Thursday, July 17, 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.
The Supreme Court of Washington filed 5 new opinions and Division Three of the Court of Appeals filed 2 new published opinions on Thursday, July 17, 2014:
1. FutureSelect Portfolio Management, Inc. v. Tremont Group Holdings, Inc. No. 89303-9 (July 17, 2014) 2014 Wash. LEXIS 559 (lexis.com)
2014 Wash. LEXIS 559 (Lexis Advance)
Areas: BUSINESS AND COMMERCIAL LAW; COURTS
Brief: On the claim under RCW 21.20.010, .430(1), the allegations established sufficient minimum contacts under RCW 4.28.185(1)(a) because the foreign corporation transacted business in Washington through its agent. Dismissal was improper because the contacts with Washington were sufficient to survive the dismissal motions on the choice of law issue and Washington had a more compelling interest in protecting its investors from fraud and misrepresentation under RCW 21.20.010,.430(1) than New York did under N.Y. Gen. Bus. Law art. 23-A, §§ 352-359. The trial court erred by granting the auditor's motion to dismiss because the investor met the requirement of showing that the auditor's acts were a “substantial contributive factor” to the sale under RCW 21.20.430(1).
2. In re Personal Restraint of Thomas No. 88921-0 (July 17, 2014) 2014 Wash. LEXIS 558 (lexis.com)
2014 Wash. LEXIS 558 (Lexis Advance)
Areas: COURTS; CRIMINAL LAW
Brief: The petitioner could not rely on the exception in RCW 10.73.100(6) to lift the time bar that otherwise precluded consideration of his petition filed more than one year after the judgment being attacked because the court may consider an untimely petition only when it is based “solely” on one or more of the grounds listed in RCW 10.73.100.
3. State v. Bauer No. 88559-1 (July 17, 2014) 2014 Wash. LEXIS 561 (lexis.com)
2014 Wash. LEXIS 561 (Lexis Advance)
Areas: CRIMINAL LAW
Brief: The denial of the defendant's motion to dismiss the charge of third degree assault under RCW 9A.36.031(1)(d) was improper because the State failed to make a prima facie case that the defendant’s act of leaving loaded guns around his house that were accessible to invited children “caused” the bodily harm when the gun taken to school by the child accidentally fired as he was rummaging in his backpack.
4. State v. Villanueva-Gonzalez No. 89364-1 (July 17, 2014) 2014 Wash. LEXIS 560 (lexis.com)
2014 Wash. LEXIS 560 (Lexis Advance)
Brief: The defendant's convictions of second degree assault under RCW 9A.36.021(10)(a) and fourth degree assault under RCW 9A.36.041(4) placed the defendant in double jeopardy in violation of Wash. Const. art. I, § 9 because the acts were committed against the same victim, across a short period of time, at the same location, and with the same criminal intent.
5. State v. Witherspoon No. 88118-9 (July 17, 2014) 2014 Wash. LEXIS 562 (lexis.com)
2014 Wash. LEXIS 562 (Lexis Advance)
Brief: The defendant's persistent offender sentence to life in prison without release under RCW 9.94A.570 did not constitute cruel punishment under Wash. Const. art. I, § 14 or cruel and unusual punishment under the Eighth Amendment and the defendant’s prior convictions of strike offenses were not required to be proved to a jury beyond a reasonable doubt.
Court of Appeals:
1. Department of Fish and Wildlife v. One 1999 Ford F350 Diesel Pickup Truck No. 31361-1 (July 17, 2014) 2014 Wash. App. LEXIS 1714 (lexis.com)
2014 Wash. App. LEXIS 1714 (Lexis Advance)
Areas: CRIMINAL LAW; PROPERTY AND LAND USE LAW
Brief: The trial court erred by dismissing the forfeiture action because RCW 77.15.094 allowed the Department of Fish and Wildlife to seize an item for evidence and, later, move to forfeit the item under RCW 77.15.070(1), (2) due to its use in a crime, and an evidentiary seizure does not trigger the time limitations of RCW 77.15.070(1), (2), only a forfeiture seizure triggers the time limits.
2. Mellon v. Regional Trustee Services Corporation No. 31570-3 (July 17, 2014) 2014 Wash. App. LEXIS 1715 (lexis.com)
2014 Wash. App. LEXIS 1715 (Lexis Advance)
Areas: BUSINESS AND COMMERCIAL LAW; COURTS; PROPERTY AND LAND USE LAW
Brief: Debtors did not state a per se violation of the Consumer Protection Act for the defendants’ alleged wrongful conduct relating to the forbearance agreement because the conduct did not fall squarely within the prohibition of the Foreclosure Fairness Act and the FFA did not apply retroactively. The alleged wrongful conduct was nonetheless actionable under the CPA because it was “unfair.” The debtors' action was not preempted by the federal Home Owners' Loan Act of 1933 under 12 C.F.R. § 560.2(a) because the suit did not have the functional effect of imposing new requirements on lending operations and the suit alleged an unconscionable contract for which state law has traditionally provided a remedy.
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