Archive for the ‘Judge Joel Penoyar – Concur in Majority’ Category
May 20, 2010
Matthews v. Sherwood Assisted Living, Inc.
Ah, human greed and cruelty, why are you so prevalent? Matthews arose out of the actions of two relatives of an incapacitated elder living in an assisted living facility. After a State Ombudsman’s investigation and report revealed (the court uses the kinder word “suggested”) that the relatives were siphoning money off of grampa, an employee of the facility petitioned the court to appoint a guardian ad-litem (GAL).
Now, I don’t really want to speculate beyond the facts presented in the opinion, but the situation had reached that point, it must have been quite bad. Nonetheless, the relatives doubled-down on the greed by trying to move Mr. Matthews to California, out of his erstwhile home of six years, and the GAL petitioned for a temporary restraining order. (TRO) Because a TRO petition is to be accompanied by a bond, the trial court ordered the facility to one up in the amount of $10,000. When the facility refused, the court denied the TRO (allowing the relatives to move grampa to California), dismissed the GAL petition, and awarded attorney fees to the relatives. Ouch.
Thankfully, Division II don’t play that, and reversed the trial court:
We hold that a GAL appointed under RCW 11.96A.160 or former RCW 11.88.010 has an agency relationship with the court much like a permanent guardian or limited guardian appointed under the Trust and Estate Dispute Resolution Act (TEDRA) (ch. 11.96A RCW) has with the court. . . . A GAL is not an agent of a guardianship petitioner. A GAL makes recommendations and takes actions free of a petitioning parties’ vested interests. See former RCW 11.88.090(3)(a). Thus, the petitioner for a guardianship cannot be held liable for the GAL’s actions taken during the guardianship petitioning process and vice versa.
This decision makes sense on a number of levels, but the main point is that unless an interested third party is petitioning for a GAL unreasonably or in bad faith, isn’t this exactly the outcome we as a society want to see? I would think so, and I’m glad the court read the statutes that way.
Posted in Attorney's Fees and Costs, Division II, Judge Chris Quinn-Brintall-Draft Majority, Judge J. Robin Hunt- concur in Majority, Judge Joel Penoyar - Concur in Majority, WA Court of Appeals | Leave a Comment »
April 28, 2010
Young v. Savidge
Dentist Savidge recommended a porcelain-capped crown on one of Young’s molars. Savidge’s website states that his crown’s are made of gold or porcelain and temporary crowns are “can be made of stainless steel.” She had the crown put in and later felt a burning, confusion, fatigue, and discoloration. She presented to another dentist who determined that the crown was made of mostly nickel, a known toxic metal. Young sued Savidge and argued that he committed medical malpractice, engaged in misrepresentation, violated the CPA, and breached their contract. She gave Savidge notice of intent to sue. The trial court granted summary judgment in favor of Savidge because Young failed to bring her claim within the allotted statute of limitations and for failure to file a certificate of merit.
Young appeals arguing that her informed consent claim did not fall under the Medical Malpractice SOL. The court disagreed holding that the claim did fall under the medical mal SOL because the dentist was engaged in health care when he failed to inform her of the risk of nickel. The claim was time barred for failure to bring within three years of the act or one year of discovery, even with the statutory amendments that allow for 90 day tolling and an additional five days Young was 3 days late in filing her suit.
Young argues that the breach of contract claim should not have fallen under the med mal statute even though it arose out of health care. The court disagreed and held that the claim was time barred under the same analysis as above.
Young argues that her intentional misrepresentation claims should not have fallen under the med mal statute. The court agreed and held that intentional misrepresentations are not governed by the med mal statute, however whether the claim was time barred under the general three year statute remains a material fact as to when Young discovered the facts constituting fraud.
Similarly the court found that there was a genuine issue of material fact as to whether the CPA claims are governed under the former RCW 4.16.350(3). The court remands for a trial on the merits.
The trial court also held that Young failed to file a certificate of merit. Putnam changed the law on the certificate of merit issue holding that this step is not required of medical malpractice cases. The court of appeals held this decision applies retroactively and thus the trial court erred in its granting of summary judgment on that issue.
Posted in Consumer Protection, Contracts, Division II, Judge David H. Armstrong - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Medical Malpractice, Notice of Claims, Statute of Limitations, Tort, WA Court of Appeals | Leave a Comment »
March 21, 2010
State v. Tracer
Tracer caused an auto accident. Tracer had a .13 blood alcohol level, however, argued that it was a meteor that caused the accident and not his blood alcohol level. Due to that, the special deputy prosecutor had agreed to amend the information and allow Tracer to plead guilty to a DUI instead of vehicular assault. The special deputy prosecutor didn’t show up for the hearing. The judge assigned a defense counsel in court representing another defendant as special deputy prosecutor who, in turn, amended the information and entered Tracer’s plea that same day at the court’s direction.
The state appealed the judgment and sentence entered. The issues facing the court were: 1) whether the State had a right to appeal, 2) whether it was a violation of separation of powers for the superior court judge to appoint a defense counsel as special deputy prosecutor, and 3) whether due process and/or double jeopardy prohibited a remand.
The Court of Appeals held that the state had a right to appeal under the extraordinary circumstances element under RAP2.2(b)(1). The state demonstrated that the superior court deviated from its accepted and usual practice of judicial proceedings calling for availability of review.
The Court of Appeals held that the trial court lacked authority to amend the information and wrongly appointed a new special deputy prosecutor to do the same. Therefore, the court ruled that the amendment was invalid and Tracer’s charge of vehicular assault remains.
Finally, the Court of Appeals ruled that because the second special prosecutor was improperly appointed and his conduct was without lawful authority, a remand did not violate due process or double jeopardy.
Posted in Civil Rights, Criminal Law, Division II, WA Court of Appeals, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Chris Quinn-Brintall-Draft Majority, Constitutional Law, Double Jeopardy, special deputy prosecutor, separation of powers | Leave a Comment »
February 15, 2010
State v. Flowers
Flowers is a sex offender and RCW 9A.44.130(11)(a) requires him to register as a sex offender. He registered in Cowlitz County. He was a transient sex offender, which required him to check in with the county sheriff once a week. Cowlitz County had a policy that required sex offenders to list all their locations of the previous week. Flowers checked in with the sheriff but listed false locations. He was charged with failure to register as a sex offender.
Flowers filed a Knapstad motion to dismiss the charge. The trial court granted his motion because the RCW did not require that he list his previous locations, the statue violates separation of powers, the statute violates equal protection, and the statute violates due process. The State appeals.
The appeals court addressed the statutory interpretation issue. They held that the clear statutory interpretation of RCW 9A.44.130(11)(a) did not require a transient sex offender to list their previous locations, therefore, Flowers had not committed a crime. They affirmed the trial court’s dismissal of the charge.
Posted in Constitutional Law, Criminal Law, Division II, Judge Elaine Houghton - Draft Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Concur in Majority, Statutory Interpretation, WA Court of Appeals | Leave a Comment »
January 6, 2010
In Re The Settlement/Guardianship of AGM and LMM
This is a case where the attorney missed the SGAL hearing, lied to the court (claiming she was stuck in snow when there was no snow), erroneously told the court that she requested and prepared documents for the SGAL, and sent a three page demand on a policy limit case (undetermined whether it included all the medical records to substantiate).
Minor sisters were injured in an automobile accident. AGM’s medical specials totaled over $68,000.00 while LMM’s medical specials were $3,500.00. The family was represented by Rubinstein Law Firm who submitted a demand on behalf of the family that consisted of three pages and 7 lines dedicated to AGM’s claim. State Farm offered policy limits ($100,000.00) for AGM and $4,500 for LMM. Rubinstein accepted the offer for AGM (pending approval) and negotiated LMM’s settlement. An SGAL was appointed to review the settlement and fees (1/3 requested by the attorney per the rep agreement). The SGAL opined that a lower fee was appropriate for AGM as the attorney spent very little time on the case and there was no need to negotiate. After missing the first hearing and being requested to file an itemized lien wherein she claimed only 2 hours of attorney work on AGM’s case, the trial court approved $15,000.00 of the requested $33,333.33 fee for AGM. Rubinstein Law Firm appeals.
On appeal, Rubinstein argues that the trial court lacked a reasonable basis to reduce the fee, based its decision on the itemized lien, and applied an improper method for determining the fee. The court found that SPR 98.16W authorizes the trial court discretion over the fees and allows the trial court to consider itemized liens, SGAL recommendations, and attorney declarations. The court also noted that Rubinstein was incorrect in alleging that the burden of proof for determining a reasonable fee should have been the SGAL or State Farm and held that the burden is on the attorney requesting the fees.
Finally, the court disagrees again with Rubinstein, holding that the trial court did not determine the reduced fee on an unreasonable or arbitrary basis. The court quotes the RPC 1.5(a) disallowing attorneys from accepting an unreasonable fee. In pointing out that the attorney spent very little effort on AGM’s case to obtain the policy limit, the court ruled that the trial court acted reasonably in lowering Rubinstein’s fees.
Posted in Attorney's Fees and Costs, Division II, Judge Chris Quinn-Brintnall - Concur in Majority, Judge J. Robin Hunt - Draft Majority, Judge Joel Penoyar - Concur in Majority, Minor Settlements, Settlement Guardian ad Litem (SGAL), Tort, WA Court of Appeals | 3 Comments »
December 15, 2009
State of WA vs. Pugh
Pugh was charged with assault after striking a police officer. He plead guilty and his guilty plea was entered. Prior to sentencing he moved to proceed pro se, which was granted and then moved to withdraw his guilty plea. The trial court denied his motion to withdraw his guilty plea; he was sentenced to nine months and now appeals arguing that his stand in counsel was ineffective in failing to get affidavits to support his motion.
The appellate court ruled that Pugh failed to present any evidence to show a manifest injustice and therefore the trial court did not abuse its discretion in denying his motion. They relied on his plea hearing transcript in which he stated his guilty plea was made freely and voluntarily. Moreover a forensic evaluation found that Pugh was competent to stand trial.
Moreover, the court found that once a criminal defendant exercises their right to self- representation they cannot later come back to allege ineffective assistance of counsel, however, one can allege ineffective counsel of a standby counsel if a limited duty or obligation owed to the pro se was violated. The appellate court found that Pugh’s standby counsel did not owe him a duty to obtain affidavits or get witnesses to support his motion to withdraw his guilty plea.
Posted in Constitutional Law, Criminal Law, Division II, Guilty Plea, Judge Chris Quinn-Brintall-Draft Majority, Judge J. Robin Hunt- concur in Majority, Judge Joel Penoyar - Concur in Majority, WA Court of Appeals | Leave a Comment »
October 23, 2009
Dill v. Michelson Realty Co. et al
The Dill’s brought an action against the defendants under the Residential Landlord- Tenant Act. The Dill’s leased property and a storage area from the defendants and claim that they destroyed and disposed of some of their property in the storage area.
The case was moved to mandatory arbitration and the Dill’s agreed to waive any amount over $50,000.00. The arbitrator found in their favor awarding them $45,000.00 and a separate attorney’s fee award of $27K. The Defendants moved for entry of judgment on the arb award but with a modification to include all fees, costs and award to be a total of $50,000.00. The Dills argued that the $50,000.00 limit was exclusive of fees, interests, and costs. The trial court entered judgment with no modification.
The defendants appeal the trial court’s judgment confirming the arbitration award arguing that because the award was higher than $50,000.00 it was erroneous as a matter of law. The Dills argue that the trial court’s entering of judgment is not appealable.
The Appeals Court agrees with the Dills. They hold that the trial court’s entering of judgment is not appealable. They state that the purpose of mandatory arbitration is to alleviate the court congestions. Moreover, they found that there is a means to appealing the arbitration through trial de novo, which was not properly requested.
The Appeals Court dismissed the appeal and award the Dill’s fees.
Posted in Appellate Procedure, Civil Procedure, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Landlort Tenant, Mandatory Arbitration, Mandatory Arbitration Procedure, WA Court of Appeals | Leave a Comment »
September 23, 2009
State v. McCormick
McCormick appeals her conviction for methamphetamine possession, arguing that the search and seizure wherein the police officer discovered the drugs was an illegal search and seizure in violation of her constitutional rights and rights to privacy. McCormick was a passenger in a vehicle that was pulled over for broken taillight. Upon discovering that the driver of the vehicle had a warrant for her arrest for failure to pay tickets, the police officer arrested the driver and searched the vehicle, including a bag belonging to McCormick located on the floor of the front passenger side of the vehicle.
After conviction, but prior to the appellate hearing, the Supreme Court issued Arizona v. Grant, which held that a search, practically identical to the one involving McCormick that lead to the discovery of meth, was unconstitutional and violated the search and seizure rights of the Fourth Amendment.
The court first determined that the ruling in Grant applied to McCormick’s case even though she had already been convicted. The court decided that the case did apply because cases were to apply retroactively to all similarly situated defendants in Washington. Moreover, the court determined that McCormick had preserved the matter for appeal.
Finally, the court applied the Fourth Amendment and the Grant case to McCormick’s case. The court held that similarly in Grant, the search was unlawful because the driver could not have accessed the car to retrieve weapons or evidence at the time of the search and that the police had no possibility of discovering the drug related evidence without a search. Moreover, the court reasoned that, like in Grant, there was no officer safely justification for the search. The State argued that the office searched the vehicle in good faith, relying on pre-Grant law, however, the court rejected the good faith argument in favor of the doctrine of retroactivity.
McCormick’s conviction was reversed.
Posted in Civil Rights, Constitutional Law, Criminal Law, Division II, Judge David H. Armstrong - Concur in Majority, Judge Elaine Houghton - Draft Majority, Judge Joel Penoyar - Concur in Majority, Retroactivity, WA Court of Appeals | Leave a Comment »
September 9, 2009
State v. Young
Young appeals the trial court’s denial of her request to destroy any records in relation to a 2005 dismissal for 3rd degree assault on a child (dismissing after not being able to locate a witness). Young argues that under GR (15)(h)(1) and statutory law, the court has the authority to destroy the records.
The appeals affirms the trial court’s denial to destroy the records. GR 15 (h)(1) stats that the court cannot destroy records without statutory authority. The authority that Young cites comes from RCW 10.97.060. The court holds that this statute allows for destruction of criminal history records, which is solely non-conviction date stored in agency files. While the court agrees that Young’s request meets the above requirements, they rule that her request is not for “criminal history information.” The court states that Young is requesting destruction of information in a court file, which is not “criminal history information.”
Posted in Criminal Law, Division II, Judge Chris Quinn-Brintall-Draft Majority, Judge J. Robin Hunt- concur in Majority, Judge Joel Penoyar - Concur in Majority, WA Court of Appeals | Leave a Comment »
September 1, 2009
Gates v. Port of Kalama et al
Whoo hoo… an opinion in favor of “the little guy” and in my favorite field to boot, PI. Finally something more fun than taxes, crimes, and more taxes in Division II. (Sorry all you lovers of tax).
Gates slipped and fell on some stairs while she was viewing a rental property owned by the Port injuring her head and neck. She sent a letter to the Port describing the occurrence as the instructions in a letter sent to her had required. She signed the letter but did not verify. She hired an attorney who had some communication with the Port, but after settlement was not reached, filed a lawsuit against them within the statute. The Port answered that Gates failed to comply with the claim filing statute (RCW 4.96.020) because Gates failed to verify her claim. The Port appeals from the trial court’s denial of their summary judgment on that basis.
Gates argues, and this Court agrees, that the RCW listed above does not require claim verification. The court ruled that the plain language of the statue did not require claim verification but required only that, “claims… must locate and describe.” the relevant facts of the incident. The Court decided that the statute only mentioned verification of forms when it states, “if the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed…”
Although the Court found that the statute’s plain language did not require claim verification they continued to justify their analysis by ruling that the legislative history confirms their interpretation of the statute. The court reviewed the 1993 amendment notes and analyzed that the legislature clearly departed from an intent to require verification.
I sure hope Gates requested attorneys fees! Great outcome in this case.
Posted in Civil Procedure, Division II, Government Claim Forms, Judge C. C. Bridgewater - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Tort, WA Court of Appeals | Leave a Comment »
