Talmadge Fitzpatrick | Knowledgeable, Experienced, Efficient | Seattle 206-574-6661
Washington appeals attorneys
Talmadge Fitzpatrick | Knowledgeable, Experienced, Efficient | Seattle 206-574-6661


Sampson v. Knight Transportation, (Supreme Court Cause No. 96264-2) (09/2019)

There has been considerable ferment in Washington law as to whether, and how, the Minimum Wage Act, RCW 49.46 (“MWA”), applies to piece work and other work associated with workers’ piece work.  In the agricultural setting, the Washington Supreme Court has held that piece workers must be paid hourly for such non-piece work activities.

In this case, the issue was whether this rule applies to truck drivers.  The trucking industry has utilized owner/operators paid on a per-trip or cents per mile basis for more than a century.  On certification from the federal district court, the Supreme Court held that the MWA does not require separate payment of truck drivers beyond the piece rate so long as such drivers are fully compensated for the work they perform in a week.  The Court approved of work week averaging for all hours worked by drivers paid on piece work basis, in accordance with long standing practice as to drivers.

Talmadge/Fitzpatrick provided an amicus curiae brief on behalf of the American Trucking Associations and the Washington Trucking Associations.

Ronald Wastewater District v. Olympic View Water and Sewer District, et al., Court of Appeals Cause No. 78516-8-I (07/2019)

The Ronald Sewer District, being assumed by the City of Shoreline, claimed that the Point Wells area in unincorporated Snohomish County and portions of the Town of Woodway had been annexed into Ronald, and Ronald had a right to serve those areas, based upon an order from the King County Superior Court which approved the transfer of the Richmond Beach Sewer System formerly operated by King County to Ronald in 1986.  Neither King County nor Ronald, who were parties to their transfer agreement and the proceedings in the King County court, gave any personal notice to Snohomish County, Woodway, or Olympic View Water and Sewer District that had both areas within its corporate boundaries. 

The trial court found the annexation “transfer order” was binding on all Snohomish County entities.  The Court of Appeals reversed and directed the grant of summary judgment in favor of the Snohomish County entities finding that the area was unquestionably within Olympic View’s district, Ronald and King County failed to follow any required annexation procedures for sewer districts at the time, Olympic View never consented to the annexation or Ronald service in those areas, and that the transfer order/judgment of the King County Superior Court was void because the King County court lacked subject matter jurisdiction to issue such an order. 

Talmadge/Fitzpatrick was pleased to represent Olympic View Water & Sewer District at trial and on appeal.

Valerie Strout v. Wal-Mart Stores, Inc., (Court of Appeals Cause No. 77235-0-I) (07/2019)

Valerie Strout was rendered a paraplegic when she fell out of a second-story apartment window while trying to grab a portable air conditioner installed in the window.  The a/c unit, manufactured by Haier America Trading LLC and sold at Wal-Mart was installed in a window built by Ply Gem Pacific Windows Corp.  The a/c unit at issue was a return item that Wal-Mart repackaged and sold without the requisite user guide for its safe installation.  

Strout sued the apartment owner, Haier, Ply Gem, and Wal-Mart.  She settled with the former two defendants. The latter two defendants moved for summary judgment, claiming they owed no duty under the common law or the Washington Product Liability Act (“WPLA”).  The trial court granted Ply Gem/Wal-Mart’s motions.  

On appeal, the Court of Appeals affirmed as to Ply Gem but reversed as to Wal-Mart, holding that Strout stated a claim against Wal-Mart under the WPLA’s seller liability section, RCW 7.72.040.  

Talmadge/Fitzpatrick was pleased to assist Douglas Cloud on appeal.  

Cesar Beltran-Serrano v. City of Tacoma, Supreme Court Cause No. 95062-8 (06/2019)

Carlos Beltran-Serrano, who was mentally ill, homeless, and Spanish-speaking, was approached by Tacoma Police Officer Michel Volk on a community caretaker basis to assist him.  Volk needlessly escalated the contact to one involving use of a taser and shooting Beltran-Serrano in the back when he fled.  Eyewitnesses did not see Beltran-Serrano engage in any aggression toward Volk.  Volk did not await the assistance of a Spanish-speaking officer who was minutes away.  

When Beltran-Serrano’s guardian ad litem filed suit against the City, the trial court dismissed Beltran-Serrano’s GAL’s negligence action against Tacoma.  The Supreme Court’s Commissioner granted direct discretionary review.  In a 5-4 decision, the Court reversed the trial court’s dismissal of the negligence action, opining that the City owed a duty to Beltran-Serrano not to use deadly force if, under the totality of the circumstances, he posed no threat.  Such a negligence claim could co-exist with a battery claim and was not barred by the public duty doctrine.  

Talmadge/Fitzpatrick was pleased to assist Jack Connelly and Micah LeBank of the Connelly Law Offices on appeal.

Kidane Beyene, et al. v. Tesfaldet Tekle, et al., Court of Appeals Cause No. 78215-1-I (05/2019)

Kidane Beyene, Gebar Ogbe, Taame Beyene, and Temeshgen Sahlu, members of the local Debre Genet Kidisti Sellassie Eritrean Orthodox Church, became concerned that the members of Church Administration, the Church’s nonprofit corporate board, were shirking their accounting duties and potentially embezzling Church funds.  After attempting to resolve the dispute internally, the Church members sued primarily in an effort to obtain an independent audit of church assets.  However, the trial court granted the Church’s CR 12 motion to dismiss on First Amendment grounds, before any discovery could be completed.

Division I of the Court of Appeals reversed, finding that the record did not support dismissal at such an early stage.  The Court found that many of the church members’ claims could be secular matters properly submitted to the trial court for dispute.  Division I cast serious doubt on several of the Church’s key arguments, noting that the lawsuit did no implicate the selection of Church ministers and finding that the Church’s claim that it was entitled to deference as a hierarchically-structured church was not supported by the record.

Talmadge/Fitzpatrick was pleased to assist the Church members on appeal.

Volkert v. Fairbank Constr. Co. and Elizabeth Ziegler, Ph.D., Court of Appeals Cause No. 77179-5-I (04/2019)

Dr. Elizabeth Ziegler, a psychologist who customarily was a defense expert and performed a CR 35 examination on plaintiff Eric Volkert in a PIP case, concluding that he malingered, received a subpoena demanding production of her records of all past examinations in which she testified on PIP or UIM claimants.  Defendant Fairbanks Construction objected to the subpoena.  Volkert moved to compel Dr. Ziegler to produce the records.  The trial court ordered Dr. Ziegler to do so. 

Division I of the Court of Appeals reversed in a published opinion finding that Dr. Ziegler’s earlier CR 35 examination reports contained health care information under the Uniform Health Care Act, RCW 70.02, and that Volkert’s counsel failed to comply with the UHCIA, including notifying Dr. Ziegler’s affected examinees. 

 Talmadge/Fitzpatrick provided an amicus brief for mental health professionals in support of Dr. Ziegler’s position on privacy of examinee reports. 

Shannon Adamson v. Port of Bellingham, Washington Supreme Court Cause No. 96187-5 (04/2019)

Shannon Adamson was seriously injured when the passenger ramp at the Port of Bellingham’s Cruise Terminal collapsed.  The Port leased certain maritime facilities to Shannon’s employer, the Alaska Marine Highway System, but it retained the sole right to repair the ramp and it agreed to keep it free of structural or mechanical defects.  The Port was on notice of a defect in the passenger ramp control mechanism that could have been repaired in a few minutes of an electrician’s time.  It chose not to fix that defect, leading to Shannon’s injury.   

A federal court jury ruled in Shannon’s favor against the Port and awarded her significant damages.  The Port appealed to the Ninth Circuit.  After oral argument, that court posed questions of law on premises/landlord liability to the Washington Supreme Court.  That court ruled unanimously in Shannon’s favor on the interpretation of Washington premises/landlord liability law.  

Talmadge/Fitzpatrick was pleased to assist Shannon and Stacey & Jacobsen on appeal before the Ninth Circuit and the Washington Supreme Court.   

Ingenco Holdings LLC v. ACE American Ins. Co., Ninth Circuit Cause No. 16-35792 (04/2019)

Ingenco/BioEnergy Washington operate a gas purification plant at the Cedar Hills Landfill that converts landfill gas into natural gas.  They purchased all risk insurance coverage for the plant from Ace Insurance Co.   

The equipment used in the purification process broke down in 2010 and Ingenco/BioEnergy thought they repaired it.  But they did not.  The equipment later broke down in 2011, shutting down the plant for months.  

Ace denied coverage for the loss, asserting that it was caused not by an external source, as the policy required, but by an inherent problem in the equipment.  Ace also asserted that the policy’s ensuing loss provision did not apply, nor did the policy’s Boiler and Machinery endorsement.  The district court agreed.  

On appeal, in a published opinion, the Ninth Circuit reversed the district court on the key coverage issues, returning the case to the district court for a trial on the merits.  

Talmadge/Fitzpatrick was pleased to assist Robert Rauch in the representation of Ingenco and BioEnergy Washington on appeal.   

Joel Kelly v. Snohomish County, Court of Appeals Cause No. 76797-6-I (04/2019)

Joel Kelly was a voluntary patient at Providence Medical Center in Everett being treated for serious brain injuries he sustained from a ladder fall.  Kelly had a tendency to wander from the rehab unit where he received treatment.  After his family visited him during Thanksgiving in November 2013, he became particularly agitated, confused, and combative with Providence staff.  Hospital staff restrained him, but they wanted Snohomish County’s Designated Mental Health Professional to evaluate him and detain him under the Involuntary Treatment Act at a more secure evaluation and treatment facility.  Despite those pleas, the DMHP refused to evaluate Kelly.  The next day, believing they had no authority to detain him given the DMHP’s decision, Hospital staff allowed Kelly to leave.  He fell down an unfinished staircase at a nearby construction site, sustaining further serious injuries.

The Kelly family settled with Providence, and a jury returned a verdict for the family against the County, determining it to be 40% at fault for Kelly’s harm.  On appeal, the Court of Appeals rejected the County’s contentions that the family had not proved gross negligence, that its tardy claim of construction site owner fault should have been considered, or that the family’s counsel engaged in misconduct.

Talmadge/Fitzpatrick was pleased to assist Lincoln Beauregard and Marta O’Brien of the Connelly Law Offices on appeal.

Kimberly Gerlach v. The Cove Apartments, Court of Appeals Cause No. 77179-5-I (03/2019)

After a night of very heavy drinking with her friends, Kimberly Gerlach fell from her boyfriend’s apartment outdoor balcony, likely while trying to climb over a rail to access the apartment despite its locked door.

At trial, the trial court denied defendant Cove Apartments’ effort to prove Gerlach’s intoxication was the cause of more than 50% of her injuries, a fact that would have prevented her recovery of damages under the voluntary intoxication statute, RCW 5.40.060. That court precluded the jury from hearing evidence that Gerlach’s BAC was 0.238 or an expert’s testimony on the effects of such a high blood alcohol reading on a person’s judgment and motor functions. The trial court did not instruct the jury on the voluntary intoxication statute and gave an instruction on a landlord’s duty under the Residential Landlord Tenant Act (“RLTA”), although Gerlach was not a tenant.

On appeal, the Court of Appeals reversed a net $3.5 million verdict for Gerlach and ordered a new trial. The Court held that the trial court abused its discretion in denying admission of Gerlach’s BAC results and in excluding the expert testimony. The Court also held the trial court erred in giving an RLTA duty instruction where Gerlach was not a tenant.

Talmadge/Fitzpatrick/Tribe was pleased to asset Pauline Smetka of Helsell Fetterman in the representation of Cove Apartments on appeal.

Scott B. Osborne v. Dep't of Revenue, Court of Appeals Cause No. 50762-5-II (02/2019)

The Department of Revenue imposed the estate tax on the Mesdag Estate despite its use of a generation-skipping trust as between the spouses.  The Estate paid the tax and interest under protest in 2010 and then sought a refund.  The Supreme Court held that such a tax was improper on generation-skipping trusts in a 2012 decision.  That ruling was effectively overruled by the Legislature in 2013 legislation that applied retroactively to all estates whose refund cases were not final.  In an earlier ruling, the Court of Appeals held that the Mesdag Estate was such an estate and that it owed the estate tax.  

That court, however, did not resolve whether the Estate owed interest for the 2008-2010 time period.  In this case, the Court of Appeals reversed a DOR administrative decision and trial court ruling holding that the Estate owed interest because the tax was “due” in 2010 even though the Supreme Court’s 2012 ruling had held to the contrary.  Division II held that the Estate’s tax did not become due to DOR until the 2013 legislation was enacted.  Consequently, the Estate was due a refund of the interest it paid between 2008 and 2010, and interest on that sum.  

Talmadge/Fitzpatrick/Tribe was pleased to assist the Estate on appeal.  

Chan Healthcare Group, PS v. Liberty Mutual Fire Ins. Co., et al., Supreme Court Cause No. 95416-0 (12/2018)

A nationwide class action case was filed in Illinois regarding Liberty Mutual’s reimbursement of certain health care providers under its PIP and similar coverages.  The case settled.  A Washington chiropractor challenged the settlement in Illinois claiming the class representative inadequately represented the interests of Washington providers.  An Illinois trial court rejected that challenge and entered a judgment approving the settlement.  The chiropractor appealed, but the Illinois Court of Appeals affirmed the judgment, rejecting the challenge to the adequacy of class representation. 

A Washington chiropractor who was a class member, represented by the same firm who represented the previous Washington chiropractor in Illinois, filed suit in Washington challenging the Illinois settlement on behalf of a class of Washington providers.  The trial court denied Liberty Mutual’s motion to dismiss the suit based on the United States Constitution’s Full Faith and Credit Clause.  Liberty Mutual appealed. 

In a published opinion, Division I reversed the trial court, finding that the Washington suit was barred by the Illinois settlement under Full Faith and Credit principles. 

Chan then petitioned the Supreme Court for review and that Court granted review.  The Supreme Court unanimously affirmed the Court of Appeals' decision.  

Talmadge/Fitzpatrick/Tribe was pleased to assist John Silk of Willson Smith Cochran Dickinson and Marc Fuller of Vinson & Elkins, Dallas, TX, and James Morsch of Butler Rubin Saltarelli & Boyd LLP on appeal. 

Gary Brunson ex rel. v. The Lambert PLC and Bechtel National, Inc., (Ninth Circuit Case No. 17-35402) (12/2018)

Gary Brunson settled a federal qui tam action with Bechtel National, Inc. and URS Corporation relating to certain activities at the Hanford Reservation.  Portions of that settlement were confidential, as Brunson knew.

Three months after the settlement, and upon receiving his share of the settlement proceeds, Brunson moved to set aside the confidentiality portion of the settlement.  The district court reviewed Brunson’s request, joined by various intervenors represented by Brunson’s counsel, and largely rejected Brunson’s request.  Brunson appealed.

In a memorandum opinion, the Ninth Circuit affirmed the district court decision, noting pointedly that having substantially benefitted from the settlement, Brunson could not choose to disregard material terms of it for his personal interests.  The Court also affirmed the district court’s decision not to allow an untimely effort at permissive intervention.

Margaret Rublee v. Pfizer, Supreme Court Cause No. 94732-5 (11/2018)

Vernon Rublee died of mesothelioma, a cancer he contracted from his exposure to asbestos, while working at the Puget Sound Naval Shipyards in Bremerton.  During that work, he came into products manufactured by Quigley, a company later acquired by Pfizer.  Quigley’s product had references to Pfizer on its bags and in its advertising materials.  At issue was whether Pfizer was the “apparent manufacturer” of the Quigley asbestos-containing products under § 400 of the Restatement (Second) of Torts.  The Court of Appeals concluded that Pfizer could be the apparent manufacturer, but that status was determined from the standpoint of a reasonable purchasing agent.

The Supreme Court agreed as to Quigley’s apparent manufacturer status under § 400, but concluded that such a status was determined factually from the standpoint of the ordinary product consumer. 

Talmadge/Fitzpatrick/Tribe provided an amicus brief to the Court on behalf of the Washington State Labor Council in support of Vernon’s position on appeal.  The Rublee Estate was represented by Matthew Bergman. 

Benjamin Arp v. James Riley, Court of Appeals Cause No. 76935-9-I (11/2018)

Benjamin Arp sought the protection of bankruptcy.  After the bankruptcy court entered an order requiring him to report to the trustee any new income or change in his economic circumstances, but before his final discharge by the bankruptcy court, Arp was involved in an auto accident.  He did not report to the trustee that he was going to seek damages, even though his attorney sent a settlement demand letter to the insurance company.  He received a discharge order from the bankruptcy court. 

When Arp filed suit in state court, the defendants successfully secured its dismissal on grounds of judicial estoppel – Arp took inconsistent positions in his lawsuits.  Division I of the Court of Appeals initially reversed indicating that the trial court made insufficient findings on the estoppel issue.  On remand, the trial court did so.  On appeal, Division I affirmed the dismissal of Arp’s action.

Talmadge/Fitzpatrick/Tribe assisted Gregory Wallace of Vitale & Wallace, and the St. Louis firm of Sandberg, Phoenix & von Gontard P.C. on appeal. 

H.B.H.; S.A.H.; and Trey Hamrick v. State of Washington, Supreme Court Cause No. 94529-2 (11/2018)

Five children, who had been previously abused and who were declared dependents of the State by courts, were placed in foster care.  Their foster parents, who later adopted them, abused them physically and sexually. 

When the children sued the State for its negligence in failing to properly monitor and supervise their placement, the State successfully claimed it owed them no duty and their negligence action was dismissed.  Division II of the Court of Appeals disagreed and reversed that decision, ordering a new trial.  The State petitioned the Supreme Court for review, which it granted. 

On review, the Court affirmed Division II, finding the State has a special relationship with children placed in foster care after they were declared dependents, and it owed them a duty of care in tort.  It rejected the State’s claim of sovereign immunity as well.

Talmadge/Fitzpatrick/Tribe was pleased to assist Lincoln Beauregard and Julie Kays of the Connelly Law Offices before the Supreme Court. 

Katharine Boreen v. Tracy Guerin, Director Department of Retirement Systems, Thurston County Superior Court Cause No. 18-2-00984-34 (11/2018)

Phillip Boreen received a disability retirement in 2000, after serving 28 years as a firefighter with the Seattle Fire Department pursuant to the State’s pension system for law enforcement officers and firefighters (LEOFF1).  After his retirement, he and his wife, Katharine, adopted four minor siblings and cared for them in every way as their own children. Mr. Boreen sadly passed away in 2016 after a brave fight with cancer.  When Katharine contacted the Washington Department of Retirement Systems to determine the family’s benefits in light of her husband’s passing, she was shocked to learn that her children were treated less favorably than the biological children of LEOFF1 members under the law.  As the law was written, an adopted child must have been adopted before a LEOFF1 member retired to qualify for benefits.  A biological child on the other hand faced no such precondition; a biological child automatically qualified for benefits even if born after a LEOFF1 member retired.

Talmadge/Fitzpatrick/Tribe sued on behalf of the family pursuant to 42 U.S.C. § 1988, arguing that the disparate treatment of adopted children under LEOFF1 violated their constitutional right to equal protection.  The Thurston County Superior Court agreed, declared the law unconstitutional, ordered that DRS award the family the same benefits as those received by biological children, and awarded fees and costs. 

Fredrick Thomas, et al. v. Jason Cannon, et al., Ninth Circuit Court of Appeals Cause No. 18-35040 (10/2018)

Leonard Thomas was involved in a domestic dispute with his mother and called 911.  Rather than resolving his concerns, the police of various Pierce County jurisdictions treated him as a perpetrator and employed massive SWAT paramilitary resources, escalating the situation in which Leonard was taking care of his toddler son into a major confrontation.  While one set of officers was negotiating with Leonard, who was in his house with his toddler son, to send the boy to his mother, another set of officers blew the door off his house, shot the family dog, and killed Leonard, whose last words were “Don’t hurt my boy,” as officers pummeled him.

A federal court jury returned verdicts for Thomas family members and Leonard’s Estate, including punitive damages.  The cities that employed the officers appealed.  After the family and Estate filed their briefs in the 9th Circuit Court of Appeals, the cities settled with the family and Leonard’s Estate.

Talmadge/Fitzpatrick/Tribe assisted Jack Connelly and Meaghan Driscoll of the Connelly Law Offices on appeal.

El Centro de la Raza, et al. v. State of Wash. and Roland D. Bradley, et al., Supreme Court Cause No. 94269-2 (10/2018)

Various opponents of public charter schools in Washington filed suit challenging their constitutionality both as to their funding and operation.  A King County trial court rejected that challenge, and the opponents appealed directly to the Washington Supreme Court.

Talmadge/Fitzpatrick/Tribe was asked to provide an amicus brief on the funding of public charter schools by a group of legislators from both houses and both parties.  That brief noted the Legislature’s broad authority to fund specialized educational programs and that the present funding of public charter schools did not involve common school funds specifically or General Fund revenues at all.

The Washington Supreme Court affirmed the trial court’s decision in nearly all respects.

John Babbitt v. Kingsgate Ridge Manor Assoc. of Apartment Owners, Court of Appeals Cause No. 76555-8-I (10/2018)

A condominium association, Kingsgate Ridge Manor Association, was in financial trouble.  It asked John Babbitt for assistance.  Babbitt agreed to loan Kingsgate $600,000 in exchange for a promissory note. Babbitt also caused his construction company, TTI, to submit a bid for a retaining wall renovation project that Kingsgate needed. 

Kingsgate made only a few payments under the promissory note before defaulting.  Babbitt and Kingsgate negotiated and adjusted the payment schedule under the note, but to no avail.  Eventually, Babbitt sued Kingsgate to recover on the note.  Kingsgate responded saying the promissory note was invalid and cross-claimed against TTI for breach of the wall contract, claiming that TTI should have obtained a permit before building.

After a bench trial, the trial court entered judgment in favor of Babbitt on the promissory note claim, and judgment for Kingsgate against TTI for breach of contract.  However, the trial court improperly disregarded TTI’s corporate form, held Babbitt personally liable for TTI’s breach of contract, and refused to award Babbitt post-judgment interest on the entire judgment.

Babbitt retained Talmadge/Fitzpatrick/Tribe to defend him again of Kingsgate’s appeal on the promissory note judgment, and to cross-appeal the interest and corporate disregard issues.

The Court of Appeals, Division One, affirmed the trial court’s judgment on the promissory note.   It reversed the trial court’s rulings on post-judgment interest and disregarding the corporate form.

In re the Marriage of Heidi and Donald Kaplan, Court of Appeals Cause No. 76306-7-I (07/2018)

Heidi and Donald Kaplan were married for 26 years.  Donald was a highly compensated oil company executive and Heidi was a stay-at-home mother for the couple’s two children. 

Notwithstanding precedent requiring courts in dissolution actions involving long term marriages to place the parties in an economic position post-dissolution roughly equivalent to their pre-dissolution financial status, the trial court did not do so, giving Donald the bulk of the parties’ liquid assets and requiring him to pay Heidi’s maintenance for 6 years.  From that maintenance, Heidi was expected to pay the mortgage, health care, child support, living expenses, and re-training costs.  The court also imputed additional income to Heidi asserting that as a stay-at-home parent, she was voluntarily “unemployed” under the child support statute.  

On appeal, the Court of Appeals reversed the trial court’s decision on child support, a decision manifestly unfair to stay-at-home parents, but it determined that the principle of rough parity in pre- and post-dissolution economic circumstances for the allocation of marital resources in a long-term marriage was not a rule but an aspirational goal, affirming the trial court. 

Talmadge/Fitzpatrick/Tribe was pleased to represent Heidi Sky on appeal.

Sachdev v. Oregon Medical Board, Court of Appeals Cause No. A158152 (07/2018)

Dr. Naina Sachdev, a medical doctor who utilizes alternate medical treatments, was disciplined by the Oregon Medical Board.  The Board revoked her license to practice, fined her $10,000, and assessed costs.

In initiating the case against her, however, the Board’s statement of charges against Dr. Sachdev was very general in nature and did not always specifically reference Oregon statutes that she allegedly violated. 

Dr. Sachdev appealed the Board’s decision and sanction.  The Oregon Court of Appeals reversed the charges, except one relating to her post-disciplinary practice, because Dr. Sachdev did not receive adequate notice of the charges against her.  The Court remanded the case to the Board for reconsideration of the sanction in light of the Court’s opinion. 

Talmadge/Fitzpatrick/Tribe was pleased to assist Dr. Sachdev on appeal as pro hac vice counsel in Oregon.

Sound Transit v. City of Seattle, Supreme Court Cause No. 94255-2 (07/2018)

Sound Transit determined to exercise its power of eminent domain to take property for its East Link Light Rail in Bellevue, including a part of the City of Seattle’s easement for future electrical transmission lines to City Light’s Skagit River hydro electrical facilities.  Sound Transit also proposed to transfer much of the property it condemned to the City of Bellevue for a road-widening project.

Seattle opposed the condemnations asserting Sound Transit lacked express statutory authority to condemn the property of another government, particularly a first class, home rule city like Seattle, and noting the lack of necessity when Sound Transit gave much of the property to Bellevue.  Seattle also argued that the condemnations were precluded by Seattle’s prior public use of land.  Trial courts allowed the condemnations to go forward.  

On direct appeal, the Supreme Court concluded Sound Transit had the statutory authority to condemn the property. However, the Court also unanimously agreed that the prior public use doctrine applied, and that the trial court had erred in failing to address the issue.  It reversed and remanded for further proceedings.

Talmadge/Fitzpatrick/Tribe was pleased to assist the Seattle City Attorney’s Office on appeal.

Porter Bros. Constr. v. Kenco Constr., Court of Appeals Cause No. 74069-5-I (06/2018)

Kenco Construction was the roofing and window subcontractor on the Highline School District’s Raisbeck Aviation High School.  Porter Brothers Construction was the general contractor for the project.  Due to Porter Brothers’ mismanagement of the project, the work by subcontractors necessary for Kenco to perform its services was tardily, and often improperly, performed.  Porter Brothers asked Kenco to undertake the extra work necessary to make the project ready for its roofing and window work.  Kenco did so, and then installed the windows and roofing to the District’s satisfaction.

Despite Kenco’s efforts, Porter Brothers refused to make contractually-mandated progress payments to Kenco for its work, even though it received payments from the District and certified to the District that it had no issues with its subcontractors.  It also refused to pay for any of the extra work Kenco had to perform. 

Kenco sued Porter Brothers and its sureties for breach of contract.  Porter Brothers raised a series of technical defenses, but the jury ruled squarely in Kenco’s favor. 

On appeal, the Court of Appeals affirmed the judgment on the jury’s verdict.  Talmadge/Fitzpatrick/Tribe was pleased to assist Martin, Barokas & Tomlinson in Kenco’s representation on appeal.

Shannon Leahy v. State Farm Mut. Automobile Ins. Co., Court of Appeals Cause No. 76272-9-I (05/2018)

Shannon Leahy was injured in an automobile accident that lit up her dermatomyositis (“DM”), an autoimmune condition causing muscle inflammation, fatigue, and rashes.  After settling for the limits of the liability insurance limits that applied for the other drivers in the accident, Leahy sought uninsured/underinsured motorist coverage benefits (“UIM”) under a coverage she bought from her own insurer, State Farm. 

State Farm did not believe Leahy’s DM resulted from the auto accident, despite medical expert opinions to the contrary Leahy provided it.  As a result, State Farm made low settlement offers to Leahy never exceeding more than roughly $10,000.  Leahy was forced to sue State Farm under the UIM contract, and a jury determined her damages to be nearly $885,000. 

Leahy then amended her complaint to allege common law bad faith and violation of the Consumer Protection Act and Insurance Fair Claim Act by State Farm.  State Farm refused to turn over its claims files to Leahy’s counsel.  Nevertheless, the trial court dismissed Leahy’s extracontractual claims on State Farm’s motion for summary judgment. 

Division I reversed the trial court in a published opinion.  While the court concluded the trial court did not abuse its discretion in refusing Leahy access to privileged documents in State Farm’s files after an in camera review of them, the Court said dismissal of Leahy’s extracontractual claims against State Farm was premature where material fact issues were present on those claims.

Talmadge/Fitzpatrick/Tribe was pleased to assist Scott Lundberg, Alex French, and Jeff Comstock of GLP Attorneys on appeal.

Britt Easterly v. Clark County, Court of Appeals Cause No. 50297-6-II (03/2018)

Britt Easterly was the subject of a hostile work environment and he recovered damages from a jury under Washington’s Law Against Discrimination.  That law also allows the recovery of attorney fees and legal expenses.  The trial court made an award of fees based on lowered hourly rates for Easterly’s counsel and refused to award a multiplier without explanation.  That court also declined to award the rates of a media service that consulted with Easterly’s counsel, again without explaining why the services of such a non-lawyer were not recoverable.

On appeal, the Court of Appeals reversed the trial court fee award and remanded the case to the trial court for entry of proper findings on the fee issues.

Talmadge/Fitzpatrick/Tribe was pleased to assist Tom Boothe on appeal. 

Ella Elias and David Proudfoot v. City of Seattle, Court of Appeals Cause No. 75848-9-I (01/2018)

Sergeant Ella Elias and Captain Proudfoot were the subjects of retaliation by the Seattle Police Department after Elias reported instances of favorable treatment of certain African American officers for overtime assignments, and Proudfoot stood by her when Department leaders tried to improperly discipline her.  A jury awarded substantial damages to both officers for such retaliatory actions, and the City appealed. 

Notwithstanding the City’s arguments of excessive damages, alleged misconduct of the officers’ trial counsel, erroneous admission of expert testimony, the lack of a mitigation instruction, and cumulative error, the Court of Appeals affirmed the judgment on the jury’s verdict and awarded fees on appeal to the officers. 

Talmadge/Fitzpatrick/Tribe was pleased to assist Lincoln Beauregard and Julie Kays of the Connelly Law Offices on appeal.  


Richard Eggleston v. Asotin County, Court of Appeals Cause No. 34340-5-I (12/2017)

Richard Eggleston submitted numerous Public Records Act (“PRA”) requests to Asotin County regarding a bridge project that urgently needed to be completed in an area that contained Native American burial sites.  The County responded to his requests, but did not produce an email between its engineering contractor and a prospective consultant on cultural review for the project, an email the County never actually possessed.  Eggleston also sought certain preliminary engineering plans.  The County asserted those plans were exempt from PRA disclosure under a statutory exemption.  Eggleston sued.  

The trial court held that the County did not violate the PRA as to the first document as it was not a public record.  As for the other two documents, after a trial, the court ruled for Eggleston and assessed penalties and attorney fees as prescribed by the PRA.  Eggleston appealed as to the first document, and sought additional penalties and costs.

Division III affirmed the trial court in an unpublished opinion. In particular, that court agreed the email the County never possessed was not a public record, that Eggleston was not entitled to added penalties for each of his numerous, but essentially similar, PRA requests, and that his request for added costs was unreasonable.

Talmadge/Fitzpatrick/Tribe was pleased to assist Jane Risley of the Asotin County Prosecutor’s Office on appeal.

Talley; Lawson v. Lanphere Enterprises of Wash., Inc., d/b/a Renton Honda, Court of Appeals Cause No. 76452-7-I (11/2017)

Debra Talley and Amy Lawson were allegedly injured when a car driven by a Renton Honda employee in which they were passengers crashed. They sued Renton Honda. That firm admitted liability, but denied that the crash was the proximate cause of the injuries about which they complained because there were other explanations for their alleged injuries and such injuries were exaggerated in any event. A King County jury agreed, finding no proximate cause.

Talley and Lawson appealed. In that appeal, they did not assign error to the trial court’s instructions on proximate cause or the jury verdict form indicating that the jury need not reach damages if it ruled for Renton Honda on proximate cause. Instead, they argued they were entitled to a new trial because they had been injured and should have been awarded damages.

The Court of Appeals affirmed the trial court’s judgment on the jury’s verdict and ruled that the appeal was frivolous, requiring Talley and Lawson to pay Renton Honda’s appellate fees.

Talmadge/Fitzpatrick/Tribe was pleased to assist Jillian Hinman of Forsberg & Umlauf in the representation of Renton Honda on appeal.

Todorovic v. Ameriprise Auto Home Ins., IDS Prop. Cas. Ins. Co., and DeGrazia's Auto , Court of Appeals Cause No. 75274-0-I (10/2017)

The trial court granted summary judgment dismissing all of Nina Todorovic's claims.  Todorovic failed to move for reconsideration, nor did she appeal the decision.  In spite of the summary judgment dismissal, six days later, Todorovic again brought the same claims against the same defendants, as well as raising new allegations. 

Talmadge/Fitzpatrick/Tribe represented respondent DeGrazia’s Auto Body on appeal to the Washington State Court of Appeals, Division I.  All of Todorovic’s claims and charges were barred by the statute of limitations and the Court of Appeals affirmed the summary judgment dismissal.

Rolf and Bobbi Arden v. Forsberg Umlauf, P.S., Supreme Court Cause No. 93207-7 (09/2017)

Rolf Arden shot and killed his neighbors’ puppy.  The local prosecutor considered criminal charges against Rolf.  When the neighbors sued the Ardens for Rolf’s vicious acts, the Ardens’ insurer, Hartford, assigned experienced defense counsel from the Forsberg & Umlauf law firm (“Forsberg”) to defend them.  Thereafter, Hartford sent the Ardens a reservation of rights letter.  The Ardens continued to employ the services of their personal lawyer, with whom the Forsberg attorneys communicated.  The Forsberg attorneys represented the Ardens in discovery and settlement negotiations.  The directive to the Forsberg attorneys from the Ardens and their personal attorney was that Hartford had to pay any settlement in full.  Settlement talks fell through when the neighbors made very high settlement demands.  The local prosecutor filed criminal charges against Rolf.  Ultimately, the civil claims settled without the Ardens paying a dime.  They sued Forsberg for legal malpractice and breach of fiduciary duty, alleging its failure to communicate with the Ardens on settlement and its alleged failure to disclose past insurance defense work was a conflict of interest. 

The trial court dismissed the Ardens’ claims, and Division II affirmed.  The Supreme Court granted review and affirmed as well, re-affirming its decision in Tank on the insurer’s duty to an insured as well as the duties of insurance defense counsel.  It rejected the proposition that a long standing relationship between a law firm and an insurer was a per se conflict of interest.  The Court discussed how Forsberg met its Tank obligation to the Ardens and conflict of interest principles.  It ultimately concluded the Ardens could not prove harm or damages under any of its liability theories.

Talmadge/Fitzpatrick/Tribe was pleased to assist Lee Smart in the representation of Forsberg & Umlauf on Supreme Court review.  

Gibson v. American Construction Co., Inc., Court of Appeals Cause No. 49340-3-II (09/2017)

Jeremy Gibson, a marine mechanic, fell through the hatch of a crane barge moored at the defendant’s dock in 2013 and was seriously injured.  This type of injury is in the so-called zone of uncertainty between land-based remedies like the Longshore and Harbor Workers Compensation Act (“LHWCA”) and sea-based common law and statutory remedies like the Jones Act.  Although Congress excluded sea-based workers from the LHWCA, it made clear that any Jones Act recovery against an employer was offset by LHWCA benefits the worker received; no double recovery would occur. 

Gibson presented a LHWCA claim to the U.S. Department of Labor, received benefits, and ultimately settled his LHWCA claim.  The precise applicable jurisdiction – land or sea – was never adjudicated as part of the USDOL administrative process.  He then sued his employer under the Jones Act.  The trial court dismissed the action.  

On appeal, applying U.S. Supreme Court and Ninth Circuit precedent, Division II of the Court of Appeals reversed, concluding that in the absence of an actual adjudication of jurisdiction in the LHWCA administrative process, an injured maritime worker like Gibson could initially receive LHWCA benefits and later present a Jones Act claim to a jury. 

Talmadge/Fitzpatrick/Tribe was happy to assist Zachary Herschensohn of Thornton Mostul Herschensohn, PLLC on appeal. 

William Newcomer et al. v. Michael Cohen et al., Court of Appeals Cause No. 48223-9-II (05/2017)

William Newcomer invested in a real estate project developed and managed by Michael Cohen on Cohen’s representation that he would invest an equivalent amount of cash in the project.  Cohen did not do so and instead borrowed money from other sources he controlled to fund the project. 

When Newcomer discovered Cohen’s fraudulent conduct, he filed suit under Washington’s securities law to recover his investment.  After a lengthy trial, the jury ruled in Newcomer’s favor.  Cohen appealed. 

In a detailed unpublished opinion, the Court of Appeals rejected Cohen’s largely factually-based arguments.  That court determined the jury was properly instructed on the law, including damages under Washington’s securities law, and substantial evidence supported its verdict.  Newcomer recovered fees at trial and on appeal.

Talmadge/Fitzpatrick/Tribe was pleased to consult with Russell Knight of Smith Alling P.S. on the appeal.

Nam Chuong Huynh et al. v. Aker Biomarine Antarctic AS et al., Court of Appeals Cause No. 74241-8-I (05/2017)

Nam Huynh was a Seattle resident who worked as a welder for a Seattle company that contracted with two Norwegian companies to refurbish fishing vessels.  As part of his work he was sent to Montevideo, Uruguay to work on a ship, where he was seriously injured. 

Huynh sued the two Norwegian companies in the King County Superior Court.  That court concluded that it had jurisdiction over the first Norwegian company that merged with the second, post-accident, for the negligence of the second company imputed to it, and it had jurisdiction over the second for its successor liability. 

The Court of Appeals affirmed the trial court’s ruling, finding the second company to be the party that contracted with Huynh’s employer for work on the vessel on which he was injured and that the court had specific personal jurisdiction over it.  The court also concluded that the court only had personal jurisdiction over the first company for potential liability attributed to it as the merged successor to the first. 

In sum, Huynh’s action was held to be able to proceed in King County.

Talmadge/Fitzpatrick/Tribe was happy to assist Fury Duarte in the representation of Nam Huynh on appeal.  

Charles Pamplin v. Safway Services, Court of Appeals Cause No. 75634-6-I (04/2017)

Parker Drilling Management Services, Inc. subcontracted with Charles Pamplin to complete welding work and Safway Services, LLC to build, maintain, and dismantle scaffolds at an oil rig construction site.  One night while Pamplin was working, a scaffold fell over as he was climbing it, leaving him permanently disabled.  Pamplin sued Safway for negligence in failing to properly maintain the scaffolding. 

At trial, Safway claimed that unknown third parties had tampered with the scaffold, including removing barricade tape that signaled the scaffold was unsafe, and the crew that built the scaffold could not have foreseen such tampering.  Safway moved for judgment as a matter of law, arguing that Pamplin had failed to prove that Safway’s alleged negligence was the proximate cause of his injury, and requested that the court include superseding cause language in its jury instructions on proximate cause.  The trial court denied both the motion and the request, the jury ultimately awarded Pamplin $615,735.25.  After the trial court denied Safway’s renewed motion for judgment as a matter of law or a new trial, Safway appealed the rulings on the motions and request for jury instructions. 

The Court of Appeals affirmed the trial court’s rulings.  The Court noted that an injury may have more than one proximate cause, and a third party’s concurrent negligence does not necessarily break the causal chain between a defendant’s negligence and a plaintiff’s injury.  Because Safway did not construct or secure the scaffold in accordance with Washington Administrative Code safety provisions, their negligence was still a proximate cause of Pamplin’s injuries and the trial court therefore properly denied Safway’s motions for judgment as a matter of law.  With respect to the jury instructions, the Court found that Safway’s claims of third-party vandalism did not constitute a superseding cause under any of the Restatement (Second) of Torts factors.  Safway breached its duty to properly construct and secure the scaffold, and a reasonable jury could have certainly found Safway’s breach to be an original cause of Pamplin’s injury.  Therefore, the trial court’s denial of Safway’s motions for judgment as a matter of law and request for jury instructions on superseding cause were proper. 

Talmadge/Fitzpatrick/Tribe was pleased to assist Thomas D’Amore of the D’Amore Law Group on appeal.  

Judson D. Forks v. EnCon Wash. LLC, Court of Appeals Cause No. 48852-3-II (03/2017)

Judson Forks, an employee of the staffing agency Aerotek, was injured while working on assignment for EnCon. Aerotek had a contract to provide EnCon with contract employees, including Forks. When Forks sued EnCon for negligence, the trial court granted EnCon's motion for summary judgment based on the Industrial Insurance Act's prohibition against employees suing their employers for negligence. Forks appealed this ruling on the grounds that he had not consented to an employment relationship with EnCon and was therefore not an employee of theirs.

The Court of Appeals affirmed the trial court's decision. Under the contract between EnCon and Aerotek, EnCon assumed responsibility for controlling, managing, and supervising the work of contract employees such as Forks. EnCon also paid Forks's wages, plus a 1.5 percent markup, to Aerotek for distribution to Forks. Lastly, Forks's contract expressly stated that for purposes of worker's compensation he would be considered an employee of EnCon. Therefore, the Court determined that Forks's assertion that Aerotek was his sole employer did not constitute a genuine issue of material fact, and thus the trial court's granting of EnCon's motion for summary judgment was proper.

Talmadge/Fitzpatrick/Tribe was pleased to assist Gregory Wallace of the Law Office of Vitale and Wallace on appeal.

Tabingo v. American Triumph and American Seafoods Co., Supreme Court Cause No. 92913-1 (03/2017)

Allan Tabingo lost two fingers while working onboard a fishing trawler in Alaska when a hatch closed on his hand. Tabingo's shipowner employer knew the lever operating the hatch was broken and had not repaired it for two years. As a result, Tabingo sued his employer under federal maritime law for maintaining an unseaworthy vessel and sought to recover punitive damages. The trial court dismissed the punitive damages aspect of Tabingo's unseaworthiness claim.

The Washington Supreme Court granted direct discretionary review of that decision and unanimously reversed, holding that Tabingo could present a claim for punitive damages in his vessel unseaworthiness action. Following the reasoning of the United States Supreme Court, the Court held that federal maritime law generally recognizes the recovery of punitive damages and Congress had not acted to override that principle of federal maritime common law for personal injury claims involving vessel unseaworthiness.

Talmadge/Fitzpatrick/Tribe was happy to assist Joe Stacey and Jim Jacobsen of Stacey & Jacobsen LLP on appeal.

Guardianship of Christopher Junk, Court of Appeals Cause No. 47283-0-II (12/2016)
RBC Trust Co. historically provided guardianship services to Christopher Junk, a severely injured man who recovered a settlement of his claims for personal injuries when he was a boy; a special needs trust was established from settlement proceeds. RBC delegated investment duties to UBS Financial Services. RBC/UBS charged fees to the trust that had been historically approved by courts beginning in 2009.

On his own (neither Christopher nor his father who assisted Christopher complained about the fees), a trial judge raised concerns about the fees and appointed a guardian ad litem who issued a report critical of the RBC/UBS fees, despite their explanations of the extensive and legitimate services provided to the trust. In fact, because of their services the trust prospered. Based on the report, the court reduced past fees charged for 2013-14 and set new, lower fees for the future.

On appeal, the Court of Appeals reversed the trial court's decision, determining that the trial court had abused its discretion in reducing the legitimate fees of RBC/UBS. The 2009 court-approved fee schedule was proper and RBC/UBS had not deviated from it. The trial court erred in lowering the fee schedule approved in 2009 by failing to analyze the Supreme Court's Powell factors for a trustee's fees.

Talmadge/Fitzpatrick/Tribe was pleased to assist Joshua Brothers and Katrina Bruen of Brothers Henderson Dussault, P.S. in the appeal.
Kirkendoll v. Kirkendoll, Court of Appeals Cause No. 47832-3-II (10/2016)
After 27 years of marriage and a contentious dissolution trial, the parties' assets were carefully divided, and parental responsibilities were fairly and sensibly allocated. Ms. Kirkendoll was ably represented at trial by William B. Pope.

Nevertheless, Mr. Kirkendoll chose to continue the litigation on appeal. Talmadge/Fitzpatrick/Tribe was retained to defend the carefully considered judgment. Division II of the Court of Appeals affirmed the trial court's decision in its entirety.
Washington Counties Risk Pool, et al. v. Clark County, Wash., et al., Supreme Court Cause No. 91154-1 (10/2016)
Larry Davis and Alan Northrop were incarcerated for 19 years for a crime they did not commit. Clark County and one of its detectives were implicated in an improper investigation of the crime that resulted in their incarceration, as well as possible destruction of evidence.

After Davis and Northrop were exonerated of the criminal charges, they filed suit under 42 U.S.C. § 1983 against the County and its detective. They, in turn, presented a claim to the Washington Counties Risk Pool under the County's coverage with the Pool, as well as the Pool's excess carrier, Lexington Insurance Company. The Pool and Lexington denied the County a defense or coverage.

In the course of the trial in federal court on the 1983 claim, the County and the detective settled with Davis and Northrop, paying them a settlement and assigning their insurance claims, both contractual and extracontractual to Davis and Northrop.

When Davis and Northrop sued the Pool and Lexington in Cowlitz County Superior Court on the assigned insurance-related claims, the court upheld the Pool's denial of a defense and ruled that assignment was improper because a Pool was allegedly not subject to Washington's insurance common law. The court also dismissed claims against Lexington because its liability was derivative of the Pool's.

Talmadge/Fitzpatrick/Tribe assisted counsel for Davis and Northrop in securing direct discretionary review by the Supreme Court. After oral argument on the merits, the Pool and Lexington settled with Davis and Northrop.
Ocwen Loan Servicing v. Bauman, Court of Appeals Cause No. 73548-9-I (09/2016)
Michael Bauman purchased at auction real property that had been foreclosed by a water district for failure to pay water bills. The foreclosure judgment erroneously stated that the sale would be subject to a two-year right of redemption contained in a completely inapplicable statute. Ocwen Loan Servicing attempted to exercise the right of redemption more than a year after the sale, claiming it was the correct party in interest even though it did not have physical possession of the promissory note and deed of trust attached to the property. The trial court dismissed Ocwen's claims to the right of redemption on summary judgment. The judge concluded that Ocwen had an equitable right of redemption based on the erroneous language of the foreclosure order, but that Ocwen had failed to present sufficient evidence to create a genuine issue of material fact that it was the correct party in interest.

Ocwen appealed, and Talmadge/Fitzpatrick/Tribe represented Bauman as respondent and cross-appellant. The Court of Appeals agreed with Bauman that the trial court had erred in granting Ocwen an equitable right of redemption that it was not granted by statute. The Court concluded that a one-year right of redemption, rather than the erroneous two-year term, applied, and that Ocwen had not exercised the right in time. The Court affirmed dismissal of Ocwen's claim on this alternate ground
Hernandez v. Boothe, Ninth Circuit Court of Appeals Cause No. 13-35131 (09/2016)
Attorney Thomas Boothe, lead counsel for a Latino man who a victim of employment discrimination, was found in contempt by a federal district court judge after speaking in the hallway with opposing counsel of record. The opposing counsel he spoke to, Deborah Quinn, claimed that he had tried to intimidate her, and pointed out that despite her status as counsel for the defendant, she was listed as a potential witness in the case. The judge appointed Boothe's other opposing counsel, Robert Christie, to prosecute Boothe for civil contempt for "witness intimidation." The judge also asked Mr. Christie to prosecute Boothe for making faces during the trial, which ostensibly led to a mistrial. The judge found Boothe in contempt and ordered him to pay sanctions in the form of opposing party attorney fees associated with preparation for the first trial.

Talmadge/Fitzpatrick/Tribe represented Boothe on appeal from the contempt citation. The Ninth Circuit Court of Appeals reversed the contempt order and sanctions, saying they could not be based on Boothe "making faces" because the judge found Boothe did not do so in bad faith. The Ninth Circuit also questioned how a mistrial could be caused by speaking to opposing counsel who ethically could not be called as a witness. Since the district court judge stated on the record that the so-called "witness intimidation" did not lead to the mistrial, the panel remanded for clarification as to how the sanctions could possibly be justified.
James Hopkins v. Seattle Public School District No. 1, Court of Appeals Cause No. 73147-5-I (07/2016)
James Hopkins, Jr., a middle school student, was viciously assaulted and seriously injured by another student who had a long history of violent conduct. In the trial for his personal injuries, the trial court gave a general negligence instruction, but failed to instruct the jury on the special protective duty to Hopkins owed by school districts to all students under their care. Instead, the trial court advised the jury of the Seattle School District's obligation to mainstream the student who assaulted Hopkins. The jury returned a verdict for the District.

The Court of Appeals reversed the judgment on the jury's verdict, concluding that the trial court erred in failing to advise the jury of the District's special protective duty to Hopkins with regard to foreseeable risks of harm from students like the assaulting student. The court ordered a new trial.

The District petitioned the Supreme Court for review and that Court denied review.

Talmadge/Fitzpatrick/Tribe was pleased to assist Kyle Olive of Olive | Bearb Law Group PLLC with the appeal.
Georgiana Arnold v. City of Seattle, Court of Appeals Cause No. 71445-7-I (05/2016)
Georgiana Arnold was a City of Seattle manager. Her subordinate failed to make sufficient inquiry into a whistleblower's allegation of contractor improprieties. The City determined to terminate Arnold's City employment as a result.

Through the intervention of her counsel, Arnold's supervisor relented and decided instead to demote Arnold, at a very large reduction in salary. Arnold challenged her demotion and loss of salary before the Seattle Civil Service Commission. After a lengthy hearing that was the essential equivalent of a civil trial, Arnold prevailed. She was not demoted, and her loss of pay was restored. She was given a two-week suspension.

Having prevailed, Arnold sought a fee award, which was denied by the Commission's hearing examiner. She filed an action in superior court under RCW 49.48.030, a statute providing for fee awards in actions where an employee recovers wages withheld by an employer. The trial court denied a fee award. On appeal, the Court of Appeals reversed, directing that Arnold recover reasonable fees at trial and on appeal.

The City petitioned the Supreme Court for review, and the Court granted review. In a unanimous opinion, the Washington Supreme Court affirmed the Court of Appeals decision, awarding Arnold her fees at hearing, at trial, and on appeal.

Talmadge/Fitzpatrick/Tribe was pleased to assist Arnold's trial counsel, Judith Lonnquist, on appeal.
Geoffrey Chism v. Tri-State Construction, Inc., et al., Court of Appeals Cause No. 72844-0-I (05/2016)
Geoffrey Chism worked for many years as an outside lawyer for Tri-State Construction. He and Tri-State's leadership then agreed to have Chism become its in-house general counsel. Chism's work as Tri-State's in-house intensified and he worked many more hours, saving the company in particular from the potentially disastrous consequences of a B.C. construction project. He actually became president of Tri-State's B.C. affiliate.

Chism's compensation as in-house counsel evolved over time. Tri-State agreed to pay him bonuses, as it did for many other corporate officers.

Although former corporate leadership determined that Chism was due a bonus for each of three years, new corporate leadership at Tri-State reneged on that obligation. Chism resigned and sued Tri-State under RCW 49.52 for improperly withholding the bonuses.

A jury agreed with Chism and awarded him the full bonuses he earned. The trial court, however, decided that Chism had to disgorge bonuses paid and that he forfeited bonuses not paid due to alleged RPC violations.

The Court of Appeals reversed the trial court and reinstated the jury's verdict, pointedly noting that RPC provisions did not apply to in-house counsel generally and there was not authority for finding specific RPC violations by Chism.

Talmadge/Fitzpatrick/Tribe was pleased to assist Lindsay Halm and Thomas Breen of Schroeter Goldmark & Bender in representing Geoffrey Chism on appeal.

Tri-State petitioned the Washington Supreme Court for review. We opposed the petition. The Supreme Court denied review.
Michael Ames v. Pierce County, Court of Appeals Cause No. 45880-2-II (05/2016)
Michael Ames, a former Pierce County Sheriff's Department detective (now retired), filed an action seeking a writ of prohibition and declaratory relief regarding the decision of the Pierce County Prosecutor's Office to disclose information about Ames' actions in other cases to criminal defense lawyers that might be a basis for impeaching his testimony. Under Brady v. Maryland, the government must disclose any potentially impeaching information about a witness.

The trial court dismissed Ames' action because he failed to state a basis in the law for a writ of prohibition, a special common law proceeding to determine if a person had jurisdiction to act, where that court concluded the Prosecutor's Office had authority to act under Brady, or for declaratory relief where no justiciable controversy existed and a significant public matter was not implicated.

The Court of Appeals, Division II, affirmed the trial court decision because the Prosecutor's Office had broad jurisdiction under Brady to disclose potential impeachment evidence and no live controversy was present where Ames was not slated to be called as a witness in future cases.

Ames petitioned the Supreme Court for review and, when an amicus curiae memo was filed in the case, sought to submit a late response to it. The Court denied Ames' petition and his motion to submit a late response.

Talmadge/Fitzpatrick/Tribe was pleased to assist the County on appeal.
Esther Kim, et al. v. Lakeside Adult Family Home, et al., Supreme Court Cause No. 91536-9 (05/2016)
When two employees of Alpha Nursing ("Alpha") witnessed the severe facial bruising, unconsciousness, dragging, and illegal drugging of Ho Im Bae, a helpless patient, they failed to act with urgency. Contrary to Washington law regarding the duties of mandatory reporters to immediately do so, they did not call law enforcement or emergency services. They did not even call the owner of the facility. One simply went home without taking action, the other belatedly left a voice mail message for DSHS. The abusing care worker killed Bae shortly thereafter. Had the employees acted immediately, as they had a duty to do under the law, the life of an innocent and vulnerable woman could have been saved.

The trial court here concluded that no jury could reasonably believe that Alpha or its employees were in any way culpable in the death of Bae, and dismissed the claims of her family on summary judgment.

Bae's family appealed. Alpha cross-appealed, arguing that one of the two nurses, Christine Thomas, was not properly served after she fled to Norway, despite the fact that her Washington counsel concealed her address.

The Court of Appeals affirmed dismissal of the claims, agreeing with the trial court that the Alpha employees had no duty to Bae, because they did not have reasonable cause to believe Bae was being mistreated. The Court concluded Thomas was properly served, but as the claims against her were dismissed, the point was moot.

Bae's family petitioned the Washington Supreme Court for review. Alpha requested review of the service of process issue.

In a 9-0 opinion, the Court reversed the trial court and the Court of Appeals, holding that the AVAA implies a tort cause of action for violation of the mandatory reporting requirements, and that Thomas was timely served, given the immense obstacles created by her decision to flee to Norway.

Talmadge/Fitzpatrick/Tribe was pleased to handle the appeal with the assistance of trial counsel Alex French and Scott Lundberg of GLP Attorneys, P.S.
Slack v. Luke, Court of Appeals Cause No. 32921-6-III (03/2016)
Tammy Wolf Slack consulted attorney Lucinda Luke about her employment at the Department of Corrections. Slack believed Luke was retained to present an employment claim involving failure to accommodate her alleged disabilities. Luke believed she was consulted to provide a second opinion on the viability of such a claim. Luke concluded Slack's claim was not meritorious, but, in the meanwhile, the statute of limitations ran on the claim. Slack sued Luke and her firm for malpractice.

The trial court dismissed Slack's claim because she had no expert support for the causation element of her claim -- that it had sufficient merit to be filed. In a published opinion, the Court of Appeals affirmed, albeit on slightly narrower grounds. The court held that expert testimony was necessary to establish that Slack had a meritorious prima facie case, one that would survive summary judgment. Because Slack failed to provide expert evidence on the causation element of a legal malpractice claim, her claim was properly dismissed.

Talmadge/Fitzpatrick/Tribe was pleased to assist Stephen C. Smith of Hawley Troxell Ennis & Hawley LLP in the representation of Ms. Luke and her firm on appeal.
Tristan Coomes and Sean Coomes v. Edmonds School Dist. No. 15, et al., Ninth Circuit Court of Appeals Cause No. 13-35747 (03/2016)
Edmonds School District ("the District") employees tried to silence Tristan Coomes' concerns about violations of law regarding the treatment of special needs students, leading to her constructive discharge.

Coomes filed the present suit claiming inter alia that the District's actions violated her First Amendment rights and Washington's prohibition against wrongful discharge in violation of public policy.

The District successfully removed the case to federal court. It moved for summary judgment, arguing that no material fact issues existed and the case could be decided as a matter of law. The district court granted the District's motion.

At the Ninth Circuit Court of Appeals, summary judgment of Coomes' wrongful discharge in violation of public policy claim was reversed and remanded.

Talmadge/Fitzpatrick/Tribe was pleased to handle the appeal with the assistance of trial counsel Neal Philip and Robert Fulton.
Washington Trucking Associations, et al. v. Employment Security Dep't, et al., Court of Appeals Cause No. 47681-9-II (02/2016)
The Employment Security Department ("ESD"), motivated by the political desire to restructure Washington's trucking industry, targeted that industry for audits whose outcome was foreordained. The auditors' job performance standards required a quota of taxes to be imposed each month and the auditors were directed to find that trucking independent contractors, known as owner/operators because they own the tractor and trailer purchased, often for hundreds of thousands of dollars and leased to trucking companies, were employees 98% to 100% of the time. ESD officials also taxed equipment of owner/operators knowing that was illegal.

The industry sued ESD officials for their misconduct under state law tort claims and violation of their federal constitutional rights under 42 U.S.C. § 1983. The Thurston County Superior Court dismissed the claims. Division II of the Court of Appeals reversed that decision stating that the industry could state claims against the ESD officials for their egregious violation of the industry's constitutional rights.

Talmadge/Fitzpatrick/Tribe joined Ogden Murphy Wallace in representing the industry at trial and on appeal.
Tupas v. Department of Ecology, Court of Appeals Cause No. 72259-0-I (12/2015)
Cymas Tupas was employed by the Department of Ecology where she alleged she experienced national origin and handicap discrimination arising out of the stress associated with that discrimination. Tupas successfully sued the Department and recovered a jury verdict in her favor for DOE's failure to accommodate that handicap. Under Washington's Law Against Discrimination, RCW 49.60, Tupas was entitled to recover her attorney fees. The trial court awarded her some fees, but restricted the award based on its perception of the scope of Tupas' success in the litigation; the court similarly restricted Tupas' recoverable litigation costs.

The Court of Appeals reversed the trial court's fee decision in an unpublished opinion ruling that its findings and conclusions on fees were insufficient to permit meaningful review, and remanding the case to the trial court to revisit its limitations on Tupas' fee recovery and its failure to properly consider a multiplier, a factor paying the successful attorney for the contingent risk of taking the case and not being paid for several years. The court also reversed the trial court's costs decision.

Talmadge/Fitzpatrick/Tribe was pleased to assist the Law Offices of Judith A. Lonnquist on appeal.
Bright v. Frank Russell Investments, Court of Appeals Cause No. 72663-3-I (11/2015)
Cindi Bright worked in the Human Resources Department of Frank Russell Investments. She was investigated by Frank Russell for alleged ethical violations. Bright claimed the investigation was harsher on her than as to her colleagues due to racial discrimination. She sued Frank Russell under Washington's Law Against Discrimination for racial discrimination and retaliation. She later amended her complaint to assert a failure to accommodate a disability claim arising out of that discriminatory investigation.

Bright prevailed before a jury on the failure to accommodate and the trial court awarded her reasonable attorney fees. Frank Russell appealed the fee award. The Law Offices of Judith Lonnquist retained Talmadge/Fitzpatrick/Tribe to argue the appeal.

In a published opinion, the Court of Appeals affirmed the fee award, concluding that the trial court did not abuse its discretion in declining to reduce the award for fees incurred on unsuccessful theories, and upholding the trial court's view that Bright's theories arose out of a common core of facts.
Albertson v. State, Court of Appeals Cause No. 45748-2-II (11/2015)
12-day old ARB presented at Harrison Medical Center in Bremerton on November 18, 2008 with a spiral fracture of his left arm, a condition his treating doctors believed was caused by twisting, pulling, or jerking-child abuse.

After an initial hospital hold, CPS was called in to investigate. CPS negotiated a voluntary safety plan for the child with his biological parents, but it never followed up on it, or performed a proper and complete investigation. While the investigation was open, the child was returned to the biological parents. On December 23, the child again returned to the hospital with massive and catastrophic abuse-related injuries.

ARB's adoptive parents sued CPS for a negligent investigation. The trial court instructed the jury on superseding cause, even though the injuries to the child were foreseeable. The jury concluded CPS was negligent, but the negligence was not the proximate cause of ARB's injuries.

On appeal, the Court of Appeals reversed and ordered a new trial because a superseding cause instruction was improper where the injuries to ARB at the hands of his biological father were foreseeable. The court also rejected CPS's contention that it owed ARB no duty at all with regard to its negligent investigation that led to ARB's harmful placement−his return to his biological parents.

Talmadge/Fitzpatrick/Tribe assisted Jeffrey R. Johnson of Scheer & Zchneder on appeal.
DBM Consulting Engineers, Inc. v. Joseph D. Sanders; Soos Creek Vista, Inc., Court of Appeals Cause No. 72053-8-I (11/2015)
This was the third appeal involving DBM Consulting Engineers, Inc.'s attempt to collect a judgment from Soos Creek Vista, Inc. (SCV). In 2005, DBM attempted to garnish promissory notes to satisfy its judgment against SCV. When DBM did so, it discovered that, in June 2005, the promissory notes were transferred from SCV to its owner and officer, Joseph Sanders. In October 2005, DBM initiated supplemental proceedings against SCV to levy execution on the transferred promissory notes alleging the transfers were preferential payments to an insider in violation of the Uniform Fraudulent Transfer Act, chapter 19.40 RCW (UFTA). However, DBM did not make Sanders a party in his personal capacity. In the first appeal, DBM attempted to collect on a lien bond Sanders had obtained, but DBM failed to properly execute on the bond. In 2007, DBM tried to pursue Sanders, but still had not made him a party. In the second appeal, the Court of Appeals voided an order against Sanders under the UFTA, finding that an alleged transferee is a necessary party to supplemental proceedings. After remand, however, DBM failed to make Sanders a party for three more years. In defense of the late joinder, Soos Creek argued that the trial court lacked the authority to grant relief under the UFTA, because the claim was time barred by DBM's failure to join Sanders. The trial court nevertheless ordered Sanders to return promissory notes and cash transferred by SCW in order to make those assets available in supplemental proceedings initiated by DBM.

Talmadge/Fitzpatrick/Tribe represented Sanders and SCV in the third appeal from the trial court's order granting summary judgment. The Court of Appeals held that Sanders, as a necessary party in an UFTA fraudulent transfer action, should have been joined within a year, and because he was not, the trial court's order was reversed, the case was ordered dismissed, and Sanders and Soos Creek were awarded attorney fees.
Segura v. Cabrera, Supreme Court Cause No. 90088-4 (10/2015)
The Seguras were ordered by the City of Pasco to vacate their basement apartment when the City deemed it uninhabitable. The Seguras then sought compensation for relocation expenses and other damages under RCW 59.18.085(3) from their landlords, the Cabreras. The Seguras recovered damages from the Cabreras, but the trial court declined to emotional distress damages. The Court of Appeals affirmed that decision, even though the Cabreras did not submit briefs. The Seguras petitioned the Supreme Court for review, which it granted.

When the Cabreras did not respond to the petition for review or submit supplemental briefing in the Supreme Court, that Court asked for amicus briefing from the Rental Housing Association of Washington. RHA retained Talmadge/Fitzpatrick/Tribe.

The Supreme Court concluded, that by its terms RCW 59.18.085(3) did not contemplate the recovery of emotional distress damages. Given the nature of the statute and its focus on relocation assistance, "actual damages" referenced in the statute did not include emotional distress damages.
Acosta v. PARC Enchanted Parks, LLC, Court of Appeals Cause No. 72146-1-I (09/2015)
Alberta Acosta was allegedly injured on a water slide at the Wild Waves water park in 2010. Acosta's attorney waited until the last day before the expiration of the applicable three-year statute of limitations in 2013 before filing her lawsuit in the King County Superior Court. He had another 90 days thereafter to serve the lawsuit on PARC, a Florida company. He failed to properly serve PARC in Florida and tried to serve the wrong registered agent for the corporation in Tumwater. Acosta's attorney never perfected service on PARC within the 90-day timeframe. Ultimately, the trial court granted PARC's motion to dismiss Acosta's lawsuit because it was not filed and served within the three year limitation period. The trial court also denied a motion to vacate the dismissal filed by Acosta's new attorney.

On appeal, the Court of Appeals affirmed the trial court's dismissal of the lawsuit and its refusal to set aside the dismissal. The lawsuit was not timely filed and served within the period of the statute of limitations.

Talmadge/Fitzpatrick/Tribe was pleased to assist PARC on appeal.
Taylor v. Intuitive Surgical, Inc., Court of Appeals Cause No. 45052-6-II (07/2015)
Despite repeated warnings that physicians using its robotic surgical system for prostate surgery should not use it on morbidly obese patients, particularly early in their learning curve on the systems use, Dr. Scott Bildsten decided to use Intuitive's Da Vinci Robotic Surgical System on Fred Taylor. The surgery did not go well and Bildsten discontinued its use mid-surgery. Four years later, Taylor died of unrelated causes.

Taylor's estate filed suit against Dr. Bildsten, Harrison Memorial Hospital, and Intuitive. The doctor and the hospital settled and, after a lengthy trial, a jury ruled in Intuitive's favor on product liability duty to warn claims.

On appeal, the Court of Appeals affirmed the judgment on the jury's verdict, concluding that the jury was properly instructed on Intuitive's duty to warn Dr. Bildsten and that it had no duty to warn Harrison as a "learned intermediary."

Talmadge/Fitzpatrick/Tribe assisted Jeffrey R. Johnson of Scheer Zehnder on appeal.
Trinity Universal Insurance Company of Kansas v. The Ohio Casualty Insurance Company, Court of Appeals Cause No. 67832-9-I (06/2015)
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.

Trinity also filed a petition seeking Supreme Court review. The Court denied review.

On remand, Trinity argued that the trial court should modify its former ruling on judgment and allow interest at the higher contractual rate of interest of 12%. The trial court refused to do so, and Trinity appealed. The Court of Appeals affirmed in an unpublished opinion.

As with the first appeal, Talmadge/Fitzpatrick/Tribe assisted Ohio and Albert Donahue of the Wilson Cochran firm on appeal.
Sudar v. Dep't of Fish and Wildlife Comm'n and Coastal Conservation Assoc., Court of Appeals Cause No. 45378-9-II (02/2015)
The Fish and Wildlife Commission adopted a policy statement regarding salmon fishing on the Lower Columbia River. Aggrieved by the policy's intent to limit gillnetting in the future, certain gillnetters challenged the policy, seeking judicial review of it under the Administrative Procedures Act ("APA"). The Coastal Conservation Association intervened to uphold the policy.

The trial court held that the policy was not a rule subject to judicial review under the APA. In an unpublished opinion, the Court of Appeals affirmed the trial court's decision, noting the APA's strict definition of rule, and the APA's encouragement to agencies to adopt policy statements to better inform the public. The Commission's policy contemplated future rulemaking before it had legally operative effect. Once those rules were adopted, they would be subject to judicial review.

Talmadge/Fitzpatrick/Tribe was pleased to represent CCA at trial and on appeal.
Binschus v. State of Washington, Dep't of Corrections, Court of Appeals Cause No. 71752-9-I (02/2015)
After his incarceration in the Skagit and Okanogan County Jails, Isaac Zamora went on a murderous rampage killing six and wounding four others. Zamora was a ticking time bomb. He had a long history of mental health problems known to County law enforcement officials in Skagit County. While in the Skagit County Jail, Zamora showed signs of a seriously deteriorating mental condition, but the Jail officials never properly evaluated nor treated Zamora's mental health symptoms. Zamora was transferred to the Okanogan County Jail and its officials also failed to properly evaluate or treat his condition, although they knew or should have known about his deteriorating mental health.

When Zamora's victims sued both Counties, the trial court dismissed the victims' actions against them on the belief that the Counties did not owe the Zamora victims a duty to prevent his mental health condition from deteriorating, a condition that ultimately exploded into his murderous rampage. On appeal, in a published decision, the Court of Appeals reversed the dismissal as to Skagit County finding it owed a duty of care to Zamora's victims. Talmadge/Fitzpatrick/Tribe was pleased to have assisted the victims and their trial counsel on appeal.
State v. Sykes, Supreme Court Cause No. 87946-0 (12/2014)
Concerned about the use of closed proceedings in the King County Superior Court's Drug Court, Adonijah Sykes sought to un-do her drug court agreement. Drug courts are an alternative to traditional criminal prosecutions for certain drug user offenders that are effective at avoiding recidivism. Drug courts rely on "staffings" in which the judge, the prosecution and defense, and therapeutic personnel map out the most effective treatment course for the drug court participant in a session closed to the public.

The trial court denied Sykes' efforts to un-do her drug court agreement based on closed staffings, despite the belief of both the State and Sykes that such staffings violated article I, § 10 of the Washington Constitution relating to the open conduct of court proceedings. Sykes sought and obtained direct review by the Supreme Court.

Talmadge/Fitzpatrick was retained to represent amicus Washington State Association of Drug Court Professionals, a state-wide organization of judges, lawyers, and therapeutic personnel committed to drug courts. Both the State and Sykes agreed article I, § 10 was violated by closed staffings. WSADCP argued to the contrary, noting the overwhelming majority of drug courts nationally employ closed staffings to be effective.

The Supreme Court affirmed the trial court and found drug court staffings do not violate article I, § 10.
Reed Taylor v. Scott Bell, Court of Appeals Cause No. 70414-1-I (12/2014)
Talmadge/Fitzpatrick/Tribe consulted on this appeal from an erroneous dismissal of a legal malpractice case. In a proceeding prior to the matter before us on appeal, appellant Reed Taylor's initial position was rejected by the court to which it was presented. Nevertheless, in the malpractice matter, the King County Superior Court applied judicial estoppel, found insufficient evidence of proximate causation, and granted summary judgment in favor of the respondents. Given that Taylor did not successfully maintain his position in the prior proceeding, and because sufficient evidence of proximate causation was presented with regard to Taylor's claims of legal malpractice and breach of fiduciary duty, the Court of Appeals reversed the trial court's grant of summary judgment as to those claims and remanded for further proceedings.
Gabriel Espinoza v. American Commerce Ins. Co., Court of Appeals Cause No. 31569-0-III (10/2014)
The Espinozas purchased homeowners insurance from ACIC, including fire coverage. In applying for the ACIC insurance, they indicated that they had electrical heating. Their home was partially heated by electrical space heaters and partially by built-in electrical heating.

When their home was lost in a fire, the Espinozas made a claim with ACIC. ACIC subjected Gabriel Espinoza to an examination under oath ("EUO") in which he repeated his assertion that he told the insurance agent who wrote the coverage that the Espinozas' home had space heaters. The application referenced "electric" heat.

ACIC claimed that the Espinozas misrepresented their home's heating system both in the application and the EUO and denied them coverage for their fire loss. The Espinozas sued ACIC for breach of contract, and violation of the Consumer Protection, and the Insurance Fair Conduct Act.

The jury returned a verdict in which it found no misrepresentation in the application but misrepresentation in the EUO. The jury further found damages for the Espinozas. The trial court ordered a new trial because the verdict was inconsistent. The Court of Appeals, Division III, agreed in a published opinion finding the jury's verdict inconsistent because the Espinozas' statements in their application and the EUO were identical, and the jury's damage award was inconsistent with a misrepresentation finding.

Talmadge/Fitzpatrick assisted Michael Watkins and George McLean on appeal in representing the Espinozas.
Torre J. Woods v. HO Sports Co., Inc., Court of Appeals Cause No. 44346-5-II (08/2014)
Michael Woods operated a jet boat towing an inflatable tube at an excessive speed. When the jet boat crossed a wake, it threw the three boys, including Michael's son Torre, off the tube into the air. Torre landed on his neck, breaking it, rendering him a quadriplegic. Torre ultimately sued his father for negligence, and the manufacturer of the tube for product liability. The trial court dismissed Torre's action against Michael under the parental immunity doctrine.

Torre successfully sought discretionary review of that decision and the Court of Appeals, Division II, reversed the trial court's dismissal order in a published opinion. The court determined that the parental immunity doctrine was inapplicable because the case had nothing to do with parental control, discipline, or discretion, the core reasons for parental immunity. Michael's relationship with Torre was not that of parent-child, but that of boat driver-passenger, and Michael must appropriately account to Torre for his negligence.

Talmadge/Fitzpatrick assisted Nathan Roberts and Jack Connelly of the Connelly Law Offices on appeal.
Moore v. Health Care Authority, Supreme Court Cause No. 89774-3 (08/2014)
In a long-running controversy, the State denied a class of part-time State employees health insurance benefits. In the trial court, once liability was established, both the class and the State moved for summary judgment on the appropriate measure of damages. The trial court rejected the State's contention that the only measure could be the employees' actual out-of-pocket health care costs determined in an individual claim process for each affected employee. The class argued that the State's position inaccurately measured employee damages and constituted a windfall for the State. The class urged three alternative measures. The trial court rejected the State's approach and generally agreed with two of the employees' methods -- health insurance benefits are wages, and a restitution model for health care.

The State sought discretionary review of the trial court decision, which the Court of Appeals granted. The class moved to transfer the case to the Supreme Court, which that court granted.

The Supreme Court unanimously affirmed the trial court. The Court rejected the State's out-of-pocket measure with its individual claims process. It further rejected a "one size fits all" measure of damages, indicating that either a lost wage analysis or restitution measure of damages could be appropriate.

Talmadge/Fitzpatrick assisted Bendich, Stobaugh, & Strong PC on appeal.
New Cingular Wireless PCS LLC v. City of Bothell, Court of Appeals Cause No. 70810-4-I (08/2014)
For years, New Cingular's predecessor, AT&T Mobility, passed on to its customers local government utility taxes on services for Internet access from personal electronic devices. In 2010, a class of its customers sued AT&T to stop this practice and to recover taxes illicitly passed on by AT&T to those customers. AT&T settled the suit without paying anything to its customers, agreeing only to seek refunds of the taxes from various local governments, and to remit the refunds to its customers.

New Cingular filed a tax refund request with Bothell in November 2010 for taxes paid to Bothell from 2005 to 2010. Bothell processed the application. New Cingular sent a letter to Bothell in January 2012 threatening legal action on the refund. Bothell rejected the refund claim in April 2012. Rather than pursue the Bothell administrative process for refunds, New Cingular filed suit later in April 2012.

Bothell moved for partial summary judgment, asserting that part of New Cingular's refund claim was time-barred. New Cingular defended, claiming that the statute of limitations was equitably tolled during Bothell's consideration of its refund request. The trial court agreed with New Cingular.

The Court of Appeals granted Bothell's motion for discretionary review and reversed. The Court rejected the application of equitable tolling to New Cingular's claim where Bothell afforded it adequate administrative relief and New Cingular failed to exhaust it.

Talmadge/Fitzpatrick assisted Odgen Murphy Wallace on appeal.
Johnston-Forbes v. Matsunaga, Supreme Court Cause No. 89625-9 (08/2014)
Dawn Matsunaga rear-ended a car in which Cathy Johnston-Forbes was a passenger, allegedly injuring her. Dr. Allan Tencer, a biomechanical engineer, was named by Matsunaga as an expert. The trial court denied motions to exclude his testimony. It limited the scope of his testimony. He testified on the force of the collision's impact. The jury returned a verdict in which it determined Matsunaga's negligence was not the proximate cause of Johnston-Forbes' injuries. The Court of Appeals affirmed the trial court's judgment. The Supreme Court granted review and affirmed.

The Supreme Court held that the admissibility of expert testimony is within the trial court's discretion. The Court noted that Dr. Tencer's credentials as an expert were not at issue, even though he was not licensed as an engineer in Washington, and that biomechanical expert testimony was scientifically accepted under the Frye analysis. There was no abuse of discretion by the trial court in allowing the Tencer testimony.

Talmadge/Fitzpatrick provided an amicus curiae brief on behalf of a number of insurers on the admissibility of biomechanical expert testimony in auto collision cases.
LK Operating, LLC v. Collection Group, LLC, Supreme Court Cause No. 88846-9 (07/2014)
In this case, the Supreme Court considered issues arising from a joint venture agreement regarding a debt collection business. The debt collection business operated according to the terms of the joint venture agreement, as originally proposed, from approximately winter 2005 through summer 2007, at which time disagreements surfaced. In a subsequent legal malpractice action, Talmadge/Fitzpatrick represented the defendant attorneys at the Court of Appeals and the Supreme Court. The Court considered whether the trial court erred in applying the doctrine of equitable indemnification (also known as the "ABC Rule") to hold that the legal malpractice plaintiffs suffered no compensable damages as a matter of law and that summary judgment dismissal was appropriate.

The Court held that where the only damages claimed by a legal malpractice plaintiff are attorney fees incurred in a separate litigation, and the only legal basis on which plaintiff asserts those fees are compensable is the ABC Rule, then the defendant is entitled to summary judgment dismissal if the ABC Rule does not apply to the undisputed facts as a matter of law. The Court declined the plaintiffs' invitation to reexamine the ABC Rule in the legal malpractice context and affirmed.
Eubanks v. Brown, Court of Appeals Cause No. 44969-2-II (06/2014)
This is the second appeal in this case on a procedural issue. The case involves allegations by the plaintiffs, who were his staff members at the Klickitat County Prosecutor's Office, that deputy prosecutor David Brown sexually harassed them.

The plaintiff's present counsel, Thomas Boothe, was contacted by Brown in May 2010 when he contemplated running for Klickitat County Prosecutor to discuss Brown's Hatch Act concerns. Boothe did not undertake to represent Brown, although Brown claims he did. In the course of their conversations, Brown asserts he told Boothe about women making sexual harassment claims against him. It is noteworthy that Brown paid Boothe nothing for his alleged representation, signed no representation agreement, and Brown never involved Boothe in County administrative proceedings convened to address the women's harassment claims.

Two women sued Brown for sexual harassment in December 2010. (Two more women came forward later). Brown did not ask Boothe to represent him. Later, in June 2011, the women's attorney contacted Boothe, an employment attorney, to assume their representation in the case. Boothe investigated, saw no conflict, and agreed to do so. Boothe sent a letter to Brown's counsel on July 13, 2011 introducing himself and referencing the earlier contacts with Brown. Brown's attorney claimed a conflict existed. Boothe disagreed.

Boothe actively represented the four women in the case over the next 16 months until Brown moved in January 2013, after four Brown's unsuccessful venue-related arguments, to disqualify Boothe under RPC 1.9 or 1.18. The trial court denied Brown's motion.

The Court of Appeals granted discretionary review and affirmed, concluding that Brown waived any disqualification argument by failing to timely raise it.

Brown petitioned the Supreme Court for review, but that Court denied further review.

Talmadge/Fitzpatrick represented the four women on appeal.
Mattson v. American Petroleum, Court of Appeals Cause No. 43735-0-II (06/2014)
Rayna Mattson sued American Petroleum Environmental Services, a waste oil processing company, claiming that the company's truck spilled oil from a broken hose onto I-5 and caused her one-car accident. The company defended the suit asserting that the break in the hose was unforeseen because no problems had been detected in the hose in its driver's pre-trip inspection of it. Moreover, the company argued the oil spill claimed by Mattson could not have emanated from its hose because the truck's prior load had been of wastewater, not oil. The facts and legal issues were hotly contested at trial and the jury returned a defense verdict.

On appeal, Mattson raised a variety of issues claiming she was entitled to a determination of negligence as a matter of law or a new trial predicated upon instructional error, and defense counsel and juror misconduct. The Court of Appeals rejected Mattson's arguments and affirmed the judgment on the jury's verdict in an unpublished opinion.

Talmadge/Fitzpatrick assisted William O'Brien of the Law Offices of William J. O'Brien in the appeal.
Eubanks and Gray v. Brown, Court of Appeals Cause No. 42329-4-II; Supreme Court Cause No. 88021-2 (06/2014)
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.

Brown and Klickitat County petitioned the Supreme Court for review. The Court granted review and affirmed the Court of Appeals. The Supreme Court held that Brown was not engaged in his official duties as a public official when sexually harassing his subordinates.

Talmadge/Fitzpatrick assisted Tom Boothe of Portland, Oregon in the representation of Eubanks and Gray on appeal.
AllianceOne Receivables Mgmt., Inc. v. Lewis, Supreme Court Cause No. 87445-0 (05/2014)
A collection agency filed a lawsuit on 3 debts owed by William Carl Lewis Jr. Ultimately, the collection agency voluntarily dismissed the lawsuit. Lewis asserted he was entitled to recover the attorney fees he incurred in defending the lawsuit pursuant to RCW 4.84.250, et seq., Washington's statute allowing fee recovery in smaller claims. The trial court held that there was no qualifying prevailing party under the statute where the agency voluntarily dismissed the lawsuit.

In a 5-4 decision, the Supreme Court on direct review agreed. The Court held that the statutory term "prevailing party" requires recovery of a judgment. A voluntary dismissal is not such a recovery of a judgment.

Talmadge/Fitzpatrick briefed and argued the case for AllianceOne Receivables Management on appeal.
Taylor v. Caiarelli, Court of Appeals Cause No. 68222-9-I (05/2014)
William Taylor died in a boating accident in 2005. Although his will provided that his assets were to go to a trust for his young son, A.C.T., his brother and his parents laid claim to various nonprobate assets, primarily life insurance policies.

During his tenure as the trustee for A.C.T. and the personal representative of William's estate, William's brother, Charles, engaged in numerous procedural irregularities. He and his father, Reuben, obtained the proceeds of William's various life insurance policies for themselves, disregarding any obligation to A.C.T.

Patricia Caiarelli, A.C.T.'s mother and William's ex-wife, filed an action for a constructive trust on the life policy proceeds for A.C.T. The trial court ultimately replaced Charles as personal representative, but dismissed Caiarelli's action. The Court of Appeals reversed and remanded for trial.

On remand, Caiarelli amended her complaint to assert claims of undue influence against Reuben and William's mother, Emily. The trial court dismissed the latter claims, but a jury returned a substantial verdict against Charles, finding that William meant Charles to be the beneficiary of his life insurance policies only as trustee for A.C.T., or, alternatively, that Charles exerted undue influence over William. Charles then sought the protection of bankruptcy in Illinois.

On appeal by Charles (after approval of the bankruptcy court) and on cross-review, the Court of Appeals affirmed the judgment against Charles, reversed Reuben's and Emily's dismissal, and awarded fees to Caiarelli.

Talmadge/Fitzpatrick assisted Madeline Gauthier and Charles Kimbrough in the second appeal.
City of Seattle v. Egan, Court of Appeals Cause No. 69420-1-I (02/2014)
James Egan made a Public Records Act request of the City of Seattle that was similar, but not identical, to a PRA request by KOMO-TV. The City asserted the requested records, Seattle Police Department dash-cam videos, were exempted from the PRA by another statute, and refused to disclose the records to KOMO or Egan. KOMO filed a lawsuit and Egan threatened one.

The City filed a lawsuit under RCW 42.56.540 to obtain a court ruling on whether it had to disclose the records to Egan. The trial court stayed the action pending disposition by another superior court of the KOMO lawsuit (That court ultimately ruled in the City's favor). The trial court found that the City's Egan lawsuit failed to meet the requirements of RCW 42.56.540 and was brought for an illicit purpose of gaining a litigation advantage, thereby violating CR 11. The court awarded fees to Egan, but in an amount less than he desired. Both parties appealed.

In an unpublished opinion, Division I found no CR 11 violation and vacated the fee award in its entirety. The City's lawsuit was consistent with RCW 42.56.540 and not brought for an illicit purpose.

Talmadge/Fitzpatrick assisted the City on appeal.
City of Seattle v. Egan, Court of Appeals Cause No. 69129-5-I (02/2014)
James Egan made a Public Records Act request for certain SPD dash-cam videos that the City rejected on the basis of RCW 9.73.090. When Egan threatened to sue the City under the PRA for penalties and fees, the City commenced a declaratory action under RCW 42.56.540 to determine if it was obliged to produce the records. Egan filed a motion to strike under RCW 4.24.525, the anti-SLAPP statute. The trial court dismissed the motion and Egan appealed.

Division I affirmed the trial court decision in a published opinion. That court noted that the core requirement of RCW 4.24.525 was to protect free speech and the right to petition government. As there is no constitutional right to government records under state or federal law, the anti-SLAPP statute was not implicated by the City's action under RCW 42.56.540. Moreover, to rule the anti-SLAPP statute applied would effectively vitiate a government's right to seek declaratory or injunctive relief under RCW 42.56.540 as the Legislature intended.

Talmadge/Fitzpatrick assisted the City on appeal.
In re Stover Estate, Court of Appeals Cause No. 69546-1-I (12/2013)
Mark Stover died under suspicious circumstances leaving no will. Vaux-Michele alleged that Stover intended to marry her. Victoria Simmons, Stover's sister and personal representation of Stover's Estate, discovered a check made out to Vaux-Michele hidden in his desk drawer.

Vaux-Michele claimed the check was a gift causa mortis but the Estate disputed that Stover delivered the check. Vaux-Michele filed a creditor claim against the Estate for the check. The Estate rejected the claim but Vaux-Michele filed a lawsuit on the claim more than 30 days after the Estate's rejection.

The trial court denied the Estate's motion to dismiss the action as untimely under RCW 11.40.100, asserting CR 6 extended the time for filing an action. When the Court of Appeals denied discretionary review, a trial ensued in which the court awarded Vaux-Michele the $150,000 plus fees under TEDRA.

On appeal, the Court of Appeal vacated the judgment because the creditor claim was untimely under RCW 11.40.100. CR 6 was not applicable to RCW 11.40.100 as it was a special proceeding and the statute controlled.

Vaux-Michele filed a petition for review to the Supreme Court that the Court denied.

Talmadge/Fitzpatrick assisted attorney John Sherwood in representing the Estate on appeal.
Calvert v.Berg, Moss Adams, LLP and Eagan Avenatti LLP, Court of Appeals Cause No. 60156-2-I (11/2013)
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.
Smith v. Clark Public Utilities, et al., Court of Appeals Cause No. 41811-8-II (11/2013)
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.
In re the Marriage of Christopher Larson v. Julia Calhoun, Court of Appeals Cause No. 69833-8-I (11/2013)
In one of the largest divorce cases in Washington State history, after a 3-week trial, the trial court apportioned the community property of the spouses and the separate property of Christopher Larson, an early Microsoft employee and present partner in the Seattle Mariners.

Larson appealed the trial court's property division arguing that a court could not distribute any separate property of a spouse to another if ample provision could be made for that spouse from the community property.

The Court of Appeals rejected Larson's argument in light of contrary statutory language and controlling Supreme Court authority that all property, community and separate, is before the divorce court for a fair and equitable distribution in its discretion. The Court also denied Larson's motion for reconsideration. Larson petitioned the Supreme Court for review of the Court of Appeals decision, but the Supreme Court denied further review.

Talmadge/Fitzpatrick assisted attorney Janet George, who tried the case for Calhoun, on appeal.
Melissa Robbins, et al. v. Legacy Health Systems, Inc., et al., Court of Appeals Cause No. 43666-3-II (10/2013)
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.
Washburn v. City of Federal Way, Supreme Court Cause No. 87906-1 (10/2013)
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
Jill Sharon v. Tod Sharon, Court of Appeals Cause No. 68904-5-I (09/2013)
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.
Seattle Shrimp & Seafood Co., Inc. v. Stilnovich, Court of Appeals Cause No. 68428-1-I (08/2013)
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.
Davern v. Liddiard, Court of Appeals Cause No. 42657-9-II; Supreme Court Cause No. 89048-0 (06/2013)
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.
Weiss v. Lonnquist, Court of Appeals Cause Nos. 66626-6-I, 67820-5-I (02/2013)
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.

Weiss petitioned the Supreme Court for review, which that Court denied making the Court of Appeals opinion final.

Talmadge/Fitzpatrick represented employer Judith Lonnquist on appeal.
John F. Buchan Const., Inc. v. Austin, Court of Appeals Cause No. 67155-3-I (01/2013)
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.
Burnard v. Burnard, Court of Appeals Cause No. 67918-0-I (01/2013)
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.
Parker v. Wyman, Supreme Court Cause No. 87823-4 (12/2012)
Christine Schaller resided in Pierce County with her husband but served as a Thurston County Court Commissioner. When a vacancy occurred on the Thurston County Superior Court bench, Schaller filed for election to that Court and won. Her opponents filed suit claiming that she was not qualified to serve because she lived outside Thurston County.

The trial court concluded that the Washington Constitution established specific qualifications for service and election as a judge. Residency in a county was not one of them. The court found that Judge Schaller was eligible to serve as an elected judge of the Thurston County Superior Court. The Supreme Court agreed.

Talmadge/Fitzpatrick was honored to represent Judge Schaller at trial and on appeal.
Estate of Sharon Bracken v. State of Washington, Department of Revenue, Supreme Court Cause No. 84114-4 (10/2012)
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.
Automotive United Trades Organization v. State of Washington, Supreme Court Cause No. 85661-3 (08/2012)
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.
Atlas Supply, Inc. v. Realm, Inc., Court of Appeals Cause No. 66504-9-I (07/2012)
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 (05/2012)
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 (03/2012)

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 (01/2012)
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.
Porter Bros. Constr., Inc. v. Kenco , (12/1969)
Porter Bros. Constr., Inc. v. Kenco , (12/1969)