More Opinions from this week and last

Posted on April 22, 2011 by Trent England

Blair v. TA-Seattle East No. 176, No. 83715-5. The plaintiff, Blair, failed timely to disclose her witness list according to the discovery schedule. The trial court twice sanctioned Blair by striking some of her witnesses and imposing monetary fines, though it did not enter into the record any findings to support these decisions. Eventually, the trial court granted a defense motion for summary judgment since Blair had no medical witness who could testify to causation. Blair appealed, and the court of appeals affirmed the trial court.

The Supreme Court reverses the courts below. It holds that the trial court abused its discretion when it struck the witnesses because it did not set forth its reasons for the sanctions in the record. And because those actions were improper, the summary judgment order must be reversed as well. Justice Stephens wrote for the Court. The holding was unanimous, but Justice James Johnson wrote a concurrence to emphasize that this decision does not limit the sanctions that can be imposed by trial courts. (briefs, argument)

Schnall v. AT&T Wireless Servs., Inc., No. 80572-5. The federal government, through the Federal Communications Commission, requires AT&T and other telecommunications companies to pay into the Universal Service Fund, which subsidizes telecommunications services in certain areas. The government expressly permits companies to recover these funds from customers, which AT&T does as a "Universal Connectivity Charge" line item on customers' bills. An AT&T Wireless customer, Martin Schnall, sued, alleging that this practice by AT&T violates the Washington Consumer Protection Act (CPA) and the terms of AT&T's customer contract. Schnall asked the trial court to certify a nationwide class; the trial court denied class certification; Schnall appealed. The court of appeals reversed the trial court and certified the class.

AT&T's customer contracts include a choice of law provision requiring customers to litigate contract issues in the jurisdiction where the contract was signed. The trial court found no reason to invalidate this contract term, thus it declined to certify a nationwide class on Schnall's contract claim. The Supreme Court agrees with the trial court and reverses the court of appeals. On the state CPA claim, the Court affirms the court of appeals, noting that the trial court's decision predated the Supreme Court's opinion in Indoor Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc. The case is remanded to the trial court.

The Chief Justice wrote for the Court and was joined by four other justices. Justice chambers wrote a concurrence in part, but also agreed with Justice Pro Tem. Sanders's dissent that the majority failed to consider factors weighing in favor of certifying the national class. Justice Owens and Stephens also signed the dissent. (briefs, argument)

State v. Robinson, No. 83525-0. In these consolidated appeals, two criminal defendants challenged the admissibility of evidence used against them at trial. Both defendants first raised the issue on appeal after the decision of the Supreme Court of the United States in Arizona v. Gant. That case narrowed the exception to the warrant requirement for automobile searches incident to an arrest. The State Supreme Court holds for both defendants and remands their cases.

We hold that principles of issue preservation, as embodied in RAP 2.5(a), do not apply where (1) a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation. As these criteria are met in both Millan's and Robinson's cases, their raising the admissibility of evidence under Gant and Patton for the first time before the Court of Appeals and this court, respectively, are permissible.

Justice Owens wrote for the seven-member majority. The Chief Justice wrote a dissent, which was joined by Justice James Johnson. (briefs, argument)

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New cases accepted for review

Posted on February 10, 2010 by Michael Reitz

The Supreme Court granted several petitions for review during its February 9 conference.

  • State v. Robinson, No. 83525-0
  • State v. Barber, No. 83640-0
  • State v. Coucil, No. 83654-0
  • Jackowski v. Hawkins Poe, Inc., No. 83660-4
  • Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6
  • State v. Millan, No. 83613-2
  • State v. Ford, No. 83617-5
  • City of Seattle v. May, No. 83677-9
  • State v. Martin, No. 83709-1
  • Blair v. TA-Seattle East #176, No. 83715-5
  • Hardee v. DSHS, No. 83728-7

State v. Robinson, No. 83525-0. Michael Robinson was convicted of residential burglary, theft of a firearm, first degree unlawful possession of a firearm, first degree theft, and unlawful possession of methamphetamine while armed with a firearm. He appealed, and the Court of Appeals (Div. 2) reversed his conviction for unlawful possession of methamphetamine while armed with a firearm conviction, while affirming the remaining convictions. The Supreme Court has agreed to review only the issue of whether police conducted a lawful search.

State v. Barber, No. 83640-0. Danny Barber pleaded guilty, pursuant to a plea agreement, to felony driving under the influence of intoxicants. The trial court sentenced him to 51 months of confinement, with no community custody. Subsequently, the Department of Corrections informed the court that a mandatory term of 9 to 18 months of community custody applied to Barber’s crime of felony DUI, but DOC recommended no community custody. The court stated it was not bound by a plea agreement and modified Barber’s judgment and sentence to add a term of 9 to 18 months of community custody. The Court of Appeals (Div. 2) held that the trial court had the authority to modify the sentence.

State v. Coucil, No. 83654-0. Nikeemia Coucil was arrested and charged with felony harassment after threatening to kill Paul Carlson. He failed to appear at a hearing on the charge. Eventually arrested and convicted of a lesser charge of misdemeanor harassment, Coucil was also convicted of bail jumping. Coucil argued that as he was convicted of a misdemeanor, his bail jumping conviction should have been sentenced as a misdemeanor. The Court of Appeals (Div. 1) disagreed, holding that for sentencing purposes bail jumping is classified according to the underlying charge at the time the defendant jumps bail—not according to the ultimate conviction.

Jackowski v. Hawkins Poe, Inc., No. 83660-4. Timothy and Eri Jackowski purchased a waterfront home in Mason County in 2004. Following landslide damages to the house, the Jackowskis sued the seller, the seller’s agent, and their own real estate agent, alleging fraud and misrepresentation. The trial court granted summary judgment in favor of the defendants. The Court of Appeal (Div. 2) affirmed in part and reversed in part, dismissing all claims against the seller’s real estate agency, reinstating the purchaser’s statutory and common law claims against their own agent, and reversomg dismissal of the breach of contract claims against the sellers as they were not properly before the trial court. The Supreme Court granted the petitions for review of both the sellers and the purchaser’s agent.

Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6. Although a fire district asserted it was not equipped to serve more new structures, the county’s comprehensive development plan stated the fire district was able to provide adequate services based on its current taxing abilities. As a result, a hearing officer determined the fire district was precluded from asserting a lack of ability to do so on a project by project basis. The superior court reversed. The Court of Appeals (Div. I) ruled against the fire district and reinstated the permit approvals, holding that the evidence was substantial and sufficient to support the examiner’s finding that fire district had capacity to provide services to new developments.

State v. Millan, No. 83613-2. Defendant Francisco Millan was convicted of first degree unlawful possession of a firearm. Police had responded to a report that a man and woman were fighting in a car. The police arrested Millan and seized the firearm they found during the search of the vehicle incident to his arrest. On appeal, Millian argued that under Arizona v. Gant the search of his vehicle was unlawful. The Court of Appeals (Div. 2) held that Millan had waived his right to appeal the adminssion of evidence seized during the search by failing to file a motion to suppress. The Supreme Court is consolidating this case with State v. Robinson, No. 83525-0.

State v. Ford, No. 83617-5. Tyrone Ford was convicted of second and third degree child rape. The different degrees reflected that the victim was 13 years old during the first incident and 14 years old during the second incident. The Court of Appeals (Div. 2) reversed the first count but upheld the conviction for third degree child rape. The Court held that sending the jury back to the jury room to fill in a blank verdict form relating to second degree rape charge was manifest error affecting defendant’s right to fair trial; the trial court did not err by allowing state to amend alleged dates of charged incidents in information to conform to proof at trial; statements by two prospective jurors about their experiences with sexual abuse did not violate defendant’s right to impartial jury; and defense counsel did not perform deficiently in connection with prospective jurors’ discussions of those experiences.

City of Seattle v. May, No. 83677-9. Robert May was convicted for violation of a permanent domestic violence protection order. The Court of Appeals (Div. 1) held the order was facially valid.

State v. Martin, No. 83709-1. Timothy Martin was convicted of kidnapping and robbery charges. On appeal, Martin argued that the prosecutor’s questions concerning his opportunity to tailor his testimony to the evidence introduced at trial infringed his rights under article I, section 22 of the Washington Constitution to be present at trial, to meet witnesses face to face, and to testify in his behalf. The Court of Appeals (Div. 1) disagreed, noting that the federal constitution permits a jury to consider a defendant’s opportunity to tailor testimony, and that the questions were allowable under the Washington Constitution.

Blair v. TA-Seattle East #176, No. 83715-5. Maureen Blair, a commercial truck driver, was injured when she slipped and fell in a puddle of spilled gasoline at truck stop. She sued the truck stop operator. The trial court struck several of Blair’s witnesses, including her expert medical witnesses, as a sanction for Blair’s willful violations of the trial court’s discovery orders. The Court of Appeals (Div. 1) held that the trial court acted within its discretion. As causation could not be established without expert medical testimony, the trial court properly dismissed the case in the truck stop’s favor.

Hardee v. DSHS, No. 83728-7. The Department of Early Learning revoked Kathleen Hardee’s license to operate a home daycare after the Department learned that Hardee’s 19-year-old son was accused of molesting a child he was babysitting. (The child did not attend the daycare and the incident did not take place at the daycare.) In revoking Hardee’s license, the Department cited a number of other incidents involving her son. The Court of Appeals (Div. 1) affirmed the revocation.
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