Archive for the ‘Judge Ronald Cox – Draft Majority’ Category

Court of Appeals: Div. I: Arbitration Clause Signed by Deceased Man Applies to Him and Not His Family in Wrongful Death Case

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 »

Court of Appeals: Div. I: Purposeful Availment Still the Standard for Personal Jurisdiction

May 5, 2010

Freestone Capital Partners, LP v. MKA Real Estate Opportunity Fund, I, LLC

This case arose out of a declaratory judgment action brought by a group of lenders in Washington to enforce remedies arising out of the $30 million dollar delinquency of a group of California borrowers.

The issues in this appeal involved: 1. Whether a Washington court had personal jurisdiction over the California borrowers, 2. What state’s law governed the dispute, and 3. Whether the parties were entitled to attorneys fees and costs.

The Court of Appeals determined that because MKA had purposefully availed itself of the privileges of transacting business in the State of Washington, Washington courts had personal jurisdiction over MKA.

The Court of Appeals held that there was not a sufficient record to determine whether there was an actual conflict between Washington and California law and remanded the case to the trial court to make this determination

The Court of Appeals determined that the trial court did not err in awarding some attorney fees to Freestone, but left to the trial court the determination of what additional fees might be appropriate on remand.

Posted in Attorney's Fees and Costs, Civil Procedure, Contracts, Division I, Judge C. Kenneth Grosse - Concur in Majority, Judge Marlin Appelwick - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div I – No Insurance Coverage

March 3, 2010

Black v. National Merit Ins. Co.

The Black family was severely injured in a crash with a vehicle driven by Marissa Goodell, a teenager who was allegedly driving a pickup truck in an unsafe manner.  Ms. Goodell was killed in the crash.

Tracy Radcliffe was also in the in the truck with Ms. Goodell.  The Blacks alleged that Ms. Radcliffe was also at fault in causing the crash.  Ms. Radcliffe’s parents had a liability auto insurance policy and Ms. Radcliffe was an “insured” under the policy because she was a family member.

The Blacks claimed that Ms. Radcliffe’s policy provided coverage to them because Ms. Radcliffe was riding in a truck that was insured by another insurance company.

The Court of Appeals rejected this argument, holding that an interpretation of the policy in that manner would mean that Ms. Radcliffe’s insurer would provide coverage for every vehicle in the universe.

Posted in Contracts, Division I, Insurance, Judge J. Robert Leach - Concur in Majority, Judge Marlin Appelwick - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. I – Service of Process on Foreign Corporation Should be Done by Personal Service

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 »

Washington Legal Roundup – Division I

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 »

Washington Legal Roundup – Division I

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 »

Washington Legal Roundup – Division I

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 »

Washington Legal Roundup – Division I

July 27, 2009

State v. Torres

Carlos Torres was a Washington State Patrol trooper.  He decided to use his authority to attempt to seduce women that he pulled over on suspicion of driving under the influence of alcohol.  One woman he pulled over on June 17, 2005, was named T.G.  He arrested her.  He began to tell her how beautiful she was.  T.G. took a breath test, which revealed that her blood alcohol level was .055.  That’s below the legal limit.

Mr. Torres then determined that T.G. would be released.  He offered to drive her wherever she wanted to go.  T.G. asked Mr. Torres if her fiancé could pick her up at the jail, but Mr. Torres told her to get into his patrol car. 

Mr. Torres drove to a weigh station in Federal Way, where he fondled her breasts and vagina in his patrol car while she was locked in the back of the vehicle.  T.G.’s fiancé and daughter showed up shortly thereafter and she ran to them crying.

Mr. Torres was later arrested and charged with and convicted of first degree sexual misconduct.  Consent is not a defense to the crime.  On appeal, he argued that the definition of “being detained” under the statute meant being restrained “pursuant to a lawful arrest.”  The trial court had approved of a jury instruction that defined “being detained” to mean that there was a “restraint on freedom of movement to such a degree that a reasonable person would not have felt free to leave.”  At the time of the groping, T.G. was not under arrest, but she was in a patrol car with a trooper that she was afraid might harm her.

The Court of Appeals affirmed, effectively holding that the legislature intended to criminalize behavior by law enforcement officers where the officers abused their authority for sexual gratification.

Note to cops:  You have a lot of power.  You have handcuffs and a gun.  People you’ve arrested are fearful about what will happen to them.  They believe you have lots of power and control over their future.  They want to do anything and everything in their power at that moment to get themselves out of trouble.  Don’t use your power for your own gratification or because your ego has been bruised.  Also, don’t act “stupidly” by arresting or holding someone where you should rightly walk away from the situation.

Posted in Criminal Law, Division I, Judge C. Kenneth Grosse - Concur in Majority, Judge Ronald Cox - Draft Majority, Judge Susan R. Agid - Concur in Majority, WA Court of Appeals | Leave a Comment »

Washington Legal Roundup – Division I

July 25, 2009

Personal Restraint Petition of Spires

Stanford Spires was convicted of unlawful issuance of bank checks in 1992.  He was sentenced to 13 months in prison and ordered to pay legal financial obligations (LFOs).  He owed some $9,000 in restitution, which was never paid.

The State attempted to enforce the LFOs in 2007.  The Court of Appeals held that under the restitution statute, the State only had 10 years to enforce the LFOs.  Since more than 10 years had passed, the Court of Appeals determined that the State had no authority to enforce them.

Note to State: Don’t wait around to enforce court orders.

Posted in Criminal Law, Division I, Judge Anne Ellington - Concur in Majority, Judge Mary Kay Becker - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals | Leave a Comment »

WA Legal Roundup: Division I

July 7, 2009

State v. Jain

Darren Rogers met Yatin Jain in 2002. Mr. Jain sold Mr. Rogers large quantities of marijuana. Unfortunately, this wasn’t the land of make believe that another Mr. Rogers was famous for visiting. Mr. Rogers decided to get out of the drug sales business when he became aware that he was being investigated. Mr. Rogers was later arrested for money laundering by the Snohomish Regional Drug Task Force. He agreed to assist the Snohomish Regional Drug Task Force in setting up a buy from Mr. Jain.

Mr. Jain had spent a considerable sum of money in cash on real estate. The money could not be traced by the Snohomish Regional Drug Task Force to any legitimate source of income. After the Snohomish Regional Drug Task Force executed a search warrant at Mr. Jain’s residence, Mr. Jain transferred title to his real property to his father.

Mr. Jain was charged with delivery of a controlled substance, possession with intent to deliver, and two counts of money laundering for the transfer of the properties.

While Jain was charged with only two counts of money laundering, the state presented evidence involving seven transfers of real property. The state conceded this error on appeal and the Court remanded the case.

Jain also objected to the “to convict” instructions to the jury, but the Court found that the instructions were proper.

Posted in Criminal Law, Division I, Judge Linda Lau - Concur in Majority, Judge Ronald Cox - Draft Majority, Judge Stephen J. Dwyer - Concur in Majority, WA Court of Appeals | Leave a Comment »

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