HeadsUp for Washington State: Court Opinions From Tuesday, March 25, 2014

HeadsUp for Washington State: Court Opinions From Tuesday, March 25, 2014

Tuesday, March 25, 2014 

To view the full text of these opinions, please visit: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent or Lexis subscribers may use the links below to access the cases on either lexis.com or Lexis Advance. 

Division Two of the Court of Appeals filed 7 new published opinions and Division Three filed 2 new published opinions on Tuesday, March 25, 2014:

Division Two:

1. State v. Rice
No. 43449-1
(March 25, 2014)
2014 Wash. App. LEXIS 709 (lexis.com)

2014 Wash. App. LEXIS 709 (Lexis Advance)


Brief: The trial court erred in sentencing defendant to 48 months of probation because, under RCW 9.95.210(1)(a), a trial court may order probation only for a defendant's combined total prison sentence or 24 months, whichever is longer, and defendant received sentences that were less than 24 months.

2. State v. Hart
No. 43108-4 
(March 25, 2014)
2014 Wash. App. LEXIS 716 (lexis.com)

2014 Wash. App. LEXIS 716 (Lexis Advance)


Brief: The trial court violated defendant's rights against self-incrimination because defendant's testimony on direct examination was limited to the facts underlying the assault charge under RCW 9A.36.021(1)(c) but, over his objection, the trial court allowed the State to cross-examine defendant about his text messages to the alleged victim, the subject of his separate harassment charge under RCW 9A.46.020(1)(b); moreover, the error was not harmless because the State's cross-examination bolstered the State's weak case.

3. CalPortland Co. v. LevelOne Concrete
No. 43760-1
(March 25, 2014)
2014 Wash. App. LEXIS 710 (lexis.com)

2014 Wash. App. LEXIS 710 (Lexis Advance)


Brief: The plaintiff provided building materials to the defendant, a subcontractor working on the construction of a new Costco building. After the defendant failed to pay for the materials, the plaintiff recorded a lien against the Costco property under ch. 60.04 RCW and later filed this lawsuit. Before the lawsuit was filed, however, the general contractor on the project recorded a bond in lieu of claim under RCW 60.04.161, issued by a surety, releasing the Costco property from the lien. The trial court granted summary judgment in favor of the general contractor and surety because the plaintiff had failed to serve the summons and complaint on Costco and had not specifically requested foreclosure of the lien in its pleadings. The Court of Appeals holds that service of process on Costco was no longer necessary after the general contractor recorded the bond and that the plaintiff's complaint sufficiently identified the relief requested.

4. City of Vancouver v. Pub. Emp't Relations Comm'n
No. 43641-8
(March 25, 2014)
2014 Wash. App. LEXIS 717 (lexis.com)

2014 Wash. App. LEXIS 717 (Lexis Advance)


Brief: The Court of Appeals upholds the Public Employment Relations Commission's finding that the city of Vancouver committed an unfair labor practice by discriminating against the Vancouver Police Officers' Guild's president out of animus over his union activities.

5. Welfare of H.Q.
No. 44649-9 
(March 25, 2014)
2014 Wash. App. LEXIS 715 (lexis.com)

2014 Wash. App. LEXIS 715 (Lexis Advance)


Brief: The juvenile court violated due process under the Fourteenth Amendment because it failed to determine whether the father was capable of voluntarily relinquishing his parental rights in order to consent to adoption under Wash. Rev. Code § 26.33.295 before proceeding with the involuntary termination hearing.

6. Cook v. Brateng
No. 43683-3 
(March 25, 2014)
2014 Wash. App. LEXIS 713 (lexis.com)

2014 Wash. App. LEXIS 713 (Lexis Advance)


Brief: In a trial de novo after arbitration, the superior court found that the trustee could not compensate herself from the trust for caregiving expenses based on a breach of fiduciary duty. The sibling was awarded all of his attorney fees, and the trustee was awarded half of her requested fees. The decision was reversed on appeal, and the case was remanded to the superior court to set reasonable attorney fees for the trustee. The superior court awarded fees to the trustee under RCW 11.96A.150, and this appeal followed. On review, the Court of Appeals holds that its prior decision in this case and a denial of reconsideration did not bar the claim on appeal under either res judicata or the law of the case doctrine. RCW 11.96A.310(10) governed the superior court's fee determination following a trial de novo. The frivolity of an appeal of the arbitrator's decision was not a relevant factor in a consideration of whether RCW 11.96A.310(10)'s fees provisions applied. The trustee was the prevailing party. Fees had to first be awarded under RCW 11.96A.310(10), and the superior court could have then awarded fees under RCW 11.96A.150.

7. State v. Johnson
No. 43582-9
(March 25, 2014)
2014 Wash. App. LEXIS 708 (lexis.com)

2014 Wash. App. LEXIS 708 (Lexis Advance)


Brief: Defendant was accused of inappropriately touching a 14-year-old several times. He was convicted, and the trial court imposed a sentence. As part of his community custody, defendant was prohibited from having contact with "physically or mentally vulnerable" individuals or having computer or Internet access without court permission. This appeal followed.  The Court of Appeals holds that the community custody condition relating to "physically or mentally vulnerable" individuals was vague, and it was improper to limit defendant's computer access because there was no nexus between the Internet and his crimes.

Division Three:

1. State v. Duncan
No. 29916-3  
(March 25, 2014)
2014 Wash. App. LEXIS 706 (lexis.com)

2014 Wash. App. LEXIS 706 (Lexis Advance)


Brief: Because a sentencing court will seldom find that there is no likelihood that an offender will ever be able to pay legal financial obligations and an offender has good strategic reasons for waiving the issue at the sentencing hearing, the Court of Appeals will not consider the issue for the first time on appeal.

2. Gamboa v. Clark 
No. 30826-0 
(March 25, 2014)
2014 Wash. App. LEXIS 705 (lexis.com)

2014 Wash. App. LEXIS 705 (Lexis Advance)


Brief: In the adverse possession case, the court's finding that express permission was not given did not support a legal conclusion of adverse use, and the court's finding that the owners did not give their neighbors implied permission to use the road was not supported by substantial evidence; instead, the evidence and the trial court's other findings supported a presumption of permissive use that the neighbors failed to overcome.

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