Court of Appeals to hear local cases at Sequim High School February 12th

Sequim, WA - 1/7/03 - In a community visit on Wednesday, February 12th, the Washington State Division Two Court of Appeals will hold court in Sequim High School's auditorium, hearing arguments in a total of six cases throughout the day.

"We're delighted to be hearing local Clallam and Jefferson County cases at Sequim High School," said Chief Judge J. Robin Hunt of the visit. "We hope to provide the students and the greater community with a valuable educational experience and a first-hand knowledge of how Washington's appellate courts operate."

Starting at 8:30 a.m., Chief Judge Hunt and Judges David Armstrong and J. Dean Morgan will hear arguments on the following cases (case summaries follow) before students, teachers and observers:

· No. 27948-7, C. EDWARD AND BECK J. UPTON v. JEANINE GOFF, NAN KENTON
· No. 28721-8, STATE OF WASHINGTONT V. JEREMY K. HARFORD
· No. 28477-4, STATE OF WASHINGTON v. CHARLES ALEX NALL
· No. 28781-1, MIKE BELENSKI v. JEFFERSON CO DISTRICT COURT ET AL.
· No. 27947-9, GORMLEY MARINE TRANSPORT v. CAROLYN BROCKMEIER
· No. 28486-3, BRADLEY JEVONS V. STATE OF WASHINGTON

The Court will hear argument on the first three cases in the morning hours, recessing for lunch at 11 a.m., when they will meet with students over lunch in the cafeteria and be available to answer their questions. The court will reconvene at noon to hear argument on the last three cases of the day. Throughout the day, the court will try to provide opportunities for students to ask questions between cases as time permits.

Division Two of the Washington State Court of Appeals has made community visits throughout its geographic area since 1993, most recently hearing cases at Peninsula College School in October. The court hears appeals from trial courts throughout Western Washington, Pierce County south to the Oregon border and the Olympic Peninsula, and has the authority to overrule, remand, or modify or affirm decisions of the lower courts.

For media interviews with judges participating in this visit, contact the number listed above prior to the event or Chief Judge Hunt at the number listed below.

CONTACT: Chief Judge J. Robin Hunt, Court of Appeals Division II, 253-593-2976.

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Division Two Case Summaries
Wednesday, February 12, 2003
J.j. Hunt, Morgan, Armstrong
Sequim High School
Sequim, Washington

8:30 AM
No. 27948-7, C. EDWARD AND BECK J. UPTON, RESPONDENTS v. JEANINE GOFF, NAN KENTON ET AL, APPELLANTS

Nature of Case:
Civil appeal of motion for summary judgment based on the issues below

Facts: In June 1994, Cascade Investment Properties ("Cascade") recorded the Lone Pine Acres plat with the Clallam County Auditor, including six lots capable of residential development. It also filed a Declaration of Easement with Covenants and Restrictions Affecting Land, which (1) created a Lot Owners Association ("Association"); (2) gave the Association a perpetual, non-exclusive easement for ingress, egress, and utilities; and (3) empowered the Association to, among other things, maintain and improve the easement, regulate its use, and grant additional easements. Cascade placed a "water system" on this easement, essentially a large well with metered water lines running to the six residential lots. Cascade did not reserve an express easement for the system.

Cascade sold the five of the six residential lots between May 17, 1994 (sales to Goff, Kenton, Connely, Lyster, and Upton. Cascade also sold "water share certificates" for $4,000 to lot purchasers deciding to use the water system. Each certificate stated that it "entitles one (1) metered water share for residential use," signed by Cascade. Some sales documents described the "water share" as a "hook-up fee" or stated that no shares in a water company were sold. In Water Facilities Inventories filed with the Clallam County Department of Health since 1994, Cascade has named itself as "owner" of the system.

From the time lot owners purchased their lots and water shares, they paid monthly water fees to Cascade. But Cascade sold its remaining interest in the water system, including the "pump house, well, distribution lines, and meters," to the Uptons for $2,000 on December 17, 2000. The instrument does not appear to transfer any interest in land.

Then, the other lot owners, defendant-appellants in this action ("lot owners" or "Association"), decided to hold their first lot owners' association meeting on December 21, 2000, the minutes of which reflect their decision to declare ownership of the water system. The Association, purporting to be the true owner, changed the locks on the pump house and denied the Upton's access to the system.

The Uptons sued (1) to quite title to the water system, (2) to enjoin the Association from interfering with the system, and (3) for damages on trespass and conversion theories. Members of the Association responded that title should be quieted in them. On cross-motions for summary judgment, the Uptons prevailed. The other lot owners appeal.

Issues:
1. Did the trial court err in denying summary judgment to the lot owners because their water share certificates entitled them to a fractional interest in the water system?
2. Did the trial court err in denying summary judgment to the lot owners because the water system was an improvement to, and thus became part of, the Association's real property?
3. Did the trial court err in granting summary judgment to the Uptons because a material issue of fact exists as to whether the water system was a fixture to their land?

No. 28721-8, STATE OF WASHINGTON, RESPONDENT V. JEREMY K. HARFORD, APPELLANT

Nature of Case:
Appeal from convictions of second- and third-degree assault and from his exceptional sentence.

Facts: On December 26, 2001, Bettina McMasters, Michael Ingram, and Jeremy Harford were at McMasters' home in Jefferson County, Washington, hanging out and talking. Ingram had his dog, Monte, with him. At one point Masters took a long nap, but awoke to hear Ingram and Harford arguing and to see Harford hit Monte with his fists. When Ingram leaned over to grab Monte, Harford hit Ingram in the face, knocking him down. Harford then grabbed Ingram's head and banged it into the floor. When McMasters tried to pull Harford off Ingram, Harford struck her as well. Harford then went back to Ingram and began kicking him. Ingram crawled outside to the driveway, but Harford followed him, kicking him repeatedly. McMaster yelled at Harford to leave, which he eventually did.

While McMasters was attending to Ingram's wounds, Harford came back to the driveway area and resumed kicking and assaulting Ingram. After McMasters yelled at Harford again, he ran at her and began assaulting her, leaving a short time later.

Deputies Tracer and Apeland, from the Jefferson County Sheriff's Department responded to McMasters's 911 call. McMasters related the evening's events to Tracer, who observed Ingraham's facial injuries. The deputies took McMaster to Harford's trailer so that she could identify him. Tracer and Apeland entered the residence and tried to wake Harford. The deputies observed blood around Harford's mouth and a strong odor of alcohol. When he awoke, the deputies gave Harford Miranda warnings and handcuffed him.

Harford began to resist and began kicking at the deputies. Harford head butted the patrol car several times and made obscene statements. As Tracer tried to put Harford in Apeland's patrol car, Harford intentionally hit his own head on the door frame of the car. During the entire drive to the jail, Harford made spontaneous statements to Apeland.

A jury convicted him of second- and third-degree assault.

Issues:
1. Did the trial court err by admitting evidence of Harford's behavior and statements he made to the deputies after he was arrested?
2. Did the trial court err by admitting testimony about the prosecution's difficulty in obtaining a witness for trial?
3. Did the trial court err by not reopening the case to admit additional testimony?
4. Did the trial court err by prohibiting Harford from testifying about specific acts of Ingram's violence?
5. Is Harford entitled to a new trial because of cumulative error?
6. Did the trial court erred by imposing an exceptional sentence based on multiple acts or incidents?

10:00 AM

No. 28477-4, STATE OF WASHINGTON, APPELLANT v. CHARLES ALEX NALL, RESPONDENT

Nature of Case:
Criminal appeal of an order suppressing evidence seized from the defendant.

Facts
Nall was convicted of a felony in Multnomah County, Oregon. Subsequently, he appeared in the Multnomah County Circuit Court for a probation violation. The court entered an order and judgment revoking his probation. On March 31, 2000, a warrant was issued for Nall's arrest by the "local supervisory authority" on the motion and affidavit of the parole officer. This procedure does not involve the court, but is lawful in Oregon.

Nall later appeared in the Multnomah County Circuit Court on a different matter but the court also signed an order terminating probation. Due to clerical error, the March 31, 2000 warrant was not quashed. Both parties agree that the warrant should have been quashed.

On November 5, 2001, Clallam County received a fax from the Multnomah County Sheriff requesting service of the March 31, 2000 warrant. After receiving erroneous information verifying that the warrant was valid, deputies arrested Nall at his Clallam County home. In the search incident to that arrest, the deputies discovered methamphetamine.

The State appeals.

Issue:
1. Were the arresting officers justified under RCW 10.88.330 in arresting Nall and in undertaking a search incident to that arrest when the warrant providing the basis for the arrest should have been quashed?

12:00 PM

No. 28781-1, MIKE BELENSKI, APPELLANT v. JEFFERSON CO DISTRICT COURT ET AL, RESPONDENTS

Nature of Case:
Civil appeal of the trial court's ruling that respondent county did not violate the Public Disclosure Act (PDA) and that the appellant was not entitled to relief in three of four consolidated lawsuits.

Facts
Mike Belenski sought disclosure under the Public Disclosure Act of: (1) a list containing the phone numbers of each phone line in the Jefferson County District Court; (2) itemized telephone bills from the Jefferson County District Courtroom and District Judge Mark Huth's Chambers; (3) the Jefferson County policy regarding Open Records Act requests; and (4) the Jefferson County policy regarding the removal of people from the courtroom in order to search them. When the County failed to provide him with the requested public records, Belenski filed four separate actions against Jefferson County. The trial court found Jefferson County in violation of the Public Disclosure Act on one of the four claims.

Issues:
1. Did the County respond to Belenski's public record requests within the statutory time requirement?
2. Does substantial evidence in the record support the findings of fact?
3. Is Belenski entitled to costs, reasonable attorney fees, and a minimum statutory award as permitted under RCW 42.17.340(4)?

No. 27947-9, GORMLEY MARINE TRANSPORT, RESPONDENT v. CAROLYN BROCKMEIER, APPELLANT

Nature of Case:
Civil appeal of summary judgment in favor of Gormley Marine Transport on legal malpractice claim.

Facts
Gormley Marine Transport, Inc. sued Albert Lee and Carolyn Brockmeier for legal malpractice. The Brockmeiers counterclaimed against Gormley Marine Transport, Inc., Willis F. Gormley and Leslie Gormley, husband and wife for unpaid legal fees, defamation, harassment, and emotional distress.

Gormley filed a motion for summary judgment and sent notices of this motion to the Brockmeiers. During a telephonic conference, Carolyn was on the line, but Albert was not present. Carolyn requested a continuance because Albert had suffered a heart attack and was unable to travel to Washington. (Albert lived in California.) At this conference, Gormley's attorney moved to depose Albert. Carolyn was not aware of this "surprise motion." Carolyn also argues that Albert was not aware of this motion as well. Carolyn notified the court that she could not consent to the deposition on Albert's behalf. According to Carolyn, the court predicated its granting of a continuance upon Gormley's "off the cuff request for a deposition in the State of Washington from Mr. Brockmeier."

The deposition was set and notices were mailed. Carolyn received Albert's notice and vice versa. (Carolyn and Albert lived in California at this time.) Carolyn and Albert did not appear for the deposition. The Gormley's moved for summary judgment, which the court granted. The Brockmeiers appeal.

Issues:
1. Did the trial court err in compelling out of state residents to travel to the State of Washington for a deposition?
2. Did the trial court err in hearing a motion for a deposition, during a hearing for a continuance, when defendants were not notified of the motion prior to the hearing and one of the defendants could not be present and was not represented?
3. Did the trial court err in not considering the invalidity of service of the Notices to Appear for Deposition?
4. Did the trial court err in granting summary judgment?

1:30 PM

No. 28486-3, BRADLEY JEVONS, APPELLANT V. STATE OF WASHINGTON, v. RESPONDENT

Nature of Case:
Civil appeal from an order granting summary judgment dismissal of Jevons' personal injury case against the State following injuries Jevons sustained while performing contract work.

Facts:
The Department of Transportation hired Wilder Construction to build a bridge on SR 101. Bradley Jevons worked for Wilder Construction operating a Bidwell paving machine. One day, Jevons jumped off the Bidwell onto the plywood deck of the incomplete bridge, fell through the deck, and was seriously injured when he landed about 75 feet below. The beams supporting the deck did not conform to Wilder's construction plan, which the department had approved.

Jevons sued the Department for negligence. The trial court granted summary judgment for the Department, ruling that the Department did not owe a duty to Jevons. Specifically, the court found that the Department was not liable as a landowner, that it did not retain control over Wilder's work and was not liable under common law, and that it did not have supervisory authority over Wilder's work sufficient to invoke Washington Industrial Safety and Health Act (WISHA) liability. RCW 49.17. On appeal, Jevons challenges only the trial court's finding that the Department was not liable under common law and WISHA.

Issues:
1. Has a landowner who inspects a contractor's work for contract compliance, and who actually intervenes with the contractor's work with respect to safety and construction methods, retained sufficient control over the workplace to give rise to a common law duty to provide a safe workplace for the contractor's employees?
2. Has a landowner who undertakes to inspect its contractor's work for compliance with the contract, and who actually intervenes with the contractor's work with respect to safety and construction methods, retained sufficient supervisory authority to give rise to the specific duty to ensure compliance with WISHA regulations for the benefit of the contractor's employees?