Washington Appellate Practice

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In State v. Liu, a 5-4 majority on the Washington Suprme Court declared the the Confrontation Clause of the Sixth Amendment to the U.S. Constitution does not require that DNA tests or other hard to decipher scientific tests be presented in court by the technician who conducted the test.  These tests are not inculpatory because a juror would not understand how the data bears on the guilt or innocence of the defendant without the testimony of an expert witness.  Therefore these complicated reports are not “witness[es] against” the defendant and need not be available for confrontation by the defendant.  While the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) might suggest otherwise, the Washington Court determined that the five Justice majority who signed that opinion was not really a majority because Justice Thomas also wrote an idiosyncratic concurrence. The Washington Court started counting five Supreme Court Justice signatures, but stopped at four.
Continue Reading Washington Court Starts to Count to Five, Stops at Four

The Washington Supreme Court recently ruled that a parentage order is a custody decree that cannot be modified without adequate cause and a change of circumstances.                       

Background: In Parentage of C.M.F. the superior court issued a parentage order that designated an individual as the father, named C.M.F.’s mother “custodian solely for purpose of other…

Last week, the State Supreme Court affirmed a $12.75 million verdict (including $2,422,006 for future care and $10 million in noneconomic damages) against the City of Seattle in favor of former Seattle firefighter, Mark Jones, who was injured when he fell 15 feet down the “pole hole” in a fire station at 3 a.m. on December 23, 2000.  The case captured media attention when the press reported that post-trial surveillance videos showed Jones engaging in physical activities (e.g., playing horseshoes) the City alleged were inconsistent with his testimony at trial.   The trial court refused to grant a new trial.  The Court of Appeals affirmed in an unpublished opinion.  The City petitioned the Washington Supreme Court for review based on the surveillance video and the new evidence that Jones was an alcoholic and that his drinking interfered with his recovery.
Continue Reading Washington Supreme Court Affirms Firefighter’s $12.75 Million Verdict Against City of Seattle

The Washington Supreme Court granted review in the followoing four cases at its December 10 conference:

State v. Russell, No. 89253-9

Issue:

1.  A nonconsensual, warrantless, protective frisk is permitted only when a frisking officer has an objectively reasonable belief, based on specific and articulable facts, that a suspect is armed and presently dangerous. Was…

The Washington Supreme Court, through identical five-Justice majorities, announced two decisions expanding the definition of parent in the state.  In In the Matter of the Custody of B.M.H., the Court held that the judge-made concept of “de facto parenthood” still existed in Washington even though the legislature had subsequently recognized additional forms of families.  The Court then specifically held that former step-parents may get full parental rights over a non-biological child as a de facto parent.  In the related In the Matter of the Custody of A.F.J., the Court held that foster parents may also become de facto parents.  While the Court affirmed a four-part test to determine whether an individual had become a de facto parent, in both decisions, the Court’s key concern was whether the legal parent had consented to the arrangement.
Continue Reading Be Careful Who You Let Change the Diapers: Caregivers May Become “De Facto Parents”

International Marine Underwriters v. ABCD Marine, LLC

The IMU opinion is an interesting example of legal gymnastics.  The lead opinion engages in “interpretation” followed by “construction” – distinguishing between the two – in order to give meaning to the operative insurance policy.  It then applies Washington partnership law to ascertain the relationship between a partner and a general partnership to determine whether the partner was a “third party” and therefore entitled to coverage.  The concurring opinion simplifies the issue, although it is still far from simple, and the dissent accuses both the lead opinion and the concurring opinion of misunderstanding partnership principles.  Although not joined by a majority of justices, the lead opinion is likely to be useful precedent in other cases involving complex contract interpretation/construction issues. 


Continue Reading General Partnership Partners Are Not Third Parties For Insurance Coverage

The Washington Supreme Court recently upheld the application of a state law prohibiting individuals accused of committing “serious crimes” from possessing firearms while free on bond or personal recognizance awaiting trial.  In State v. Jorgenson, the Court concluded that public safety considerations may justify the temporary suspension of an accused individual’s right to possess firearms consistent with both the Washington Constitution, art. I, § 24, and the Second Amendment to the U.S. Constitution. 


Continue Reading Don’t Take Your Guns to Town: Washington Supreme Court Upholds Firearm Ban

Washington State Supreme Court reverses Division II in part and holds that failure to meet conditions to terminate a foreclosure sale and further appeal the trial court’s ruling constitutes a waiver of the right to challenge the foreclosure sale, but not other post-sale relief in Frizzell v. Murray, No. 87927-3.

Background and Analysis

Despite her relatively low income of $1600 a month, and despite a learning disability and dementia, Tamara Frizzell obtained from lenders a $100,000 loan secured by the $250,000 home she inherited from her late husband.  She had initially sought a $20,000 loan to pay bills, but the lenders, Barbara and Gregory Murray, convinced Frizzell that she could get a better interest rate on a $100,000 loan.  The Murrays explained that they would only loan money for business purposes, so Frizzell’s live-in friend convinced her that the two of them could launch a wheelchair and scooter business with the 40-50 wheelchairs and scooters he had stored on Frizzell’s property.  Without any business background, business plan, or any other indicia that a wheelchair/scooter business would work, Frizzell received the $100,000 loan, minus $12,000 that the Murrays retained for fees. 
Continue Reading State Supreme Court Curtails Post-Foreclosure Sale Invalidation, but Permits Other Relief

Last week the Washington Supreme Court extended a life preserver to plaintiffs who brought med mal claims against public hospitals between July 1, 2010 and December 27, 2012 without giving the hospitals 90-days presuit notice. The Court withdrew its earlier opinions in McDevitt v. Harborview and clarified that its ruling upholding the presuit notice requirement as to public hospitals would apply only prospectively. These substantive points aside, this decision also provides helpful guidance on two matters to judges and practitioners alike: (1) be precise about the scope of the holding, rule of law announced, or relief requested; and (2) don’t give up on motions for reconsideration just because they are rarely granted. More after the jump.
Continue Reading Public Hospital Med Mal Plaintiffs from the Last Three Years Can Breathe Easy

Donatelli v. D.R. Strong Consulting Engineers, Inc. [Wash. Sup. Ct. No. 86590-6]

A five justice majority in this case continued to develop the “independent duty doctrine” in Washington. That doctrine has superseded the “economic loss rule,” which previously limited recovery of economic damages to contract claims and recovery of non-economic damages to tort claims. According to the majority opinion, described in greater length below, a contracting party can have a duty in tort to another contracting party if and only if the duty is independent of the agreement. If the contract is unclear, then it must be interpreted by a trier of fact before dismissal based on the independent duty doctrine is proper. As explained by the four-justice dissent, this analysis is unnecessary to the independent duty doctrine, cannot be harmonized with the parties’ agreement, and is not supported by settled principles of contract law. Consistent with those legal principles, the dissent would limit the plaintiff to contract damages where, as here, the parties’ agreement encompasses the risk of harm that is claimed.
Continue Reading Washington Supreme Court Breaks New Ground with Independent Duty Doctrine

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Welcome to the Stoel Rives Appellate Law blog, dedicated to providing those in appellate law practices regular updates on significant decisions from courts of appeal within our regions of practice. It is our goal to build out this blog to be a handy resource for both keeping up to date on new decisions and quickly locating information about past decisions.