denied

Posted in Criminal Law, Division III, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Sex Offender, Statutory Interpretation, WA Court of Appeals | Leave a Comment »

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