The Supreme Court may release one or more opinions on March 26.
Oral arguments are scheduled for the following cases.
March 24, 2009 (case briefs)
In re the Estate Borghi, No. 80925-9. Does real property purchased by a contract executed before marriage remained the separate property of the purchasing spouse even though the fulfillment deed, issued after the marriage, named both spouses? Robert and Jeannette Borghi were married in March 1975. Prior to her marriage to Mr. Borghi, Jeannette Borghi entered into a real estate contract to purchase property. After their marriage, a statutory warranty deed was issued to both Mr. and Mrs. Borghi, who lived on the property as their primary residence until 1990, and paid off the mortgage in 1999.
Jeannette Borghi died without a will in 2005. Under intestate succession, if the property were classified as “community property,” it would pass to Mr. Borghi. Arthur Gilroy, Mrs. Borghi’s son from a previous marriage, contended that the property was his mother's separate property, and should not pass to Mr. Borghi. The Court of Appeals (Div. I) held that early Washington Supreme Court precedent required a finding that the property was the separate property of Mrs. Borghi, as it was purchased prior to marriage. The court “reluctantly” ruled for Mr. Gilroy.
State v. Gonzalez, No. 81525-9. Does a second order of restitution constitute double jeopardy? This case is a direct appeal from Grant County Superior Court. In 2003 Robert Gonzalez attacked a man with a metal bar, seriously injured the man, and robbed him of his vehicle. As part of a judgment and sentence, Robert Gonzalez was ordered to pay $20,886 in restitution in June 2004. In June 2006, the prosecutor moved for further restitution in the amount of $25,561 to cover additional medical bills, paid from the crime victims fund.
Mr. Gonzalez objected to the second order of restitution, arguing it was beyond the 180 day statutory limit to seek restitution. The State argues that statute allows for modifications to the amount previously ordered by the trial court. Gonzalez also argues that the second order of restitution results in double jeopardy, and violates the Washington Constitution (Art. I, sec. 9) and the Fifth Amendment of U.S. Constitution. The State says a modification of an original judgment does not amount to a multiple punishment.
Ambach v. French County, No. 81107-5. Patient Teresa Ambach brought an action against her surgeon and hospital when her shoulder became infected after a surgical procedure and had to be fused. Her complaint included claims against Dr. French for professional negligence and violations of the Consumer Protection Act (CPA). As part of her CPA claim, Ms. Ambach alleged that Dr. French performed medically unnecessary surgeries for financial gain. The trial court ruled in favor of Dr. French and imposed sanctions against Ms. Ambach's attorneys. The Court of Appeals (Div. III) reversed the summary judgment and the attorney sanctions. The issue before the Supreme Court is whether a medical patient’s economic losses attributable to an allegedly unnecessary surgical procedure are recoverable under the Consumer Protection Act.
Justice Stephens has been excused from this case as she sat on the Court of Appeals when the case was heard.
In re F5 Networks, Inc., No. 81817-7. This case comes from the U.S. District Court for the Western District of Washington, which seeks clarification on a question of Washington law: Whether a shareholder seeking to bring a derivative action on behalf of a corporation is excused from demanding that the board of directors bring an action if such a demand would have been futile, and whether board approval or acceptance of backdated options shows futility.
March 26, 2009 (case briefs)
State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary. After the Court of Appeals (Div. I) upheld his conviction, he appealed to the Supreme Court arguing that to support a conviction for burglary, the State had to prove that Mr. Engel unlawfully entered a building, which is defined to include a “fenced area.” Mr. Engel was convicted for unlawfully entering the yard of Western Asphalt Company, which was only fenced on one-third of its border. Mr. Engel argues that a yard only partially enclosed by a fence cannot be a “building” as defined by the burglary statutes. See RCW 9A.04.110(5).
State v. McCormick, No. 81193-8. David McCormick, a 61-year-old indigent man confined to a wheelchair, regularly picked up food from the St. Vincent DePaul food bank in Everett. A trial court found that McCormick, by visiting this food bank which was located near a parochial grade school, had violated the conditions of his suspended sentence for first-degree rape of a child by frequenting a place where minors are known to congregate, and by failing to complete a sexual deviancy treatment program. McCormick denied knowing the food bank was near a grade school. Regardless, the trial court revoked his special sexual offender sentencing alternative, and ordered him to serve a 123 month sentence. The Court of Appeals (Div. I) affirmed. The question before the Supreme Court is whether the State must prove that a defendant willfully violated the conditions of his suspended sentence before the trial court can revoke the suspended sentence.
