Archive for the ‘Judge Marywave Van Deren – Concur in Majority’ Category
May 27, 2010
Lakewood Racquet Club Inc., v. Jensen
In Lakewood Racquet Club Inc., the court of appeals denies standing to sue for heirs of a long deceased landowner. This patriarch, a Mr. Orr, entered into real estate agreements with the Racquet Club back in the 60s, selling them part of his land while obtaining a restrictive covenant preventing the Club from building any residential units on the property.
When the Club decided to build condos and townhomes on its property, the diasporated children of the Patriarch sued to enforce the covenants. Each was removed from the land in some way. One child lived in Nevada, another in Pierce County, and one with no identifiable location in the record.
Interestingly, this case presented a question of first impression in Washington. To wit, whether covenantees later removed from the land maintained their right to enforce the covenant. From that question, the ultimate question of the case can be answered: whether the covenantees suffered and “injury in fact” by the breach of the covenant. The first question turns on whether the benefit is appurtenant or in gross. The court held that the benefit was specific to the neighboring parcels to the Club; it is appurtenant to those parcels. As such, only those with an ownership interest in those parcels would have a justiciable claim to enforce the covenant. Those without will lack standing to sue for a declaratory judgment.
The court was careful to state that its holding did not foreclose all divested covenantees’ enforcement actions, but the implication is that in most cases they will lack standing.
Posted in Division II, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar- Draft Majority, Judge Marywave Van Deren - Concur in Majority, Land Use, Property, Uncategorized, WA Court of Appeals | Leave a Comment »
March 16, 2010
Sprint v. Dep’t of Revenue
The Department conducted an audit of Sprint finding their transmission services for its SprintNet X 25 and Frame Relay network were “network telephone services” subject to retail sales tax under statutory law. Sprint paid the assessment and filed a refund claim with the superior court. The superior court granted Department’s motion for summary judgment. Sprint appeals.
The Department argues that the statute is clear and that the services fall under “network telephone services.” Sprint wishes the court to interpret the statute with the subsequent amendments and taking into account contemporaneous federal regulations.
The court stated that the legislature’s intent in regards to this statue clearly meant to broadly define network telephone service. Additionally the statute has clear exclusions, which does not include those at issue in this case.
While amendments existed, the court is not in favor of retroactivity. They held that Sprint did not overcome the strong presumption in favor of prospective application. Thus, they find no err by the trial court and affirm.
Posted in Division II, Judge Chris Quinn-Brintall- Draft concur in result, Judge David H. Armstrong - Draft Majority, Judge Marywave Van Deren - Concur in Majority, Tax | 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 12, 2010
Flight Options LLC v. State of WA Dept of Revenue
DOR assessed Flight Options with a tax, which Flight Options objected to. DOR made a motion for summary judgment, which the trial court granted. Flight Options appealed arguing that they were wrongly assessed the tax because they do not own the assessed property (aircrafts).
Flight Options sells fractional interests in aircrafts while maintaining ownership, management, and operation in the jets. The fractional owners cannot sell or transfer their share without Flight Options approval and Flight Options staffs the aircrafts.
The appeals court used RCW 84.12 in their analysis, which governs assessment of taxes of public utilities including airplane companies. The court found that the RCW expressly states that taxation is assessed for any person that owns, controls, or operates an aircraft for compensation. Moreover, the court held that because Flight Options maintains some ownership over the airplanes as well as full control, “the aircraft(s) are clearly Flight Options’ ‘operating’ property” under the statute.
Affirmed
Posted in Division II, Judge Chris Quinn-Brintnall - Concur in Majority, Judge Elaine Houghton - Draft Majority, Judge Marywave Van Deren - Concur in Majority, Tax, WA Court of Appeals | Leave a Comment »
January 10, 2010
In re the Parentage of SEC
GC (mother) had SEC while married to TD (presumed father) but VH (guy on the side) claims to be the biological father. VH filed a parentage petition because TD is presumed to be father (since child was born while he was married to mother). Trial court ordered DNA testing to determine the correct father. TD objected to the DNA testing arguing that he did not have to submit to DNA testing until a hearing determined that it was in the best interest of the child. Trial court ordered DNA testing again and TD appealed.
The appeals court agreed with TD and reversed and remanded to the trial court ordering a hearing to determine whether DNA testing is in the best interest of the child. The court quoted RCW 26.26.116(1)(a) wherein paternity is presumed if a child is born during a marriage. Moreover the court articulated previous decisions, which found that some circumstances do not justify DNA testing where the family stability will be disrupted.
Reversed and Remanded
Posted in Division II, DNA testing, Family Law, Judge C.C Bridgewater- Draft Majority, Judge Elaine Houghton - Concur in Majority, Judge Marywave Van Deren - Concur in Majority, Parentage | Leave a Comment »
January 4, 2010
Phelps v. Southwest WA Med Ctr et al.
Phelps slipped in the parking lot where she worked. She did not remember the cause of her fall and there were no witnesses. Other witnesses stated that the parking lot was icy that morning and another coworker almost fell. Phelps’ husband returned to the scene later in the afternoon and found a puddle of water (14 inches) near the rear of her vehicle. She sued the clinic owner, employer, and property manager for her injuries. They hired an accident reconstructionist to opine that the cause of the fall was ice. The Trial Court excluded Phelps’ expert’s opinions and granted summary judgment in favor of the defendants for failure of plaintiff to show causation. Phelps appealed.
The Appeals Court found sufficient evidence to take the question of breach of duty to a jury wherein they noted that in the deposition of the executive director of the clinic he admitted to contacting the maintenance to assure that de-icing was being done due to the freezing weather conditions. The court stated that this was constructive notice to surpass a summary judgment motion.
Next, the court looked at the issue of causation. After it noted causation can only be determined as a matter of law if the appeals court found that reasonable minds would only reach one conclusion, the court held that, here, Phelps presented sufficient evidence would allow a reasonable inference to be drawn that she fell on ice. The court noted in particular that Phelps did not just rely on her testimony, which includes substantial memory loss, but also of medical evidence consistent with a fall, evidence that temperatures would have created ice, and other witness testimony that the parking lot was slick. Based on the above arguments the court found that the trial court erred in granting summary judgment in favor of the defendants.
The appeals court reviewed the trial court’s decision to exclude the accident reconstructionist because his opinion was speculation where no evidence supported it. The court again disagreed with the trial court holding that the expert’s opinions draw reasonable inferences supported by the evidence in the record. Moreover, the court stated that while there is room to challenge the expert’s opinions that is better done in cross examination.
Reversed and remanded.
Posted in Civil Procedure, Division II, Judge C.C Bridgewater- Draft Majority, Judge Elaine Houghton - Concur in Majority, Judge Marywave Van Deren - Concur in Majority, Tort, WA Court of Appeals | Leave a Comment »
January 4, 2010
State v. Smith
Smith sheltered a llama. The llama became ill and lost weight. When a neighbor noticed the llama laying down and thought he wad dead, the neighbor called the Sheriff’s Department. The llama eventually had to be euthanized due to severe malnutrition. Smith was charged and convicted of first degree animal cruel despite his testimony that he tried to care for the animal and fed him multiple times a day upon noticing his weight loss. Smith appeals his conviction and argues ineffective assistance of counsel for 1) failing to investigate and discover other possible causes of illnesses for the llama and 2) failing to request a lesser included offense instruction.
The court held that Smith’s counsel was ineffective for failing to include the lesser offense. They reason that many pieces of evidence support an inference that he only committed second degree animal cruelty. The court commented on defense counsel’s tactic of an all or nothing strategy, stating that “it was not a legitimate trial tactic and constituted deficient performance…”
Reversed and remanded.
Posted in Constitutional Law, Criminal Law, Division II, Ineffective Assistance of Counsel, Judge Chris Quinn-Brintnall - Concur in Majority, Judge Elaine Houghton - Draft Majority, Judge Marywave Van Deren - Concur in Majority, WA Court of Appeals | Leave a Comment »
November 10, 2009
State v. Johnson
Johnson was convicted of 2nd degree child molestation. He appeals the conviction arguing that the court impermissibly allowed opinion testimony from a law witness, ineffective counsel for failing to object to the testimony, the court impermissibly commented on the evidence, and the trial court improperly imposed an exceptional sentence.
The State introduced testimony that the wife of the accused had a conversation with the victim and that the victim admitted a sexual relationship with the accused and that based on that information the wife tried to commit suicide. The trial court gave an instruction that stated that the defendant’s story does not need to be corroborated to be convicted.
Johnson argued that the trial court should not have allowed the testimony of his wife’s conversation with the victim and her alleged suicide attempt after because it was improper opinion testimony to his guilt and introduced only for the reason that his wife believed that he was guilty. This was not raised at trial and therefore the court looks to determine if a manifest Constitutional error occurred. The court finds three problems with the testimony; first that it did not shed light on the credibility of any witness or evidence, that the evidence is collateral and a witness should not be impeached on a collateral matter, and finally that it was very prejudicial. The court also finds that this is a Constitutional error because it implicates Johnson’s right to a fair trial and actually affects his right to a fair trial. The court explicitly holds that the testimony was inadmissible and served no other purpose but to prejudice the jury.
The court reverses on the above argument but also holds that the instruction given by the trial court was not a erroneous comment on evidence.
Posted in Constitutional Law, Criminal Law, Division II, Judge C. C. Bridgewater - Concur in Majority, Judge Joel Penoyar- Draft Majority, Judge Marywave Van Deren - Concur in Majority, WA Court of Appeals | Leave a Comment »
