Gary Smith v. Clark Public Utilities, et al., Court of Appeals Cause No. 41811-8-II
Gary Smith was electrocuted, burned, and maimed when he came into contact with a live electrical utility wire while doing his job, riding atop of a house as it was moved on trucks along state and county roads. Smith filed claims against Clark County, who permitted the move, and Clark Public Utilities (“CPU”), who owned the wire that electrocuted Smith.
The trial court entered summary judgment in favor of the County, but denied it as to CPU. Talmadge/Fitzpatrick represented Smith as he appealed the County’s dismissal. CPU filed a motion seeking discretionary review of the order denying it summary judgment as well.
The Court of Appeals refused to dismiss CPU, stating that was acting in a proprietary rather than regulatory function in connection with the move. The Court upheld the dismissal of the County, citing the public duty doctrine.
Talmadge/Fitzpatrick represented Smith in the motions phase, and in the consolidated appeal that followed.
Mark Calvert v. Frederick Darren Berg, Moss Adams, LLP and Eagan Avenatti LLP, Court of Appeals Cause No. 60156-2-I
The plaintiffs filed a class action against Darren Berg for defrauding them in connection with certain investments. The class also sued Moss Adams for its auditing activities that allegedly gave a clean bill of health to Berg's investment funds. Berg was convicted of securities fraud and sent to prison.
Moss Adams moved to dismiss the complaint or to obtain a more definite statement of the allegations. The trial court did not dismiss the bulk of the complaint but granted the motion for a more definite statement by the investor plaintiffs and also ordered them to produce extensive documentation on how they relied on Moss Adams' activities.
The plaintiffs produced documentation, but Moss Adams contended it was insufficient in a round of motions in which Moss Adams repeatedly sought sanctions. Before the most recent production order was final, the plaintiffs moved to voluntarily dismiss their complaint under CR 41(a)(1)(B). Instead of immediately granting the motion, the trial court compelled the plaintiffs to produce the documents and awarded $75,000 in sanctions against class counsel. It was only then that the trial court dismissed the complaint.
The Court of Appeals reversed the sanctions judgment ruling CR 41(a)(1)(B) dismissal was mandatory and immediate, precluding the trial court from further actions once the motion was filed.
Talmadge/Fitzpatrick assisted class counsel on appeal.
Washburn v. City of Federal Way, Supreme Court Cause No. 87906-1
Baerbel Roznowski was killed by her live-in boyfriend. Prior to her death, Roznowski sought the protection of a civil anti-harassment order. A court issued that order and Roznowski requested that it be served on her boyfriend. A police officer of the City of Federal Way effectuated service of the order on the boyfriend at Roznowski's home, but he did not bother to read the law enforcement information sheet that accompanied the order or the order itself. Had the officer read the order, he would have noted that the boyfriend was not entitled to be in Roznowski's house and had to be 500 feet away from her. He would have also learned that the boyfriend spoke Korean and was not conversant in English. The officer's interaction with the boyfriend lasted only a few minutes. When the boyfriend was served with the order, he was surprised. He became enraged and murdered Roznowski.
Roznowski's daughters sued Federal Way for the negligence of its police officer in the service and enforcement of the civil anti-harassment order. Ultimately, a jury awarded damages to Roznowski's estate but did not award damages to the two daughters individually for their loss of consortium, their personal relationship with their mother. Upon a post-trial motion by the daughters, the trial court agreed that the jury erred in not awarding any damages to them for their loss of their relationship with their mother and ordered a new trial, confined to the daughters' damages on that issue. Otherwise, the trial court entered a judgment on the verdict of the jury in favor of the Estate. Federal Way appealed.
On appeal, the Court of Appeals, Division I, affirmed the judgment on the verdict of the jury and the trial court's new trial order as to the daughters. The Court concluded that Federal Way had not adequately preserved any alleged errors associated with the duty it owed to Roznowski in connection with the service and enforcement of the civil anti-harassment order. The Court also agreed that the daughters were entitled to a new trial on the issue of damages for their loss of their relationship with their mother.
Subsequent to the Court's opinion in March, 2012, Federal Way moved for reconsideration of the Court's decision. Ultimately, the Court denied Federal Way's motion for reconsideration, but withdrew its earlier opinion. The Court's new opinion, issued on July 23, 2012, makes it even clearer that Federal Way did not preserve any alleged errors on the duty it owed to Roznowski in connection with the service and the enforcement of the civil anti-harassment order. The Court noted that Federal Way failed to object to the duty instruction at trial, failed to assign error to duty instruction in its brief before the Court of Appeals, and failed to file a CR 50(b) motion. The Court retained that portion of its earlier opinion in which it determined that the daughters were entitled to a new trial on the issue of damages for the loss of their relationship with their mother.
Subsequently, the City petitioned the Supreme Court for review, which that court granted. The Supreme Court determined that the City had preserved the duty issue for review. But in a unanimous opinion, the Court concluded that the City owed Roznowski a duty to properly serve the anti-harassment order and affirmed the jury's verdict.
Talmadge/Fitzpatrick was associated on appeal with the Connelly Law Offices. Jack Connelly and Michah LeBank tried this case to a King County jury.
Melissa Robbins, et al. v. Legacy Health Systems, Inc., et al., Court of Appeals Cause No. 43666-3-II
Mary Schultz, a Spokane attorney, entered into fee agreements with the Robbins to represent them in connection with a medical malpractice case in Clark County. She provided extensive services to the Robbins and incurred costs on their behalf, particularly expert witness expenses. When the Robbins refused to pay for further expert and other expenses, contrary to their fee agreements, Schultz notified them that she intended to withdraw. The Robbins objected to her withdrawal. The trial court entered an order refusing to permit Schultz to withdraw at least through any summary judgment motions and until Schultz had assisted the Robbins in obtaining other counsel.
Talmadge/Fitzpatrick assisted Ms. Schultz in securing discretionary review of the trial court's order and in securing reversal of it by Division II of the Court of Appeals in a published opinion. The Court concluded the trial court abused its discretion in denying Schultz's ability to withdraw under the circumstances of the case, particularly where the Robbins expected Schultz to foot the bill for expert services and other costs in their case and they had a professional and fee dispute conflict with her.
Jill Sharon v. Tod Sharon, Court of Appeals Cause No. 68904-5-I
Jill Sharon sought and received a temporary order of protection against her husband, Tod Sharon. Mr. Sharon harassed, stalked, and intimidated Ms. Sharon and her son, and behaved in such a manner that police at one point warned Ms. Sharon and her son to leave their home and go into hiding for their own safety. Mr. Sharon appealed the temporary order, claiming that there was no evidence to support it. Talmadge/Fitzpatrick defended Ms. Sharon in the appeal, arguing that it was frivolous.
After the brief of respondent on Ms. Sharon's behalf was filed, Mr. Sharon requested permission to voluntarily dismiss his appeal. Talmadge/Fitzpatrick agreed to the dismissal, but requested that Mr. Sharon pay Ms. Sharon's fees and costs for having to defend a frivolous appeal. The appeal was dismissed, and the Court of Appeals awarded Ms. Sharon her fees and costs.
Trinity Universal Insurance Company of Kansas v. The Ohio Casualty Insurance Company, Court of Appeals Cause No. 67832-9-I
Two insurers had a dispute over which was to pay a claim brought against their insured. Trinity paid the claim against the insured and the associated defense expenses. Claiming it had an assignment from its insured, Trinity filed suit in its own name against Ohio and obtained a default judgment that included recoveries under the CPA and IFCA, statutes that usually benefit only insureds. In fact, Trinity did not possess an assignment from its insured. Rather, late in the case, Trinity finally submitted its policy language to the Court of Appeals that revealed traditional subrogation language allowing Trinity to recover only those moneys it had paid on its insured's behalf pursuant to the policy.
Ohio sought to set aside the default judgment that included awards of treble damages and attorney fees. The trial court denied the motion to set aside the default judgment.
Talmadge/Fitzpatrick was retained to assist Ohio on appeal. The Court of Appeals affirmed part of the default judgment, but ruled that Trinity had no basis to assert CPA or IFCA claims or to receive an award of attorney fees. The Court vacated the awards of treble damages and attorney fees.
Seattle Shrimp & Seafood Co., Inc. v. Stilnovich, Court of Appeals Cause No. 68428-1-I
Robert Stilnovich is the owner, sole shareholder, and president of Stilno, Inc., which does business as Samish Island Seafood (“Samish”). Samish is a seafood broker. As a broker, Samish purchases seafood from suppliers to sell to its customers. Seattle Shrimp & Seafood Co. Inc. (“Seattle Shrimp”) was one of Samish’s seafood suppliers.
On March 21, 2007, Seattle Shrimp agreed to extend credit to Samish for the purchase of seafood. Thereafter, Seattle Shrimp and Samish would agree every six months on the total amount and price of the shrimp Seattle Shrimp would sell to Samish. Samish would then draw against that total poundage over the term of the agreement and Seattle Shrimp would bill Samish for each individual draw using the quoted, fixed unit prices.
On July 31, 2008, Seattle Shrimp faxed a one-page “Business Credit Application” and “Individual Personal Guarantee” to Samish. Neither the application nor the guarantee mentioned Seattle Shrimp. Seattle Shrimp’s agent told Robert that the application and guarantee were needed for Euler, the company that insured Seattle Shrimp, “so they could extend the credit line.” Robert signed the guarantee on July 31, 2008 as an authorized representative of Samish and in his capacity as Samish’s President.
Two years later, Seattle Shrimp entered into another agreement to continue extending credit to Samish. The September 21, 2010 letter agreement is signed by both Seattle Shrimp and Robert. It did not specifically mention or incorporate the personal guarantee.
Samish purchased seafood from Seattle Shrimp on three separate occasions in late 2010. On January 25, 2011, Seattle Shrimp sued Samish, Robert and his wife, and the marital community alleging that Robert personally guaranteed Samish’s debts. Seattle Shrimp also alleged that Samish and Robert and his wife were jointly and severally liable for the debt. Robert denied signing a personal guarantee and noted that the guarantee he signed did not mention Seattle Shrimp.
The trial court granted Seattle Shrimp’s motion for summary judgment with respect to Samish’s liability and entered judgment against Samish. The court granted Robert’s cross-motion for summary judgment, dismissing him and his wife from the lawsuit. Seattle Shrimp appealed.
The Court of Appeals, Division I, noted that the business application and the personal guarantee did not mention Seattle Shrimp and held that Seattle Shrimp and Robert did not have the identical intent necessary to reform the personal guarantee to name Seattle Shrimp. Because the record did not establish that the personal guarantee contained a mere scrivener’s error, the Court affirmed the summary judgment dismissal of Seattle Shrimp’s lawsuit against Robert and his wife.
Talmadge/Fitzpatrick associated on appeal with Fred Mendoza and Maya Mendoza-Exstrom, who also served as trial counsel.
Weiss v. Lonnquist, Court of Appeals Cause Nos. 66626-6-I, 67820-5-I
A former employee sued her former employer for wrongful discharge in violation of public policy and for wages willfully withheld. Lonnquist, the employer and an attorney, had terminated Weiss after Weiss declined to work on a case in which Weiss believed that Lonnquist had played a role in suborning a client's perjury. After denying Lonnquist's summary judgment motion on the wrongful discharge claim, the matter proceeded to trial and a jury found for Weiss, awarding her damages for her wrongful discharge and wage claim totaling $36,465.26 and attorney fees totaling $128,386.
On appeal, Lonnquist argued analogously that under the Washington Supreme Court's recent decision in Cudney v. ALSCO, Inc. 172 Wn.2d 524, 259 P.3d244 (2011), the Washington State Bar Association's system for disciplining attorneys who violate the Rules of Professional Conduct provides an adequate safeguard for the public policy requiring attorneys to be candid with the court. Accordingly, since an adequate remedy existed to vindicate the public policy issue, the tort of wrongful discharge in violation of public policy was unavailable to Weiss as a matter of law. The Court of Appeals agreed, holding that the trial court erred in denying the employer's summary judgment motion. The court reversed the verdict and award of attorney fees.
Talmadge/Fitzpatrick represented employer Judith Lonnquist on appeal.
Gail Davern v. Tim Liddiard, Court of Appeals Cause No. 42657-9-II; Supreme Court Cause No. 89048-0
Gail Davern owned her own home from 1983 to 1999. In 1992, she began a personal relationship with Tim Liddiard. They were still together in 1999 when they decided to move to Washington. Davern sold her home and used the proceeds to buy some undeveloped land in Southern Washington. Liddiard did not contribute anything to purchase the land, but promised to contribute labor to developing the land. Davern agreed to put him on title to the Washington land. However, she asked him to sign an agreement that, in the event their relationship ended before he contributed any labor to developing the property, he would quit claim the property back to her. Liddiard signed the agreement.
Liddiard never developed the land. After their relationship ended, Davern asked Liddiard to quit claim the property to her, according to the terms of the agreement. Liddiard, now married, refused to abide by the agreement, and Davern was forced to file a quiet title action against him and his wife. Liddiard counterclaimed that he was entitled to the property under principles governing committed intimate relationships, and that the agreement was unfair to him.
Davern prevailed at trial. Liddiard appealed. Davern retained Talmadge/Fitzpatrick to defend her on appeal. The Court of Appeals concluded that the agreement between Liddiard and Davern was fair and equitable, and that she had the right to enforce it. Liddiard petitioned the Washington Supreme Court for review. Talmadge/Fitzpatrick also represented Davern in filing her answer to that petition, which was denied.
Burnard v. Burnard, Court of Appeals Cause No. 67918-0-I
Patricia Burnard petitioned to dissolve her long-term marriage to Mike Burnard in the King County Superior Court. The trial court issued a case scheduling order setting the trial and the deadlines to disclose witnesses.
Mike timely filed his witness disclosures, but Patricia did not. When Mike filed a motion in limine to exclude testimony from witnesses that Patricia did not timely disclose, she responded by filing a motion in limine seeking to exclude the opinion and expert testimony of several of his witnesses. Mike sought attorney fees and costs based on Patricia’s intransigence. He reiterated his request for fees in his trial brief.
In September 2011, the court conducted a bench trial. At the outset, the court struck any documents Patricia submitted relating to settlement negotiations and any exhibits she failed to provide in a timely fashion. During trial, Patricia did not dispute that she failed to comply with the court rules or that her filings were untimely. She also admitted that she filed her motion in limine to retaliate against Mike and that her initial motion for temporary orders was not justified. Mike again requested attorney fees based on Patricia’s intransigence.
On September 7, 2011, the court entered a decree of dissolution and subsequently entered amended findings of fact and conclusions of law. The court awarded Mike significant attorney based on finding Patricia’s intransigence resulted in additional attorney fees to him. Patricia appealed.
The Court of Appeals, Division I, held that Patricia’s intransigence resulted in unnecessary fees to Mike and that a finding of intransigence was supported by the record; however, it remanded for clarification of the findings and the amount of attorney fees incurred from that intransigence. On remand, the trial court specifically found that Patricia’s intransigence during the divorce proceedings permeated the entire proceeding and that it was unnecessary to segregate the fees between those incurred for intransigence and those incurred by Mike which benefitted Patricia. The trial court again imposed significant attorney fees and costs on Patricia.
Virginia Amis of Gouras & Amis, PLLC represented Mike in the trial court. Talmadge/Fitzpatrick represented Mike on appeal.
John F. Buchan Const., Inc. v. Austin, Court of Appeals Cause No. 67155-3-I
Silvana Di Giacomo gifted her sons Michael and Giacomo Austin a house in Redmond, Washington. The Austins never lived at or resided in the home because they were students living in Italy. After the house was damaged by fire while occupied by a tenant, Di Giacomo contracted with John F. Buchan, Inc. (“Buchan”) to rebuild the house. The contract was subsequently assigned to the Austins. A dispute arose over final payment for the reconstruction. Di Giacomo continued to deal with Buchan, although she did so by e-mail. Buchan eventually filed a complaint against the Austins. Di Giacomo was not named as a party.
Despite having ready access to the Austins’ addresses in Italy, Buchan did not serve them personally. It served them by publication instead, alleging that it satisfied the notice requirements by notifying Di Giacomo by email of the summons and complaint. Buchan sought an order of default when the Austins’ failed to answer the complaint following publication of the summons. The trial court entered an order of default and a judgment and decree of foreclosure against the property then owned by the Austins. As soon as the Austins became aware of the default judgment and decree, they filed a motion to vacate the judgment. The trial court denied the motion and the Austins’ subsequent motion for reconsideration. The Austins appealed.
The Court of Appeals, Division I found that Buchan failed to comply with the statute governing service by publication because it did not make an honest and reasonable effort to find the Austins. It also found that the service by publication was defective because Buchan addressed the notice to the Austins’ “last-known address” in Redmond, Washington rather than to their “place of residence” in Italy as the statute required. Division I concluded that the trial court did not have personal jurisdiction over the Austins because the service of the summons by publication was not authorized and Buchan failed to effect any other service of process. Accordingly, any judgments against the Austins were void. Division I reversed the default judgment and remanded for instructions to dismiss Buchan’s complaint without prejudice.
Jerry Walker of Walker Law Offices represented the Austins in the trial court. Talmadge/Fitzpatrick represented the Austins on appeal.
Estate of Sharon Bracken v. State of Washington, Department of Revenue, Supreme Court Cause No. 84114-4
Federal estate tax law permitted spouses to utilize a device known as a qualified terminable interest property, or QTIP, by which they transfer their estates to their spouse for the life of that spouse. The QTIP is not taxable upon the first spouse’s death. Thus, the spouses receive a benefit akin to the federal marital deduction after the first spouse’s death and the estate, after the second spouse’s life estate, flows to beneficiaries designated by the first spouse, usually the children. The government ultimately collects the estate tax.
Washington did not enact an estate tax like the federal tax until 2005, but it attempted, in effect, to collect that Washington estate tax on the estates of initial spouses who died prior to 2005. In this case, Jim Bracken died in 1984. His wife Sharon died in 2006. DOR tried to impose the full Washington estate tax in 2006 on Sharon’s estate without any marital deduction for Jim’s estate or any credit for the QTIP in Sharon’s estate.
Talmadge/Fitzpatrick represented the Bracken Estate on appeal. Stokes Lawrence was the Estate’s trial counsel and co-counsel on appeal. The Supreme Court granted direct review in the case and reversed a trial court ruling denying the Estate a refund.
Eubanks and Gray v. Brown, Court of Appeals Cause No. 42329-4-II
David Brown was a deputy prosecuting attorney in Klickitat County who supervised plaintiffs Eubanks and Gray. In the course of that supervision, Brown sexually harassed Eubanks and Gray. They sued Brown, Klickitat County, and the Klickitat County Prosecuting Attorney’s Office initially in Benton County, but then obtained an order changing venue to Clark County. Brown moved the Clark County Superior Court to transfer venue in the case to Klickitat County, arguing that a special statute relating to suits against public officers required that venue be in Klickitat County. The Clark County Superior Court denied Brown’s motion. A Commissioner of the Court of Appeals, Division II, granted discretionary review, but the panel agreed with Eubanks and Gray that venue was proper in Clark County. The Court concluded that a specific venue statute controls over general venue statutes. The statute that permits a party to sue a county in the neighboring county to avoid prejudice to that party by being “home towned” controlled. The Court concluded that the statute pertaining to suits against public officers did not apply because Brown was being sued individually for personal misconduct in the workplace and not for any failure concerning his official duties as a deputy prosecuting attorney.
Talmadge/Fitzpatrick assisted Tom Boothe of Portland, Oregon in the representation of Eubanks and Gray on appeal.
Automotive United Trades Organization v. State of Washington, Supreme Court Cause No. 85661-3
AUTO, the trade association for Washington’s gas stations, filed an action against the Governor and the Director of the Department of Licensing arguing that the State lacked the authority under the Constitution to enter into certain fuel compacts with Native American tribes pursuant to which those tribes received monies from the Motor Vehicle Fund (“MVF”). All Washington gas tax revenues are deposited into the MVF. The monies paid by the State were allegedly “refunds” of gasoline taxes (although the tribes did not pay gasoline taxes directly to the State). The monies were sent to the tribes without a legislative appropriation. AUTO also argued that although these MVF monies were constitutionally obligated under the 18th Amendment to Washington’s Constitution to be used for “highway purposes,” the tribes did not actually use those monies for highway purposes. The Grays Harbor County trial court dismissed AUTO’s action on the basis that the Native American tribes, immune from suit by virtue of their status as sovereign nations, were indispensable parties to the litigation under CR 19 so that the litigation could not go forward.
In a 5-4 decision, the Washington Supreme Court reversed the trial court and reinstated AUTO’s case. In weighing the factors to be applied in determining if a party was “indispensable” within the meaning of CR 19, the Court undertook the balancing required by CR 19(b) and concluded that because a finding the tribes were indispensible would preclude any kind of judicial review of the action of the State officials for possible State Constitutional violations, the lawsuit must go forward to allow AUTO a judicial remedy.
Talmadge/Fitzpatrick represented AUTO both at trial and on appeal in this matter.
Washburn v. City of Federal Way, Court of Appeals Cause No. 66534-1-I
Baerbel Roznowski was killed by her live-in boyfriend. Prior to her death, Roznowski sought the protection of a civil anti-harassment order. A court issued that order and Roznowski requested that it be served on her boyfriend. A police officer of the City of Federal Way effectuated service of the order on the boyfriend at Roznowski’s home, but he did not bother to read the law enforcement information sheet that accompanied the order or the order itself. Had the officer read the order, he would have noted that the boyfriend was not entitled to be in Roznowski’s house and had to be 500 feet away from her. He would have also learned that the boyfriend spoke Korean and was not conversant in English. The officer’s interaction with the boyfriend lasted only a few minutes. When the boyfriend was served with the order, he was surprised. He became enraged and murdered Roznowski.
Roznowski’s daughters sued Federal Way for the negligence of its police officer in the service and enforcement of the civil anti-harassment order. Ultimately, a jury awarded damages to Roznowski’s estate but did not award damages to the two daughters individually for their loss of consortium, their personal relationship with their mother. Upon a post-trial motion by the daughters, the trial court agreed that the jury erred in not awarding any damages to them for their loss of their relationship with their mother and ordered a new trial, confined to the daughters’ damages on that issue. Otherwise, the trial court entered a judgment on the verdict of the jury in favor of the Estate. Federal Way appealed.
On appeal, the Court of Appeals, Division I, affirmed the judgment on the verdict of the jury and the trial court’s new trial order as to the daughters. The Court concluded that Federal Way had not adequately preserved any alleged errors associated with the duty it owed to Roznowski in connection with the service and enforcement of the civil anti-harassment order. The Court also agreed that the daughters were entitled to a new trial on the issue of damages for their loss of their relationship with their mother.
Subsequent to the Court’s opinion in March, 2012, Federal Way moved for reconsideration of the Court’s decision. Ultimately, the Court denied Federal Way's motion for reconsideration, but withdrew its earlier opinion. The Court’s new opinion, issued on July 23, 2012, makes it even clearer that Federal Way did not preserve any alleged errors on the duty it owed to Roznowski in connection with the service and the enforcement of the civil anti-harassment order. The Court noted that Federal Way failed to object to the duty instruction at trial, failed to assign error to duty instruction in its brief before the Court of Appeals, and failed to file a CR 50(b) motion. The Court retained that portion of its earlier opinion in which it determined that the daughters were entitled to a new trial on the issue of damages for the loss of their relationship with their mother.
Talmadge/Fitzpatrick was associated on appeal with the Connelly Law Offices. Jack Connelly and Michah LeBank tried this case to a King County jury.
Atlas Supply, Inc. v. Realm, Inc., Court of Appeals Cause No. 66504-9-I
Atlas sold construction materials for the DNR building in Olympia to Realm on credit. When the materials supplied by Atlas failed and had to be removed, Realm refused to pay Atlas for the materials, even though Atlas was only the retailer of such materials. Atlas sued to recover the purchase price of the materials, invoking a provision in Realm's credit application that if Atlas prevailed in litigation it was entitled to an award of attorney fees. Realm counterclaimed claiming Atlas was liable for breach of contract, breach of warranty, and negligent misrepresentation.
Ultimately, after extensive discovery, the trial court concluded that Atlas was entitled to recover damages for the purchase price of the materials, rejecting Realm's counterclaims, and awarded Atlas attorney fees against Realm. However, the trial court limited the scope of Atlas's attorney fee award. Under the contractual provision in the credit application, Realm agreed “to pay the costs of collection, including reasonable attorney fees in suit by Atlas Supply, Inc. . . . for the merchandise sold to applicant.” The trial court concluded that this "cost of collection" attorney fee provision did not extend to fees Atlas incurred in successfully defending all of Realm’s counterclaims.
The Court of Appeals, Division I, in a published opinion reversed the trial court’s decision, concluding that Atlas was entitled to recover attorney fees incurred to respond to Realm's compulsory counterclaims pursuant to the "cost of collection" attorney fee provision. The Court also awarded Atlas its fees on appeal. Talmadge/Fitzpatrick was associated on appeal with trial counsel Randal Thiel of Thiel Keaton PLLC in the representation of Atlas Supply, Inc.
Dana Clausen v. Icicle Seafoods, Inc., Supreme Court Cause No. 87314-3
Dana Clausen was a sailor on board a vessel owned by Icicle Seafoods when he was injured in Alaska. Rather than taking to heart its obligations under time-honored maritime law principles of maintenance and cure, principles that insure that an injured sailor will receive room, board, and medical attention after an injury at sea, Icicle instead manipulated the process to deprive Clausen of his rights. Clausen ultimately was left to living in a dilapidated trailer in the state of Louisiana. Icicle’s own doctors reported to Icicle that Clausen needed surgery. Icicle suppressed that report until the time of trial. Ultimately, at trial, that medical report was revealed and the court sanctioned Icicle and its counsel for hiding the medical report. Icicle’s trial counsel was later disciplined by the Washington State Bar Association.
As permitted by a recent United States Supreme Court decision, the jury awarded Clausen his past due maintenance and cure, his attorney fees to collect them, and punitive damages. Continuing its recalcitrant behavior, even though Icicle admitted that it owed the judgment for maintenance and cure, Icicle appealed the entire judgment and did not pay the judgment for maintenance and cure. On Clausen’s motion, the case was transferred to the Washington Supreme Court. The Washington Supreme Court in a 7-2 opinion affirmed the trial court’s judgment ruling that Clausen was entitled to attorney fees, and punitive damages.
This case represents a significant milestone in maritime law recognizing that injured sea personnel are entitled to maintenance and cure and employers who willfully fail to provide sea-based remedies akin to land-based worker compensation may be subject to awards of punitive damages. Talmadge/Fitzpatrick was associated with maritime attorneys James Jacobsen of Seattle and Larry Curtis of Louisiana.
Kiely v. Graves, Supreme Court Cause No. 84828-9
In 1908, John and Mary Power dedicated a 15-foot wide alley to the City of Port Townsend. The eastern half of the alley was open and used as a public right-of-way, presumably since the dedication; however, a portion of the western half of the alley was never opened. The remaining western portion of the alley has been open to the public and used for parking. The alley currently runs along the length of the boundary between the Graves’ property to the south and the Kielys’ property to the north.
In 2008, the Graves filed a petition with the City to vacate the western half of the alley and merge it into their adjoining land. The City held a public hearing on the application, which it processed according to the statutes and ordinances applicable to vacation. As a condition precedent to vacating the alley, the City required the Graves to pay for an appraisal of the alley, a survey of the alley, a lot line adjustment, and the appraised value of the alley. The Graves satisfied all of the City’s financial conditions. The City also required the Graves to sign an indemnity and hold harmless agreement releasing the City from any future damage claims resulting from the encroachments and/or any adverse possession claim. They did so. At no time did the City or the Graves believe there was an adverse possession claim that extended beyond the encroachments identified in the survey.
The City passed an ordinance vacating the alley and later conveyed the alley to the Graves via a lot line adjustment recorded in March 2009. In June 2009, the Kielys filed an action in the Jefferson County Superior Court alleging ownership of the entire alley through adverse possession. The trial court quieted title to the entire alley in the Kielys. The Graves appealed directly to the Supreme Court.
The question on appeal was whether the Kielys could claim adverse possession of an alley dedicated for public use. As a threshold matter, the parties disputed the nature of the title held by the City as a result of the dedication. Revisiting the distinction between statutory and common law dedications, the Supreme Court determined that the City possessed only an easement in the alley by virtue of a statutory dedication. But the Court concluded that an easement dedicated for public use constitutes “lands held for any public purpose” under RCW 7.28.090, which prevents a party from claiming adverse possession of property held or controlled by a municipality for public use. The Court held that the Kielys could not adversely possess the alley where the City had held it in trust for the public until it was vacated and reversed.
Talmadge/Fitzpatrick was associated on appeal with Fred Mendoza and Maya Mendoza-Exstrom.
Magee v. Rite Aid, Court of Appeals Cause No. 65861-1-I
Long-time Rite Aid employee Marcia Magee quit her job in May 2001. In January 2004 she filed an application for workers' compensation benefits with the Department of Labor and Industries, alleging that she was entitled to benefits due to sexual assaults she allegedly endured by her supervisor at Rite Aid during 2000 and 2001. The Department denied the claim because it was not filed within one year after the alleged injury occurred as required by RCW 51.28.050. Magee appealed that decision to the Board of Industrial Insurance Appeals.
At the hearing before an Industrial Appeals Judge, Magee argued that the sexual assaults amounted to an industrial injury and/or an occupational disease and the Department should decide both issues. The IAJ issued an order affirming the Department's denial of the workers' compensation claim, concluding that the sexual assaults constituted an industrial injury, but Magee had not timely filed a claim for benefits; and that the assaults did not constitute an occupational disease as a matter of law.
Magee appealed the IAJ's decision to the Board. Magee and Rite Aid stipulated that the scope of the Board's review was limited to the timeliness issue. The Board denied Magee's claim for benefits as an industrial injury because the claim was untimely. The Board also concluded that the claim did not constitute an industrial disease. Magee appealed the Board's decision to the superior court, but her summary judgment motion argued only that the Board erred in determining that her industrial injury claim was untimely. The superior court affirmed the denial of benefits. In a further appeal, Division I affirmed the superior court, and the Supreme Court denied Magee's petition for review.
Thereafter, Magee asked the Department to determine whether she was entitled to benefits as an occupational disease based on the 2000 and 2001 sexual assaults. She contended that because of the parties' stipulation the Board had no authority to conclude that the sexual assaults did not constitute an occupational disease. The Department denied Magee's request, stating that the Board's 2006 decision on the issue, having never been reversed or vacated by a subsequent court decision, was binding. Magee appealed to the Board that affirmed the Department's decision. Magee appealed to the superior court, which affirmed, and she appealed that determination to the Court of Appeals. Division I affirmed, holding that the parties cannot stipulate to jurisdiction or create limitations on review, and assuming that the Board exceeded the scope of review by addressing whether Magee's claim constituted an occupational disease, because she did not challenge that conclusion of law in the appeal of the Board's 2006 Decision and Order, that decision is final and binding.
Talmadge/Fitzpatrick represented Rite Aid in both appeals.
Frisino v. Seattle School District, Court of Appeals Cause No. 63994-3-I
Denise Frisino sought accommodation for the respiratory illness she developed in response to chemical toxins in her environment. Her illness made her sensitive to airborne toxins, excessive dust, mold, and other irritants. After suffering with symptoms for three years, Frisino requested a transfer to a cleaner facility that would be less aggravating to her condition. Despite a standing policy of making routine staff adjustments for disabled employees, the District took no action and did not even assist Frisino in her search for open positions. When a position came open at another school, Frisino took it. However, the new job was in a school that was old, mold-ridden, and dirty. When Frisino requested a clean classroom, the District then began questioning the authenticity of Frisino’s illness, and challenging her many doctors’ advice. The District even requested a psychological evaluation to see if her disability was mental rather than physical.
In response to a public outcry about the mold, the District agreed to partially remove mold from the school. However, the school delayed removing all of the mold, deeming it unnecessary and infeasible. It then ordered Frisino to return to her classroom. When Frisino continued to maintain that she could not return to a moldy classroom, the District offered to put her on unpaid medical leave and threatened termination. Frisino submitted a new accommodation request and pleaded for a temporary transfer until the rest of the remediation could be completed. The District insisted that there was no threat to Frisino, and terminated her for job abandonment. During the following summer break, the District removed significant quantities of mold from the ceiling of Frisino’s classroom.
Despite this record, the trial court ordered summary judgment for the District, concluding that Frisino had failed to adduce evidence of discrimination under the Washington Law Against Discrimination. Talmadge/Fitzpatrick represented Frisino on appeal, and the Court of Appeals reversed the trial court's decision. The District petitioned the Washington State Supreme Court. Talmadge/Fitzpatrick answered the petition, and the Supreme Court denied it.
Seashore Villa Association v. Hagglund Family Limited Partnership, Court of Appeals Cause No. 40952-6-II
Seashore Villa Mobile Home Park, owned in part by the Salvation Army, was an adults-only mobile home park located in Thurston County. At one time, the park owner provided carports and sheds to each of the mobile home lots in the park. Over the years, those sheds and carports deteriorated and a question arose as to whether the sheds and carports were owned by the tenants or by the park owner. The park owner sent a letter to all of the tenants saying that the park owner intended to remove the sheds and tear down the carports unless the tenants chose to take responsibility for them. The tenants sued the park owner alleging that such letters violated the terms of RCW 59.20.135, a statute that forbade mobile home park owners from transferring responsibility to maintain permanent structures within a mobile home park to its tenants unless the tenants voluntarily agreed to do so. The Thurston County Superior Court granted injunctive relief to the tenants and ordered the mobile home park owner not to change any improvements within the mobile home park. Believing that such injunctive order was far too extensive, the park owner alleged that such a result constituted a taking of the park owner’s property and a violation of the park owner’s constitutional property rights. Ultimately, the trial court denied any relief to the park owner, continuing the injunction in place on the basis that an implied contract had arisen between the park owner and the tenants to keep the sheds/carports in place in perpetuity. The court raised this issue on its own, without an argument from either party. The trial court also entered a substantial award of attorney fees in favor of the tenants.
Talmadge/Fitzpatrick was retained to represent Seashore Villa Mobile Home Park on appeal. The Court of Appeals, Division II, affirmed the trial court’s decision on RCW 59.20.135 concluding that the letter from the park owner violated the statutory direction prohibiting park owners from transferring responsibility for permanent structures in a mobile home park to its tenants. The Court, however, reversed the injunction in favor of the tenants, concluding that no contract implied in fact existed in this case and the mobile home park owner was entitled to remove carports and sheds at the conclusion of the tenants’ lease. The Court also reversed the award of attorney fees insofar as the tenants were no longer the substantially prevailing party in the case.
Dowler v. Clover Park School District No. 400, Supreme Court Cause No. 84048-2
In this case, the appellants were ten special education students and their parents who unquestionably suffer from severe sensory, mental, and physical disabilities. Most are nonverbal and many have physical handicaps. The students and their parents sued the Clover Park School District No. 400 (“District”) for general money damages, alleging teachers and staff subjected the students to physical, verbal, and psychological abuse, and unlawful discrimination based on their disabilities under Washington’s Law Against Discrimination, chapter 49.60 RCW. The students and their parents claimed that neither the genesis, nor the manifestations, of abuse was educational in nature. Instead, the students suffered random acts of violence and abuse. The District denied most of the allegations in the students’ complaint and contended the foundation of their complaint was educational in nature and thus within the scope of relief available under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-91.
The District moved to summarily dismiss the student’s complaint, arguing that the students had not exhausted the administrative remedies available to them under the IDEA and that their lawsuit was therefore barred. In response, the students dismissed all claims that could have been construed, as or related to, a request for educational compensation under the IDEA for deficiencies in educational services or benefits. The trial court granted the District’s motion and dismissed the complaint. Talmadge/Fitzpatrick represented the students and parents in a successful direct appeal to the Supreme Court.
The underlying issue before the Supreme Court was whether special education students and their parents bringing state tort claims involving abuse and educational neglect in state court must first satisfy the IDEA’s exhaustion requirement before filing suit. In considering the case, the Court reviewed the purpose and intent of the IDEA and closely analyzed the students’ and parents’ claims. The Court reversed, holding that the students and parents were not required to exhaust the administrative remedies available through an IDEA-due process hearing before filing a civil action under state law in state court. The Court remanded the state tort and unlawful discrimination claims to the trial court after finding genuine issues of material fact precluded summary judgment.
Phoenix Development, Inc. v. City of Woodinville, Supreme Court Cause No. 84296-5
The City of Woodinville chose to have a substantially rural residential zone within its zoning code. A developer purchased certain parcels, aware that this rural zoning code was in place, and sought to develop subdivisions on those parcels. To do so, the developer applied for a re-zone. Woodinville denied the re-zone. The developer took Woodinville to court alleging that the city violated certain Growth Management Act policies relating to making more in-city land available for residential development and that it was entitled to a re-zone under Washington law. The Concerned Citizens of Wellington, a citizen’s group, joined in the action to resist the developer’s re-zone request. The trial court agreed with CCW and Woodinville that its existing zoning was appropriate and the developer failed to meet the criteria for a re-zone. The developer appealed that decision to the Court of Appeals, Division I, which reversed the trial court’s decision, holding that a re-zone was required. That court essentially substituted its judgment on the re-zone for that of the elected City Council.
Talmadge/Fitzpatrick was retained to assist Woodinville on a petition for review to the Washington Supreme Court. Woodinville and CCW petitioned the Supreme Court for review, which was granted. The Supreme Court reversed the Court of Appeals and reinstated the trial court’s decision. Cities like Woodinville have substantial discretion on zoning and re-zones. Nothing in law foreclosed a more rural residential area, particularly where Woodinville was meeting the housing goals of the Growth Management Act by more intensive development in its downtown core. The developer did not meet the criteria for a re-zone.
Whatcom County Fire District No. 21 v. Whatcom County, Supreme Court Cause No. 83611-6
Whatcom Fire District No. 21 provides fire and emergency services to a substantial part of Whatcom County, including Birch Bay. Three developers sought to develop large commercial/residential projects in Birch Bay. Under the Whatcom County Code, however, a service provider like the District was obliged to issue a letter of concurrency to a developer allowing a project to go forward only when services existed at the time or in the near future to address the added growth created by such a project. The District refused to issue letters of concurrency for the three projects because it lacked the personnel and facilities to deliver fire and emergency services to the projects, given its fiscal constraints. The developers appealed the District’s decision to the Whatcom County Hearing Examiner, who ruled that letters of concurrency should have issued. The County Council agreed. The superior court, however, reversed the Hearing Examiner based on undisputed evidence that the District, whose personnel included both professional and volunteer firefighters, did not have sufficient existing resources to provide the services necessary to handle the growth occasioned by the three large projects. The Court of Appeals, Division I, reversed the trial court’s decision holding that concurrency principles under the Growth Management Act were satisfied when Whatcom County adopted its comprehensive plan that stated fire services were adequate. Project-specific evaluation of whether services were available for a project was not required under GMA, according to that court.
The District petitioned the Washington Supreme Court for review, which it granted. The Supreme Court reversed the Court of Appeals decision, holding that by the very terms of the Whatcom County Code, a letter of concurrency was necessary before a project could proceed. Such a letter of concurrency could only issue after a project-specific review of its growth impacts. In this case, the evidence was undisputed that the District did not have sufficient fire and emergency personnel nor equipment to address the growth generated by the three large projects at issue. Consequently, the District was correct in denying the developers letters of concurrency.
This case is the first significant reported decision on non-transportation concurrency under the Growth Management Act. Concurrency is a vital component of that Act in Washington.
The firm recently published an article in the Seattle University Law Review on the use of attorney fees as sanctions in Washington. The article, titled When Counsel Screws Up: the Imposition and Calculation of Attorney Fees As Sanctions, addresses sanctions under CR 11, RCW 4.84.185, and their counterparts under the Federal Rules of Civil Procedure, as well as sanctions for frivolous appeals and discovery abuse. The article also analyzes the lodestar method for calculating attorney fees as sanctions in Washington. See 33 Seattle U. L. Rev. 437.
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