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wash/1043818.json

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+"{\"id\": \"1043818\", \"name\": \"In the Matter of the Personal Restraint of Parker Charles Stanphill, Petitioner\", \"name_abbreviation\": \"In re the Personal Restraint of Stanphill\", \"decision_date\": \"1996-08-29\", \"docket_number\": \"No. 15518-8-III\", \"first_page\": \"1076\", \"last_page\": \"1076\", \"citations\": \"82 Wash. App. 1076\", \"volume\": \"82\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T23:40:20.382353+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Personal Restraint of Parker Charles Stanphill, Petitioner.\", \"head_matter\": \"[No. 15518-8-III.\\nDivision Three.\\nAugust 29, 1996.]\\nIn the Matter of the Personal Restraint of Parker Charles Stanphill, Petitioner.\", \"word_count\": \"33\", \"char_count\": \"229\", \"text\": \"Petition for relief from personal restraint. Granted in part by unpublished per curiam opinion.\"}"

wash/1045497.json

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+"{\"id\": \"1045497\", \"name\": \"The State of Washington, on the Relation of Edmond Meany Hotel, Inc., Appellant, v. The City of Seattle et al., Respondents, University District Parking Associates, Inc., Intervenor\", \"name_abbreviation\": \"State v. City of Seattle\", \"decision_date\": \"1965-05-27\", \"docket_number\": \"No. 37321\", \"first_page\": \"329\", \"last_page\": \"338\", \"citations\": \"66 Wash. 2d 329\", \"volume\": \"66\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:12:36.427828+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, on the Relation of Edmond Meany Hotel, Inc., Appellant, v. The City of Seattle et al., Respondents, University District Parking Associates, Inc., Intervenor.\", \"head_matter\": \"[No. 37321.\\nDepartment Two.\\nMay 27, 1965.]\\nThe State of Washington, on the Relation of Edmond Meany Hotel, Inc., Appellant, v. The City of Seattle et al., Respondents, University District Parking Associates, Inc., Intervenor.\\nBogle, Bogle & Gates, Frank L. Mechem, Ronald E. Mc-Kinstry, and Peter D. Byrnes, for appellant.\\nA. L. Newbould and Gordon F. Crandall, for respondents.\\nMcCune & Godfrey, C. M. McCune, John A. Godfrey, and Virginia B. Lyness, for intervenor.\\nReported in 402 P.2d 486.\", \"word_count\": \"2739\", \"char_count\": \"16756\", \"text\": \"Weaver, J.\\nRelator, Edmond Meany Hotel, Inc., contracted to sell its 14 story hotel (hereafter designated as \\\"Meany\\\") in the University District of Seattle to Swedish Retirement Home, Vasa, Order of America, Inc. The earnest money receipt and agreement discloses that the purchaser intends to convert the hotel to a \\\"Facility for Retired Senior Citizens.\\\" The agreement is contingent upon securing the \\\"approval by the appropriate state, county and municipal authorities for the use of the premises and property as a retirement home for the elderly.\\\"\\nWhen constructed in 1931 the Meany conformed to the then existing zoning ordinance of the City of Seattle as to both use (the purpose for which the building is designed) and bulk (the size and location of the building in relation to the lot). The two lower floors, which cover the lot area, contain a lobby, dining and banquet rooms, coffee, barber and tobacco shops, and other commercial businesses. Hotel accommodations are in the tower, which rises from the first two floors, but which covers only a portion of the ground floor building. Since its construction the building has been operated as a commercial hotel, although the record discloses that it has a rather high percentage of \\\"permanent residents.\\\"\\nIn 1957 the city adopted the present Seattle Zoning and Platting Code, under the provisions of which the Meany is located in a BC (Community Business) zone. (All citations herein are to this Code.) Under the new ordinance \\\"hotels\\\" and \\\"homes for the retired\\\" are \\\"permitted outright.\\\" \\u00a7 26-.30.020. However, \\u00a7 26.30.110 limits the bulk of buildings in BC zones to 60 feet in height with two exceptions, neither of which is applicable. Thus, under the existing ordinance, the Meany, as a hotel, is conforming as to use but noncon forming as to bulk, for its 14 stories rise more than 60 feet.\\nHaving negotiated the sale to which we have referred, Meany submitted plans and specifications for both interior and exterior modifications of the building and requested a use permit. The proposed exterior modification consists of enclosing the fire escape from the foot of the tower to the top floor of the tower. Eventually, Meany was advised that a variance of the zoning ordinance must be secured. Its request for a variance having been denied by the appropriate municipal authorities, Meany commenced this action for a writ of mandamus directed to the city and its superintendent of buildings directing them\\nto issue . a use permit without requiring a variance for the conversion of the hotel building to a home for the retired.\\nAt trial, the court granted Meany's motion to strike from its application and affidavit in support of a writ of mandamus reference to a \\\"home for the retired\\\"; and to amend so that the proceeding\\nbe an application for a use permit to perform the proposed changes without requiring a variance . . . without specifying that it be as a \\\"home for the retired,\\\" within the meaning of the ordinance or not.\\nThe University District Parking Associates, Inc., which owns property abutting the property owned or controlled by Meany, was, over objection, permitted to intervene. Meany appeals from a judgment dismissing with prejudice its application for a writ of mandamus.\\nFundamentally, this dispute arises from a difference in focus and emphasis. Each party enters the legalistic maze of the zoning ordinance at different places, follows different routes, and arrives at a different enclosure. It is our province to take a bird's-eye view of this labyrinth.\\nThe city and intervenor contend that: (1) the new use of the Meany constitutes it a \\\"home for the retired,\\\" not a \\\"hotel\\\"; (2) a building used as a \\\"home for the retired\\\" is a \\\"building or part, residential\\\"; (3) a building put to a \\\"residential use\\\" in a BC zone must meet the yard requirements of the ordinance; (4) the Meany does not meet the yard requirements of the ordinance; and, therefore, (5) the use permit cannot issue under the zoning ordinance as a matter of law. Basically, Meany urges the negative \\u2014 (1) (a) the proposed use of Meany is that of a \\\"hotel\\\" rather than a \\\"home for the retired,\\\" and (b) a \\\"hotel\\\" is specifically excluded from meeting the yard requirements; or (2) even if Meany be a \\\"home for the retired,\\\" a \\\"home for the retired\\\" is not a \\\"residential building\\\" and thus need not meet the yard requirements; or (3) the Meany has a right to the use permit as a matter of law by virtue of the ordinance which allows a \\\"building nonconforming as to bulk\\\" to make certain alterations.\\nSince Meany is now in a Community Business Zone, many of the problems of the instant case are governed by chapter 26.30 of Seattle's Zoning Code. We set forth the applicable provisions. (Except where the source is otherwise identified, italicized words are defined in chapter 26.06 of the Code.)\\n\\u00a7 26.30.020 Principal uses permitted outright. The following Uses: . . . Hotels . . . [and] Homes for the Retired .\\n\\u00a7 26.30.010 Required conditions. All Uses permitted in this Zone shall be subject to the following conditions:\\n[ (a) through (f) not applicable]\\n(g) Other required conditions specified in this chapter . . . (Italics in (g) ours.)\\n\\u00a7 26.30.110 Bulk regulations \\u2014 Height of buildings. No Building shall exceed a height of sixty (60) feet, except . . . [exceptions not applicable] .\\n\\u00a7 26.30.120 Bulk regulations \\u2014 Lot area.\\n(a) No minimum Lot Area requirements for non-residential Buildings.\\n(b) Lot Area requirements for Residential Buildings or Residential Parts shall be as provided in Section 26.24.110.\\n\\u00a726.30.130 Bulk regulations \\u2014 Required yards. Each Lot shall, have Side and Rear Yards of not less than the depths and widths as follows, except . . . [exception not applicable].\\nFront Yards: None required for non-residential Buildings. Ten (10) feet for Residential Buildings or Residential Parts.\\nSide Yards: None required for non-residential Buildings. Side Yards for Residential Buildings or Residential Parts shall be as provided in Section 26.26.100.\\nRear Yard: None required for non-residential Buildings. Rear Yards for Residential Buildings or Residential Parts shall be as provided in Section 26.16.100.\\n\\u00a7 26.30.140 Bulk Regulations \\u2014 Lot coverage. No Lot Coverage limitations for non-residential Buildings. Residential Buildings or Residential Parts shall not occupy more than forty per cent of a Lot, except as modified in Sections 26.44.140 [comer lot] and 26.44.150 [accessory building].\\nIn summary, uses permitted outright (as distinguished from uses permitted conditionally) in a BC zone include \\\"hotels\\\" and \\\"homes for the retired,\\\" subject to the conditions specified in chapter 26.30. Among the conditions specified are four relating to the bulk of buildings. The first \\u2014height\\u2014applies to all buildings. The other three conditions \\u2014 lot area, lot coverage, and required yards \\u2014 do not apply to nonresidential buildings, but are a requirement for residential buildings and residential parts.\\n(1) This brings us to the first major question. During the long history surrounding this controversy the proposed use of Meany has been called a \\\"Home for the Elderly,\\\" a \\\"retirement home for the elderly,\\\" a \\\"home for retired persons\\\" and a \\\"hotel for senior citizens,\\\" besides the two uses (\\\"hotel\\\" and \\\"home for the retired\\\") specified in the zoning ordinance. Rather than spring to the conclusion that the potential purchaser's intended use of Meany would make it a \\\"home for the retired\\\" or a \\\"hotel\\\" within the meaning of the zoning ordinance, we summarize the record and examine the definitions set forth in the zoning ordinance.\\nThe chairman of the board of directors of the prospective purchaser testified (and his affidavit is also a matter of record although a portion of it was stricken at trial) that: (a) the retail shops (on the first and second floors) are to be \\\"left in there in their present operation\\\"; (b) the purchaser\\nwill offer to provide the dining room and other lobby space for public use provided that satisfactory arrangement can be worked out with the responsible community groups that will guarantee the feasibility of such arrangement for dining room and public meeting areas .\\n(c) the purchaser's operation of the building will not \\\"cater to transient guests as a hotel would\\\"; (d) an additional dining facility will be provided for those living in the building; (e) an infirmary is to be installed and incidental medical care will be provided for the permanent guests when it becomes necessary; (f) applicants for permanent residence must be 62 years of age, ambulatory, make a substantial initial payment as well as monthly payments. They will then be entitled to life-long accommodations and services as provided.\\nTurning to the ordinance, we find that \\u00a7 26.06.090 defines a \\\"hotel\\\" as\\nA Building in which at least fifty (50) per cent of the gross habitable Floor Area is used for sleeping. Section 26.06.090 defines a \\\"home for the retired\\\" as\\nAn establishment operated for the purpose of providing domiciliary care for a group of persons who by reason of age are unable to provide such care for themselves and who are not in need of medical or nursing treatment except in the case of temporary illness.\\nThe ordinance must receive a reasonable construction and application in order to serve its general purpose and scope as expressed in \\u00a7 26.02.020.\\nGeneral Purpose and Scope. The general purpose of this Title is to protect and promote public health, safety, morals, and general welfare through a well-considered comprehensive plan for the Use of land. . . .\\nIts provisions are designed to provide adequate light, air, and access, to secure safety from fire and other dangers, and to avoid excessive concentration of population, in order to lessen traffic congestion, and to facilitate adequate provisions for transportation, water, sewerage, schools, parks, and other public requirements.\\nIn interpretation and application, the provisions of this Title are minimum requirements. \\u00a7 26.02.020.\\nWe would be more than naive, in view of the testimony and the ordinance definitions, should we conclude that the proposed use of the Meany constitutes it a \\\"hotel\\\" merely because at least 50 per cent of the gross habitable floor area is to be used for sleeping. Meany argues that the persons occupying a \\\"home for the retired\\\" must be \\\"unable to provide such [domiciliary] care for themselves\\\" and that the only evidence is that the prospective residents are able to provide such care but do not wish to do so. (italics ours.) In order to give the definition of \\\"home for the retired\\\" a meaning which is consistent with the purposes of the zoning ordinance, we interpret the word \\\"unable\\\" to mean \\\"not desiring but financially capable of\\\" providing such care. Any other interpretation would write out of the ordinance its intended meaning of a \\\"home for the retired.\\\"\\n(2) The second problem concerns whether a \\\"home for the retired\\\" is a \\\"building or part, residential.\\\" Section 26.06.030 defines a \\\"building or part, residential\\\" as\\nA Building or building part containing solely one or more Dwelling Units or a Building or building part occupied or intended to be occupied in whole for sleeping or living purposes, including Hospitals, Sanitariums and similar uses, but not including Motels or Hotels. [The terms italicized are specifically defined in the ordinance.)\\nAs we have previously pointed out, the yard requirements apply only to \\\"residential buildings or parts\\\"; the requirements are not applicable to nonresidential buildings. \\u00a7 26-.30.130. We must set forth one more definition. Section 26.06.050 defines \\\"dwelling unit\\\" as\\nA room or suite of two or more rooms that is designed for and not occupied by more than one Family doing its own cooking therein and having only one kitchen facility, located within a Building.\\nBy working backward through the definitions it is possible to conclude that the contemplated use of Meany would not be a \\\"building or part, residential.\\\" To illustrate \\u2014 before there can be a \\\"dwelling unit\\\" as defined above, there must be a \\\"room or suite of rooms that is designated for and not occupied by more than one Family doing its own cooking and having only one kitchen facility .\\\" Since there would be no kitchen facilities for each room or suite of rooms in the contemplated use of Meany, then such room or suite of rooms can not be a \\\"dwelling unit\\\" within the meaning of the zoning ordinance. If there be no \\\"dwelling unit,\\\" there can be no \\\"building or building part containing solely one or more dwelling units,\\\" and thus no \\\"building or part, residential.\\\"\\nHowever, Meany overlooks the fact that the ordinance is written in the disjunctive. A \\\"building or part, residential\\\" is also defined as a \\\"building part occupied or intended to be occupied in whole for sleeping or living purposes . . . \\\" (Italics ours.) Certainly the contemplated use of Meany envisions a \\\"building part . . . to be occupied in whole for sleeping or living purposes.\\\"\\nAlthough not controlling, we believe it significant that the definition of \\\"building or part, residential\\\" does not exclude a \\\"home for the retired\\\" as it excludes \\\"motels\\\" and \\\"hotels.\\\" This fortifies our conclusion that it is the intent of the ordinance that a \\\"home for the retired\\\" is a \\\"building or part, residential.\\\"\\n(3) The third step is that a building put to a \\\"residential use\\\" must meet certain yard requirements of the ordinance. See \\u00a7 26.30.130, quoted supra.\\n(4) All parties to this action concede that Meany does not meet the yard requirements for a \\\"residential building or part\\\" specified in \\u00a7 26.30.130.\\n(5) Therefore, as a matter of law, Meany is not entitled to a use permit.\\nDespite the above analysis, Meany contends that it has a right to change uses by virtue of \\u00a7 26.10.030 and \\u00a7 26.10.040. As we have previously pointed out, Meany, as a hotel, is a building conforming as to use but is now nonconforming as to bulk because of its height.\\nSection 26.10.030 provides:\\nNonconforming uses and buildings \\u2014 Continuing existing use. Any Nonconforming Building or Use may be continued, subject, however, to provisions of Sections 26.10-.040 through 26.10.060.\\nThus there can be no doubt that Meany may continue its use as a \\\"hotel.\\\"\\nSection 26.10.040 provides:\\nNonconforming uses and buildings \\u2014 Nonconforming as to bulk. Any Building conforming as to Use but which is a Building Nonconforming as to Bulk as of the effective date of this title may be altered, repaired or extended, provided that such alteration, repair or extension does not cause such Building to further exceed the bulk provisions of this title.\\nWe agree that the requested interior and exterior modifications do \\\"not cause such Building to further exceed the bulk provisions\\\" of the ordinance; hence, as a hotel, Meany would be entitled to a use permit to modify the building.\\nFrom these two sections, Meany springs to the conclusion that\\neven if the proposed operation is classified as a Home for the Retired rather than a Hotel, Appellant [Meany] has an affirmative right under the Ordinance to make such use of its property.\\nWe do not agree. We adopt the succinct reasoning of the trial judge set forth in his memorandum opinion:\\nThis building is a nonconforming building because it is too high. Under the law, it could not be rebuilt without a variance. Construing all the provisions of the zoning code together, it seems to me it is quite apparent that just because a building is nonconforming as to height does not give it any greater rights than a conforming building would have . .If this hotel were a proper height, it could not change its use to a use that would make it nonconforming. . . .\\nSection 26.10.040 of the zoning code (commonly called the grandfather clause) only allows nonconforming buildings to be changed as to their construction under certain conditions. This section does not undertake to allow a change of use. (Italics ours.)\\nIn view of our conclusion that the trial court must be affirmed for the reasons stated, we do not discuss the assignments of error directed to the court's findings of fact and conclusions of law based upon the Seattle Building Code.\\nThe judgment is affirmed.\\nHill, Donworth, Ott, and Hamilton, JJ., concur.\"}"

wash/1117370.json

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+"{\"id\": \"1117370\", \"name\": \"James Crabtree, et al, Petitioners, v. LaNay Lewis, et al, Respondents\", \"name_abbreviation\": \"Crabtree v. Lewis\", \"decision_date\": \"1975-12-24\", \"docket_number\": \"No. 43766\", \"first_page\": \"282\", \"last_page\": \"292\", \"citations\": \"86 Wash. 2d 282\", \"volume\": \"86\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T00:36:43.138018+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Crabtree, et al, Petitioners, v. LaNay Lewis, et al, Respondents.\", \"head_matter\": \"[No. 43766.\\nEn Banc.\\nDecember 24, 1975.]\\nJames Crabtree, et al, Petitioners, v. LaNay Lewis, et al, Respondents.\\nJohn Ranquet and Barbara Barnhart, for petitioners.\\nMacbride, Sax & Maclver, by D. Gordon Willhite, for respondents.\\n\\u201cf on motion under the rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.\\u201d CR 56(d).\", \"word_count\": \"3389\", \"char_count\": \"20365\", \"text\": \"Rosellini, J.\\nThis action was brought by the trustees of three employee benefit funds to recover contributions alleged to be due the trusts from a painting subcontractor, LaNay Lewis; his prime contractor, Adhesive Engineering Company; its surety, Insurance Company of North America, and the City of Seattle's retained percentage of the contract payments owed.\\nThe City of Seattle paid the retainage into court and certified to the court that it had contracted with Adhesive Engineering Company to clean and repair two bridges and that the trustees of the painters' trust had filed their claim with the City. It took no further part in the action.\\nLewis, the subcontractor, defaulted.\\nThe other parties made cross motions for summary judgment, with supporting affidavits. The trial court granted judgment in favor of the trustees against Lewis for the contributions claimed to be due but dismissed the other defendants, ordering the retainage paid over to the contractor. The trustees appealed to the Court of Appeals, which sustained the dismissal upon the ground that the trustees' supporting affidavits were not competent evidence and did not establish the amount of contributions owed by the defendant.\\nWe granted the trustees' petition for review.\\nThe issues presented are: (1) Do the trustees have standing to bring this action? (2) Are the retainage and the contractor's surety subject to claims for contributions to fringe benefit funds required by the union contract to be made on behalf of the subcontractor's employees, which were not paid by the subcontractor? (3) Was the Court of Appeals correct in sustaining the dismissal of the action upon the ground that the plaintiffs' affidavits did not show facts necessary to maintain their claim, including the names of the employees, and the amount of damage?\\nAs the Court of Appeals stated in its unpublished opinion, the pleadings and admissible affidavits considered by the trial court at the hearing on the motions for summary judgment, established the following uncontroverted facts: The City of Seattle contracted with Adhesive Engineering Company to paint the Fremont and Ballard bridges. Adhesive, as prime contractor, subcontracted with Lewis to do the work. Insurance Company of North America furnished the bond required by RCW 39.08.010. The City withheld the sum of $10,378.37 from payments due Adhesive, to insure payment of laborers, materialmen and subcontractors, as required by RCW 60.28.010.\\nPrior to the foregoing events, the Seattle-King County Chapter of the Painting and Decorating Contractors of America, which was the bargaining agent for Lewis, entered into a collective bargaining agreement with the painters' union. This agreement obligated the employers to pay a certain amount for each employee into three trusts, which were established to provide fringe benefits for painter employees. Lewis reported and paid into those trusts from July 21 to September 29, 1972. The trustees claim that he owes contributions for the period between October 1, 1972, and January 1, 1973, during which time he was engaged in painting the bridges.\\nThe superior court, in granting summary judgment, said that there was a material issue of fact respecting the plaintiffs' motion and no material issue of fact respecting the defendants' motion, but it did not disclose the theory of its decision. So we must assume that it was based upon one or the other of the two theories in the answer and affidavits of the defendants, as developed and expounded in the defendants' brief in the Court of Appeals. One of these is that the trustees have no standing to bring this action on behalf of the employees who performed the work. It is suggested that the trustees cannot sue in a representative capacity unless they can produce written assignments of the claims of each employee. The one authority cited, Portland ex rel. Nafl Hosp. Ass'n v. Heller, 139 Ore. 179, 9 P.2d 115, 81 A.L.R. 1048 (1932), held that a contractor's surety was not liable to a hospital association for the contractor's failure to pay an amount due under a contract for medical and hospital services to employees, because the amount was owed by the contractor and not by the employees; therefore the association did not stand in the position of assignee of the employees. The court also said that the services rendered by the association were not \\\"labor or material\\\" furnished under the contractor's agreement with the city, for which the surety was bound.\\nThe Oregon court did not consider the fact that the contract between the contractor and the association was entered into for the benefit of the employees and that the benefits contracted for were a part of the compensation paid for labor. It is not impressive authority for the proposition that a trustee of a fund established for the benefit of employees cannot sue to recover payments owed the fund.\\nThis question came before the United States Supreme Court in United States v. Carter, 353 U.S. 210, 1 L. Ed. 2d 776, 77 S. Ct. 793 (1957). That action involved the Miller Act, 40 U.S.C. \\u00a7 270a, which required a contractor who had a contract with the United States for the construction of federal buildings to furnish a payment bond with a surety. The collective bargaining contract, under which the employees of the contractor were hired, obligated the contractor to pay them wages at specified rates and, in addition, to pay 7% cents per hour of their labor to the trustees of a health and welfare fund established for their benefit and that of other construction workers. When the contractor faded to pay in full the required contributions to the health and welfare fund, the trustees of the fund sued the surety to recover the balance due the fund, plus liquidated damages, attorney fees, court costs and expenses. The Supreme Court held that the trustees stood in the shoes of the employees and were entitled to enforce their rights, saying, at page 220: the beneficiaries of the fund, and those beneficiaries are the very ones who have performed the labor. The contributions are the means by which the fund is maintained for the benefit of the employees and of other construction workers. For purposes of the Miller Act, these contributions are in substance as much \\\"justly due\\\" to the employees who have earned them as are the wages payable directly to them in cash.\\nThe trustees are claiming recovery for the sole benefit of\\nThe trustees in that case were in the same position as the trustees are in this case. We have a statute, RCW 39.08, which protects those who supply labor and materials on government contracts in much the same way as the Miller Act does. The federal court for the Eastern District of Washington has termed this statute Washington's \\\"Little Miller\\\" Act. United States v. Sargent-Tyee Co., 376 F. Supp. 1375 (E.D. Wash. 1974).\\nFurther, in RCW 60.76.020, the legislature has expressly recognized the right of a trustee to sue on behalf of employees. RCW 60.76.010 gives the employee beneficiary of a contract whereby the employer is required to make payments to a benefit plan, a lien upon the employer's earnings and business property for any unpaid contributions and also for expenses incurred by him for benefits to which he would have been entitled under the plan. If the trustees are proper persons to represent the employees in enforcing a lien against property of their employer (here the subcontractor) , they are also proper persons to enforce their claim against the retainage and the bond. The authority conferred upon them by the union members is the same, and the same fund will receive the benefits. That the union contract authorizes the trustees to collect the moneys due the fund is not contested. No assignment, further than that which is implicit in the union contract, is necessary.\\nWe are convinced that the trustees have standing to bring this action to recover contributions owed to the benefit fund. Our holding accords with the general rule. 48 Am. Jur. 2d Labor and Labor Relations \\u00a7 225 (1970); 51 C.J.S. Labor Relations \\u00a7 122 (1967).\\nUpon the second question presented, the defendants here \\u2014 that is, the prime contractor and its bondsman.\\u2014 maintain that they owe no duty to the trustees because they had no dealings with the employees or the union. This position ignores the express provisions of RCW 39.08.010. That sections provides:\\nWhenever any . . . body acting for the . . . municipality . . . shall contract with any person or corporation to do any work for the . . . municipality, . . . such . . . body shall require the person or persons with whom such contract is made to make, execute and deliver to such . . . body a good and sufficient bond, with two or more sureties, or with a surety company as surety, conditioned that such person or persons shall faithfully perform all the provisions of such contract and pay all laborers, mechanics and subcontractors and materialmen, and all persons who shall supply such person or persons, or subcontractors, with provisions and supplies for the carrying on of such work, which bond shall be filed . . . and any person or persons performing such services or furnishing material to any subcontractor shall have the same right under the provisions of such bond as if such work, services or material was furnished to the original contractor: . . .\\n(Italics ours.)\\nRCW 60.28.010, providing that public bodies shall reserve moneys earned by the contractor on estimates during the progress of work on public improvements, a sum equal to 10 percent of the first $100,000 and 5 percent for all amounts over $100,000 on such estimates, said sum to be retained as a trust fund, contains a similar provision. The fund is retained for the\\nprotection and payment of any person or persons, mechanic, subcontractor or materialman who shall perform any labor upon such contract or the doing of said work, and all persons who shall supply such person or persons or subcontractors with provisions and supplies for the carrying on of such work, . . .\\nThe statute gives a lien to every person performing labor or furnishing supplies toward the completion of the improvement or work.\\nIt was contended by the defendant contractor in J.D. English Steel Co. v. Tacoma School Dist. 10, 57 Wn.2d 502, 358 P.2d 319 (1961), that only creditors of the prime contractor were entitled to a lien upon the retained percentage, citing Maryland Cas. Co. v. Tacoma, 199 Wash. 384, 92 P.2d 203 (1939). This court said that claimants who furnish labor or materials to a subcontractor, participating in public works projects, are entitled to share in the retained percentage. This was patently the legislative intent.\\nUnder Laws of 1888, \\u00a7 1, p. 15, the predecessor of RCW 39.08.010, which did not expressly guarantee payment of employees of subcontractors as does the current legislation, this court held that the bond required by the act protected anyone who furnished labor upon a public work, whether he was hired by the contractor or subcontractor, noting that the purpose of the act was to give the same relief by a proceeding on the bond as could be had, in the case of the erection of a building by a private owner, by the enforcement of a lien against such building. That the statute' as subsequently amended to expressly protect subcontractors serves the same purpose was recognized in Hall & Olswang v. Aetna Cas. & Sur. Co., 161 Wash. 38, 296 P. 162 (1931), and Neary v. Puget Sound Eng'r Co., 114 Wash. 1, 194 P. 830(1921).\\nThus it appears that the statutes require not only that the bond which is furnished the prime contractor shall run in favor of the subcontractor's employees, but also that such employees shall have a lien upon the retained percentage.\\nThe defendant prime contractor paid the subcontractor but evidently did not see to it that the laborers were paid in full. These statutes make it incumbent upon him to do so or risk the loss of the retained percentage, as well as exposure of his surety to liability.\\nThe defendants have not questioned the status of fringe benefits as an element of compensation for labor. The. legislature has so characterized them in RCW 39.12.010, defining prevailing wages on public works, which provides:\\n(1) The \\\"prevailing rate of wages\\\", for the intents and purposes of this chapter, shall be the rate of hourly wage, usual benefits, and overtime paid in the locality, . . .\\n(3) The \\\"usual benefits\\\" for the purposes of this chapter shall include the amount of:\\n(a) The rate of contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan, or program; . . .\\nThe United States Supreme Court, in United States v. Carter, 353 U.S. 210, 1 L. Ed. 2d 776, 77 S. Ct. 793 (1957), held such fringe benefits to be a part of the payment for labor which was required to be covered by the contractor's bond. Decisions of state courts in accord include Bernard v. Indemnity Ins. Co. of N. America, 162 Cal. App. 2d 479, 329 P.2d 57 (1958); Martin v. William Casey & Sons, 5 App. Div. 2d 185, 170 N.Y.S.2d 228 (1958), aff'd, 8 N.Y.2d 728, 201 N.Y.S.2d 104, 167 N.E.2d 646 (1960); Genix Supply Co. v. Board of Trustees, 84 Nev. 246, 438 P.2d 816 (1968); and Pipeline Indus. Benefit Fund v. Aetna Cas. & Sur. Ins. Co., 503 P.2d 1286 (Okla. App. 1972), rehearing denied, cert. denied.\\nThe facts established by the pleadings and other documents before the court, then, show that the trustees have a claim against the bond and retained percentage. The Court of Appeals, nevertheless, was of the opinion that the superior court properly dismissed the action because of defects in the plaintiffs' affidavits.\\nThis brings us to the third question before the court for consideration.\\nThe Court of Appeals said that the record before the trial court did not establish that Adhesive owed the trust a sum certain and therefore, it said, the court properly dismissed Adhesive, its surety, and the City of Seattle. No authority was cited for this conclusion.\\nIf the established facts show that the trustees are entitled to some relief, the fact that the amount of damage has not at this point been established should not deprive them of their day in court. Proof of the terms of the contracts, assuming they may be necessary to establish the amount of damage, should not be difficult, since all of them are admittedly in writing.\\nThe affidavit of the plaintiffs' attorney offered a transcript of the record of employee hours worked during the disputed period, which the attorney allegedly gleaned from an examination of the records furnished by the defendant City. The record does not disclose that the defendants raised any objection to the sufficiency of these affidavits to show the facts alleged therein. Their response by affidavit of the treasurer of Adhesive was that a fact question was presented as to the proof of dates and hours worked by each employee of the subcontractor, whether the employees were all union members, and whether the plaintiffs had permission to bring their action on behalf of the employees. There was no denial that some contributions were due and owing.\\nThe affidavit stated that Adhesive had had no dealings by contract or otherwise with any of the plaintiffs or with the laborers on the subcontractor's job. There was no assertion that the bond furnished by the defendant insurance company did not guarantee payment of the laborers performing work for subcontractors or that the retainage did not protect such laborers.\\nDeficiencies, such as failure to attach certified copies of documents to an affidavit, can be corrected by an appropriate motion in an action by the trial court. Where the record does not reveal a motion to strike made before the entry of judgment, the deficiency may be deemed waived. Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 431 P.2d 216 (1967).\\nWhile the affidavit of the attorney was not the best evidence available to prove the amount owed, it was controverted only in part and that by an equally if not more vague assertion that not all of the employees were union members and that the defendant Lewis' records were not \\\"reliable.\\\"\\nAn attorney's affidavit based upon personal knowl edge is entitled to the same consideration as that of any other affidavit based upon testimonial knowledge. Meadows v. Grant's Auto Brokers, Inc., supra. Here the affidavit of the attorney showed that he had examined the defendants' records and they revealed that a certain number of hours of labor had been performed during the period in question, upon which the contributions were to be computed at the rates provided in the union contract. The affidavits of the defendants made no showing that the names of the employees or the number of hours worked by each were necessary facts to be shown under the union contract. If that contract required only that contributions be made on the basis of total hours worked, the identity of the employees and number of hours worked by each was immaterial.\\nWhile the attorney's affidavit was not the best evidence of the contents of the records, the accuracy of his transcript was not challenged nor was it contended that he should have produced the defendants' records or certified copies thereof. The affidavit was adequate, in any case, to show that evidence of the amount of damage was obtainable and that is was in the possession of the defendants. The fact that the defendants disputed the reliability of the subcontractor's records and contended that some employees were not entitled to the fringe benefits does not defeat the trustees' claim. It merely raises an issue of fact as to the amount of damage and issues of law as to the basis of determining the damage. Those issues could not be resolved in the defendants' favor upon the assertions made in their affidavits.\\nSince the record shows that the amount due was in dispute, the Court of Appeals erred in sustaining the dismissal upon the ground that the trustees had not established their right to a sum certain in their supporting affidavits. There was before the court a genuine issue of material fact.\\nSince the established facts show that the trustees have standing to bring the action and have a valid claim against the bond and the retainage, the courts below erred in dismissing the action. Summary judgment should have been entered for the trustees on these issues, leaving the matter of damages to be tried, with the burden being upon the defendants to show wherein the public records were inaccurate. It is their burden to establish, if they can, the validity of their partial defense that some of the employees were not union members and that no contributions for such employees were required under the contract.\\nAnother matter not yet resolved is the trustees' right to attorney fees and other expenses incurred in pursuing this claim. We assume that, on remand and at the conclusion of the hearing on the question of damages, the court below will decide this question in accordance with the provisions of RCW 39.08.030, RCW 60.28.020 and the terms of the pertinent contracts.\\nThe judgment of the Court of Appeals is reversed, and the cause is remanded to the superior court for further proceedings.\\nStafford, C.J., and Finley, Hunter, Hamilton, Wright, Utter, Brachtenbach, and Horowitz, JJ., concur.\"}"

wash/1170440.json

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+"{\"id\": \"1170440\", \"name\": \"The State of Washington, Respondent, v. Michael Stevenson, Appellant\", \"name_abbreviation\": \"State v. Stevenson\", \"decision_date\": \"2000-06-19\", \"docket_number\": \"No. 44818-8-I\", \"first_page\": \"1019\", \"last_page\": \"1019\", \"citations\": \"101 Wash. App. 1019\", \"volume\": \"101\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T01:45:36.257653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Michael Stevenson, Appellant.\", \"head_matter\": \"[No. 44818-8-I.\\nDivision One.\\nJune 19, 2000.]\\nThe State of Washington, Respondent, v. Michael Stevenson, Appellant.\", \"word_count\": \"42\", \"char_count\": \"284\", \"text\": \"Appeal from a judgment of the Superior Court for Kang County, No. 98-1-09461-0, Carol A. Schapira, J., entered May 21,1999. Affirmed by unpublished per curiam opinion.\"}"

wash/1170524.json

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+"{\"id\": \"1170524\", \"name\": \"The State of Washington, Respondent, v. Dale E. Schardt, Appellant\", \"name_abbreviation\": \"State v. Schardt\", \"decision_date\": \"2000-07-24\", \"docket_number\": \"No. 44255-4-I\", \"first_page\": \"1056\", \"last_page\": \"1056\", \"citations\": \"101 Wash. App. 1056\", \"volume\": \"101\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T01:45:36.257653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Dale E. Schardt, Appellant.\", \"head_matter\": \"[No. 44255-4-I.\\nDivision One.\\nJuly 24, 2000.]\\nThe State of Washington, Respondent, v. Dale E. Schardt, Appellant.\", \"word_count\": \"44\", \"char_count\": \"292\", \"text\": \"Appeal from a judgment of the Superior Court for Snohomish County, No. 97-1-00768-7, David F. Hulbert, J., entered February 10, 1999. Affirmed by unpublished per curiam opinion.\"}"

wash/1170688.json

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+"{\"id\": \"1170688\", \"name\": \"The State of Washington, Appellant, v. David Kane, Respondent\", \"name_abbreviation\": \"State v. Kane\", \"decision_date\": \"2000-07-24\", \"docket_number\": \"No. 45176-6-I\", \"first_page\": \"607\", \"last_page\": \"619\", \"citations\": \"101 Wash. App. 607\", \"volume\": \"101\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T01:45:36.257653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Appellant, v. David Kane, Respondent.\", \"head_matter\": \"[No. 45176-6-I.\\nDivision One.\\nJuly 24, 2000.]\\nThe State of Washington, Appellant, v. David Kane, Respondent.\\nNorm Maleng, Prosecuting Attorney, and Brian M. McDonald and William M. Berg, Deputies, for appellant.\\nDana M. Nelson (of Nielsen, Broman & Associates, P.L.L.C.), for respondent.\", \"word_count\": \"3540\", \"char_count\": \"21864\", \"text\": \"Becker, A.C.J.\\nA 1901 saving statute provides that a prosecution for a criminal offense must proceed under the criminal and penal statutes in effect at the time the offense was committed, unless the Legislature expresses a different intent in an amendatory or repealing act. Intending to increase the use of a treatment-oriented sentencing alternative for drug offenders, the Legislature amended the eligibility criteria with a statute that became effective on July 25, 1999. Because the 1999 amendment does not express legislative intent to avoid the presumption of the saving statute, its effect is prospective only. We reverse the alternative sentence imposed on appellant Kane, and remand for resentencing under provisions in effect in June 1999 when he committed his offense.\\nThe police discovered heroin and other contraband when they searched David Kane's residence on June 4,1999. The State charged Kane on June 10 with possession of heroin with intent to deliver. Kane pleaded guilty to the charge against him on July 17,1999. His standard sentence range was 43 to 57 months. At the sentencing hearing on August 17, 1999, the State recommended 43 months of total confinement, the low end of the standard range. Kane requested an alternative sentence under RCW 9.94A. 120(6), the drug offender sentencing alternative (DOSA).\\nThe Legislature enacted the DOSA five years ago as a treatment-oriented alternative to a standard range sentence of confinement. Laws of 1995, ch. 108. When an offender meets the statutory eligibility criteria for an alternative sentence, the trial court may impose a period of prison confinement that is only one-half of the standard range sentence and allow the offender to serve the other half in community custody while obtaining treatment for substance abuse. RCW 9.94A.120(6)(b). An offender who fails to complete the treatment program must return to total confinement to serve the other half of his sentence. RCW 9.94A.120(6)(c).\\nUnder the DOSA statute as it existed when he committed his offense, Kane was not eligible for an alternative sentence because he had prior felony convictions. See former RCW 9.94A.120(6) (1998). But the Legislature amended the eligibility requirements for a DOSA sentence with a new statute having an effective date of July 25, 1999. Laws of 1999, ch. 197, \\u00a7 4. Under the new statute, offenders with prior felony convictions are eligible to be considered for the alternative sentence if the prior convictions were not for violent or sex offenses. Kane was eligible for the alternative sentence if the new statute applied to him.\\nThe State objected to Kane's request for an alternative sentence on the basis that the new statute did not apply to an offender whose crime was committed before the new statute's effective date. The trial court, however, determined that the new statute did apply to Kane, and imposed an alternative sentence consisting of a prison term of 25 months, to be followed by 25 months of community custody in compliance with a treatment program. The State appeals.\\nThe central issue is the effect to be given to the general criminal prosecution saving statute, RCW 10.01.040. The saving statute presumptively saves all offenses already committed, and all penalties or forfeitures already incurred, from being affected by the amendment or repeal of a criminal or penal statute:\\nNo offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.\\nRCW 10.01.040.\\nThe saving statute, enacted in 1901, departs from the common law. The common law regards a repealed statute as if it had never existed except as to matters and transactions past and closed. Under the common law rule, all pending cases must be decided according to the state of the law \\\"at the time of the decision.\\\" State v. Zornes, 78 Wn.2d 9, 12, 475 P.2d 109 (1970), overruled by implication on other grounds in United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1978). In derogation of the common law, the saving statute preserves a potential or pending prosecution from being abated, perhaps inadvertently, by the Legislature's later act of repealing or amending the substantive law defining the offense or fixing its penalty. \\\"Unless the later statutes clearly manifest a different intention, this general saving clause is deemed a part of every repealing statute as if expressly inserted therein, and hence renders unnecessary the incorporation of an individual saving clause in each statute which amends or repeals an existing penal statute.\\\" State v. Hanlen, 193 Wash. 494, 497, 76 P.2d 316 (1938); see also State v. Walker, 7 Wn. App. 878, 882, 503 P.2d 128 (1972). In the absence of a contrary expression from the Legislature, all crimes are to be prosecuted under the law existing at the time of their commission. State v. Lorenzy, 59 Wash. 308, 309, 109 P. 1064 (1910). It is not \\\"essential to the life of the charge\\\" that a criminal prosecution be already pending at the time a new amendatory or repealing act is enacted. Lorenzy, 59 Wash, at 309.\\nAn example of the saving statute's early application in Washington is found in State v. Hanover, 55 Wash. 403,104 P. 624 (1909). There, the State prosecuted the appellant for practicing medicine without a license. Between the date the offense was allegedly committed and the date of trial, the legislature passed a new act regulating the practice of medicine, and repealing prior acts. The new act did not contain a saving clause. The Supreme Court at first found the prosecution barred by the common law rule and issued an opinion reversing the conviction. Later, upon its own motion, the court reconsidered its decision in light of the saving statute, and affirmed the conviction. Hanover, 55 Wash, at 406-07.\\nThe statute saves only the substantive rights and liabilities of a repealed statute. State v. Hodgson, 108 Wn.2d 662, 669-70, 740 P.2d 848 (1987). Through the years, our appellate courts have consistently applied the saving statute to preserve prosecutions carried on under a repealed statute where the new statute does not indicate a contrary intent. See, e.g., State v. Fenter, 89 Wn.2d 57, 61-62, 569 P.2d 67 (1977) ; State v. Weber, 99 Wn.2d 158, 162-63, 659 P.2d 1102 (1983); State v. Hernandez, 20 Wn. App. 225, 226, 581 P.2d 157 (1978); State v. Lombardo, 32 Wn. App. 681, 649 P.2d 151 (1982).\\nBecause RCW 10.01.040 is in derogation of the common law, it is strictly construed. Zornes, 78 Wn.2d at 13. The saving force of the statute is applied narrowly and its exception \\u2014 \\\"unless a contrary intention is expressly declared in the amendatory or repealing act\\\" \\u2014 is interpreted broadly. Thus, our Supreme Court has not insisted that a legislative intent to affect pending litigation be declared in express terms in a new statute. Rather, such intent need only be expressed in \\\"words that fairly convey that intention.\\\" Id.; State v. Grant, 89 Wn.2d 678, 683, 575 P.2d 210 (1978) . The Court has twice used the exception in the saving statute to allow new legislation to control pending criminal cases. In State v. Zornes, the court reversed and dismissed the defendants' convictions under the Narcotic Drug Act for possession of marijuana. While the appeals were pending, an amendment to the Act became effective stating that \\\" 'the provisions of this chapter shall not ever be applicable to any form of cannabis.' \\\" Zornes, 78 Wn.2d at 11. From the words \\\"not ever\\\" preceding the words \\\"be applicable,\\\" the Court found it could be reasonably inferred that the Legislature intended the amendment to apply to pending cases as well as those arising in the future. Id. at 13-14, 26. In State v. Grant, a new act provided that \\\"intoxicated persons may not be subjected to criminal prosecution solely because of their consumption of alcoholic beverages.\\\" Grant, 89 Wn.2d at 682. Finding this language to be a fair expression of legislative intent so as to avoid the default rule of the saving statute, the Supreme Court dismissed a charge of being intoxicated upon a public highway in a case that was pending before the new statute became effective. Id. at 684.\\nAs a general rule, a statutory amendment, if it is clearly curative or remedial, will be applied retroactively even though it is completely silent as to legislative intent for retroactive application. See, e.g., In re F.D. Processing, 119 Wn.2d 452, 460, 832 P.2d 1303 (1992). But the 1999 amendment to the DOSA statute, because it establishes a penalty for a criminal offense, is subject to the saving statute. Therefore, if the amendment is silent as to intent for retroactive application, it will be given prospective application only. We need not attempt to determine whether the 1999 amendment is remedial or curative. As in Zornes and Grant, the question is whether the new statute contains words of intent that bring it within the exception to the saving statute.\\nThe Legislature included the amendment that expands eligibility for the treatment alternative in a comprehensive bill, Engrossed Second Substitute House Bill 1006. The bill makes numerous other changes to various statutes having to do with sentencing of drug and alcohol offenders. Some of the other provisions in the bill, because they have the effect of increasing punishment, could not be applied retroactively. The State suggests that when some provisions in an act cannot be applied retroactively, the entire act must be given only prospective application. We, however, do not view as dispositive the fact that the Legislature chose to use a single bill to make various changes. Nothing prevented the Legislature, if it had been so inclined, from designating the expanded DOSA eligibility criteria as intended to be applied to offenses already committed, or to cases presently pending.\\nThe only pertinent inquiry is whether any section of the bill contains words that fairly express the Legislature's intention to apply the new DOSA eligibility criteria to cases arising before July 25, 1999. The answer to that question is no. Unlike the enactments considered in Zornes and Grant, the 1999 legislation contains no language that even remotely suggests an intention to make the amended eligibility criteria available in cases arising before the effective date.\\nKane does not try to demonstrate that the statute itself contains words that fairly convey that intention. He contends, however, that such an intent can be reasonably inferred from legislative materials describing the remedial concerns that prompted the amendment. A House bill report states, \\\"The drug offender sentencing alternative is being underutilized. This bill would open up that program, which will have beneficial outcomes.\\\" H.B. Rep., SSHB 1006, at 7. A Senate Bill Report reflects a similar concern about underutilization of the sentencing alternative, and states, \\\"This is a measure that gets tough on those who have a substance abuse problem, but also stops the revolving door to the prisons. It gives the offender the treatment he needs so he is less likely to offend again, while still requiring confinement.\\\" SSHB Rep. 1006, at 3.\\nAnalysis of legislative intent regarding retroactivity is not ordinarily restricted to the statute's express language, and may be gleaned from other sources, including legislative history. In re F.D. Processing, 119 Wn.2d at 460. But here again, because the DOSA is a penal statute, the issue is whether the new statute's express language shows that the Legislature intended to depart from the presumption created by the saving statute. In this situation, legislative history materials cannot make up for the lack of words that fairly convey that intention in the 1999 amendatory statute itself. Therefore, while the bill reports do manifest a legislative purpose to increase, in various ways, intervention and treatment for offenders addicted to drugs, we must conclude that the intent of the Legislature is to accomplish that purpose only with respect to defendants who offend after its effective date.\\nIn using the new statute to sentence Kane, the trial court did not recognize the saving statute, RCW 10.01.040, as controlling. Instead, the court relied primarily on State v. Heath, 85 Wn.2d 196, 197, 532 P.2d 621 (1975) \\u2014 a case that does not mention the saving statute. Heath had his license to drive revoked in August 1972 in a civil proceeding arising under the Washington Habitual Traffic Offenders Act. An amendment to that Act became effective in July 1973. The amendment allowed a trial court to stay a revocation order where the offense was the result of alcoholism for which the offender was obtaining treatment. Heath, 85 Wn.2d 197. Heath, who was in treatment, successfully petitioned the superior court for a stay of the revocation order. The Department of Motor Vehicles argued on appeal that the new statute should be given only prospective application, but the Supreme Court held that it was properly given retroactive application under general rules of statutory construction because it was \\\"patently remedial.\\\" Id. at 198.\\nBecause Washington's criminal prosecution savings statute, RCW 10.01.040, was not at issue in Heath, the court could decide to give retroactive application to the new act solely by looking to its remedial nature. For this reason, Heath is not on point in Kane's case. When a new statute repeals or amends a statute governed by the saving statute, it will be given prospective application even if it is patently remedial, unless it contains words that fairly convey a different intention.\\nAs an \\\"additional reason\\\" for giving the new legislation retroactive effect in Heath, the court stated that when legislation reduces a penalty for a crime, the reduced penalty is generally applied in all pending cases, as the Legislature is presumed to have determined that no purpose would be served by imposing the older, harsher one. Heath, 85 Wn.2d at 198. This rule, the court stated, \\\"has even been applied in the face of a statutory presumption against retroactivity.\\\" Id. at 198. The court's suggestion that an ameliorative sentencing statute should be applied retroactively \\\"in the face of' a saving statute was dicta because the presumption against retroactivity established by RCW 10.01.040 was not at issue in Heath. As dicta, it cannot override the holdings of Zornes and Grant and the earlier Supreme Court cases.\\nHeath cites cases from other states where courts have concluded that offenders may be given the benefit of a lighter punishment prescribed by an amendatory act passed after their offense was committed. See In re Estrada, 63 Cal. 2d 740, 745, 408 P.2d 948, 951-52, 48 Cal. Rptr. 172 (1965), and People v. Oliver, 1 N.Y.2d 152, 134 N.E.2d 197, 151 N.Y.S.2d 367 (1956), cited in Heath, 85 Wn.2d at 198. But the saving statutes discussed in these out-of-state cases are different from Washington's, and the holdings are inconsistent with Washington's precedent.\\nThe Oliver court gave the following explanation why a reduction in a criminal penalty should be available in all pending cases, notwithstanding the presumption of a saving statute:\\nA legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modem rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.\\nOliver, 134 N.E.2d 202. The court concluded, \\\"Whenever the Legislature alters existing law, a certain measure of inequality is bound to ensue. Where the change is ameliorative and reflects a judgment that the earlier law was unduly harsh or unjust, a court should not withhold the benefits of the new statute to one tried after its passage, merely because it is powerless to extend them to those already convicted.\\\" Id. at 203.\\nWhile the sentiments expressed in Oliver are not irrational, they are insufficiently deferential to the legislative intent expressed by our saving statute. We find more persuasive the reasoning of the D.C. Court of Appeals in Holiday v. United States, 683 A.2d 61 (D.C. 1996), cert. denied sub nom. Palmer v. United States, 520 U.S. 1162,117 S. Ct. 1349, 137 L. Ed. 2d 506 (1997). The federal appellate court rejected the Oliver court's assumption that a Legislature always intends to have a reduced penalty applied retroactively:\\nWe cannot agree, however, that Oliver expresses the only rational possibility. We cannot say that a legislature could not rationally conclude that the best approach would be a purely prospective one, so that all defendants who committed crimes before the statute became effective would be treated equally. Otherwise, sentencings could get caught up in manipulations with unfair results overall. Some convicted felons, for example, might be able to arrange sentencing delays to take advantage of the new sentencing scheme, whereas others could not achieve the same result before less sympathetic judges. But, more fundamentally, we see nothing irrational in a legislative conclusion that individuals should be punished in accordance with the sanctions in effect at the time the offense was committed, a viewpoint encompassed by the savings statutes themselves.\\nHoliday, 683 A.2d at 78-79. See also Warden v. Marrero, 417 U.S. 653, 660-61, 94 S. Ct. 2532, 41 L. Ed. 2d 383 (1974) (Petitioner, who had served one-third of his sentence, asked to be considered for parole for which he had become eligible under a new statute; held, the federal saving statute preserved the former parole statute, under which the prisoner was ineligible; the terms \\\"penalty,\\\" \\\"liability,\\\" and \\\"forfeiture\\\" in the saving statute apply to all forms of punishment, including parole ineligibility); Moorehead v. Hunter, 198 F.2d 52, 53 (10th Cir. 1952).\\nThe fixing of legal punishments for criminal offenses is a legislative function. State v. Ammons, 105 Wn.2d 175, 180, 718 P.2d 796 (1986). The saving statute is a basic principle of construction the Legislature is entitled to rely on when it makes changes to criminal and penal statutes. To ignore the presumption established by the saving statute is to introduce uncertainty into legislation and intrude into legislative prerogatives. For example, an amendatory statute that substitutes treatment for time spent in prison may well require fiscal or administrative adjustments. The Legislature may have decided that such changes should be phased in gradually as new cases arise. Or it may not have thought about timing at all. The Legislature is not obliged to express its thinking on such matters in its criminal and penal statutes. It is entitled to assume that the courts will enforce the saving statute and give prospective application to criminal and penal statutes that do not express a contrary intent.\\nThe saving statute creates an easily administered, bright-line rule. It is not subject to alteration by delays that can occur between trial and sentencing. And as the court observed in Holiday, there is nothing fundamentally unfair in sentencing offenders in accordance with the law they presumably were aware of at the time they committed their offenses.\\nAny remaining strength to an argument based on Oliver, Estrada, or the dicta in Heath has been dispelled by a brief statute recently adopted by our Legislature. The statute adds to Chapter 9.94A RCW a section expressly \\\"intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.\\\" Laws of 2000, ch. 26, \\u00a7 1. The new section states: \\\"Any sentence imposed under this chapter [the Sentencing Reform Act] shall be determined in accordance with the law in effect when the current offense was committed.\\\" Laws of 2000, ch. 26, \\u00a7 2. Although our holding in this case rests on the 1901 saving statute, it is also entirely consistent with the direction provided by the above statute.\\nWe reverse the trial court's imposition of the alternative sentence and remand for resentencing consistent with this opinion.\\nEllington and Appelwick, JJ., concur.\"}"

wash/1175470.json

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+"{\"id\": \"1175470\", \"name\": \"The State of Washington, Respondent, v. Jeffrey A. Whitaker, Petitioner\", \"name_abbreviation\": \"State v. Whitaker\", \"decision_date\": \"1989-04-13\", \"docket_number\": \"No. 55364-5\", \"first_page\": \"341\", \"last_page\": \"347\", \"citations\": \"112 Wash. 2d 341\", \"volume\": \"112\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T02:10:00.277764+00:00\", \"provenance\": \"CAP\", \"judges\": \"Callow, C.J., and Utter, Brachtenbach, Dore, Pearson, Andersen, Durham, and Smith, JJ., concur.\", \"parties\": \"The State of Washington, Respondent, v. Jeffrey A. Whitaker, Petitioner.\", \"head_matter\": \"[No. 55364-5.\\nEn Banc.\\nApril 13, 1989.]\\nThe State of Washington, Respondent, v. Jeffrey A. Whitaker, Petitioner.\\nAnna-Mari Sarkanen of Washington Appellate Defender Association, for petitioner.\\nNorm Maleng, Prosecuting Attorney, and Sally F. Stan-field, Deputy, for respondent.\", \"word_count\": \"1511\", \"char_count\": \"9361\", \"text\": \"Dolliver, J.\\nDefendant Jeffrey Whitaker seeks review of a Court of Appeals decision upholding the trial court's imposition of a minimum sentence under the Sentencing Reform Act of 1981 (SRA) (RCW 9.94A). Defendant asserts the trial court incorrectly figured his offender score by including, as a prior conviction, a conviction which occurred during the probationary period.\\nWhitaker was found guilty of negligent homicide on December 16, 1981. Instead of imposing sentence, the trial judge placed Whitaker on probation and gave him a deferred sentence. The probation was conditioned on 6 months in jail among other directives.\\nDue to various probation violations, including a May 27, 1986, reckless driving conviction, the trial court revoked Whitaker's probation and deferred sentence on October 10, 1986. The court then imposed the sentence originally deferred in 1981: a maximum term of 10 years.\\nIn setting the minimum term, as directed by the SRA, the trial court counted the 1986 reckless driving conviction as a prior conviction, and therefore adopted a standard range of 21 to 27 months. The court reasoned that the May 27, 1986, reckless driving conviction was a prior conviction because it existed prior to the revocation hearing, the date on which the trial court imposed the originally deferred sentence and fixed the minimum term.\\nWhitaker appealed the minimum sentence to the Court of Appeals arguing that the 1986 conviction could not be a prior conviction because it did not exist prior to the 1981 probation hearing, the date on which the trial court granted the deferred sentence and probation. The Court of Appeals affirmed the trial court decision, agreeing that the 1986 conviction was properly included as a prior conviction. State v. Whitaker, 51 Wn. App. 745, 748, 754 P.2d 1297 (1988). We reverse.\\nAt issue is whether a trial court, in revoking probation and fixing a minimum term, may count as a prior conviction under the SRA an intervening conviction which is prior to the revocation but subsequent to the original offense.\\nEven though Whitaker committed the original offense before the SRA, the SRA applies to the revocation proceeding for that offense. RCW 9.95.011, the minimum term provision, provides:\\nWhen the court commits a convicted person to the department of corrections on or after July 1, 1986, for an offense committed before July 1, 1984, the court shall, at the time of sentencing or revocation of probation, fix the minimum term. . . .\\nThe court shall attempt to set the minimum term reasonably consistent with the purposes, standards, and sentencing ranges adopted under RCW 9.94A.040 . . .\\n(Italics ours.)\\nRCW 9.94A.040 is the provision of the SRA that sets forth the powers and duties of the Sentencing Guidelines Commission. Therefore, the minimum term provision quoted above directs the court to incorporate the SRA and to set minimum terms for offenses committed before July 1, 1984. RCW 9.94A.905; In re Irwin, 110 Wn.2d 175, 178, 751 P.2d 289 (1988).\\nThe SRA provision which defines a prior conviction is RCW 9.94A.360(1):\\nA prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed.\\n(Italics ours.)\\nThe question, then, is whether the SRA considers Whitaker's \\\"date of sentencing\\\" to have been in 1981 at the probation hearing, when the court deferred imposition of a sentence and placed Whitaker on probation, or in 1986 at the revocation hearing, when the court revoked the probation, imposed the originally deferred sentence, and fixed the minimum term.\\nIn short, Whitaker's basic dilemma is a result of being caught in the overlap of two sentencing systems. Even though the minimum sentencing provision directs the court to incorporate the SRA in setting minimum terms, the Legislature did not repeal the probationary statutes. It only declared them inapplicable to any felony offense committed after June 30, 1984. RCW 9.92.900, RCW 9.95.900, RCW 9.94A.905. See D. Boerner, Sentencing in Washington \\u00a7 4.4, at 4-4 (1985). The former statutes continue to govern Whitaker's probation, while the SRA governs the setting of Whitaker's minimum term at the revocation of his probation.\\nThe statutory scheme under which Whitaker originally received probation makes a distinction between the two types of sentences ordered at probation:\\nA suspended sentence is one actually imposed but the execution thereof is thereafter suspended while a deferred sentence is never imposed unless defendant violates the condition of his probation.\\n(Some italics omitted.) State v. Carlyle, 19 Wn. App. 450, 454, 576 P.2d 408 (1978) (quoting State v. Wright, 202 . N.W.2d 72, 77, 56 A.L.R.3d 916 (Iowa 1972)).\\nAs Whitaker received a deferred sentence in 1981, the sentence was never imposed. So, for purposes of the former statutory scheme, he was never \\\"sentenced\\\" until the revocation hearing in 1986.\\nThe SRA, on the other hand, does not directly address the issue of whether an offender is sentenced when placed on probation because the SRA has eliminated the concept of probation as it existed at the time of Whitaker's probation hearing. RCW 9.95.900.\\nHowever, the SRA does have a power comparable to probation in RCW 9.94A.120(5) for first-time offenders and in RCW 9.94A.120(7) for sex offenders. Under those provisions, the court may include community supervision, community service, or both, when sentencing an offender. RCW 9.94A.040(3). Community supervision is similar to probation in that it means a period of time during which a convicted offender is subject to certain prohibitions and conditions. RCW 9.94A.030(6). The sentence that can be imposed on a first-time offender is thus similar, but not identical, to what was previously available as a condition of a deferred or suspended sentence. See D. Boerner \\u00a7 7.7, at 7-9.\\nMore importantly for the analysis of the terms \\\"date of sentencing\\\" and \\\"sentence\\\" under the SRA, when the court places a first-time offender on community supervision, this community supervision option is one of the types of punishment listed under RCW 9.94A.120 \\\"Sentences.\\\" Thus, under the SRA, when a defendant is ordered to community supervision, which is the closest penalty to probation under the SRA, the defendant has received a \\\"sentence\\\".\\nConsequently, had Whitaker been sentenced under the SRA in 1981 and received a probationary-type order of community supervision as a first-time offender, then his \\\"date of sentencing\\\" would have been in 1981 and the subsequent conviction would not be counted as a prior conviction.\\nFurthermore, the focus of the SRA's provisions for determining minimum sentences has been on the fact of prior convictions and the nature of those convictions \\u2014 and not on the sentence. State v. Harper, 50 Wn. App. 578, 580, 749 P.2d 722 (1988). Thus, the focus in the supporting case law under the SRA has been to look back at a deferred sentence and ask whether the deferred sentence should be counted as a prior conviction. The courts have held that a deferred sentence is treated as a \\\"conviction served\\\" for purposes of the SRA. State v. Chavez, 52 Wn. App. 796, 798, 764 P.2d 659 (1988); Harper, at 580.\\nIn contrast, Whitaker's trial court had to look forward from the date of the deferred sentence and then ask whether the deferred sentence could be counted as a sentence so that any conviction following that date would be a subsequent, not a prior, conviction.\\nAs a result, though not an ambiguous term under the SRA itself, the term \\\"date of sentencing\\\" becomes ambiguous when applied to pre-SRA offenses. Fortunately, this is a problem of short duration which will expire when the probation statute expires.\\nIn the interim, the Legislature has directed sentencing judges to incorporate the SRA and set the minimum term in a \\\"reasonably consistent\\\" manner, RCW 9.95.011. Thus, our goal is to tailor the old definitions to the new realities in a \\\"reasonably consistent\\\" manner.\\nTo be \\\"reasonably consistent\\\" with the cases which hold that a deferred sentence is a \\\"conviction\\\" for purposes of determining a minimum term under the SRA, we hold that a deferred sentence is a \\\"sentence\\\" for purposes of determining a minimum term under the SRA.\\nTo hold otherwise would be illogical, because the 1981 offense had already been counted as a prior conviction served, for purposes of fixing the 1986 minimum term, and then later, the 1986 offense would be counted as a prior conviction, for purposes of fixing the 1981 minimum term. That is, each offense would be treated as a prior conviction to the other.\\nTherefore, we hold that when a trial court revokes probation for a pre-SRA offense and then calculates the minimum term under the SRA guidelines, the date of sentencing, for purposes of the SRA, is the date of the original probation hearing.\\nHence, the trial court erred in counting the 1986 conviction as a prior conviction in setting the minimum term for Whitaker's 1981 offense. Reversed.\\nCallow, C.J., and Utter, Brachtenbach, Dore, Pearson, Andersen, Durham, and Smith, JJ., concur.\"}"

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+"{\"id\": \"1175514\", \"name\": \"Freeman Allard, et al, Respondents, v. First Interstate Bank of Washington, N.A., as Trustee, Appellant\", \"name_abbreviation\": \"Allard v. First Interstate Bank of Washington, N.A.\", \"decision_date\": \"1989-03-02\", \"docket_number\": \"No. 55087-5\", \"first_page\": \"145\", \"last_page\": \"164\", \"citations\": \"112 Wash. 2d 145\", \"volume\": \"112\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T02:10:00.277764+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brachtenbach, Dolliver, Pearson, Andersen, and Durham, JJ., and Cunningham and Hamilton, JJ. Pro Tern., concur.\", \"parties\": \"Freeman Allard, et al, Respondents, v. First Interstate Bank of Washington, N.A., as Trustee, Appellant.\", \"head_matter\": \"[No. 55087-5.\\nEn Banc.\\nMarch 2, 1989.]\\nFreeman Allard, et al, Respondents, v. First Interstate Bank of Washington, N.A., as Trustee, Appellant.\\nDavis, Wright & Jones, by Richard A. Derham and Slade Gorton, for appellant.\\nEdwards & Barbieri, by Malcolm L. Edwards and Charles K. Wiggins; Paul N. Luvera, Jr.; Bogle & Gates, by Kimberly W. Osenbaugh, for respondents.\\n[As amended by order of the Supreme Court May 26, 1989.]\", \"word_count\": \"6013\", \"char_count\": \"36162\", \"text\": \"Callow, C.J.\\nFirst Interstate Bank (Bank) challenges the trial court's award of attorneys' fees to plaintiffs. The Bank contends that the trial court erred by relying on the terms set forth in a contingent fee agreement between plaintiffs and their attorney and erred by awarding fees based on an hourly rate in addition to those based on the contingent fee agreement. We uphold the trial court's award.\\nI\\nIn 1979, the plaintiffs brought suit against Pacific National Bank, defendant's predecessor, alleging a breach of the Bank's fiduciary duty in the management of two trusts. Plaintiffs contended that the Bank failed to obtain a reasonable price when it sold property in downtown Seattle owned by one of the trusts. The Bank prevailed at trial, and the plaintiffs appealed. This court reversed, in Allard v. Pacific Nat'l Bank, 99 Wn.2d 394, 663 P.2d 104 (1983), and remanded the case to the trial court for a determination of damages and attorneys' fees.\\nOn remand, the trial court awarded approximately $2.5 million in damages to the plaintiffs. The court also awarded approximately $1 million in attorneys' fees. These fees included an award of approximately $225,000 to the firm of Oles, Morrison & Rinker, et al, which handled the initial trial and appeal. Additionally, the court awarded approximately $750,000 in attorneys' fees for the second trial. These fees included a contingent fee of $596,646 to the firms of Paul Luvera and Associates and Mullavey, Prout, Grenley, Sonkin & Foe, plus $80,000 in fees payable based on an hourly rate to the firm of Edwards & Barbieri for the services of Charles Wiggins and $65,000 in fees to the guardian ad litem.\\nThe Bank has paid all of the attorneys' fees assessed against it with the exception of the $596,646 contingent fee. The Bank asserts that the trial court erred in giving consideration to the contingent fee agreement between plaintiffs and Mr. Luvera when awarding attorneys' fees. Additionally, the Bank contends that the $80,000 paid to Edwards & Barbieri should be deducted from this figure. The Bank appealed the award of attorneys' fees to the Court of Appeals, which certified the following questions to this court:\\n1. Whether the trial court may rely on a contingent fee agreement between the prevailing party and its attorney in computing and awarding a reasonable attorney fee?\\n2. Whether the trial court may award attorney fees charged at an hourly rate in addition to the fees awarded based on a contingent fee agreement?\\nII\\nBoth the Bank and the Court of Appeals have framed the issues in terms of the propriety of the trial court's reliance on the contingent fee agreement and the award of hourly fees in addition to those awarded under the agreement. However, the issue should be framed as to whether the trial court's award of attorneys' fees, as a whole, was reasonable.\\nRCW 4.84.020 provides that, \\\"in all other cases in which attorneys' fees are allowed, the amount thereof shall be fixed by the court at such sum as the court shall deem reasonable .\\\" (Italics ours.) See also Singleton v. Frost, 108 Wn.2d 723, 727, 742 P.2d 1224 (1987); Key v. Cascade Packing, Inc., 19 Wn. App. 579, 585, 576 P.2d 929 (1978). The reasonableness of an award is subject to appellate review. Key, at 585. However, the trial court's determination of what constitutes a reasonable award will not be reversed absent an abuse of discretion. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 64, 738 P.2d 665 (1987); Meyer v. UW, 105 Wn.2d 847, 856, 719 P.2d 98 (1986); Allard v. Pacific Nat'l Bank, 99 Wn.2d 394, 407, 663 P.2d 104 (1983). \\\"A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based upon untenable grounds or reasons.\\\" Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Also, \\\" [a]n abuse of discretion exists only where no reasonable person would take the position adopted by the trial court.\\\" Singleton, at 730 (quoting Wilkinson v. Smith, 31 Wn. App. 1, 14, 639 P.2d 768 (1982)).\\nIn this case, the trial court considered three primary factors in determining the amount of attorneys' fees to be awarded: (1) RPC 1.5(a), (2) the contingent fee agreement between plaintiffs and their attorney, and (3) the court's belief that the plaintiffs should be made whole. A finding of fact states:\\nThe court has reviewed the fees and costs incurred and the contingent fee arrangements in light of the factors in RPC 1.5(a). The court has also observed Mr. Luvera's conduct of the case as lead counsel, the result obtained, and the beneficiaries' financial inability to retain counsel on an hourly fee arrangement, and finds $596,646 to be a reasonable award for attorney's fees and costs.\\nIn addition, during oral ruling, the trial court stated:\\nConsequently, this court rules that the Allards and the Orkneys are to be made whole and will award attorneys fees to compensate them for all of the amount of money they have paid and owed to Mr. Oles [plaintiffs' counsel during the initial trial and appeal] and all of the amount of money they owe to Mr. Luvera.\\nThe trial court acted reasonably when it considered the factors set forth in RPC 1.5(a) in determining the amount of attorneys' fees to be awarded. These factors include:\\n(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;\\n(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;\\n(3) The fee customarily charged in the locality for similar legal services;\\n(4) The amount involved and the results obtained;\\n(5) The time limitations imposed by the client or by the circumstances;\\n(6) The nature and length of the professional relationship with the client;\\n(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and\\n(8) Whether the fee is fixed or contingent.\\nRPC 1.5(a). We have recognized that the factors set forth in CPR DR 2-106(B), the predecessor to RPC 1.5(a), may be used as a guideline for determining reasonable attorneys' fees. See Singleton, at 731, Kimball v. PUD 1, 64 Wn.2d 252, 257, 391 P.2d 205 (1964); see also Informal Op. 88-1, Contingent Fee Agreements in Cases Where the Court Sets a Reasonable Attorney's Fee, Wash. State Bar News 23 (Feb. 1988).\\nFurthermore, the trial court also acted reasonably when it considered the contingent fee agreement between plaintiffs and their attorney in making its award. RPC 1.5(a) specifically authorizes consideration of whether the fee was fixed or contingent. See RPC 1.5(a)(4), (8). Pennsylvania v. Delaware Vly. Citizens' Coun. for Clean Air, 483 U.S. 711, 97 L. Ed. 2d 585, 596, 107 S. Ct. 3078 (1987) (Delaware II), impliedly authorized the consideration of contingent fee agreements in making an award of attorneys' fees. In dicta, the Supreme Court noted,\\nthe contingency factor was meant to focus judicial scrutiny solely on the existence of any contract for attorney's fees which may have been executed between the party and his attorney. \\\"The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating that attorney's fee expectations when he accepted the case.\\\"\\nDelaware II, at 723 (quoting Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974)).\\nA trial court may consider the existence of a contingent fee agreement in making its award of attorneys' fees, but should not rely solely on the terms of such an agreement in determining the amount. See Leubsdorf, Recovering Attorney Fees as Damages, 38 Rutgers L. Rev. 439, 476 (1986); Note, Attorney's Fees \\u2014 Computing a \\\"Reasonable Attorney's Fee\\\" Under the Civil Rights Attorney's Fees Awards Act \\u2014 Cooper v. Singer, 33 U. Kan. L. Rev. 367, 388 (1985). The court must independently decide what constitutes a reasonable award. In a case involving condemnation proceedings, the trial court awarded attorneys' fees totaling 15 percent of the difference between the City's offer and the jury verdict, the same amount provided for in a contingent fee agreement between the condemnees and their attorneys. See Seattle v. Seattle-First Nat'l Bank, 79 Wn.2d 490, 487 P.2d 777 (1971). We upheld the award, stating, \\\"The [trial] court determined that, independently of the contract between the respondents and their attorneys, a fee of 15 per cent of the difference between the city's offer and the jury's verdict was reasonable.'' Seattle, at 493. Key v. Cascade Packing, Inc., supra, stated in reference to a contingent fee arrangement:\\nSuch an arrangement is perfectly valid, but it should not control the size of the burden placed on a defendant. The existence of a contingent fee arrangement between an attorney and client says nothing about the reasonableness of an award of attorney's fee granted to a plaintiff against a defendant. The attorney's fee awarded should be neither enhanced nor diminished by the presence of such an arrangement.\\nKey, at 586. The existence of a contingent fee agreement may be considered as one of several factors in making an award of attorneys' fees, but it alone is not determinative.\\nIn this case, the trial court did not apply the contingent fee agreement mechanically to determine the amount of attorneys' fees to be awarded to the plaintiffs. The court also considered the factors set forth in RPC 1.5(a) and its intent to make the plaintiffs whole. Because the court considered several factors in making its award, we cannot say that its award of $596,646 according to the contingent fee agreement constituted an abuse of discretion.\\nFinally, the trial court stated its intention to make the plaintiffs whole in fashioning its award of attorneys' fees. In this case, attorneys' fees were awarded as a matter of equity, based on the Bank's breach of its fiduciary duty. The trial court stated in its conclusions of law:\\nThis court, sitting in equity, has given due consideration to the egregious nature of the bank's breach in determining the actual amount of damages.\\nIn order to place the trusts in the same position as if defendant bank had never breached its fiduciary duties, judgment should be entered against the defendant bank\\nFurthermore, when we initially concluded that plaintiffs were entitled to recover attorneys' fees, we stated that \\\"plaintiffs should be granted their request to recover all attorney fees expended at both the trial and on appeal .\\\" (Italics ours.) Allard, at 407-08. For these reasons, it was within the trial court's discretion to consider making plaintiffs whole as a factor in reaching its decision.\\nThe trial court did not abuse its discretion by considering the factors set forth in RPC 1.5(a), the contingent fee agreement, and making plaintiffs whole in making its award of attorneys' fees.\\nIII\\nThe Bank also contends that the trial court abused its discretion by awarding $80,000 in hourly fees for the services of Mr. Wiggins in addition to the $596,646 awarded under the contingent fee agreement. The Bank asserts that had Mr. Luvera chosen to associate someone from the Mullavey firm, the fees awarded to that attorney would have been covered by the contingent fee agreement. Instead, by going outside the firm, the Bank has been required to pay the entire 25 percent contingent fee plus an additional $80,000 to Mr. Wiggins.\\nThe contingent fee agreement provided that outside counsel might be required, and that such counsel would be paid on an hourly basis in addition to payment of the contingent fee. Paragraph 4 of the agreement states:\\nPaul [Luvera] also felt that there might be a requirement that we hire other counsel to help us as the case progresses and if that is the case, those costs would be considered expenses that would be paid by you at the time that the expenses are incurred. As an example, if we were assigned an Iranian Judge, Paul might want to hire an Iranian attorney to argue a particular motion to the Iranian Judge, and that would be an expense that would be paid by you. I recognize that this is a far fetched example, but I hope it illustrates the thought that Paul had.\\nThe Bank argues that this paragraph refers to hiring outside counsel for a specific, narrowly defined purpose. In this case, Mr. Wiggins handled a large portion of the trial, and therefore, arguably, did not fall within the \\\"Iranian counsel\\\" exception.\\nAs noted, the primary consideration in determining an appropriate award is reasonableness. Thus, it should not be improper per se to award fees charged at an hourly rate in addition to those incurred under a contingent fee agreement. If such an award is reasonable under the circumstances, it should be upheld. There was evidence that the plaintiffs had originally agreed to pay Mr. Luvera a 33 Vs percent contingent fee. This fee was reduced to 25 percent in consideration of the fact that outside counsel might have to be appointed. The plaintiffs assert that as a result of this reduction, the Bank saved $120,000 in fees. In addition, there was evidence that Mr. Wiggins' role was limited to research, briefing, and motions practice during much of the litigation, and his role expanded only when the Bank noted last-minute depositions of the plaintiffs' experts and made last-minute disclosures of its own expert witnesses. The plaintiffs should not have to bear the burden of the Bank's late-hour tactics, especially in light of the purpose of making plaintiffs whole. We cannot say that the trial court's award of $80,000 for fees to Edwards & Barbieri constituted an abuse of discretion.\\nFinally, Mr. Wiggins and the guardian ad litem have requested attorneys' fees for services rendered during this appeal. Mr. Wiggins and the guardian ad litem have complied with the requirements of RAP 18.1 by making a request for attorneys' fees in their brief. In addition, Mr. Wiggins timely filed his affidavit for attorneys' fees and is entitled to recover attorneys' fees in the amount of $23,663.30 for the work he has done on appeal, pursuant to RAP 18.1. We also award the guardian ad litem attorneys' fees of $2,970.\\nIV\\nIn fashioning the award of attorneys' fees, the trial court considered the factors set forth in RPC 1.5(a), the contingent fee agreement between the plaintiffs and their attorney, and the court's stated intent to make plaintiffs whole. The Bank challenges the award of fees based on the contingent fee agreement and the additional $80,000 awarded to Charles Wiggins. We conclude that this award is not unreasonable and did not constitute an abuse of discretion. We uphold the award of attorneys' fees.\\nBrachtenbach, Dolliver, Pearson, Andersen, and Durham, JJ., and Cunningham and Hamilton, JJ. Pro Tern., concur.\"}"

wash/1190645.json

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+"{\"id\": \"1190645\", \"name\": \"Diedre Lesley, et al., as Guardians, Appellants, v. The Department of Social and Health Services, et al., Respondents\", \"name_abbreviation\": \"Lesley v. Department of Social & Health Services\", \"decision_date\": \"1996-08-26\", \"docket_number\": \"No. 36161-9-I\", \"first_page\": \"263\", \"last_page\": \"281\", \"citations\": \"83 Wash. App. 263\", \"volume\": \"83\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T23:13:31.340203+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Diedre Lesley, et al., as Guardians, Appellants, v. The Department of Social and Health Services, et al., Respondents.\", \"head_matter\": \"[No. 36161-9-I.\\nDivision One.\\nAugust 26, 1996.]\\nDiedre Lesley, et al., as Guardians, Appellants, v. The Department of Social and Health Services, et al., Respondents.\\nJo-Hanna Read and Law Offices of Jo-Hanna Read, for appellants.\\nChristine O. Gregoire, Attorney General, and Rene D. To-misser and Elizabeth J. Erwin, Assistants; and Teri M. Dettmer, Nancy A. Balin, and Lee, Smart, Cook, Martin & Patterson, P.S., Inc., for respondents.\", \"word_count\": \"5043\", \"char_count\": \"31444\", \"text\": \"Coleman, J.\\nDSHS caseworker Sally Maurer, suspecting that Diedre and Terell Lesley abused their daughter, removed the child from the parents. Her suspicions proved incorrect, and the Lesleys now contend that Maurer negligently investigated the case and violated their civil rights. Because Maurer may not have followed procedures or acted reasonably, we reverse the summary judgment order for Maurer and the State. The Lesleys also argue that the court erred in holding that Dr. Douglas Lam-brecht enjoyed qualified immunity because he was reporting child abuse in good faith. We agree with the trial court and affirm the summary judgment order for the doctor.\\nThe appellate court engages in the same inquiry as the trial court in reviewing an order for summary judgment. Johnson v. DSHS, 80 Wn. App 212, 226, 907 P.2d 1223 (1996). Thus, we construe the following facts adduced from the record most favorably to the nonmoving party. See Johnson, 80 Wn. App. at 226.\\nOn April 7, 1992, Candyland Day-care workers noticed marks on the lower back and buttocks of Taylor Lesley, the Lesley's 11-month-old African American daughter, when cleaning her backside after severe diarrhea. The workers did not recall seeing the marks previously but noted that they may not be able to see them during normal diaper changes. Day-care manager Shellie Weitz had heard of but never seen Mongolian spots, a birthmark appearing in the vast majority of African American children. Believing that they would be able to determine whether the marks were bruises or birthmarks, she decided to call Child Protective Services.\\nAt around 4 or 4:30 p.m., CPS worker Maurer looked at the marks. The day-care workers told Maurer that they had not seen these marks previously and that the child also had a rash in the vaginal area. Maurer called her supervisor, Sally Scott, who told Maurer to have the police examine the child. Maurer called the police and the child's regular pediatrician, Dr. Arredondo, to determine if the child had any birthmarks and to arrange for an examination. The doctor's office told Maurer that Dr. Arre-dondo was unavailable and advised her to take Taylor to the emergency room at Valley General Hospital. The police then arrived and examined Taylor. Maurer noted that when the officer pressed on the marks, the child cried \\\"in pain.\\\" The officer decided that the child should be taken into protective custody. Maurer told Weitz that she did not have time to talk to the parents. When Weitz asked Maurer what she should tell the parents, Maurer said to tell them that bruises were found on the child's buttocks. The Lesleys arrived at the day care at 5:30 p.m. and were very upset to find their daughter absent.\\nMaurer took Taylor to Valley General Medical Center's Emergency Room, where two police officers soon arrived. The officers had been dispatched because of the mother's apparently hostile reaction to the news that her daughter had been taken into protective custody. The officers informed Maurer that the parents said the child had normal markings on her backside. Maurer did not then relay this information to Valley General's Dr. Lambrecht, nor did she inform the doctor about Taylor's vaginal rash.\\nDr. Lambrecht examined the child, including the vaginal area. He asked Maurer whether Taylor had a history of Mongolian spots. Maurer repeated only what the day-care workers had told her. Dr. Lambrecht called Dr. Arredondo, who was not in her office. Dr. Burkebile, who was on call for Dr. Arredondo, checked Taylor's chart and found no reference to Mongolian spots. Dr. Lambrecht concluded that Taylor did not appear to be sexually assaulted and diagnosed the marks as \\\"contusions to the buttocks and lower back, possible physical child abuse.\\\" Dr. Lambrecht advised Maurer to have Dr. Arredondo or an expert at Children's Hospital or Harborview see Taylor. Maurer did not follow these instructions.\\nAt 7:30 p.m. that day, Maurer brought Taylor to the home of Joanne Maloy, a foster care provider. Maurer told Maloy about the marks and the diaper rash. Maurer called Maloy at least once each day except Sunday and asked her if the marks had changed. Maloy repeatedly told Maurer that the marks had not changed. Maloy stated that Maurer never told her the parents wanted visitation with Taylor over the weekend, which Maloy would have gladly accommodated. Maurer also told Maloy after an interview with the parents that Taylor's mother was \\\"out of control\\\" and \\\"was the one who probably abused the baby[J\\\"\\nOn or about April 7, Dr. John Neff of Children's Hospital received a call regarding Taylor from a caseworker who stated that she had seen bruises over the child's buttocks. The caseworker asked if the child needed to be seen at Children's Hospital for further confirmation. Dr. Neff asked if photographs had been taken, and the caseworker told him that they had been. Because the caseworker gave him the impression that there were no questions about the diagnosis, Dr. Neff told her that it was not necessary for the child to be seen at Children's Hospital.\\nOn Wednesday, April 8, Maurer and another caseworker interviewed the Lesleys separately and with their attorney, Edna Verzani. Verzani testified that the interviewers were not listening carefully and that she had to correct them several times. Each parent described Taylor's birthmark as a greenish color covering an area of Taylor's lower back and upper buttocks. Diedre Lesley told Maurer that she had similar marks on herself and offered to show her. Maurer declined to look. Maurer asked the parents whether there were any marks on Taylor's lower back. The parents said that there were not. Maurer did not believe that the parents' description adequately described Taylor's marks.\\nOn Thursday, April 9, Maurer supervised a visit between the parents and Taylor. Maurer claimed that neither parent mentioned noticing a yeast infection at this time, but the parents did state that Taylor needed A & D Ointment because baby powder gave her a diaper rash. The Lesleys observed Taylor's marks and told Maurer that the marks were exactly as they had described. Maurer told them that their description was different.\\nAlso on Thursday, April 9, Maurer contacted Taylor's paternal grandmother, Ruth Lesley Dunlap, who told her that the baby had no marks or skin discolorations. Dunlap had cared for the baby once for three days.\\nAt a shelter care hearing on Friday, April 10, both parents and Taylor's maternal grandmother, Emma Jane Newell, testified that Taylor had one main birthmark on her backside. Maurer testified that the marks that the parents described were substantially different from the ones she observed. Commissioner Maurice Epstein determined that the child should stay with the foster parent but recommended to return the child as soon as possible if there was strong \\\"or even reasonable evidence that nothing did occur on the part of the parents and that there is no real injury at that time.\\\" The commissioner ordered liberal visitation.\\nAfter the hearing, Newell made a dermatologist appointment for Taylor for that afternoon. Verzani claimed that Newell called Commissioner Epstein and explained that the parents needed help facilitating the transportation. The commissioner authorized Newell to take Taylor to the doctor and told Verzani that he had conveyed this information to Scott. When Verzani contacted Scott, she denied that the commissioner had authorized Newell to take the child. Newell went to CPS and awaited information as to where to pick up Taylor. Finally, it became too late to keep the appointment. Scott then indicated that she had not been able to reach the foster care provider. Maloy, who had taken her son to the hospital on Friday afternoon, apologized to Maurer for not being available. Maloy stated that Maurer told her that CPS really did not want to keep the appointment in any case.\\nDr. Neff claimed that on or about April 10, the caseworker again called him and asked what she could do to substantiate bruising. At this time, the caseworker told him that the family said the child had a birthmark. Dr. Neff explained that it was easy to differentiate the two because a bruise would change color or show other signs of resolution.\\nOn Saturday morning, April 11, Maurer told Dr. Lam-brecht that the parents claimed the marks were from birth but that they gave a different description in court. She then called Dr. Arredondo, who stated that, based on an emergency room transcription she had received, she could not state whether the marks had changed but that she would examine Taylor. Maurer then called Dr. Neff, who was not on duty, and instead spoke to Dr. Lehman. Dr. Lehman told Maurer to have Dr. Lambrecht recheck the mark to see whether it had changed. Dr. Lehman told her that if Dr. Lambrecht was not convinced, Maurer should bring the child to Children's emergency room, where the doctors would then determine what the marks were.\\nAt about 5:30 p.m. on Saturday, Maurer picked up Taylor to take her to Dr. Lambrecht. Maurer claims that she had been unable to get in touch with Maloy to pick up Taylor earlier, but Maloy claims that she waited all afternoon for Maurer's arrival. Dr. Lambrecht thought that the marks, \\\"if anything,\\\" were slightly more grayish. The mark's grayness, the doctor stated, \\\"might weigh slightly more that it was more likely a [Mongolian spot than a contusion, but it wouldn't necessarily rule it out.\\\" Maurer did not tell Dr. Lambrecht that the foster mother had not noticed any changes in the marks. Since it was after 7 p.m., Maurer decided to take the child back to the foster home.\\nOn Monday, April 13, Dr. Kenneth Feldman at Odessa-Brown Children's Clinic diagnosed the marks as Mongolian spots and not bruises. He further diagnosed a yeast rash in the genital area and prescribed appropriate treatment. The child was then returned to the Lesleys.\\nThe Lesleys offered the Declaration of Jon Conte, a professor of social work, who found that Maurer investigated in an unreasonable fashion based on biased and partial information. Conte determined that Maurer should have followed Dr. Lambrecht's advice in consulting an expert and that she should have personally notified the parents that the child was being taken into protective custody. Conte found that Maurer made inappropriate remarks to the foster mother, indicating her lack of willingness to work in a positive manner, and that she inappropriately did not convey complete information to Dr. Lambrecht concerning the marks.\\nDr. Abraham B. Bergman, a pediatrician at Harborview Medical Center and the Director of the Child Abuse Consultation Network in Washington, stated that CPS's behavior was outrageous. Additionally, Dr. Feldman stated that Dr. Lambrecht did not make a competent diagnosis following the recognized standards of care required of physicians who examine children for abuse.\\nThe complaint named the caseworkers in their official capacity:\\nDefendants The Department of Social and Health Services, Sally Scott and Sally Maurer under the color of law and pretext under the statutes, regulations and practices of the State of Washington and under the authority of their offices for the Department of Social & Health Services deprived plaintiffs of their constitutional right to a familial relationship, to care and proper treatment, and to due process of law.\\n(Emphasis added.)\\nThe court granted summary judgment for defendants, finding that because Scott and Maurer's actions were consistent with the statutory framework, they enjoyed qualified immunity for all claims. The court further determined that the State was immune based on the caseworkers' immunity. Additionally, the court granted summary judgment for Dr. Lambrecht based on qualified immunity.\\n' NEGLIGENT INVESTIGATION\\nWe first address the Lesleys' claim that the caseworkers and the State are liable for their negligent investigation into allegations of possible child abuse. The State argues that Washington law does not recognize negligent investigation as an independent cause of action. We thus first address whether Washington recognizes this tort.\\nIn Babcock v. State, 116 Wn.2d 596, 606, 618, 809 P.2d 143 (1991), the Supreme Court held that DSHS caseworkers were entitled to qualified, not absolute, immunity for negligent foster care investigation and placement. The alleged negligent investigation occurred when caseworkers placed several young girls with a relative who raped them. Babcock, 116 Wn.2d at 598. Defendants attempt to distinguish Babcock, arguing that Babcock involved negligent placement, while this case involves negligent investigation of possible abuse. The Babcock court, however, noted that the gravamen of the complaint was negligent investigation. Babcock, 116 Wn.2d at 610-12. Furthermore, in Dunning v. Paccerelli, 63 Wn. App. 232, 238-40, 818 P.2d 34 (1991), review denied, 118 Wn.2d 1024 (1992), the court, rejecting the argument that investigating possible child abuse was distinct from Bab-cock's foster care placement, explicitly recognized a negligent investigation claim against a DSHS worker. See also Waller v. State, 64 Wn. App. 318, 334, 824 P.2d 1225 (recognizing possible liability for negligent investigation of DSHS caseworkers), review denied, 119 Wn.2d 1014 (1992).\\nWashington courts have not recognized a cause of action for negligent investigation in some other contexts. See Lambert v. Morehouse, 68 Wn. App. 500, 504, 843 P.2d 1116 (employer does not owe a duty to conduct a reasonable investigation before discharge because employer can dismiss at will employee for no cause), review denied, 121 Wn.2d 1022 (1993); Dever v. Fowler, 63 Wn. App. 35, 45, 816 P.2d 1237 (1991) (noting chilling effect of recognizing a cause of action for negligent investigation by police in arson case), review denied, 118 Wn.2d 1028 (1992); Donaldson v. City of Seattle, 65 Wn. App. 661, 671, 831 P.2d 1098 (1992) (no recognized tort of negligent investigation when police officers have no statutory duty to conduct follow-up investigations). The Dever court reasoned that recognizing such a cause of action \\\"would impair vigorous prosecution and have a chilling effect upon law enforcement.\\\" Dever, 63 Wn. App. at 45. But here, a specific statute provides that DSHS caseworkers have a duty to investigate. RCW 26.44.050. A cause of action for negligent investigation thus exists against DSHS caseworkers. See RCW 26.44.050; Babcock, 116 Wn.2d at 606, 618; Dunning, 63 Wn. App. at 238-40.\\nCASEWORKER AND STATE QUALIFIED IMMUNITY\\nWe next address whether Maurer is entitled to qualified immunity as a matter of law. State employees enjoy qualified statutory immunity for reporting child abuse:\\n(l)(a) Except as provided in (b) of this subsection, any person participating in good faith in the making of a report pursuant to this chapter or testifying as to alleged child abuse or neglect in a judicial proceeding shall in so doing be immune from any liability arising out of such reporting or testifying under any law of this state or its political subdivisions.\\nRCW 26.44.060(l)(a). The burden is on the caseworker to prove that he or she acted in good faith under RCW 26.44.060 in reporting the abuse. Dunning, 63 Wn. App. at 240. State employees also enjoy qualified common law immunity for investigating child abuse. Babcock, 116 Wn.2d at 618. To receive this qualified immunity, the caseworker must (1) carry out a statutory duty, (2) according to procedures dictated by statute or superiors, and (3) act reasonably. Babcock, 116 Wn.2d at 618. No issue of fact exists concerning Maurer's initial response to the suspected abuse under RCW 26.44.040(l)(a). The sole issue is thus whether Maurer is entitled to qualified immunity for her investigation.\\nThe Lesleys claim that Maurer fails to meet Babcock's qualified immunity requirements because she did not follow established procedures. The statute emphasizes the importance of family unity. See RCW 26.44.010 (\\\"The bond between a child and his or her parent, custodian, or guardian is of paramount importance, and any intervention into the life of a child is also an intervention into the life of the parent, custodian, or guardian . . .\\\"); WAC 388-15--130 (one goal of CPS is to \\\"[mjaintain, support, or reunify families to the extent possible consistent with the safety of the child.\\\"). The Department of Child and Family Services manual also emphasizes the need for culturally sensitive interviewing techniques and responses that remedy the situation in the shortest reasonable time and prevent or reduce the need for out of home placement. Section 26.11(A)(3)(a); 26.11(B)(2)(a) and (e); 26.12; 26.31. Other provisions emphasize expediency. For instance, section 26.53 provides that DCFS staff have a statutory duty to notify the child's parents at the earliest point of time that will not jeopardize the safety and protection of the child and the course of the investigation. And section 26.42(K) states in part that \\\"[t]he DCFS social worker shall return a child to home at the earliest opportunity consistent with the safety needs of the child.\\\"\\nHere, the Lesley's presented evidence that Maurer removed the child from the day-care without calling the parents. Cf. section 26.53. Maurer also failed to tell Dr. Lambrecht and the court immediately that the parents said that the marks were Mongolian spots or that the foster mother said that the marks had not changed. Cf. section 26.11, 26.12, 26.31. Additionally, Maurer failed to follow Dr. Lambrecht's advice to take the child to an expert after the doctor expressed reservation about his ability to diagnose the possible child abuse. Such actions may have violated the mandate of speedy family reunification consistent with the child's safety needs. Cf. WAC 388-15-130. Finally, her conversations with Maloy and the Lesleys indicate that Maurer may have lacked cultural sensitivity. Because the Lesleys presented evidence raising questions of fact concerning whether Maurer followed procedures, we reverse the finding of qualified immunity for Maurer and remand for trial.\\nMaurer may have also failed to comply with Babcock's reasonableness requirement. No discovered case has squarely addressed the definition of reasonableness under Babcock. Because reporting decisions must be conducted with reasonable good faith, the investigation following such reporting is also subject to the same standard. The caseworker must act with a reasonable good faith intent, judged in light of all the circumstances then present in conducting an investigation into child abuse. See Dunning v. Paccerelli, 63 Wn. App. 232, 240, 818 P.2d 34 (1991), review denied, 118 Wn.2d 1024 (1992). We note parenthetically that this standard differs from the traditional negligence standard. To adopt such a standard would effectively nullify Babcock's grant of qualified immunity. Babcock v. State, 116 Wn.2d 596, 618, 809 P.2d 143 (1991).\\nHere, whether Maurer acted with reasonable good faith presents issues of fact. See Dunning, 63 Wn. App. at 240. For instance, her delay in resolving the matter, her failure to inform the doctors and the court fully concerning the parents' and foster mother's statements, and her statements to Maloy provide issues of fact concerning her reasonable good faith. We thus find that there are issues of fact concerning reasonableness sufficient to withstand summary judgment.\\nThe State claims that the Lesleys are collaterally estopped from relitigating the dependency proceeding. For collateral estoppel to bar a claim, four requirements must be met: (1) The issue decided in the. prior adjudication must be identical with the one presented in this action; (2) there must have been a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party or in privity with a party in the prior adjudication; and (4) the application must not work an injustice on the party against whom the doctrine is being applied. Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983).\\nHere, the requirements are not met. The issue involves the investigation by DSHS, not the outcome of the shelter care hearing. A shelter care hearing is also not a final adjudication on the merits. See In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (dependency hearing is \\\"a preliminary, remedial, nonadversary proceeding\\\"), cert, denied, 507 U.S. 927 (1993). The Lesleys are not appealing the outcome of the shelter care hearing, but the investigation conducted that led to their daughter's six-day removal. We reject this claim.\\nThe defendants also claim that the social workers are shielded by absolute prosecutorial immunity because a dependency proceeding had commenced. In Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991), the court noted in dicta that the caseworkers may have been entitled to absolute immunity had they initiated a dependency hearing where they entered investigation results into evidence and were made part of an adversary process. Babcock, 116 Wn.2d at 612. But the Lesleys note that Babcock also stated, \\\"It is good policy to grant caseworkers a qualified immunity for initiation of dependency proceedings without granting absolute immunity for everything they do while a dependency review process continues.\\\" Babcock, 116 Wn.2d at 616. We hold that absolute prosecutorial immunity is not available here. Babcock is ambiguous, and the language favoring absolute immunity is dicta. Moreover, the dependency case did not proceed to full adjudication but was dismissed after a preliminary hearing.\\nBecause we find no qualified immunity for Maurer, the State does not share any qualified immunity. We note that, in any case, the State does not enjoy the qualified immunity of its employees in this context. See Savage v. State, 127 Wn.2d 434, 438, 447, 899 P.2d 1270 (1995) (State did not share its parole officers' qualified immunity even when liability was based solely on respondeat superior); Babcock, 116 Wn.2d at 620 (declining to extend the qualified immunity afforded to DSHS caseworkers to the state agency). We thus reverse the summary judgment order for the State.\\n42 U.S.C. \\u00a7 1983\\nThe next issue we consider is whether Maurer's actions deprived the Lesleys of fundamental federal constitutional rights, thus forming a basis for a section 1983 claim. Defendants claim that the Eleventh Amendment bars section 1983 actions against the State, its agencies, and its employees because the plaintiffs failed to name the caseworkers in their individual capacities. Defendants alternatively argue that the Lesleys have not established a prima facie case that the caseworkers acted with deliberate indifference as required under section 1983.\\nWe first address whether the complaint sufficiently identified Maurer in her individual capacity. Here, plaintiffs did not specifically state that they were suing the caseworkers individually but stated that they were suing the caseworkers \\\"under the authority of their offices for the [DSHS.]\\\"\\nCourts look at the totality of the complaint as well as the course of the proceeding to determine whether defendants were provided with sufficient notice of potential personal liability. Yorktown Medical Lab., Inc. v. Perales, 948 F.2d 84, 88-89 (2nd Cir. 1991). The Yorktown court found that because the complaint sought punitive damages, which are only available in individual capacity suits, notice was provided that defendants were being sued in their individual capacity. Yorktown, 948 F.2d at 89; accord Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991) (\\\"where the complaint alleges the tortious conduct of an individual acting under color of state law, an individual capacity suit plainly lies, even if the plaintiff failed to spell out the defendant's capacity in the complaint.\\\"); Brunken v. Lance, 807 F.2d 1325, 1329 (7th Cir. 1986) (court found personal liability even though complaint named defendants \\\"not as individuals but under the color and pretense of the statutes, regulations, customs and usages of the State of Illinois, and under their authority as employees of the State of Illinois.\\\").\\nHere, the complaint requests punitive damages and attorney fees and thus indicates that the plaintiffs intended to sue the caseworkers in their individual capacity. Furthermore, Maurer argued at trial and on appeal that she is entitled to qualified immunity, indicating that she had notice that she was being sued individually. Finally, the lower court's ruling on summary judgment was based on qualified immunity, not the Eleventh Amendment. We thus construe the pleadings to permit individual suit against Maurer.\\nTo support a claim under section 1983, the Lesleys must establish that a person acting under color of state law deprived them of a federal constitutional or statutory right. Robinson v. City of Seattle, 119 Wn.2d 34, 58, 830 P.2d 318, cert, denied, 506 U.S. 1028 (1992). The plaintiff must also present evidence establishing gross negligence, recklessness, or deliberate indifference. Peterson v. Littlejohn, 56 Wn. App. 1, 14-15, 781 P.2d 1329 (1989), citing Wood v. Ostrander, 851 F.2d 1212, 1214 (9th Cir. 1988). In Peterson, the court noted that when plaintiff presented evidence of more than mere negligence, a police investigation of questionable thoroughness could give rise to a section 1983 claim even if the investigation was not intentionally wrongful. Peterson, 56 Wn. App. at 16.\\nTo receive qualified immunity under section 1983, a state official performing discretionary functions must show that the official's conduct \\\"[did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.\\\" Gurno v. Town of LaConner, 65 Wn. App. 218, 227, 828 P.2d 49, review denied, 119 Wn.2d 1019 (1992), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The right's contours must be sufficiently clear such that a reasonable official would understand he or she is violating that right. Robinson, 119 Wn.2d at 66 (quoting Anderson v. Creighton, 483 U. S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)).\\nHere, questions of fact exist concerning whether Maurer's actions deprived the Lesleys of their fundamental right to their child's companionship. In re Myricks, 85 Wn.2d 252, 253-54, 533 P.2d 841 (1975). Testimony from Dr. Conte indicates that Maurer's actions were \\\"outrageous,\\\" not merely negligent. Whether the evidence establishes more than mere negligence is a jury question. Additionally, the State failed to sustain its burden in showing that a reasonable caseworker would not have known the contours of the well-established family unity right. We thus reverse the court's finding that Maurer is protected by qualified immunity for the section 1983 claim.\\nThe Lesleys have requested attorney fees on appeal which they are entitled to if they ultimately prevail on the merits. In the event they prevail, they may request attorney fees for this appeal in the trial court.\\nDOCTOR QUALIFIED IMMUNITY\\nWe finally consider whether the trial court erred in find ing Dr. Lambrecht immune for his actions under RCW 26.44.060(1). RCW 26.44.060(1) provides immunity to any person participating in good faith in reporting or testifying as to alleged child abuse or neglect in a judicial proceeding. In determining the definition of a report, we look to RCW 26.44.030. This statute states that when any practitioner has reasonable cause to believe that a child has suffered abuse or neglect, the practitioner shall \\\"report\\\" such incident to the proper law enforcement agencies. RCW 26.44.030(1). It also states that any other person who has reasonable cause to believe a child has suffered abuse or neglect may also \\\"report\\\" such incident. RCW 26.44.030(3). The critical inquiry is whether Dr. Lam-brecht was making a report under either RCW 26.44.030(1) or (3), thus entitling him to qualified immunity.\\nThe Lesleys argue that a \\\"report\\\" refers to an initial report of child abuse before the child has been taken into DSHS custody, and thus, Dr. Lambrecht was not \\\"making a report\\\" as defined by the statute. Dr. Lambrecht claims that the Lesleys' narrow reading defies statutory construction rules. Dr. Lambrecht also argues that if the Legislature intended to confer immunity only to the first person making the report, it would not have extended immunity to persons testifying.\\nThe scant case law is conflicting. In City of Seattle v. Shin, 50 Wn. App. 218, 226, 748 P.2d 643, review denied, 110 Wn.2d 1025 (1988), the court stated that RCW 26.44.060(1) imposed a statutory duty upon certain individuals to contact law enforcement officials when they had reasonable cause to suspect abuse. The court noted that these people and any others making such a report were immune from liability. Shin, 50 Wn. App. at 226. Because Dr. Lambrecht was not reporting to law enforcement officials, the Lesleys claim that he is not entitled to immunity. But in Spurrell v. Block, 40 Wn. App. 854, 866, 701 P.2d 529, review denied, 104 Wn.2d 1014 (1985), the court afforded immunity to a police officer who made a child abuse report even though a nurse had already made an initial child abuse report and the officer was responding to her call. Contrary to Shin, Spurrell indicates that even those not initially reporting the abuse or contacting law enforcement are entitled to the statute's protections.\\nWhile case law is scant, we hold that Dr. Lambrecht is subject to the protections of RCW 26.44.060. First, the statute refers to any person making a report, not just the initial reporting person. RCW 26.44.030(1) and (3). Second, RCW 26.44.060 affords immunity for all those testifying concerning abuse. It would thus be nonsensical to provide immunity to the doctor when he testified, but not when he only made a report. Finally, Spurrell indicates that all persons are immune in making reports of child abuse, regardless of whether they were the initial reporter or had increased decision-making responsibility. See Spurrell, 40 Wn. App. at 866-67.\\nWe finally address whether Dr. Lambrecht's actions met RCW 26.44.060's \\\"good faith\\\" requirement. To establish good faith, Dr. Lambrecht must have acted with a \\\"reasonable good faith intent, judged in light of all the circumstances then presentf.]\\\" Dunning v. Paccerelli, 63 Wn. App. 232, 240, 818 P.2d 34 (1991), review denied, 118 Wn.2d 1024 (1992). No evidence indicates that Dr. Lambrecht did not act in reasonable good faith. We thus affirm the summary judgment order for Dr. Lambrecht.\\nThe order of the trial court is affirmed in part and reversed in part.\\nGrosse and Webster, JJ., concur.\\nAfter modification, further reconsideration denied October 16, 1996.\\nReview denied at 131 Wn.2d 1026 (1997).\\nWhile Sally Scott is named individually on appeal, plaintiffs did not provide briefing regarding her liability. Appellants have thus waived the issue of Scott's liability on appeal. RAP 10.3(a)(5).\"}"

wash/121399.json

@@ -0,0 +1 @@
+"{\"id\": \"121399\", \"name\": \"The State of Washington, Respondent, v. Andrew Lloyd Thomas, Appellant\", \"name_abbreviation\": \"State v. Thomas\", \"decision_date\": \"1996-12-23\", \"docket_number\": \"No. 33986-9-I\", \"first_page\": \"1045\", \"last_page\": \"1045\", \"citations\": \"84 Wash. App. 1045\", \"volume\": \"84\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T22:54:15.533172+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Andrew Lloyd Thomas, Appellant.\", \"head_matter\": \"[No. 33986-9-I.\\nDivision One.\\nDecember 23, 1996.]\\nThe State of Washington, Respondent, v. Andrew Lloyd Thomas, Appellant.\", \"word_count\": \"52\", \"char_count\": \"343\", \"text\": \"Appeal from a judgment of the Superior Court for Snohomish County, No. 89-1-01340-6, Joseph A. Thibodeau, J., entered January 12, 1994. Affirmed by unpublished opinion per Grosse, J., concurred in by Webster and Cox, JJ.\"}"

wash/12440958.json

@@ -0,0 +1 @@
+"{\"id\": \"12440958\", \"name\": \"State, Respondent, v. Nord, Petitioner\", \"name_abbreviation\": \"State v. Nord\", \"decision_date\": \"2015-09-30\", \"docket_number\": \"No. 91620-9\", \"first_page\": \"1002\", \"last_page\": \"1002\", \"citations\": \"184 Wash. 2d 1002\", \"volume\": \"184\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T23:15:54.890272+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State, Respondent, v. Nord, Petitioner,\", \"head_matter\": \"State, Respondent, v. Nord, Petitioner,\\nNo. 91620-9.\", \"word_count\": \"31\", \"char_count\": \"189\", \"text\": \"Petition for review of a decision of the Court of Appeals, No. 70806-6-1, March 23, 2015, 186 Wn. App. 1032. Denied September 30, 2015.\"}"

wash/12461875.json

@@ -0,0 +1 @@
+"{\"id\": \"12461875\", \"name\": \"The State of Washington, Respondent, v. Sean T. Phillips, Appellant\", \"name_abbreviation\": \"State v. Phillips\", \"decision_date\": \"2016-11-22\", \"docket_number\": \"No. 48593-1-II\", \"first_page\": \"1070\", \"last_page\": \"1070\", \"citations\": \"196 Wash. App. 1070\", \"volume\": \"196\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T01:45:34.039534+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Sean T. Phillips, Appellant.\", \"head_matter\": \"[No. 48593-1-II.\\nDivision Two.\\nNovember 22, 2016.]\\nThe State of Washington, Respondent, v. Sean T. Phillips, Appellant.\", \"word_count\": \"52\", \"char_count\": \"339\", \"text\": \"Appeal from a judgment of the Superior Court for Kitsap County, No. 15-1-01097-1, Leila Mills, J., entered January 8, 2016. Affirmed by unpublished opinion per Worswick, J., concurred in by Maxa, A.C.J., and Sutton, J.\"}"

wash/12462602.json

@@ -0,0 +1 @@
+"{\"id\": \"12462602\", \"name\": \"In the Matter of the Marriage of Hillery Lore Nye Lee, Appellant, and Ralph Bryan Lee, Respondent\", \"name_abbreviation\": \"In re the Marriage of Lee\", \"decision_date\": \"2017-05-01\", \"docket_number\": \"No. 74405-4-I\", \"first_page\": \"1060\", \"last_page\": \"1060\", \"citations\": \"198 Wash. App. 1060\", \"volume\": \"198\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T01:45:31.407249+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Marriage of Hillery Lore Nye Lee, Appellant, and Ralph Bryan Lee, Respondent.\", \"head_matter\": \"[No. 74405-4-I.\\nDivision One.\\nMay 1, 2017.]\\nIn the Matter of the Marriage of Hillery Lore Nye Lee, Appellant, and Ralph Bryan Lee, Respondent.\", \"word_count\": \"58\", \"char_count\": \"333\", \"text\": \"The unpublished opinion in the above captioned case was withdrawn by the Court of Appeals on May 8, 2017. A substitute unpublished opinion was filed on the same date. See 198 Wn. App. 1069.\"}"

wash/12462766.json

@@ -0,0 +1 @@
+"{\"id\": \"12462766\", \"name\": \"State, Respondent, v. Sakawe, Petitioner\", \"name_abbreviation\": \"State v. Sakawe\", \"decision_date\": \"2016-08-31\", \"docket_number\": \"No. 93001-5\", \"first_page\": \"1002\", \"last_page\": \"1002\", \"citations\": \"186 Wash. 2d 1002\", \"volume\": \"186\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T01:45:27.478390+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State, Respondent, v. Sakawe, Petitioner,\", \"head_matter\": \"State, Respondent, v. Sakawe, Petitioner,\\nNo. 93001-5.\", \"word_count\": \"31\", \"char_count\": \"191\", \"text\": \"Petition for review of a decision of the Court of Appeals, No. 72960-8-I, February 29, 2016, 192 Wn. App. 1052. Denied August 31, 2016.\"}"

wash/12571849.json

@@ -0,0 +1 @@
+"{\"id\": \"12571849\", \"name\": \"STATE of Washington, Respondent, v. Ronald Delester BURKE, Appellant.\", \"name_abbreviation\": \"State v. Burke\", \"decision_date\": \"2018-12-27\", \"docket_number\": \"No. 50053-1-II\", \"first_page\": \"1109\", \"last_page\": \"1120\", \"citations\": \"431 P.3d 1109\", \"volume\": \"431\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of Washington, Division 2\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-27T21:04:09.385096+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Washington, Respondent,\\nv.\\nRonald Delester BURKE, Appellant.\", \"head_matter\": \"STATE of Washington, Respondent,\\nv.\\nRonald Delester BURKE, Appellant.\\nNo. 50053-1-II\\nCourt of Appeals of Washington, Division 2.\\nDecember 27, 2018\\nStephanie C. Cunningham, Attorney at Law, 4616 25th Ave. Ne # 552, Seattle, WA, 98105-4183, Counsel for Appellant\\nMark Von Wahlde, Pierce Co. Pros. Attorney Office, 5501 6th Ave., Tacoma, WA, 98406-2603, Maureen C. Goodman, Pierce County Prosecuting Atty., 930 Tacoma Ave. S Rm 946, Tacoma, WA, 98402-2171, Counsel for Respondent\\nPUBLISHED OPINION\", \"word_count\": \"6599\", \"char_count\": \"40004\", \"text\": \"Johanson, J.\\n\\u00b6 1 Ronald Delester Burke appeals his jury trial conviction for second degree rape by forcible compulsion. He argues that (1) the admission of the now-deceased victim's testimonial statements to a sexual assault nurse examiner (SANE nurse) violated his right to confront the witness and (2) the trial court erred when it admitted the victim's statements to the SANE nurse under ER 803(a)(4) as statements made for the purpose of medical diagnosis or treatment. The parties also dispute whether the declarant-centric test established in State v. Shafer , 156 Wash.2d 381, 390 n.8, 128 P.3d 87 (2006), or the primary purposes test from Ohio v. Clark , - U.S. -, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), and Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), applies to the confrontation clause claim.\\n\\u00b6 2 We hold that (1) the primary purpose test applies to the constitutional claim, (2) the victim's statements to the SANE nurse were testimonial and violated the confrontation clause, and (3) the error was not harmless under the constitutional harmless error standard. We do not reach the ER 803(a)(4) issue. Accordingly, we reverse.\\nFACTS\\nI. BACKGROUND\\n\\u00b6 3 At 1:24 AM on July 3, 2009, KEH arrived at Tacoma General Hospital's emergency room and reported that she had just been raped in nearby Wright Park. KEH was intoxicated when she arrived at the hospital. She was homeless and was known to reside in or near Wright Park.\\n\\u00b6 4 Social worker Bettye Craft contacted KEH about 20 minutes after KEH's arrival in the emergency room. KEH was crying, upset, and had leaves and grass in her hair. After KEH asserted that she had been raped, Craft contacted the police.\\n\\u00b6 5 Tacoma Police Officer Khanh Phan contacted KEH in her room at about two hours after her arrival. According to Officer Phan, KEH was \\\"extremely intoxicated\\\" and \\\"kind of incoherent.\\\" 8 Verbatim Report of Proceedings (VRP) at 838, 846-47. Although KEH was slurring her speech, Officer Phan could understand her if she spoke slowly. Officer Phan observed that KEH had dirt stains on her pants, but she did not appear to be injured.\\n\\u00b6 6 KEH told Officer Phan that the incident had occurred near the restrooms at the park and gave a description of her attacker. After interviewing KEH, Officer Phan went to Wright Park to examine the crime scene. Officer Phan did not find anyone matching the suspect's description or any evidence at the park.\\n\\u00b6 7 When the SANE nurse Kay Frey initially contacted KEH in the emergency room around 7:00 AM, Frey did not observe that KEH exhibited any impairment. Frey said that she would not be able to see KEH until later that day. KEH agreed to wait. According to Frey, KEH was able to speak, but she was tired.\\n\\u00b6 8 At about 8:11 AM , registered nurse Carol Aquino-Smith spoke to KEH in the emergency room. KEH was sleeping when Aquino-Smith arrived, but when KEH awoke she appeared \\\"alert and oriented.\\\" 7 VRP at 688. When Aquino-Smith asked KEH if she knew why she was in the hospital, KEH \\\"stated she was [in the hospital] because she was raped last night in the park.\\\" 7 VRP at 689. KEH's blood test collected at about 7:45 AM, showed that her blood alcohol level was 0.160, approximately twice the legal limit for driving. A drug screening also showed that she had tetrahydrocannabinol (THC) in her system. But KEH did not appear to Aquino-Smith be under the influence of marijuana.\\n\\u00b6 9 KEH was medically cleared to leave the emergency room at 11:13 AM. At this point, KEH had been examined by a physician, the appropriate testing had been ordered, and no further emergency room treatment was required. But KEH voluntarily remained in the hospital waiting to be examined by Frey.\\n\\u00b6 10 At about 4:00 PM, Frey began the sexual assault forensic examination. Frey observed abrasions to KEH's left elbow and right knee, some redness on her left inner thigh, some abrasions or cuts on her vulva, and a laceration to the upper part of her cervix.\\n\\u00b6 11 During the examination, Frey obtained a history from KEH. Frey later testified that the history was \\\"like any medical history\\\" and was a personal statement about what happened. 6 VRP at 607. KEH described the incident to Frey. And Frey collected samples that could contain deoxyribonucleic acid (DNA) evidence and took KEH's underwear. The DNA evidence taken from KEH's underwear included female DNA that matched KEH and male DNA from sperm that did not match anyone known to law enforcement at that time.\\n\\u00b6 12 In May 2011, the DNA was reevaluated and the male DNA matched Burke's DNA profile. When officers attempted to contact KEH about the DNA match, they learned that KEH had died of an unrelated illness in April 2011.\\n\\u00b6 13 In September 2014, Tacoma Police Department Detectives Bradley Graham and Lindsey Wade interviewed Burke, who was in jail in eastern Washington. During this interview, Burke admitted to having lived in Tacoma in 2009 and to having visited Wright Park. But Burke denied having been to the park without his girlfriend, having had sexual intercourse with anyone in the park, or knowing why his DNA would be found at the scene of a sexual assault that occurred in the park in 2009.\\nII. PROCEDURE\\n\\u00b6 14 The State charged Burke with second degree rape by forcible compulsion. The case proceeded to a jury trial.\\nA. MOTION TO ADMIT KEH'S STATEMENTS TO FREY\\n\\u00b6 15 Because KEH was not available to testify, the State moved to admit KEH's statements to Frey under ER 803(a)(4), the medical exception to the hearsay rule. Burke responded that admission of these statements would violate his right to confrontation under Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).\\n\\u00b6 16 At the motion hearing, Frey testified that she was a SANE nurse and that she had examined KEH. When the State asked Frey what the purpose of the exam was, she testified that there were two purposes-a forensic purpose and a medical care purpose. Specifically, she testified,\\nThe purposes are to do the forensic piece: Photographing, taking a history, doing any DNA retrieval that could be done. Another purpose is to provide them with the medical care they need, subsequent to their assault, and provide support and connections for them via advocates and social workers and that kind of thing. So it's to basically manage their case.\\n6 VRP at 545. But Frey testified that she did not provide general medical care, only medical care \\\"specific to their sexual assault.\\\" 6 VRP at 565.\\n\\u00b6 17 Frey further testified that taking a history from the patient regarding what had happened was \\\"probably the most important\\\" part of the medical examination. 6 VRP at 545. When asked why it was so important, Frey responded,\\nWell, this is just medical training in general. History guides everything, and that's true for sexual assault patients as well. So what they tell you, what they can tell you, what they aren't able to tell you, directs you further to what they might need, medically, to figure it out.\\n6 VRP at 545.\\n\\u00b6 18 Frey further stated that the history she obtains from the patient can provide additional details about their case and can govern what medications are needed or where to look for injuries. She opined that a patient's \\\"history\\\" was \\\"[a]bsolutely\\\" vital and that it was \\\"the tenet for healthcare in general.\\\" 6 VRP at 546. Frey testified that KEH's exam revealed an additional injury-the cervical laceration that required additional medical consultation.\\n\\u00b6 19 Frey also testified that she was paid by the hospital, that she did not take direction from law enforcement, and that law enforcement was not present at the examination. But on cross-examination, Frey testified that the funding for the forensic examination was \\\"supported through crime victims associations\\\" and that these funds included money from the federal government that was disbursed by the State. 6 VRP at 558.\\n\\u00b6 20 Also on cross-examination, Burke introduced several exhibits that the trial court admitted for purposes of the hearing. The first exhibit, exhibit 19A, was the \\\"[f]orensic [e]valuation\\\" patient information sheet. This form contained four sections addressing (1) the emergency department information, (2) agency information, (3) discharge planning, and (4) post-assault follow up. The emergency department information included a notation that KEH had walked to the emergency room from Wright Park after being assaulted and that she was homeless. The agency information section noted that law enforcement had been contacted. The discharge planning section noted that KEH's homelessness was an \\\"[i]mmediate [s]afety [c]oncern\\\" and that she would need to establish a safety plan before being discharged. Ex. 19A.\\n\\u00b6 21 Exhibit 19B was titled \\\"consent for forensic evaluation and treatment.\\\" (Capitalization omitted.) In this form, KEH acknowledged the following statement: \\\"I, [KEH], have come to Tacoma General . for a forensic evaluation to be performed by a Forensic Nurse Examiner and to include documentation of the assault , collection of evidence, nursing care and treatment limited to MultiCare Health System's Forensic Nurse Examiner nursing protocols.\\\" Ex. 19B (emphasis added). KEH further acknowledged that she understood that a medical screening examination and care had to first be provided by an emergency department or primary care provider and that \\\"[a] forensic evaluation does not include general medical care.\\\" Ex. 19B.\\n\\u00b6 22 The consent form then described several aspects of a forensic evaluation, including that \\\"[m]edications may be recommended including immunizations, anti-nausea medications, emergency contraception and medications to treat sexually transmitted infections.\\\" Ex. 19B. This section also advised KEH that if the case had been reported to law enforcement, Frey could speak to the investigating officer or others.\\n\\u00b6 23 Exhibit 19B also stated, \\\"The detailed medical records (photographs, lab results, written documentation ) completed today will be kept confidential, secured at MultiCare Health System and may only be disclosed as allowed by law.\\\" The consent form included a request that all physical evidence collected during the evaluation be released to law enforcement investigating the reported assault.\\n\\u00b6 24 Exhibit 19C was titled a \\\"forensic evaluation: patient history.\\\" (Capitalization omitted.) In this form, Frey noted that the incident occurred in Wright Park. Frey further included KEH's description of the assailant, noting that he was tall, \\\"light black,\\\" no or short hair, and was wearing jeans and a white t-shirt with no jacket. The form also included a matrix that allowed the examiner to check off various items related to the assault. The matrix showed that there was vaginal penetration of KEH's vagina by the assailant's penis. Frey also noted that KEH thought that \\\"his penis was all the way in,\\\" that KEH did not think that the attacker had ejaculated, and that she was on the ground on her back during the assault. Ex. 19C.\\n\\u00b6 25 Exhibit 19D was a continuation of the patient history. In this form, Frey noted that KEH reported a pain level of 5 out of 10 and that she had pain in her \\\"vaginal area.\\\" Ex. 19D. The form also noted that KEH had said she had been \\\"doing a bit of drinking\\\" when the attack happened. Ex. 19D. It further reported that KEH said that although her attacker had not strangled her, \\\"[h]e put his hand over [her] mouth,\\\" that he was \\\"laying on [her],\\\" and that he told her \\\" '[t]o keep [her] mouth shut\\\" and not to report the incident. Ex. 19D.\\n\\u00b6 26 Exhibit 19E was a \\\"patient narrative.\\\" (Capitalization omitted.) It stated,\\n[Frey]: \\\"Can you tell me what happened in Wright Park?\\\"\\n[KEH]: \\\"I was sitting there rolling myself a cigarette. I know he covered my mouth because I would have been screaming for help. I was taken to the ground. I don't know if he tried choking me or not. The next think I knew I was taken to the ground, my pants were off and stuff and he was inside me. It was over and done with. I think he told me to keep my mouth shut. That's all I remember, then I came here. I walked over to the hospital.\\\"\\nEx. 19 E.\\n\\u00b6 27 Exhibit 19F, was a chart indicating where KEH's injuries were and describing injuries. This form also contained a brief description of KEH's \\\"general physical appearance and demeanor.\\\" Ex. 19F. It stated, \\\"Very slight & extremely thin. 2 layers of clothing-top layer crusted [with] dirt, esp. on bottom. Stayed for hours in [emergency department]-SANE nurse [with] another case-'because I don't want him to be out there doing this to someone else.' \\\" Ex. 19F.\\n\\u00b6 28 Exhibit 19G was a summary of the \\\"examination information.\\\" (Capitalization omitted.) This form described KEH's injuries in more detail and noted that Frey had consulted with doctors about KEH's cervical laceration. The form noted that a consulting doctor advised letting the wound heal on its own and telling KEH to return to the emergency room if it continued to bleed.\\n\\u00b6 29 Exhibit 19H, listed the physical evidence collected and described the chain of custody. It noted that the physical evidence was released to the Tacoma Police Department at 7:30 PM on July 3, 2009.\\n\\u00b6 30 Exhibit 19I was an unsigned copy of the \\\"discharge instructions for post-sexual assault.\\\" (Capitalization omitted.) This form advised KEH to return to the emergency department if bleeding continued and advised her to schedule follow-up appointments with Planned Parenthood for post-sexual assault evaluations. It also stated that if KEH's assault had been reported to the police, the physical evidence would be transferred directly to the police department and noted that an advocate from the sexual assault center had been with KEH that day.\\n\\u00b6 31 Noting that this was \\\"a case of first impression,\\\" the trial court admitted KEH's statements to Frey as statements for the purpose of medical treatment because one purpose of the exam was to provide medical care. 6 VRP at 585. The trial court acknowledged that the examination had a dual purpose-a forensic purpose and a medical treatment purpose.\\n\\u00b6 32 The trial court also acknowledged that KEH's death had created a confrontation right issue under Crawford . The court acknowledged that the exhibits introduced at the hearing discussed both medical care and a forensic evaluation that did not include medical care, but it focused on the last part of exhibit 19B, which it construed as allowing the release of the physical evidence collected only during the forensic examination. Ultimately, the trial court ruled that the statements relevant to the motion were not testimonial and, therefore, admissible.\\nB. TESTIMONY\\n\\u00b6 33 KEH's sister, Frey, Aquino-Smith, a forensic DNA analyst, Detectives Graham and Wade, Officer Phan, and the social worker testified for the State as described above. The trial court also admitted exhibits 19B, 19C, 19D, 19E, which are described above. Burke did not present any evidence.\\n\\u00b6 34 During her testimony, Frey read KEH's narrative description of the incident verbatim to the jury from exhibit 19E quoted above.\\n\\u00b6 35 Frey further testified about the information in the exhibits. Specifically, she testified that KEH stated that she had been on the ground on her back during the rape, that the man penetrated her vagina with his penis, that she did not think he had ejaculated, and that he did not wear a condom. KEH also told Frey that her (KEH's) last consensual sexual act had been 15 years earlier. In addition, Frey testified that KEH had described her assailant as a tall, light-skinned black man, with short or no hair, who was wearing jeans and a white t-shirt but no jacket. And Frey testified that KEH also stated that she had come to the hospital because she did not want her attacker to do this to someone else.\\n\\u00b6 36 Frey also testified about KEH's injuries. Frey stated that she observed (1) a fresh abrasion or scrape just under KEH's right knee that would \\\"likely bruise later,\\\" (2) an abrasion on KEH's left elbow, (3) some redness on KEH's left inner thigh, (4) abrasions and cuts to the inside of KEH's vulva, and (5) a laceration to KEH's upper cervix that was still bleeding. 6 VRP at 629. Frey testified that the injuries to KEH's vulva could have been caused by either consensual or nonconsensual sex. But Frey testified that the cervical injury was rare and difficult to cause because the cervix is \\\"a tough muscle.\\\" 6 VRP at 643. She opined that this injury was more consistent with nonconsensual, forcible intercourse.\\n\\u00b6 37 On cross-examination, Frey testified that KEH was post-menopausal, that loss of estrogen as a result of menopause can result in less vaginal lubrication, and that this could result in a higher likelihood of vaginal injury. But Frey opined that being post-menopausal would not usually result in a higher incidence of injuries to the cervix.\\n\\u00b6 38 Defense counsel also asked about the effect of cervical cancer. Frey testified that cervical cancer or an infection could make the cervix \\\"more fragile.\\\" 6 VRP at 659. Defense counsel then presented evidence that when KEH died, she had \\\"[e]nd-stage cervical cancer.\\\" 6 VRP at 660.\\nC. CLOSING ARGUMENT\\n\\u00b6 39 In its closing argument, the State quoted KEH's narrative statement to Frey. The State also relied on KEH's description of the assailant as related to Frey. In addition, the State discussed the statements KEH made to Frey and Frey's documentation of KEH's injuries. And although the State relied on the DNA match to identify KEH's attacker, the State also commented on the fact that Burke also matched KEH's description.\\n\\u00b6 40 When discussing the forcible compulsion element, the State expressly relied on KEH's statement that her assailant had covered her mouth and took her to the ground. The State also argued that KEH's injuries were indicative of forcible compulsion.\\n\\u00b6 41 In his closing argument, Burke admitted that the DNA evidence proved that Burke had had sex with KEH \\\"at some time and place,\\\" but he argued that there was no evidence other than KEH's word that this occurred in Wright Park or that there was forcible compulsion. 9 VRP at 942. Burke also argued that given KEH's intoxication, it was possible that she had consensual sex with Burke and could not remember it. He also questioned the accuracy of KEH's statements because she had been highly intoxicated and had THC in her system. In addition, Burke argued that some of KEH's injuries could have been consistent with falling, that the injuries to KEH's vulva could be consistent with consensual sexual intercourse, and that the cervical injury could have been caused by consensual sex because the cervix was weakened by cancer and the fact that KEH was post-menopausal.\\n\\u00b6 42 The jury found Burke guilty of second degree rape. Burke appeals his conviction.\\nANALYSIS\\nCONFRONTATION CLAUSE\\n\\u00b6 43 Burke argues that the admission of KEH's statements to Frey violated the confrontation clause. The State responds that the admission of KEH's statements did not implicate the confrontation clause because they were not testimonial. The parties also dispute what test we should apply to determine whether KEH's statements were testimonial. Burke argues that the declarant-centric test announced in Shafer applies. The State argues that the primary purpose test from Clark and Davis applies.\\n\\u00b6 44 We hold that (1) the primary purpose test applies, (2) KEH's statements to Frey were testimonial, and (3) the admission of KEH's narrative statements was not harmless beyond a reasonable doubt.\\nA. GENERAL LEGAL PRINCIPLES\\n\\u00b6 45 \\\"The Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him.' \\\" State v. Koslowski , 166 Wash.2d 409, 417, 209 P.3d 479 (2009) (alterations in original) (quoting U.S. CONST. amend. VI ). \\\"The confrontation clause applies to the state courts through the Fourteenth Amendment.\\\" State v. Clark , 139 Wash.2d 152, 157-58, 985 P.2d 377 (1999) (citing Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed. 2d 923 (1965) ). The confrontation clause prohibits the \\\"introduction of testimonial statements by a nontestifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' \\\" Clark , 135 S.Ct. at 2179 (quoting Crawford , 541 U.S. at 54, 124 S.Ct. 1354 ).\\n\\u00b6 46 We review confrontation clause challenges de novo. Koslowski , 166 Wash.2d at 417, 209 P.3d 479. The State has the burden of establishing that the statements in question were nontestimonial. Koslowski , 166 Wash.2d at 417 n.3, 209 P.3d 479.\\n\\u00b6 47 A violation of the confrontation clause is subject to harmless error. See State v. Anderson , 171 Wash.2d 764, 770, 254 P.3d 815 (2011). The State has the burden of establishing that the error is harmless beyond a reasonable doubt. State v. Easter , 130 Wash.2d 228, 242, 922 P.2d 1285 (1996). \\\"A constitutional error is harmless if the appellate court is assured beyond a reasonable doubt that the jury verdict is unattributable to the error.\\\" Anderson , 171 Wash.2d at 770, 254 P.3d 815. To make this determination, we apply the \\\" 'overwhelming untainted evidence' \\\" test by looking to the untainted evidence to determine whether it is so overwhelming it necessarily leads to a finding of guilt. Anderson , 171 Wash.2d at 770, 254 P.3d 815 (quoting State v. Guloy , 104 Wash.2d 412, 426, 705 P.2d 1182 (1985) ).\\n\\u00b6 48 Burke and the State do not dispute that KEH was unavailable to testify or that Burke did not have a prior opportunity to cross-examine KEH. But they do dispute (1) what test we should apply to determine whether KEH's statements to Frey were testimonial and (2) whether KEH's statements to Frey were testimonial.\\nB. TEST\\n\\u00b6 49 Burke contends that because Frey is a \\\"nongovernmental witness,\\\" the declarant-centric test from Shafer applies here. Opening Br. of Appellant at 11-12. The State responds that under Clark , the primary purpose test from Davis applies. We hold that the proper test is the primary purpose test.\\n\\u00b6 50 Division One of this court has recently addressed this issue in State v. Scanlan , 2 Wash. App. 2d 715, 413 P.3d 82, review granted , 191 Wash.2d 1026, 428 P.3d 1171 (2018). In Scanlan , Division One adopted the primary purpose test from Clark and applied it to a victim's statements to a variety of medical providers. 2 Wash. App. 2d at 728-29, 413 P.3d 82. We agree with Division One.\\n1. FEDERAL BACKGROUND\\n\\u00b6 51 In Crawford , the United States Supreme Court held that hearsay statements made to law enforcement officials could violate the confrontation clause if the statements were deemed \\\"testimonial,\\\" the declarant was unavailable to testify, and the defendant did not have a prior opportunity to cross-examine the declarant. 541 U.S. at 53-54, 59, 124 S.Ct. 1354. The Crawford Court further held that statements by a witness during questioning at a police station were considered testimonial. 541 U.S. at 53, 124 S.Ct. 1354. Unfortunately, the Court did not define what qualifies as a testimonial statement. Crawford , 541 U.S. at 68, 124 S.Ct. 1354.\\n\\u00b6 52 In 2006, in Davis , the Court addressed whether statements given to law enforcement officers or 911 operators, which the Court considered to \\\"be agents of law enforcement when they conduct interrogations of 911 callers,\\\" were testimonial. 547 U.S. at 823 n.2, 126 S.Ct. 2266. The Davis court set out the \\\"primary purpose\\\" test:\\nStatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.\\n547 U.S. at 822, 126 S.Ct. 2266. But the Davis Court expressly declined to address whether statements made to individuals other than law enforcement officials could implicate the confrontation clause. 547 U.S. at 823 n.2, 126 S.Ct. 2266.\\n\\u00b6 53 Then in 2011, the Supreme Court decided Michigan v. Bryant . In Bryant , the Court clarified that the primary purpose test was an objective test that requires \\\"[a]n objective analysis of the circumstances of an encounter and the statements and actions of the parties to it,\\\" rather than \\\"the subjective or actual purpose of the individuals involved in a particular encounter.\\\" 562 U.S. at 360, 131 S.Ct. 1143. But again, the Bryant Court declined to decide whether the same standard applied to statements made to persons who were not law enforcement officials. 562 U.S. at 357 n.3, 131 S.Ct. 1143.\\n\\u00b6 54 Finally, in 2015, the Supreme Court issued Clark . In Clark , the Court addressed whether the admission of a three-year-old victim's statements to his teachers violated the confrontation clause. 135 S.Ct. at 2181-82. In doing so, the Court finally addressed \\\"whether statements to persons other than law enforcement officers are subject to the Confrontation Clause.\\\" Clark , 135 S.Ct. at 2181. The Court \\\"decline[d] to adopt a categorical rule excluding\\\" statements to individuals who are not law enforcement officers \\\"from the Sixth Amendment's reach.\\\" Clark , 135 S.Ct. at 2181. Instead, the Court applied the primary purpose test to determine whether the declarant's \\\"statements clearly were not made with the primary purpose of creating evidence for [the defendant's] prosecution.\\\" Clark , 135 S.Ct. at 2181.\\n\\u00b6 55 The Clark Court emphasized that courts must examine the challenged statements \\\"in light of all the circumstances, viewed objectively\\\" and that part of that context is the identity of the person to whom the declarant was speaking. 135 S.Ct. at 2180. The Court further noted, \\\"Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.\\\" Clark , 135 S.Ct. at 2182.\\n\\u00b6 56 In addition, the Court stated that \\\"the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.\\\" 135 S.Ct. at 2180-81. In situations where the primary purpose test suggests that the statement was testimonial, courts must still evaluate whether the statement was an \\\"out-of-court statement[ ] that would have been admissible . at the time of the founding [of the Country].\\\" Clark , 135 S.Ct. at 2180-81 ; see Mattox v. United States , 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (\\\"We are bound to interpret the constitution in light of the law as it existed at the time it was adopted.\\\"). The Court did not, however, apply this portion of the test because it held that the statements at issue were not testimonial.\\n2. WASHINGTON BACKGROUND\\n\\u00b6 57 Meanwhile, in 2006, our Supreme Court decided Shafer . In Shafer , the court addressed whether statements by a three-year-old rape victim to individuals not related to law enforcement were testimonial. 156 Wash.2d at 389-90, 128 P.3d 87. The Shafer court stated,\\nThe proper test to be applied in determining whether the declarant intended to bear testimony against the accused is whether a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. The inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made.\\n156 Wash.2d at 390 n.8, 128 P.3d 87.\\n\\u00b6 58 Most recently, Division One decided Scanlan . In Scanlan , Division One rejected Schafer 's declarant-centric approach and held that in light of Clark we must now apply the primary purpose test to statements made to individuals who are not related to law enforcement. 2 Wash. App. 2d at 725, 413 P.3d 82. The court noted that rather than focus on the declarant's subjective intent, the primary purpose test examines whether the circumstances as a whole objectively demonstrate there is no ongoing emergency and that the primary purpose of the questioning is to obtain evidence that will potentially be relevant in a later criminal proceeding. Scanlan , 2 Wash. App. 2d at 728, 413 P.3d 82. Notably, the Scanlan court did not address whether the type of statements at issue in that case would have been admissible at the time of the founding, possibly because it determined that the statements at issue were not testimonial.\\n3. DISCUSSION\\n\\u00b6 59 As Division One recognized in Scanlan , Clark expressly examined how to determine whether a statement to an individual who is not a law enforcement officer is a testimonial statement. 135 S. Ct. at 2181-82.\\nBefore Clark , the Supreme Court had issued no guidance on this matter, and Schafer was how this State decided to examine whether statements to nonlaw enforcement-related individuals were to be treated. But Clark now offers direct guidance on how to evaluate a federal confrontation clause claim involving statements made to individuals who are not law enforcement officers.\\n\\u00b6 60 Because Clark offers new federal guidance on how to evaluate a federal confrontation clause claim when the declarant's statement is made to a nonlaw enforcement-related individual, and \\\"[o]n matters of federal law, we are bound by the decisions of the United States Supreme Court,\\\" we adopt the same reasoning as Scanlan and follow the primary purpose test in this case. W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters , 180 Wash.2d 54, 62, 322 P.3d 1207 (2014).\\nC. APPLICATION OF PRIMARY PURPOSE TEST\\n\\u00b6 61 Under the primary purpose test, a declarant's statements are testimonial if they are made under circumstances that objectively demonstrate \\\"that the primary purpose of the [questioning] is to establish or prove past events potentially relevant to later criminal prosecution.\\\" Davis , 547 U.S. at 822, 126 S.Ct. 2266. In evaluating the primary purpose, the court objectively evaluates the circumstances of the encounter and the statements in context, including, but not limited to, whether there was an ongoing emergency, where the interview took place, the formality or informality of the interrogation, and the identity of the person to whom the declarant was speaking. Clark , 135 S.Ct. at 2180. \\\"Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.\\\" Clark , 135 S.Ct. at 2182.\\n\\u00b6 62 Here, even presuming that Frey was not directly acting for law enforcement, the record shows that KEH's statements were made under circumstances that objectively demonstrate that the primary purpose of the exam was to provide evidence for a criminal prosecution.\\n\\u00b6 63 First, the examination had a forensic component and would be used as evidence even though Frey's examination had a medical treatment and diagnosis component. Not only did Frey testify that the exam and questioning had a forensic component, the consent form that KEH signed stated that the exam was a \\\"forensic evaluation\\\" that would \\\"include documentation of the assault [and] collection of evidence.\\\" Ex. 19B (emphasis added). And since the case had been reported to law enforcement, the consent form authorized Frey to talk to the investigating officers about the case.\\n\\u00b6 64 Second, the record does not show that Frey was gathering this information in response to an ongoing emergency. The exam took place several hours after KEH's emergency room treatment was complete and after KEH was safely in the hospital and had already spoken to law enforcement officers. In fact, KEH was medically cleared from the emergency room several hours before Frey started her exam.\\n\\u00b6 65 Third, even though Frey did not work directly for law enforcement and was paid by the hospital, her role, unlike the teachers in Clark , clearly had a law enforcement component because part of Frey's job was to collect evidence that would potentially be used by law enforcement. In fact, Frey testified that the forensic testing was paid for by government funds related to crime victim support.\\n\\u00b6 66 Finally, there was evidence that KEH understood that the information she gave Frey would be used by law enforcement. In fact, KEH agreed to stay in the hospital for several hours specifically so Frey could examine her because KEH did not want her attacker \\\" 'to be out there doing this to someone else.' \\\" Ex. 19F. Although KEH's subjective intent is not relevant to the primary purposes test, KEH's understanding that the exam could assist in preventing further harm corroborates the other objective evidence that the primary purpose of the exam was to establish or to prove past events potentially relevant to later criminal prosecution.\\n\\u00b6 67 Despite Frey's exam having a medical treatment and diagnosis component, the objective facts demonstrate that the primary purpose of the examination was to provide evidence. Because the circumstances objectively suggest that the primary purpose of the exam and KEH's statements during the exam was to provide evidence, we hold that the State fails to establish that KEH's statements to Frey were nontestimonial.\\n\\u00b6 68 We must next address whether the statements were the type of out-of-court statement that would have been admissible at the time of the founding. Clark , 135 S.Ct. at 2180-81. It is the State's burden to establish that KEH's statements were not testimonial. Koslowski , 166 Wash.2d at 417 n.3, 209 P.3d 479. The State does not address this factor. Thus, the State does not carry its burden on this factor.\\n\\u00b6 69 Because the State fails to show that KEH's statements were nontestimonial and the State does not show that KEH's statements were the type of out-of-court statement that would have been admissible at the time of our country's founding, we hold that the admission of KEH's statements to Frey violated the confrontation clause.\\nD. CONSTITUTIONAL HARMLESS ERROR\\n\\u00b6 70 We must next address whether this evidence was harmless under the constitutional harmless error standard. The State has the burden of establishing harmless error beyond a reasonable doubt. Easter , 130 Wash.2d at 242, 922 P.2d 1285. \\\"A constitutional error is harmless if the appellate court is assured beyond a reasonable doubt that the jury verdict is unattributable to the error.\\\" Anderson , 171 Wash.2d at 770, 254 P.3d 815. The court must examine whether the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Anderson , 171 Wash.2d at 770, 254 P.3d 815.\\n\\u00b6 71 The State had to prove that Burke committed the rape by forcible compulsion. RCW 9A.44.050(1)(a). \\\" 'Forcible compulsion' means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.\\\" RCW 9A.44.010(6). \\\"Forcible compulsion requires more than the force normally used to achieve sexual intercourse or sexual contact.\\\" State v. Ritola , 63 Wash. App. 252, 817 P.2d 1390 (1991).\\n\\u00b6 72 KEH's statements that she would have screamed but her assailant placed his hand over her mouth, that her attacker took her to the ground, and that her attacker lay on her was the key evidence of forcible compulsion-and the State heavily relied on this evidence when it discussed the forcible compulsion element in closing argument. The only other evidence that was arguably relevant to the forcible compulsion element was (1) the leaves and grass in KEH's hair, (2) the dirt on her outer layer of clothing, (3) the abrasions on her right knee and left elbow, (4) the redness on her left inner thigh, (5) the abrasions and cuts to the inside of her vulva, and (6) the cervical laceration.\\n\\u00b6 73 But the leaves and grass in KEH's hair and her dirty outer layer of clothing could have been explained by the fact that she was homeless and lived outside and could have been consistent with consensual sex outside. And the injuries to her arms and knees could have been caused by a fall while she was intoxicated. The bruises to her thighs and the abrasions and cuts to the inside of KEH's vulva were certainly more indicative of sexual activity, but Frey testified that those injuries could have been caused by either consensual or nonconsensual sexual intercourse.\\n\\u00b6 74 Other than KEH's narrative statement and her statements about what happened during the incident, the strongest evidence of forcible compulsion was KEH's cervical laceration. But although Frey testified that the cervical laceration was more consistent with forcible, nonconsensual intercourse, there was also evidence that it was possible that KEH's cervix may have been more vulnerable to injury because she was post-menopausal and that she could have had a weakened cervix due to cervical cancer.\\n\\u00b6 75 Given the other possible explanations for KEH's injuries, we cannot say beyond a reasonable doubt that the admission of KEH's statements-that she would have screamed if her assailant had not placed his hand over her mouth, that he pushed her to the ground, and that he lay on her-did not influence the jury's decision as to the forcible compulsion element. Thus, we hold that the error was not harmless beyond a reasonable doubt.\\n\\u00b6 76 We hold that the admission of KEH's statements to Frey violated the confrontation clause and that this error was not harmless beyond a reasonable doubt. Because we reverse on this ground, we do not reach the ER 803(a)(4) issue. Accordingly, we reverse Burkes's conviction and remand for further proceedings.\\nCONCLUSION\\n\\u00b6 77 We adopt the primary purpose test, reverse the conviction based on the confrontation clause violation issue, and do not reach the ER 803(a)(4) issue.\\nWe concur:\\nWORSWICK, P.J.\\nMELNICK, J.\\nAt trial, Officer Phan did not testify as to what this description was beyond stating that the suspect was a black male.\\nBurke mentions both his federal Sixth Amendment rights and his Washington Constitution article I, section 22 rights to confront witnesses, but he fails to present any argument establishing that article I, section 22 provides greater protection than its federal counterpart. Accordingly, we address this issue under only the Sixth Amendment.\\n562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).\\nNeither party asserts that Frey was a law enforcement official.\\nBecause we are addressing whether KEH's statements to Frey were admissible, the relevant facts in this analysis are drawn from the evidence presented at the motion hearing.\\nThe discharge instructions also stated that if the incident had been reported to the police, the physical evidence collected would be sent directly to the police department. But KEH did not sign the discharge form, so it is unclear if she received it.\\nTo determine if the untainted evidence was overwhelming, we must examine the evidence presented at trial, not the evidence presented at the motion hearing.\\nBecause we hold that KEH's statements related to forcible compulsion are not harmless and that alone is grounds for reversal, we do not address whether the other statements KEH made to Frey were harmless.\\nFor this same reason, we do not address the legal financial obligation issues that Burke raised in supplemental briefing.\"}"

wash/12573464.json

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+"{\"id\": \"12573464\", \"name\": \"Sandra M. MERCERI, a single woman, Respondent, v. The BANK OF NEW YORK MELLON, a national banking association, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and Bank of New York Mellon f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19, Appellants.\", \"name_abbreviation\": \"Merceri v. Bank of N.Y. Mellon\", \"decision_date\": \"2018-08-13\", \"docket_number\": \"No. 76706-2-I\", \"first_page\": \"84\", \"last_page\": \"89\", \"citations\": \"434 P.3d 84\", \"volume\": \"434\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of Washington, Division 1\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-27T21:04:12.230074+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Sandra M. MERCERI, a single woman, Respondent,\\nv.\\nThe BANK OF NEW YORK MELLON, a national banking association, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and Bank of New York Mellon f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19, Appellants.\", \"head_matter\": \"Sandra M. MERCERI, a single woman, Respondent,\\nv.\\nThe BANK OF NEW YORK MELLON, a national banking association, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19; and Bank of New York Mellon f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2006-OA19, Mortgage Pass Through Certificate Series 2006-OA19, Appellants.\\nNo. 76706-2-I\\nCourt of Appeals of Washington, Division 1.\\nFILED: August 13, 2018\\nGregor Hensrude, Klinedinst PC, 701 5th Ave. Ste 1220, Seattle, WA, 98104-7007, Anthony Carmen Soldato, Klinedinst PC, 701 5th Ave. Ste 1220, Seattle, WA, 98104-7007, for Appellant.\\nSusan Lynne Fullmer, Susan L. Fullmer, Attorney At Law, 150 Nickerson St. Ste 311, Seattle, WA, 98109-1634, Gordon Arthur Woodley, Woodley Law, Po Box 53043, Bellevue, WA, 98015-3043, for Respondent.\\nPUBLISHED OPINION\", \"word_count\": \"2478\", \"char_count\": \"14643\", \"text\": \"Dwyer, J.\\n\\u00b6 1 Mere default will not alone accelerate the payments due on an installment promissory note. Some affirmative action is required by the holder of the note that makes it clear and unequivocal to the payor that the holder has, in fact, declared the entire debt due. In this case, in the absence of such an affirmative act, the superior court deemed the payments due on a note to have been accelerated. Because this acceleration took place more than six years before suit was filed, the superior court ruled, the applicable statutory limitation period barred the action. In accordance with these rulings, the superior court then quieted title to certain real property in the debtor. We hold that the payments due on the note were never accelerated and that the statutory limitation period never expired. Accordingly, we reverse.\\nI\\n\\u00b6 2 Sandra Merceri owned a home in Bothell, Washington. In November 2006, she obtained a loan documented by a promissory note in the amount of $468,000. The adjustable rate note was payable in monthly installments, the first of which was due on January 1, 2007. The remaining installments were due on the first of each month thereafter, with the last payment due on December 1, 2046. A deed of trust secured the promissory note with a lien on Merceri's property.\\n\\u00b6 3 Merceri defaulted on the loan in early 2010. Based on her failure to make monthly payments due under the note and deed of trust, a notice of default and intent to accelerate, dated February 16, 2010, was sent to Merceri. It stated, in pertinent part,\\nIf the default is not cured on or before March 18, 2010, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time. As such, the failure to cure the default may result in the foreclosure and sale of your property.\\n\\u00b6 4 In the months thereafter, Merceri was sent letters presenting options to her, such as loan modification, repayment arrangements, short sale, and full reinstatement. On June 3, 2011, defendant Bank of New York Mellon (the Bank) was assigned the deed of trust as trustee for a securitized trust.\\n\\u00b6 5 Between 2013 and 2016, Select Portfolio Servicing, Inc. (SPS), the servicer of the loan, sent Merceri mortgage statements showing the amount due on her loan as the sum of past due monthly payments plus charges and fees. A January 2, 2013 notice of default listed the amount due to cure the default as $76,175.02 (much less than the entire loan amount) and stated, \\\"SPS may accelerate all payments owing and sums secured by the Security Instrument.\\\"\\n\\u00b6 6 On June 1, 2016, the successor trustee issued a notice of trustee sale, which stated, \\\"The sum owing on the obligation secured by the Deed of Trust is: The principal sum of $509,802.40, together with interest as provided in the Note from 2/1/2010 on, and such other costs and fees as are provided by statute.\\\"\\n\\u00b6 7 Merceri initiated a suit against the Bank on October 14, 2016, seeking to quiet title to the property. She argued that the Bank's attempt to foreclose was barred because the six-year statutory limitation period had expired. This, she argued, was because the February 16, 2010 letter accelerated the payments due on the loan, making them all due upon her failure to cure her default by March 18, 2010.\\n\\u00b6 8 Both parties filed motions for summary judgment. The trial court granted Merceri's motion for summary judgment, and entered a declaratory judgment quieting title and reconveying the deed of trust. The Bank appeals.\\nII\\n\\u00b6 9 The Bank contends that the trial court erred by granting Merceri's motion for summary judgment and entering the judgment quieting title. This is so, the Bank asserts, because the applicable statutory limitation period regarding the Bank's ability to enforce payment of the loan obligation had never expired. We agree.\\nA\\n\\u00b6 10 We review an order granting summary judgment de novo, performing the same inquiry as the trial court. Nichols v. Peterson N W ., Inc., 197 Wash. App. 491, 498, 389 P.3d 617 (2016). In doing so, we draw \\\"all inferences in favor of the nonmoving party.\\\" U.S. Oil & Ref. Co. v. Lee & Eastes Tank Lines, Inc., 104 Wash. App. 823, 830, 16 P.3d 1278 (2001). \\\"Summary judgment is proper if the record shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.\\\" U.S. Oil & Refining Co., 104 Wash. App. at 830, 16 P.3d 1278.\\nB\\n\\u00b6 11 An action upon a contract or agreement in writing must be commenced within six years. RCW 4.16.040. \\\"As an agreement in writing, [a] deed of trust foreclosure remedy is subject to a six-year statute of limitations.\\\" Edmundson v. Bank of Am., NA, 194 Wash. App. 920, 927, 378 P.3d 272 (2016).\\n\\u00b6 12 Washington law distinguishes between demand promissory notes and installment promissory notes. Edmundson, 194 Wash. App. at 928-32, 378 P.3d 272. \\\" 'A demand [promissory] note is payable immediately on the date of its execution.' \\\" Edmundson, 194 Wash. App. at 929, 378 P.3d 272 (internal quotation marks omitted) (quoting GMAC v. Everett Chevrolet, Inc., 179 Wash. App. 126, 135, 317 P.3d 1074 (2014) ). As such, the statutory limitation period begins to run on a demand note when it is executed. Walcker v. Benson & McLaughlin, PS, 79 Wash. App. 739, 741-42, 904 P.2d 1176 (1995). An installment promissory note, on the other hand, is payable in installments and matures on a future date. See Edmundson, 194 Wash. App. at 929, 378 P.3d 272 ; see also Herzog v. Herzog, 23 Wash.2d 382, 388, 161 P.2d 142 (1945). \\\" '[W]hen recovery is sought on an obligation payable by installments, the statute of limitations runs against each installment from the time it becomes due; that is, from the time when an action might be brought to recover it.' \\\" Edmundson, 194 Wash. App. at 930, 378 P.3d 272 (quoting Herzog, 23 Wash.2d at 388, 161 P.2d 142 ).\\n\\u00b6 13 Merceri's promissory note was an installment note payable in monthly installments over a period of 40 years. Its maturity date is in 2046. Thus, the statutory limitation period commenced for each installment from the time it became due and was not paid. But the final six-year period to take an action related to the debt does not begin to run until it fully matures in 2046. Accordingly, unless the note ceased to be an installment note, the Bank's 2016 notice of trustee sale is timely because the statutory limitation period applicable to the entire loan obligation has not yet started to run and the action was brought within six years of missed monthly installment payments.\\nC\\n\\u00b6 14 The Bank argues that the trial court erred in ruling that the payment obligation on Merceri's loan was accelerated by the 2010 notice, causing the six-year statutory limitation period to commence. We agree.\\n\\u00b6 15 Our Supreme Court has held \\\"that even if the provision in an installment note provides for the automatic acceleration of the due date upon default, mere default alone will not accelerate the note.\\\" A.A.C. Corp. v. Reed, 73 Wash.2d 612, 615, 440 P.2d 465 (1968). \\\" 'Some affirmative action is required, some action by which the holder of the note makes known to the payors that he intends to declare the whole debt due. ' \\\" Glassmaker v. Ricard, 23 Wash. App. 35, 37-38, 593 P.2d 179 (1979) (quoting Weinberg v. Naher, 51 Wash. 591, 594, 99 P. 736 (1909) ); 4518 S. 256th, LLC v. Karen L. Gibbon, PS, 195 Wash. App. 423, 436, 382 P.3d 1 (2016), review denied, 187 Wash.2d 1003, 386 P.3d 1084 (2017).\\n[A] provision hastening the date of maturity of the whole debt is for the benefit of the payee, and if he does not manifest any intention to claim it, before tender is actually made, there is in law no default such as will cause the maturity of the debt before the regular time provided in the agreement.\\nComan v. Peters, 52 Wash. 574, 578, 100 P. 1002 (1909). \\\"[A]cceleration must be made in a clear and unequivocal manner which effectively apprises the maker that the holder has exercised his right to accelerate the payment date.\\\" Glassmaker, 23 Wash. App. at 38, 593 P.2d 179.\\n\\u00b6 16 Here, the Bank sent Merceri a notice warning her that the entire debt would be accelerated if she failed to cure her default. The notice read, in pertinent part,\\nIf the default is not cured on or before March 18, 2010, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time. As such, the failure to cure the default may result in the foreclosure and sale of your property.\\n\\u00b6 17 Thereafter, the Bank did not take an affirmative action in a clear and unequivocal manner indicating that the payments on the loan had been accelerated. The Bank never declared that the entire debt was due. Nor did it refuse to accept installment payments. See, e.g., Rodgers v. Rainier Nat'l Bank, 111 Wash.2d 232, 757 P.2d 976 (1988) (trustee accelerated payments due on the loan by refusing partial payment and demanding principal and interest in full); Jacobson v. McClanahan, 43 Wash.2d 751, 264 P.2d 253 (1953) (lender accelerated payments due on the loan by giving notice of default and refusing to accept subsequent installment payments). In addition, mortgage statements sent to Merceri after the February 2010 notice show the amount due as merely the sum of unpaid past due installments, not the full principal. The statements do not show an accelerated amount due.\\n\\u00b6 18 Merceri makes several arguments in support of acceleration. She argues that her deed of trust is evidence of acceleration. It states that \\\"failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured.\\\" Merceri contends that the February 2010 notice went a step further by stating that her loan \\\"will be accelerated.\\\" This argument is not persuasive. A loan is accelerated by clear and unequivocal action by the lender. Regardless of how the February 2010 notice compares to the deed of trust, it still does not amount to notice of acceleration. Merceri also argues that mortgage statements show acceleration because, after default, the Bank ceased to capitalize unpaid interest and charge late fees. But again, this falls far short of a clear and unequivocal statement of acceleration.\\n\\u00b6 19 At oral argument, Merceri again claimed that language in the deed of trust compelled the conclusion that the debt was accelerated in 2010. But the language cited in paragraph 22 of the document upon which this contention relies, includes the following: \\\"If the default is not cured on or before the date specified in the notice, Lender at its option, may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and/or any other remedies permitted by Applicable Law.\\\" (Emphasis added.) There is no evidence in the record that this lender exercised its option.\\n\\u00b6 20 Also at oral argument, Merceri pointed to the 2016 notice of trustee sale, which states that the principal sum owed was \\\"$509,802.40,\\\" as evidence of acceleration. But, even if this was so, a 2016 acceleration would not serve to bar a claim asserted in a 2016 lawsuit.\\n\\u00b6 21 Finally, in both a supplemental statement of authority and at oral argument, Merceri pointed to the decision in Washington Federal, National Association v. Azure Chelan LLC, 195 Wash. App. 644, 382 P.3d 20 (2016), as being helpful to her claim. It is not.\\n\\u00b6 22 In Washington Federal, the court described the key document as follows:\\nFurther, the April 2007 Notice of Default lists the various defaults and states the \\\"Total Amount Due\\\" as $6,116,545.07. This number includes the \\\"Accelerated balance due under Promissory Note\\\" of $5,656,151.29.\\n195 Wash. App. at 663, 382 P.3d 20 (citation to record omitted). No such action of the lender took place herein. Here, to the contrary, the lender offered the debtor numerous alternatives to paying the entire amount of the loan and repeatedly informed the lender that the amount due was the sum of missed monthly payments-not the entire principal amount. Merceri never received a notice of default setting forth an \\\"Accelerated balance due.\\\" In these important respects, the WashingtonFederal decision bears little resemblance to this dispute and does not militate in favor of Merceri's arguments on appeal.\\n\\u00b6 23 The trial court erred by accepting Merceri's contention that the payments on the debt were accelerated in 2010.\\nIII\\n\\u00b6 24 The trial court erred by ruling that the debt had been accelerated in 2010, that the statutory limitation period had expired, and that quieting title in Merceri was warranted. These rulings, and the judgment entered thereon, are reversed.\\n\\u00b6 25 On remand, the trial court should grant the Bank's motion for summary judgment on the statute of limitation issue. It should then conduct proceedings consistent with the entry of that order.\\n\\u00b6 26 Reversed and remanded.\\nWe concur:\\nAndrus, J.\\nMann, A.C.J.\\nMerceri argues briefly that the nonjudicial foreclosure attempt was not an \\\"action\\\" and that only a judicial foreclosure can toll the statute of limitations under RCW 4.16.170. This argument is unavailing. See, e.g., Edmundson, 194 Wash. App. 920, 378 P.3d 272. We will not further discuss this issue.\\nThe Bank answers that this figure proves no such thing and that, rather, the sum was included as required by law because it delineates the Bank's maximum interest in the proceeds of any forced sale.\"}"

wash/12573818.json

@@ -0,0 +1 @@
+"{\"id\": \"12573818\", \"name\": \"In the Matter of the Marriage of: John MASON, Respondent, v. Tatyana MASON, Petitioner.\", \"name_abbreviation\": \"Mason v. Mason\", \"decision_date\": \"2019-03-06\", \"docket_number\": \"No. 96438-6\", \"first_page\": \"272\", \"last_page\": \"272\", \"citations\": \"435 P.3d 272\", \"volume\": \"435\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-27T21:04:16.902165+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the Matter of the Marriage of: John MASON, Respondent,\\nv.\\nTatyana MASON, Petitioner.\", \"head_matter\": \"In the Matter of the Marriage of: John MASON, Respondent,\\nv.\\nTatyana MASON, Petitioner.\\nNo. 96438-6\\nSupreme Court of Washington.\\nDATED at Olympia, Washington, March 6, 2019.\\nORDER\", \"word_count\": \"160\", \"char_count\": \"934\", \"text\": \"\\u00b6 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, Gonz\\u00e1lez and Yu, considered at its March 5, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.\\n\\u00b6 2 IT IS ORDERED:\\n\\u00b6 3 The petition for review is denied. The Petitioner's motion for extension of time to file a reply to the answer to the petition for review, motion for a continuance, and motion to accept the reply to the answer to the petition for review are all denied. The Respondent's motion to strike the reply to the answer to the petition for review and the Respondent's request for attorney fees are both denied.\\nFor the Court\\n/s/ Fairhurst, CJ. CHIEF JUSTICE\"}"

wash/12574879.json

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+"{\"id\": \"12574879\", \"name\": \"STATE of Washington, Respondent, v. Erica C. MAGALLON ALVAREZ, Petitioner.\", \"name_abbreviation\": \"State v. Alvarez\", \"decision_date\": \"2019-04-03\", \"docket_number\": \"No. 96697-4\", \"first_page\": \"127\", \"last_page\": \"127\", \"citations\": \"438 P.3d 127\", \"volume\": \"438\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-27T21:04:22.234334+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Washington, Respondent,\\nv.\\nErica C. MAGALLON ALVAREZ, Petitioner.\", \"head_matter\": \"STATE of Washington, Respondent,\\nv.\\nErica C. MAGALLON ALVAREZ, Petitioner.\\nNo. 96697-4\\nSupreme Court of Washington.\\nDATED at Olympia, Washington, April 3, 2019.\\nORDER\", \"word_count\": \"90\", \"char_count\": \"565\", \"text\": \"\\u00b61 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.\\n\\u00b62 IT IS ORDERED:\\n\\u00b63 That the petition for review is denied.\\nFor the Court\\n/s/ Fairhurst, C.J. CHIEF JUSTICE\"}"

wash/1297930.json

@@ -0,0 +1 @@
+"{\"id\": \"1297930\", \"name\": \"Eugene M. Reardan, Respondent, v. H. N. Cockrell et al., Appellants\", \"name_abbreviation\": \"Reardan v. Cockrell\", \"decision_date\": \"1909-08-04\", \"docket_number\": \"No. 7993\", \"first_page\": \"400\", \"last_page\": \"405\", \"citations\": \"54 Wash. 400\", \"volume\": \"54\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:45:42.631349+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rudkin, C. J., Crow, Mount, and Parker, JJ., concur.\", \"parties\": \"Eugene M. Reardan, Respondent, v. H. N. Cockrell et al., Appellants.\", \"head_matter\": \"[No. 7993.\\nDepartment Two.\\nAugust 4, 1909.]\\nEugene M. Reardan, Respondent, v. H. N. Cockrell et al., Appellants.\\nBills and Notes \\u2014 Bona Fide Purchasers \\u2014 Transfer After Maturity \\u2014 Equities Between Intermediate Holders. While the innocent purchaser of a note after maturity takes the same subject to equities between the original parties, the rule has no application to, and he is not charged with, equities affecting intermediate holders or indorsers, where there was no illegality in the inception of the note.\\nSame \\u2014 Payments \\u2014 Negligence of Payor. Where the payors caused a note to be placed in the hands of a third party to be negotiated, and made payments, which through their negligence were not indorsed thereon, to the injury of an innocent third party purchasing the note, the negligent payors must stand the loss.\\nAppeal from a judgment of the superior court for Spokane county, Kennan, J., entered August 1, 1908, upon findings in favor of the plaintiff, in an action to foreclose a mortgage.\\nAffirmed.\\nHappy & Hindman and James T. Burcham, for appellants.\\nDanson & Williams, for respondent.\\nReported in 103 Pac. 457.\", \"word_count\": \"2086\", \"char_count\": \"12009\", \"text\": \"Dunbar, J.\\nThis was an action brought by plaintiff to foreclose a mortgage against the defendants. The note and mortgage sued upon were purchased by the plaintiff after maturity of the note. The note and mortgage were given to the Northwestern and Pacific Hypotheek Bank. They were dated August 8, 1901, becoming due in two years thereafter. The defendants in their answer allege, that they had a contract with the Home Co-Operative Company and one W. B. Sullivan, who was connected with said company, that the mortgage should be assigned by the Hypotheek bank to said company, who were to hold it until certain payments agreed upon were made by the appellants to the Home Co-Operative Company, when the land embraced in the mortgage should be deeded to the defendants; and that certain payments had been made to the Home Co-Operative Company under said agreement that they had not been accredited with. It was alleged that the plaintiff had fraudulently obtained the possession of the note and mortgage by assignment, knowing that such payments had been made. This was denied by reply on the part of the plaintiff; and the court found, and the evidence justified the finding, that the note and mortgage were bought in good faith by the plaintiff, without notice of equities of any kind, and that full face value was given therefor. So that, accepting the findings of the court, which an examination of the record in our judgment sustains, the only question in the case is a purely legal one, viz., whether the plaintiff, purchasing without notice after maturity, is subject to the same defenses as would have been good against his immediate assignor.\\nIt is stoutly maintained by the appellants that the rule of law is well established that one purchasing a chose in action, after maturity takes subject to the equities in the case, or to equitable defenses which may be interposed to the claim. This rule is undoubtedly true as applied to equities which existed between the maker and the payee of the note, or as to any inherent disqualifications in the note. But we do not think it applies to cases of innocent purchasers of notes, where there would have been no defense to the action as against the original payee. And in this particular case the mortgage was forwarded to Sullivan, who was acting for the Home CoOperative Company, and in obedience to a request of Sullivan, with the understanding that it was to be sold to a purchaser to be obtained by Sullivan. This was a long time after the note had become due, and it passed into the hands of the second indorsers by authorization of the payor some two years after its maturity, and without any claim of any frailty in the note, or any defense equitable or otherwise.\\nOn the main proposition in the case, it was said by the supreme court of California, in Vinton v. Crowe, 4 Cal. 309, in speaking of a negotiable note taken by the holder after its maturity:\\n\\\"If the plaintiff obtained the note after its maturity, he took it subject to all subsisting equities between the maker and the payee, but not subject to such as subsisted between the maker and any intermediate holder. Such a doctrine has never been countenanced by any authority whatever, and would make a rule both dangerous and absurd.\\\"\\nWhile this statement is possibly a little too broad, some cases having been decided the other way, it seems to us that such decisions arise from a misapprehension of the reason of the original rule subjecting the note to defenses that existed between the original maker and payee thereof. But this rule has been uniformly announced by the supreme court of California since, and was reaffirmed in First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 40 Pac. 45. Most of the cases reported adversely to this are where there was an illegality in the inception of the instrument, in which case, of course, the pleading of such illegality would be permitted against the innocent holder of the note.\\nIt is said, in 4 Am. & Eng. Ency. Law (2d ed.), p. 315, that:\\n\\\"According to the English rule, which has been followed by many of the courts of the United States, the holder of negotiable paper which has been transferred to him when overdue is subject to such equities between the original parties as inhere in the instrument itself. As regards matters of defense arising out of collateral transactions, a holder unaffected with actual notice is as free as if he had taken the paper before maturity.\\\"\\nAnd many cases are cited to support the text, among others National Bank of Washington v. Texas, 20 Wall. 72, 22 L. Ed. 295, where Justice Swayne in a concurring opinion says:\\n\\\"The transferee of overdue negotiable paper takes it liable to all the equities to which it was subject in the hands of the payee. But these equities must attach to the paper itself, and not arise from any collateral transaction. A debt due to the maker from the payee at the time of the transfer cannot be set off in a suit by the indorsee of the payee, although it might have been enforced if the suit had been brought by the latter [citing many cases]. The result is the same whether the transfer be made by indorsement or delivery. But the protection of this principle is confined to the'maker or obligor. It does not apply as between successive takers. Actual notice is necessary to effect that. There is no adverse presumption. Each one takes the legal title, and his equity is equal to that of his predecessors. 'The equities being equal, the law must prevail.' The position of the transferee must be at least as favorable as that of the assignee of a chose in action. There the assignee takes subject to the equity residing in the debtor, but not to an equity residing in a third person against the assignor.\\\"\\nHence, when the company or Sullivan, or whoever it was, took the mortgage from the Hypotheek bank, he took all the interest the bank had in it, and there being no claim that there was any defense whatever as against the bank, it was not subject to defense as against the purchaser. The same rule applies, by the great weight of authority, to the interest of the second purchaser. The supreme court of the United States, in the case just above cited, quoted Chancellor Kent, where it was said by that author, in giving the reason for the rule not applying to the remote indorsers:\\n\\\"The assignee can always go to the debtor and ascertain what claims he may have against the bond or other chose in action which he is about purchasing from the obligee, but he may not be able with the utmost diligence to ascertain the latent equity of some third person against the obligee. He has not any object to which he can direct his inquiries, and for this reason the assignee, without notice of a chose in action, was preferred in the late case of Redfearn v. Ferrier et al., to that of a third party setting up a secret equity against the assignor. Lord Eldon observed in that case that if this were not so no assignment could be taken with safety.\\\"\\nThe principle announced there is applicable to this case. The purchasers could inquire concerning the equities existing between the Hypotheek bank and the appellants in this case, but could not be expected to trace all collateral agreements that might arise between the payee and many subsequent indorsers or transferees.\\nIn Hill v. Shields, 81 N. C. 250, 31 Am. Rep. 499, the court said:\\n\\\"There is no adverse presumption from the paper being in dishonor as between successive endorsers, as there is between the holder and the maker. Each endorser, including the payee, down the line, has and passes the legal title, and his endorsement in legal import is a contract with his endorsee and all subsequent holders by endorsement, that the maker will pay the note, or on notice he will. . . . It is settled [said the court] in this state, however, that parol testimony may be adduced under a blank endorsement to annex a qualification or special contract as between the immediate parties. . . . But between endorser in blank and remote parties without notice, the weight of authority is that parol proof is inadmissible and the contract implied by law stands absolute\\nciting 2 Parsons, 23; Hill v. Ely, 5 Serg. & R. (Pa.) 363, 9 Am. Dec. 376; 1 Daniel, Negotiable Instruments, 699.\\n\\\"A note payable to bearer, and passed after it is due, does not carry along with it all the equities which may subsist between any intermediate bearer and the maker, it is only subject, in the hands of a bona fide holder, without notice to the equities subsisting between the original parties.\\\" Nixon v. English, 3 & 4 McCord (S. C.) 323.\\nTo the same effect, Hooper v. Spicer, 32 Tenn. 494, and Favorite v. Lord & Smith, 35 Ill. 142, which latter is a case in principle identical with the one at bar, and there the court said:\\n\\\"The defendants here never had any defense against the payees of this note, nor any claim against them of any nature. It is only while the note was in the hands of an intermediate endorser, that any defense existed, and then only as against the endorsers.\\\"\\n\\\"In an action by a third indorsee against the maker of a note, the defendant cannot plead a set-off against one of the intermediate indorsers.\\\" Root v. Irwin, 18 Ill. 147.\\nIt is said in 4 Am. & Eng. Ency. Law (2d ed.), 317, under the heading: \\\"But these defenses must exist at the time of the transfer,\\\" that \\\"As in the case of nonnegotiable instruments, no subsequently arising transactions can affect the rights of a holder.\\\"\\n\\\"While there is some conflict of authority in the adjudged cases as to how far a bona fide assignee of nonnegotiable instruments will be bound by latent equities of third persons unconnected with the assignment, the weight of authority strongly leans to the view that he is not to be held subject to such equities.\\\" 2 Am. & Eng. Ency. Law (2d ed.), 1081.\\nCases are cited from nearly every state in the Union which sustain this announcement. The further citation of accumulated authorities would be unavailing. We think the overwhelming weight of authority is as we have indicated.\\nThe further proposition urged by the respondent, we think would compel the affirmance of this judgment, viz., that the appellants themselves having placed the note and mortgage in possession of Sullivan and the Co-Operative company, for the purpose of permitting them to negotiate the same to third persons, if a loss ensues therefrom, it must be borne by the party who negligently made the loss possible. The ordinary transaction, when a payment is made on a note, is an indorsement on the' note of that amount. This indorsement was not made by the party who was acting as agent for the appellants, and if through their negligence the appellants incurred a liability, they are bound by the action of their agent as against an innocent party.\\nThe judgment will be affirmed.\\nRudkin, C. J., Crow, Mount, and Parker, JJ., concur.\"}"

wash/1307024.json

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+"{\"id\": \"1307024\", \"name\": \"The State of Washington, on the Relation of Hazel Hettrick, Plaintiff, v. Wm. G. Long, as Judge of the Superior Court for King County, Respondent\", \"name_abbreviation\": \"State ex rel. Hettrick v. Long\", \"decision_date\": \"1935-08-24\", \"docket_number\": \"No. 25766\", \"first_page\": \"309\", \"last_page\": \"312\", \"citations\": \"183 Wash. 309\", \"volume\": \"183\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:26:34.100414+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, on the Relation of Hazel Hettrick, Plaintiff, v. Wm. G. Long, as Judge of the Superior Court for King County, Respondent.\", \"head_matter\": \"[No. 25766.\\nDepartment Two.\\nAugust 24, 1935.]\\nThe State of Washington, on the Relation of Hazel Hettrick, Plaintiff, v. Wm. G. Long, as Judge of the Superior Court for King County, Respondent.\\nE. E. Merges and Adam Beeler, for relator.\\nE. C. Hudson, for respondent.\\nReported in 48 P. (2d) 224.\", \"word_count\": \"1086\", \"char_count\": \"6278\", \"text\": \"Steinert, J.\\nApplication was filed in this court for writ of mandamus commanding the superior court to make determinative disposition of a motion in a cause then pending. An alternative writ was issued directing the superior court to proceed upon the motion, or else to show- cause why it had not done so. The superior court made answer to the writ. Argument was thereupon had in this court upon the application and answer.\\nOctober 31, 1934, Paul Hettrick, herein referred to as plaintiff, commenced an action in the superior court of King county for a divorce from Hazel Hettrick, the relator herein. His complaint was based upon the ground of \\\"personal indignities rendering life burdensome.\\\" Answer was filed by the relator, praying that the action be dismissed. According to both the com plaint and the answer, no children were horn to the marriage. After issue had been joined upon the pleadings, the cause was noted on the trial calendar and thereafter was set for trial on June 24, 1935.\\nOn June 5, 1935, relator, upon affidavit, made application for, and obtained from the superior court, an order directing the plaintiff to show cause why he should not be required to pay the relator temporary attorney's fees and suit money in order to enable her to defend the suit. In response to the order, plaintiff filed an affidavit alleging that the relator had considerable property of her own, a position of employment paying her a substantial sum, and ample funds with which to defend the action. The affidavit further alleged that plaintiff was working as an automobile salesman on commission; that on June 1, 1935, his income had been reduced fifty per cent; that his income for the preceding month was but $31.07; and that relator's earnings during the same month were at least four times that amount. Other allegations respecting plaintiff's financial inability were also made in his affidavit. Eelator answered by counter-affidavit, denying, or else minimizing, the allegations of plaintiff's affidavit, but admitting that she had a position from which she was earning seventy-five dollars a month.\\nThe cause came on for hearing, On the order to show cause, on June 20, 1935, which was just four days before the date of trial of the case on the merits. After considering the affidavits, the superior court made a formal order denying the motion without prejudice, but upon the sole ground that the cause was set for trial on June 24th, and that the matter of attorney's fees and suit money could be settled at that time.\\nIn his answer filed in this court, the respondent judge alleged that, at the time of hearing the motion, he had carefully considered the affidavits above men tioned, and had also taken into consideration the fact that relator had not made any application for temporary attorney's fees and suit money until June 5,1935, although the action against her had been pending since October 31,1934. The respondent further alleged that, at the time of the preliminary hearing, he was of the opinion that relator was not entitled to the allowances asked for, basing his opinion on the ground that plaintiff was unable to pay such allowances and also on the ground that relator was earning sufficient income to make such allowances unnecessary; that, being advised that the matter was to be tried on the merits four days later, he did not desire to enter an order which might prejudice the relator by the denial of her motion, but preferred to continue the proceedings until a complete hearing could be had upon oral testimony.\\n\\\"We have given the full details of the matter, in order that the extent of our decision may be clearly understood.\\nWhile we entertain no doubt whatever that the answer made by the respondent judge correctly states his motivating impulse, and while we recognize the practicable side of his conclusion, we nevertheless must be governed by the formal and categorical order made in the case, rather than by the explanation of its form. The ground of the ruling was not that relator was not entitled to the relief sought by her motion, but solely and simply that the matter could be determined at the time of the hearing of the case on its merits. In other words, the rights, if any, of the relator under her motion were not determined at all.\\nWe do not here or now assume to say whether or not the relator was, under the circumstances, entitled to have temporary attorney's fees or suit money awarded to her. That is a matter for the trial court to determine in the exercise of a sound discretion. State ex rel. Turner v. Paul, 182 Wash. 261, 46 P. (2d) 1060, and cases therein cited.\\nIn the Turner case, we took occasion to say that the disposition of such preliminary matters does not reflect the court's ultimate attitude or decision upon the merits of the case, hut is simply provisional to its progress and procedure.\\nNor is it of any great importance whether the hearing on such motion is continued to a day certain to meet the convenience of the court. But what is important, and what we do decide, is that the relator was entitled to have her motion disposed of on its merits before the trial of the case proper. If it he found by the court that, under the circumstances presented, the wife is entitled to attorney's fees and suit money in order to prosecute or defend an action for divorce, then she is entitled to have such allowances before the trial of the case. Such allowances are made for the very purpose of enabling her to prepare and prosecute, or else defend, the action. Without them, a destitute or impecunious wife could not establish or obtain her rights at all. She would be remediless.\\nA permanent writ will issue directing the court to hear the motion upon its merits, either upon affidavits or upon oral testimony, before the trial of the case proper, and upon such hearing to exercise its sound discretion in either granting, in whole or in part, or else denying the motion.\\nHolcomb, Blake, and Main, JJ., concur.\"}"

wash/1346658.json

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+"{\"id\": \"1346658\", \"name\": \"Commercial Waterway District No. 1 of King County et al., Appellants, v. King County, Respondent\", \"name_abbreviation\": \"Commercial Waterway District No. 1 v. King County\", \"decision_date\": \"1938-12-27\", \"docket_number\": \"No. 27169\", \"first_page\": \"441\", \"last_page\": \"452\", \"citations\": \"197 Wash. 441\", \"volume\": \"197\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T21:29:02.922709+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commercial Waterway District No. 1 of King County et al., Appellants, v. King County, Respondent.\", \"head_matter\": \"[No. 27169.\\nDepartment Two.\\nDecember 27, 1938.]\\nCommercial Waterway District No. 1 of King County et al., Appellants, v. King County, Respondent.\\nShorett, Shorett & Taylor and Evans, McLaren & Littell, for appellants.\\nB. Gray Warner and Wm. Hickman Moore, for respondent.\\nReported in 85 P. (2d) 1067.\", \"word_count\": \"3360\", \"char_count\": \"19752\", \"text\": \"Beals, J.\\nCommercial waterway district No. 1, of the county of King, state of Washington, one of the plaintiffs in this action, is a municipal corporation of the state of Washington, organized and existing pursuant to law. The district, some years since, improved the Duwamish river, a navigable stream in King county, and issued negotiable bonds in order to provide funds with which to pay for the improvement. Plaintiff Carl R. Heussy is the owner of one of these unpaid bonds.\\nIn due course, the district levied against the land lying within its boundaries assessments in proportion to the benefits adjudicated by the court to have been received by the land because of the improvement, and issued its negotiable warrants and bonds in large amounts, all of which are past due, interest in large sums having accumulated thereon. For payment of these obligations, the district relies entirely upon the collection of the assessments above referred to. The assessments against many parcels of land within the district remained unpaid, together with general taxes.\\nKing county instituted tax foreclosure proceedings against these parcels of land, as provided by law, including in the foreclosure the total balance of unpaid waterway assessments, and pursuant to tax foreclosure sale, has acquired title in its name to many tracts of land within the district.\\nUnder the law, when land owned by a county pursuant to tax foreclosure, in the situation above described, is sold, the waterway district shall receive its pro rata share of the money paid for the land. Rem. Rev. Stat., \\u00a7 9754 [P. C. \\u00a7 1394], provides that waterway assessments\\n\\\". . . shall be placed upon the general tax-rolls in the office of the county assessor and shall be deemed for all purposes a part of the general taxes, and shall constitute liens against each such lot or tract of land of equal rank with state, county and city taxes and shall have the same priority over all other liens as state, county and city taxes have, and shall be subject to the same interest and penalties in case of delinquency as in case of general taxes, and for all purposes of delinquency, certificates of delinquency, foreclosure and other proceedings leading up to final payment, enforcement and collection, such assessments shall be deemed a part of the general taxes as aforesaid. . . .\\\"\\nPlaintiffs instituted this action against King county, alleging facts as above stated; that the county had, pursuant to tax foreclosure, taken title to many parcels of land within the waterway district; that the county held this property for the benefit of plaintiff district, in the proportion which the total amount of unpaid district assessments bore to the total amount of unpaid general taxes; that the county had no right, power, or authority to sell the equitable and beneficial undivided interest of plaintiff district in the several tracts of land, but that the county and its officers proposed to sell the land without requiring the district to join in any conveyance thereof. Plaintiffs prayed that the waterway district be decreed to be an equitable and beneficial owner with the county of the lands hereinabove referred to, to the extent of an undivided interest therein in proportion to the amount of its unpaid assessments, and that the county and its officers be enjoined from selling, or assuming power to sell, the beneficial title of the waterway district in or to any of the lands.\\nTo this complaint, the county demurred upon two grounds: First, that it appears upon the face of the complaint that there is a defect of parties plaintiff; and second, that the complaint fails to state facts sufficient to constitute a cause of action. After argument, the trial court sustained the county's demurrer; and, plaintiffs electing to stand on their complaint and having refused to plead further, judgment was entered dismissing the action, from which judgment plaintiffs have appealed.\\nError is assigned upon the ruling of the trial court sustaining respondent's demurrer, and upon the entry of judgment dismissing the action.\\nThe trial court was of the opinion that, under the law, the officers of respondent county have authority to sell the lands owned by the county as the result of tax foreclosure proceedings, upon which lands appellant district owned assessment liens. Appellants contend that the county commissioners have no such authority, and that appellant district owns a beneficial title or interest in such real estate, and that the county cannot sell the lands at the discretion of the county commissioners, or at all, unless the district joins with the county in the conveyance or in approving or authorizing the same.\\nThe principle that the power of taxation is an essential and basic attribute of sovereignty, is well established. 61 C. J. 76, \\u00a77(A); 26 R C. L. 26, \\u00a7 12. This principle has been repeatedly recognized in the decisions of this court.\\nIn the case of State ex rel. Board of Commissioners v. Clausen, 95 Wash. 214, 163 Pac. 744, this court said:\\n\\\"The power of taxation is an incident of sovereignty and is possessed by the state without being expressly conferred by the people. It is a legislative power, and when the people by their constitution create the department of government upon which they confer the power to make laws, the power of taxation follows as a necessary part of the more general power.\\\"\\nIn the case of Everett v. Adamson, 106 Wash. 355, 180 Pac. 144, we said:\\n\\\"We have held consistently that taxation is a matter involving the sovereign power of the state and subject only to the limitations which that sovereignty has imposed upon itself, either in the constitutional or positive law of the state.\\\"\\nIn the case of Shelton v. Klickitat County, 152 Wash. 193, 277 Pac. 839, this court, referring to tax foreclosure proceedings instituted by the county, said:\\n\\\"True, we have held that, upon a county becoming the purchaser at a tax foreclosure sale for want of other bidders, the county, upon the deed being issued to it in pursuance of such sale, acquires title in fee as against the owner. But we have also held, in harmony with the above quoted language of Rem. Comp. Stat., \\u00a7 11309, that the title thereby acquired becomes vested in the county, not in its proprietary capacity, but in trust for the state, for itself and for the other taxing municipalities within which the land is situated, with power and obligation on the part of the county to sell the land at some opportune time and justly apportion the proceeds to the state, municipal and other funds. Gustaveson v. Dwyer, 78 Wash. 336, 139 Pac. 194; 83 Wash. 303, 145 Pac. 458. This is but a part of the statutory tax collecting process, which process is not completed until such sale is finally made by the county, to the end that the proceeds thereof be apportioned as prescribed by \\u00a7 11309, above quoted.\\\"\\nIn the case of Love v. King County, 181 Wash. 462, 44 P. (2d) 175, we said:\\n\\\"We need not spend any time in discussing the elemental proposition that the power of taxation is an essential and inherent attribute of sovereignty and belongs to, and is possessed by, the government as a matter of right without being expressly conferred by the people.\\\"\\nIn the recent case of Walla Walla v. State, ante p. 357, 85 P. (2d) 676, we held that a lien of the state upon real estate for an inheritance tax was barred by a county foreclosure of a lien for delinquent taxes. In the course of the opinion, we said:\\n\\\"By repeated decisions of this court, it has become settled law in this state that a general tax lien is paramount over every other lien or burden to which property may be subjected. [Citing cases.] Any exception to this rule must come through legislative enactment.\\\"\\nRem. Rev. Stat., \\u00a7 11290 [P. C. \\u00a7 6882-129], a portion of the act relating to foreclosing liens for delinquent taxes, provides in part as follows:\\n\\\"At all sales of property for which certificates of delinquency are held by the county, if no other bids are received, the county shall be considered a bidder for the full area of each tract or lot to the amount of all taxes, interest and costs due thereon, and where no bidder appears, acquire title thereto as absolutely as if purchased by an individual under the provisions of this act; . . .\\\"\\nRem. Rev. Stat., \\u00a7 9754, quoted in part above, provides that assessments levied by such municipal corporations as appellant district \\\"shall be deemed a part of the general taxes.\\\" This gives to such organizations as appellant district an ultimate advantage not accorded to other non-taxing municipal corporations having the power to assess for local benefits.\\nAppellants rely upon the well established rule that the powers of county commissioners are purely statutory, and that such boards can exercise only such powers as are expressly conferred by the constitution and laws of the state, or as arise by necessary implication from those expressly granted, or as are necessary in the performance of the duties imposed by law. This doctrine is well established, and needs no citation of authority. It is also true, as stated by appellants, that commercial waterway districts and their commissioners enjoy very broad statutory powers; indeed, it would seem that, in some particulars, these districts have been specially favored by the legislature.\\nAppellants cite from Rem. Rev. Stat. (Sup.), \\u00a7 11294 [P. C. \\u00a7 6882-133] (Laws of 1937, chapter 68, p. 233, \\u00a7 1) the following:\\n\\\"Real property hereafter or heretofore acquired by the several counties of the State of Washington for taxes shall be subject to sale by order of the board of county commissioners of the several counties of this state at any time after the counties shall have received a deed therefor, when in the judgment of the board of county commissioners they deem it for the best interests of the county to sell the same. When the board of county commissioners desires to sell any property so acquired, it may, if deemed advantageous to the county, combine any or all of the several lots and tracts of land so to be sold in one or more units;\\\"\\narguing that it should be held that this portion of the statute shows affirmatively that the county is not authorized to sell any property except such as the county beneficially owns.\\nUnder the law, counties hold the proceeds arising from the sales of such tax-acquired lands subject to the division of such proceeds between different funds, as provided by law. It cannot be held that the statute relied upon by appellants makes appellant district the owner of any interest in the land. The district simply is entitled to receive its pro rata portion of the proceeds of the property when the same is sold.\\nThe receipt of money from general taxation is vitally necessary to the support of the state government. If appellants' contention that such lands as are here in question can be sold only with the joint concurrence of the county commissioners and the commissioners of appellant district be upheld, the raising of necessary-revenue might be seriously delayed. The land, while owned by the county, is not taxed. It is in the interest of the county that the land be restored to private ownership and again placed upon the tax rolls. It might well be deemed to be for the interest of the district that the land be held, free from taxes, for some possible future rise in value. If the two agencies could not agree upon the sale price, a serious condition might well result, and the collection of necessary tax revenue be hampered. The fact that this lawsuit was instituted demonstrates that the interests of appellant district and the respondent are believed to be antagonistic.\\nAppellants cite few authorities to support their contention. They rely upon the general rule that a trustee must administer the trust for the beneficiaries, and not for his own advantage, to their detriment. This is the general law, but does not apply to such a situation as is here presented.\\nAppellants also cite the case of McCook v. Johnson, 281 N. W. (Neb.) 69, in which the supreme court of Nebraska held that a city, purchasing and foreclosing a tax sale certificate on real estate, did so as trustee of an express trust, for the use and benefit of the state and all other governmental subdivisions entitled to participate in the distribution of the proceeds. The laws of Nebraska providing for collection of delinrquent taxes and assessments differ materially from ours. The differences are so great that it is difficult to draw any parallel between them. It appeared that the city of McCook purchased and foreclosed a tax sale certificate. The county intervened, asserting a tax lien. After decree of foreclosure, the property was put up at sheriff's sale, the city bidding in a certain lot for $350, which amount included all taxes and assessments. The city claimed the right to bid in the property as trustee for all governmental subdivisions entitled to participate in the distribution of the delinquent taxes and special assessments enumerated in the tax sale certificate upon which the decree of foreclosure was rendered, and claimed the further right to apply, as a credit upon the bid, the amount found due by the decree. On objections to confirmation, the trial court ordered the city to pay to the sheriff the $350 which it bid, and on its refusal, sustained objections to the sale, and ordered the property resold.\\nThe city contended that the sale should be confirmed without the city being required to pay the money which it bid, and that the city would hold the property as trustee until it should have disposed of the same to some private purchaser, when the money would be distributed; while the county contended that, when the foreclosure ended in a sale, any trust relation was ended, and that it was the duty of the city, as purchaser, to pay the amount bid in cash, so that the same could be immediately distributed to the governmental subdivisions entitled to their respective shares thereof. The court held that the statute of Nebraska did not have the effect of continuing the city as trustee of any kind of a trust after the sheriff's sale of the property to the city; and that the city, having purchased and foreclosed a tax sale certificate on real estate, did so as trustee of an express trust, for the use and benefit of the state and all other subdivisions; that the trust property or res was the tax sale certificate; that the express trust terminated on the sale of the certificate or on completion of the foreclosure and the distribution of the proceeds; and that the city could not bid in the property without paying in cash the amount of its bid, so that the money could immediately be distributed. The court called, attention to the general rule that a trustee could not himself purchase property, but that the statute as to tax liens and their foreclosure provided legislative modification of that rule. It was held that the city was obligated to pay the amount of its bid in cash, the court saying:\\n\\\"To allow the city to bid in the real estate without paying in the money would permit it to speculate on the property, to hold out from the other parties interested their share of the proceeds of judicial sale and to account to them whenever it was satisfied to dispose of the property.\\\"\\nThe court assumed that, if the contention of the city was correct and under the statutes the city could take title to the property, it would have the right to sell the land when, and not until, it pleased, and apparently for any price it desired to accept.\\nThe case cited does not support appellants' contention. The foreclosure was by a city, not by a county for general taxes. Under our laws governing collection of delinquent taxes and assessments, the general taxes come first, the statute providing that assessments levied by such a municipal corporation as appellant district rank with the general taxes being an exception. The evil which would result from allowing the city to take title to the property, in trust for the county, and then delay the payment of the general taxes until the city should deem it advantageous to sell the property, was noted by the court in the portion of the opinion above quoted. The court held that the city had no right to take title to the land and hold the same as trustee.\\nAppellant district is, of course, purely a creature of statute, and can exercise only such powers as are specifically accorded to it by statute, or fairly implied as incidental and essential to the powers so granted.\\nIn the case of Griggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521, referring to the powers of a port dis trict, we said: \\\"We have also held, however, that where the power is doubtful as to municipal grant, it is denied.\\\"\\nNo statute vests appellant district with actual ownership in tax foreclosed property sold to the county, or with authority to exercise any share in the control of such property or the sale thereof, and it cannot be held that such power, right, or authority is fairly implied as incidental or essential to the right granted to share pro rata in the proceeds of the property.\\nUnder our law, the county, the general taxing agency, does acquire title to tax foreclosed land \\\"as absolutely as if purchased by an individual under the provisions of this act.\\\" Rem. Rev. Stat., \\u00a7 11290, supra. Of course, persons interested in preserving liens created by appellant district may protect their interests by the usual methods open to mortgagees or other lienholders. Such questions have no bearing upon the matters to be here determined.\\nThe collection of general taxes is the first consideration. While the legislature has favored commercial waterway districts, by providing that their assessments share with general taxes in prorating funds received from the sale of tax foreclosed property, existing statutes afford no warrant for judicial interpretation thereof in such manner as to grant such districts the right to participate with the county commissioners in selling such property, and to establish in such districts an actual ownership, or interest, in the property, by whatever name it might be called, which would prevent the county commissioners from selling the property in the exercise of their discretion. The selling of tax foreclosed property is merely one step in the collection of general taxes, and in the absence of a contrary legislative intent, clearly expressed, it must be held that the sole authority to make such sales is vested by existing laws in the county commissioners or representatives of the general taxing authority.\\nIn the recent case of Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536, we said:\\n\\\"When a county purchases land at a general tax foreclosure sale, for want of other purchasers, the county takes and holds the land, not in its proprietary capacity, but in trust for the state and the various taxing municipalities within which the land lies. [Citing cases.]\\n\\\"A resale of the land by the county is but a part of the statutory tax collecting process, which is not complete until such resale is finally made by the county, to the end that the proceeds thereof shall be justly apportioned to the various funds entitled thereto. [Citing cases.]\\\"\\nThe trial court did not err in sustaining respondent's demurrer and in dismissing the action, and the judgment of dismissal is accordingly affirmed.\\nSteinert, C. J., Millard, Geraghty, and Simpson, JJ., concur.\"}"

wash/163442.json

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+"{\"id\": \"163442\", \"name\": \"The State of Washington, Respondent, v. R.S., Appellant\", \"name_abbreviation\": \"State v. R.S.\", \"decision_date\": \"2002-10-28\", \"docket_number\": \"No. 49998-0-I\", \"first_page\": \"1015\", \"last_page\": \"1015\", \"citations\": \"114 Wash. App. 1015\", \"volume\": \"114\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T23:27:51.304656+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. R.S., Appellant.\", \"head_matter\": \"[No. 49998-0-I.\\nDivision One.\\nOctober 28, 2002.]\\nThe State of Washington, Respondent, v. R.S., Appellant.\", \"word_count\": \"49\", \"char_count\": \"318\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 02-8-00422-1, Dale B. Ramerman, J., entered February 8, 2002. Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.\"}"

wash/163526.json

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+"{\"id\": \"163526\", \"name\": \"John Johnson II, as Personal Representative, Respondent, v. State Farm Mutual Automobile Insurance Company, et al., Appellants\", \"name_abbreviation\": \"Johnson v. State Farm Mutual Automobile Insurance\", \"decision_date\": \"2002-12-16\", \"docket_number\": \"No. 50251-4-I\", \"first_page\": \"1065\", \"last_page\": \"1065\", \"citations\": \"114 Wash. App. 1065\", \"volume\": \"114\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T23:27:51.304656+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Johnson II, as Personal Representative, Respondent, v. State Farm Mutual Automobile Insurance Company, et al., Appellants.\", \"head_matter\": \"[No. 50251-4-I.\\nDivision One.\\nDecember 16, 2002.]\\nJohn Johnson II, as Personal Representative, Respondent, v. State Farm Mutual Automobile Insurance Company, et al., Appellants.\", \"word_count\": \"59\", \"char_count\": \"395\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 00-2-19008-5, J. Kathleen Learned, J., entered March 8, 2002. Reversed by unpublished opinion per Baker, J., concurred in by Grosse and Appelwick, JJ.\"}"

wash/1681616.json

@@ -0,0 +1 @@
+"{\"id\": \"1681616\", \"name\": \"The State of Washington, Respondent, v. Michael Lee Bridges, Appellant\", \"name_abbreviation\": \"State v. Bridges\", \"decision_date\": \"1998-05-18\", \"docket_number\": \"No. 35645-3-I\", \"first_page\": \"102\", \"last_page\": \"109\", \"citations\": \"91 Wash. App. 102\", \"volume\": \"91\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:33:54.950585+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Michael Lee Bridges, Appellant.\", \"head_matter\": \"[No. 35645-3-I.\\nDivision One.\\nMay 18, 1998.]\\nThe State of Washington, Respondent, v. Michael Lee Bridges, Appellant.\\nMark V Watanabe; and Eric Broman of Nielsen, Broman & Associates, P.L.L.C., for appellant.\\nNorm Maleng, Prosecuting Attorney, and Stephen G. Teply, Deputy, for respondent.\", \"word_count\": \"1589\", \"char_count\": \"10101\", \"text\": \"Per Curiam\\n\\u2014 Michael Bridges was properly convicted of second degree robbery because a robbery occurs when personal property is unlawfully taken by force, however slight. Bridges' grabbing the victim's wallet from his pocket and pushing him away to retain the wallet was sufficient force to constitute a robbery. Bridges was also properly ordered to serve a sentence of fife in prison under the Persistent Offenders Accountability Act (POAA). He did not make a proper showing of selective prosecution to warrant discovery or a hearing on whether the decision to charge him as a persistent offender was motivated by racial bias. We conclude that the POAA was narrowly drawn to serve a legitimate state interest, so it does not violate substantive due process. All his other constitutional challenges have been rejected by Washington's Supreme Court. Bridges' judgment and sentence is affirmed.\\nBridges does not challenge the trial court's findings of fact. Therefore, the facts of the case will be recited only while analyzing the legal issues.\\nPOAA Challenges\\nIn 1993, Washington voters passed Initiative 593, commonly known as the \\\"three strikes law.\\\" The initiative amended RCW 9.94A.120 by adding a new subsection that requires trial courts to sentence \\\"persistent offenders\\\" to life in prison without the possibility of parole. In 1994, when Bridges was convicted, a \\\"persistent offender\\\" was defined as one who had been convicted of a felony that was a \\\"most serious offense\\\" under RCW 9.94A.030(21) and had also been convicted on two other occasions of offenses falling into that category. Bridges' crime of second degree robbery is a \\\"most serious offense.\\\"\\nBridges asserts several constitutional challenges to the POAA. All but two of his arguments were rejected by Washington's Supreme Court in State v. Manussier, State v. Thorne, State v. Rivers, or State v. Davis, or were decided by this court in State v. Angehrn. We, therefore, will address only the two arguments not already resolved and Bridges' contention that his sentence constitutes cruel punishment.\\nRefusing Discovery To Prove Racial Bias Was Not Error\\nBridges argues that the trial court erred by refusing to allow discovery or an evidentiary hearing to show that the Ring County prosecutor's decision to charge him as a persistent offender was motivated by racial bias. But the prosecutor has no discretion to decline to prosecute someone who satisfies the definition of a persistent offender. If a person meets the definition of a persistent offender, a fife sentence must be imposed.\\nBridges also contends, however, that the decision whether to charge him with a \\\"most serious offense\\\" was racially motivated. To prevail on a claim of selective prosecution a criminal defendant must present clear evidence that the prosecutor violated the equal protection clause. To warrant discovery on a selective prosecution claim, the defendant must produce some evidence that similarly situated defendants of other races could have been, but were not, prosecuted.\\nThe Supreme Court in Armstrong explained the reason the standard to order discovery on a selective prosecution claim should be rigorous:\\nIf discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.[ ]\\nBridges' attorney offered anecdotal evidence that 85 percent of the defendants facing persistent offender allegations in King County were African-Americans, while only 5 percent of the population of King County is African-American. But that information did not tend to show that similarly situated defendants of other races could have been, but were not, prosecuted. Nor was defense counsel's bare assertion that two Caucasian defendants were allowed to plead guilty to lesser offenses sufficient to constitute a credible showing of selective prosecution. Counsel offered no details about their circumstances (he was not even sure of their names), and his claim that they could have been prosecuted as persistent offenders, but were not, was based only on hearsay from other attorneys. The trial court, therefore, did not err when it refused to allow further discovery.\\nPOAA Does Not Violate Due Process\\nWhen a law impinges upon a person's liberty, which is a fundamental right, it is constitutional only if it furthers a compelling state interest and is narrowly drawn to serve that interest. Bridges contends that the POAA violates the constitutional provisions providing that no person shall be deprived of liberty without due process of law because it is not narrowly drawn to serve a compelling state interest. He argues that the POAA is not narrowly tailored because it treats persons guilty of second degree robbery the same as someone convicted of aggravated murder.\\nBut arguing that robbers should not be punished the same as murderers is essentially the same as saying that a sentence of life imprisonment for a robber is grossly disproportionate to the crime. The supreme court rejected that argument in Thorne, Rivers, and Manussier when it concluded that life imprisonment for those defendants, who were all convicted of robbery, did not constitute cruel punishment.\\nThe supreme court has not directly addressed Bridges' contention that the POAA is not narrowly drawn, but it soundly rejected other legitimate constitutional challenges to the POAA, including a contention that it violated substantive due process. Moreover, the POAA was modeled after RCW 9.92.090, Washington's habitual criminals statute, which withstood a variety of constitutional challenges. Under the habitual criminals statute, a person convicted of a relatively minor crime, like petit larceny, could be sentenced to life in prison if he previously had been convicted of two other felonies, or had been convicted of petit larceny on three other occasions. The POAA is drafted more narrowly than the habitual criminals statute.\\nBut most important, Bridges concedes that protect ing society from serious violent offenders is a compelling state interest. Having conceded that, he must also agree that protecting society from criminals who repeatedly commit serious violent offenses is a compelling state interest. The POAA essentially applies to those convicted of class A felonies or those class B felonies involving harm or threats of harm to persons, which the Legislature has defined \\\"most serious offenses.\\\" Bridges may disagree with the POAA's classification of certain crimes as \\\"most serious offenses,\\\" but determining which crimes to classify as serious is an appropriate legislative function. And, as the supreme court said in Manussier, \\\"while the offenses included in the enumerated list of crimes in [former] RCW 9.94A.030(21) may be at least debatable, they nevertheless comprise an arguably rational, and not arbitrary, attempt to define a particular group of recidivists who pose a significant threat to the legitimate state goal of public safety.\\\" We find that the POAA is narrowly tailored and does not violate substantive due process.\\nBridges also argues the POAA violates due process because it eliminates judicial discretion to order sentences proportionate to the defendant's criminal history, despite its own statement of purpose that punishment should be proportional to the seriousness of the crime and the defendant's history. But the POAA represents a policy decision that no mitigating circumstances will justify departing from the penalty of life in prison for offenders who repeatedly commit the most serious crimes. That policy decision does not violate due process.\\nThe remainder of this opinion has no precedential value, so it will not be published.\\nReview denied at 136 Wn.2d 1028 (1998).\\nState v. Manussier, 129 Wn.2d 652, 659, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1563, 137 L. Ed. 2d 709 (1997).\\nFormer RCW 9.94A.030(25); Manussier, 129 Wn.2d at 659.\\nSee former RCW 9.94A.030(21)(o); RCW 9.94A.030(23)(o).\\nManussier, 129 Wn.2d 652.\\nThorne, 129 Wn.2d 736, 921 P.2d 514 (1996).\\nRivers, 129 Wn.2d 697, 921 P.2d 495 (1996).\\nDavis, 133 Wn.2d 187, 943 P.2d 283 (1997).\\nAngehrn, 90 Wn. App. 339, 952 P.2d 195 (1998).\\nThorne, 129 Wn.2d at 764-65.\\nRCW 9.94A.120(4).\\nSee United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687 (1996).\\nArmstrong, 116 S. Ct. at 1488.\\nId.\\nId. at 1489.\\nId. at 1488.\\nSee id. at 1489 (attorneys' affidavits recounting hearsay and personal conclusions based on anecdotal evidence did not constitute sufficient showing of selective prosecution to warrant discovery).\\nIn re Personal Restraint of Young, 122 Wn.2d 1, 26, 857 P.2d 989 (1993).\\nThorne, 129 Wn.2d at 776; Manussier, 129 Wn.2d at 678-79; Rivers, 129 Wn.2d at 715.\\nSee Manussier, 129 Wn.2d at 680-81.\\nSee State v. Jackovick, 56 Wn.2d 915, 917, 355 P.2d 976 (1960), overruled on other grounds, State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983).\\nRCW 9.92.090. Although the habitual criminals statute was found to be constitutional, our supreme court concluded that imposing life imprisonment for relatively minor, nonviolent offenses could constitute unconstitutional cruel punishment. See State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).\\nSee Thorne, 129 Wn.2d at 748.\\nSee id. at 767 (\\\"the determination of penalties for crimes [i.e., what crimes are serious] is a legislative function\\\").\\nManussier, 129 Wn.2d at 674.\\nSee Thorne, 129 Wn.2d at 768.\"}"

wash/1681772.json

@@ -0,0 +1 @@
+"{\"id\": \"1681772\", \"name\": \"The State of Washington, Respondent, v. Cleo Palmer Reed, Defendant, Rheta Michele Stiles, Appellant\", \"name_abbreviation\": \"State v. Reed\", \"decision_date\": \"1998-06-22\", \"docket_number\": \"No. 33677-1-I\", \"first_page\": \"1029\", \"last_page\": \"1029\", \"citations\": \"91 Wash. App. 1029\", \"volume\": \"91\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:33:54.950585+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Cleo Palmer Reed, Defendant, Rheta Michele Stiles, Appellant.\", \"head_matter\": \"[No. 33677-1-I.\\nDivision One.\\nJune 22, 1998.]\\nThe State of Washington, Respondent, v. Cleo Palmer Reed, Defendant, Rheta Michele Stiles, Appellant.\", \"word_count\": \"48\", \"char_count\": \"316\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 93-1-03299-1, James A. Noe, J., entered November 1, 1993. Reversed by unpublished per curiam opinion.\"}"

wash/1708607.json

@@ -0,0 +1 @@
+"{\"id\": \"1708607\", \"name\": \"Johnny Young, Individually and as Personal Representative, Appellant, v. Deaconess Hospital, Respondent\", \"name_abbreviation\": \"Young v. Deaconess Hospital\", \"decision_date\": \"1988-10-13\", \"docket_number\": \"No. 8388-8-III\", \"first_page\": \"1053\", \"last_page\": \"1053\", \"citations\": \"52 Wash. App. 1053\", \"volume\": \"52\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T20:46:39.361440+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johnny Young, Individually and as Personal Representative, Appellant, v. Deaconess Hospital, Respondent.\", \"head_matter\": \"[No. 8388-8-III.\\nDivision Three.\\nOctober 13, 1988.]\\nJohnny Young, Individually and as Personal Representative, Appellant, v. Deaconess Hospital, Respondent.\", \"word_count\": \"59\", \"char_count\": \"403\", \"text\": \"Appeal from a judgment of the Superior Court for Spokane County, No. 83-2-01112-9, David M. Thorn, J. Pro Tern., entered January 15, 1987. Affirmed by unpublished opinion per Mclnturff, J. Pro Tern., concurred in by Thompson, C.J., and Green, J.\"}"

wash/1712175.json

@@ -0,0 +1 @@
+"{\"id\": \"1712175\", \"name\": \"The State of Washington, Respondent, v. Sean D. Rosen, Appellant\", \"name_abbreviation\": \"State v. Rosen\", \"decision_date\": \"1991-09-03\", \"docket_number\": \"No. 26250-5-I\", \"first_page\": \"1016\", \"last_page\": \"1016\", \"citations\": \"62 Wash. App. 1016\", \"volume\": \"62\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T00:54:34.546163+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Sean D. Rosen, Appellant.\", \"head_matter\": \"[No. 26250-5-I.\\nDivision One.\\nSeptember 3, 1991.]\\nThe State of Washington, Respondent, v. Sean D. Rosen, Appellant.\", \"word_count\": \"52\", \"char_count\": \"331\", \"text\": \"Appeal from a judgment of the Superior Court for Sno-homish County, No. 238984R030, John F. Wilson, J., entered May 3, 1990. Reversed by unpublished opinion per Scholfield, J., concurred in by Coleman and Agid, JJ.\"}"

wash/1715070.json

@@ -0,0 +1 @@
+"{\"id\": \"1715070\", \"name\": \"Frank M. Mustappa, Appellant, v. The Department of Fisheries, Respondent\", \"name_abbreviation\": \"Mustappa v. Department of Fisheries\", \"decision_date\": \"1992-11-30\", \"docket_number\": \"No. 28537-8-I\", \"first_page\": \"790\", \"last_page\": \"795\", \"citations\": \"67 Wash. App. 790\", \"volume\": \"67\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:21:58.777643+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frank M. Mustappa, Appellant, v. The Department of Fisheries, Respondent.\", \"head_matter\": \"[No. 28537-8-I.\\nDivision One.\\nNovember 30, 1992.]\\nFrank M. Mustappa, Appellant, v. The Department of Fisheries, Respondent.\\nCarl F. Roehl, Jr., and Roehl & Roehl, P.S., for appellant.\\nKenneth O. Eikenberry, Attorney General, and Kathryn McLeod, Assistant, for respondent.\", \"word_count\": \"1590\", \"char_count\": \"9998\", \"text\": \"Forrest, J.\\nFrank M. Mustappa appeals the trial judge's affirmance of the Department of Fisheries' administrative decision refusing to waive the landing requirement, and thus denying the application, for Mustappa's commercial salmon fishing license. We affirm.\\nFrank Mustappa is a commercial salmon fisherman. He held a Washington salmon purse seine license on his vessel Cascade from 1973 to 1988, when he sold the Cascade. Because commercial salmon fishing licenses must be held on a specific vessel, Mustappa transferred the license to the only other boat he owned, a small skiff WN 7818U. For the 1988 season, Mustappa transferred the license to a boat leased by his friend, Steve Good. At the end of the season, Mustappa transferred the license back to his skiff. Mustappa arranged with Good to transfer the license for the 1989 season, as well. However, the boat Good had arranged to lease became unavailable to him. Good attempted to lease another boat to transfer Mustappa's license to, but was unsuccessful. Mustappa was made aware in August 1989 that Good's first lease was canceled and that Good was attempting to find another boat. However, Mustappa made no effort to contact Good to make sure he had found a boat. Finally, on or about December 1, 1989, Good contacted Mustappa and told him he had not found a salmon boat and had not transferred Mustappa's license. The 1989 Washington salmon purse seine fishing season closed November 30, 1989.\\nMustappa applied to renew the annual license in January of 1990, as required. The requirements for renewing a purse seine commercial salmon fishing license are that (1) the vessel held the license in the previous year, or had the license transferred to it in the previous year; and (2) the vessel landed food fish during the previous year, documented by a valid fish receiving document. The Department of Fisheries (hereafter, the Department) denied Mustappa's application based on the fact that the licensed vessel, Mustappa's skiff WN 7818U, had not landed any food fish the previous season.\\nMustappa appealed the decision and appeared before the informal Salmon Advisory Review Board, consisting of three of his peers. The board found:\\nMr. Mustappa has held a purse seine license since 1972. The Board felt that Mr. Mustappa had ample time to transfer the license, and that he made no attempt to contact the operator to see that a landing had been made. The Board recommends denial.\\nUnder the standards set forth under \\\"Conclusions of Law,\\\" the circumstances described above . . . are not, in the Board's judgment, \\\"extenuating.\\\"\\nThe review board recommended that the Department's Director deny Mustappa's application. The Director followed the recommendation and Mustappa appealed. A formal administrative hearing was held September 19, 1990, before Administrative Law Judge Heather Ballash (hereafter ALJ). The ALJ concluded that although Mustappa transferred control of the license to his friend, Good, Mustappa still had the responsibility to ensure the license requirements were satisfied. The ALJ affirmed the Director's decision to deny Mustappa's license application, and Mustappa requested review of the decision. The Director modified the decision only to add another finding of fact, and affirmed the AU's decision not to renew Mustappa's license. Mustappa timely appealed to the Superior Court for Whatcom County.\\nAfter a bench trial, Judge Michael Moynihan affirmed the judgment of the ALJ, finding that \\\"substantial evidence supports the Findings of Fact and Conclusions of Law of the Director, [and] the administrative decision complies with the law and is not arbitrary and capricious.\\\" Order Affirming Administrative Decision (May 9, 1991). Mustappa appealed to this court.\\nThe issue on appeal is whether the Department erroneously interpreted and applied the waiver provision of RCW 75.30.120(2)(a) to Frank Mustappa's application for renewal of a commercial salmon fishing license.\\nMustappa challenges the Department's refusal to waive the commercial salmon fishing license renewal requirements of RCW 75.30.120, in part, which provide that a vessel:\\n(a) Which held a state commercial salmon fishing license . . . dining the previous year or had transferred to the vessel such a license, and has not subsequently transferred the license . . . to another vessel; and\\n(b) From which food fish were caught and landed in this state or in another state during the previous year as documented by a valid fish receiving document.\\n(2) The director may waive the landing requirement of subsection (1)(b) of this section if:\\n(a) The vessel to which an otherwise valid license is transferred has not had the opportunity to have caught and landed salmon; and\\n(b) The intent of the commercial salmon vessel limitation program established under this section is not violated.\\nMustappa contends that the Director's decision must be reversed because he gave an incorrect meaning to \\\"opportunity\\\" and thus \\\"erroneously interpreted or applied the law\\\". RCW 34.05.570(3)(d). Specifically, Mustappa asserts that the Legislature has mandated that the Department may waive the landing requirement if the vessel in question could not have conveniently landed salmon. We disagree.\\nMustappa argues that because it was not convenient for the seine skiff to which he had transferred his license to catch salmon (or any other food fish), that he is entitled to be considered for waiver. The argument proves too much. Logically, if it were not convenient for the skiff to catch salmon in 1989, it would be equally inconvenient for it to catch salmon in 1990, and so on. Such interpretation would be clearly contrary to the plain statutory purpose restricting licenses to vessels actively engaged in the fishery.\\nWe agree that when a term is undefined in the statute, the court should look to the dictionary and to common usage in light of the context where the term is used. However, Mustappa's rebanee on \\\"opportunity\\\" as being a matter of convenience is at most a possible use. The first definition of the word \\\"opportunity\\\" is \\\"a combination of circumstances, time, and place suitable or favorable for a particular activity or action\\\". Webster's Third New International Dictionary 1583 (1971). Webster's New World Dictionary of the American Language 1028-29 (1968) defines \\\"opportunity\\\" as \\\"a combination of circumstances favorable for the purpose; fit time; good chance or occasion.\\\" Certainly, owning a salmon license during salmon season is \\\"suitable\\\" for catching salmon and constitutes a \\\"good chance or occasion.\\\"\\nHowever, we find even clearer guidance for the proper interpretation of \\\"opportunity\\\" from the context in which it is used. Plainly, it would be unjust if an active fisherman lost his license when he wanted to fish and preserve his license but was prevented from doing so by circumstances beyond his control. To prevent such injustice, the Legislature provided in several commercial fishing statutes that the license renewal landing requirements are waived under limited circumstances. Waiver provisions are included in commercial fishing license statutes covering crabs, sea urchins and sea cucumbers, in addition to salmon. All four statutes contain landing requirements, and all four recognize that circumstances may arise which would make it unjust for the holder of the license to lose the license even though he has failed to meet the landing requirement. Thus, all four provide for waiver of the landing requirements under certain circumstances. Three of them provide that \\\"extenuating circumstances\\\" constitute a proper basis for a waiver. RCW 75.30.130(3); RCW 75.30.210(3); RCW 75.30.250(3). Although the language \\\"had no opportunity\\\" with which we are concerned is different, we find it designed to effectuate the same purpose in preventing unjust loss of a license.\\nThe Director properly implemented legislative policy in holding that an applicant must show that his failure to land salmon was due to \\\"circumstances beyond his control\\\" for him to be eligible for a waiver. This is substantially the same test as \\\"extenuating circumstances\\\" and appropriately fulfills the legislative purpose, which we perceive to be the same in the salmon license provisions as in the other commercial licensing statutes discussed.\\nThe Legislature understandably wanted to prevent license holders from losing their licenses through no fault of their own. But it is hard to imagine what purpose would be served by providing for a waiver when it was merely not \\\"convenient\\\" for the fisherman to catch fish. Plainly, there was nothing to prevent Mustappa from transferring his license from the skiff to a vessel capable of catching salmon. Indeed, that is what he had done the previous year and what he planned to do in 1989. Such circumstances constitute an \\\"opportunity\\\" to have the license on a vessel that can catch salmon. The fact that Good, acting on behalf of Mustappa, was unsuccessful in locating such a vessel does not mean there was no opportunity to have the license used to catch fish. Missed opportunities are a common part of human experience. The Superior Court was correct in finding no error in the Director's decision.\\nAffirmed.\\nColeman and Baker, JJ., concur.\\nRCW 75.30.120.\\nThe informal hearing was held May 9, 1990.\\nThe Director's decision was dated May 18, 1990.\\nThe decision was dated October 8, 1990.\\nThe statute provides that if the vessel catches any \\\"food fish\\\", it is entitled to renewal of the license but if it has failed to catch any \\\"food fish\\\" and has to apply for a waiver, then it is required to show that it had no opportunity to catch salmon. RCW 75.30.120.\\nRCW 75.30.130(3), 75.30.210(3), and 75.30.250(3), respectively.\"}"

wash/1715114.json

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+"{\"id\": \"1715114\", \"name\": \"The State of Washington, Respondent, v. Patricia Ann Clark, Appellant\", \"name_abbreviation\": \"State v. Clark\", \"decision_date\": \"1992-11-23\", \"docket_number\": \"No. 29011-8-I\", \"first_page\": \"1046\", \"last_page\": \"1046\", \"citations\": \"67 Wash. App. 1046\", \"volume\": \"67\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:21:58.777643+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Patricia Ann Clark, Appellant.\", \"head_matter\": \"[No. 29011-8-I.\\nDivision One.\\nNovember 23, 1992.]\\nThe State of Washington, Respondent, v. Patricia Ann Clark, Appellant.\", \"word_count\": \"44\", \"char_count\": \"294\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 90-1-05788-3, Richard M. Ishikawa, J., entered July 24, 1991. Dismissed by unpublished per curiam opinion.\"}"

wash/1736068.json

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+"{\"id\": \"1736068\", \"name\": \"The State of Washington, Respondent, v. Kevork Kadoranian, Appellant\", \"name_abbreviation\": \"State v. Kadoranian\", \"decision_date\": \"1992-04-20\", \"docket_number\": \"No. 27003-6-I\", \"first_page\": \"193\", \"last_page\": \"200\", \"citations\": \"65 Wash. App. 193\", \"volume\": \"65\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:42:43.010192+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Kevork Kadoranian, Appellant.\", \"head_matter\": \"[No. 27003-6-I.\\nDivision One.\\nApril 20, 1992.]\\nThe State of Washington, Respondent, v. Kevork Kadoranian, Appellant.\\nMichael A. Frost, for appellant.\\nDavid S. McEachran, Prosecuting Attorney, and Karen Frakes, Deputy, for respondent.\", \"word_count\": \"1881\", \"char_count\": \"11816\", \"text\": \"Forrest, J.\\nKevork Kadoranian appeals his conviction for possession of a controlled substance with intent to deliver. He asserts that-various pieces of evidence were erroneously admitted at trial, and that his right to counsel was violated at sentencing.\\nOn May 23, 1990, Sal Carino was arrested in Bellingham while picking up a Federal Express package containing 1 kilogram of cocaine. Carino agreed to cooperate with law enforcement officials in apprehending members of a cocaine ring which transported cocaine from Los Angeles to Vancouver, B.C. To that purpose, Carino called Kadoranian, a Canadian citizen and the alleged purchaser of the cocaine. Carino informed Kadoranian that Kadoranian's vehicle, which Carino had been driving, had been impounded. Kadoranian was told he would have to come pick up the vehicle. These telephone conversations were taped with Carino's consent pursuant to RCW 9.73.230(2).\\nWhen Kadoranian drove to Bellingham he met Carino at a restaurant. Carino was wearing a body wire. Kadoranian asked about the package, and upon leaving the restaurant he was arrested. Kadoranian was found guilty of possession of a controlled substance with intent to deliver and sentenced to 7 years.\\nConstitutionality of RCW 9.73.230\\nKadoranian argues that the recording of his conversations with Carino, pursuant to RCW 9.73.230, the 1-party consent statute, violated his privacy rights under article 1, section 7 of the state constitution and, accordingly, the evidence must be suppressed. The parties agree, and our research confirms, that the issue is one of first impression.\\nRCW 9.73.230 authorizes recording of a conversation in the course of certain criminal investigations where (1) one party has consented to the recording, (2) probable cause exists to believe that the communication involves drug dealing, (3) the recording is authorized by a supervising officer, (4) a written report is prepared, and (5) the written report is properly submitted to a judicial officer for review. The United States Supreme Court has held that when recordings of conversations are obtained through the consent of one of the parties to the conversation, no search has occurred and thus no warrant is required.\\nFactors set forth in State v. Gunwall provide a guide to independent state constitutional analysis. Since Gunwall itself establishes that article 1, section 7 of the Washington Constitution provides greater protection to telephonic and electronic communication, the issue clearly merits independent state analysis.\\nThe most significant Gunwall factor, preexisting state law, however, does not support protection for situations where one party consents to the recording. In State v. Jennen, prior to state legislation recognizing a privacy interest, the Supreme Court held that no privacy rights had been violated when a policewoman was allowed to listen to a conversation through an extension telephone. The court quoted the United States Supreme Court:\\nEach party to a telephone conversation takes the risk that the other party... may allow another to overhear the conversation.\\nState v. Jennen, 58 Wn.2d 171, 174, 361 P.2d 739 (1961) (quoting Rathbun v. United States, 355 U.S. 107, 111, 2 L. Ed. 2d 134, 78 S. Ct. 161 (1957)). While listening at another telephone is different from tapping the line and recording it, the underlying principle remains the same; a person takes a risk that the other party to the conversation may provide access to the conversation to others, no matter what means are used. Thus, prior to the state legislation recognizing a privacy interest in private conversations, Washington decisional law did not recognize such an interest.\\nHowever, since 1967 Washington statutory law has exhibited a concern for protecting private communications. Although the courts have not addressed the constitutionality of RCW 9.73.230, they have dealt with RCW 9.73.030(2), which authorizes recording with 1-pariy consent in certain specific factual situations, and RCW 9.73.090(l)(a), which authorizes recording of incoming calls to police or other emergency services. Significantly, both of these statutes lack the legislative safeguards built into RCW 9.73.230, such as requiring, in addition to 1-party consent, probable cause to believe communication involves drug dealing, authorization by a supervising officer, and preparation of a written report which must be promptly submitted to a judicial officer for review. Nonetheless, the legitimacy of recording pursuant to RCW 9.73.030 and RCW 9.73.090 has been recognized in Washington cases. In State v. Williams, the court specifically approved the admission of testimony under RCW 9.73.030(2). In State v. Johnson the court treated RCW 9.73.090(l)(a) as valid without discussion. Although constitu tional arguments were not addressed in these previous cases, this history is persuasive evidence that neither the fourth Gunwall factor, preexisting state law, nor the sixth, local considerations, supports a holding that the Washington State Constitution, article 1, section 7, prohibits recording a conversation where one party has consented thereto.\\nMoreover, the policy considerations against such a rule are overwhelming. As succinctly stated by the United States Supreme Court:\\nwe are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.\\nUnited States v. White, 401 U.S. 745, 753, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971). In other words, since the conversant knowingly runs the risk that the conversation will be repeated by the other party, there is no legitimate expectation of privacy in the conversation. Indeed, since such 1-party consent recordings are most frequently used where the consenting party is acting as an agent of the police, it seems that an accurate record of what was said to the defendant and what the defendant said to the police agent will most often be of benefit to the defendant. Unfortunately, such informants have a strong motive to slightly bend or twist their recollection of the conversation to implicate a defendant and discharge whatever obligation they have undertaken to law enforcement. The only possible benefit to a defendant in excluding the tape of such conversations is that without a recording he can attack a truthful witness's credibility which would be impossible in the face of a recording. We see no reason to interpret our state constitution to protect such an interest when objective and accurate evidence is available to establish who said what to whom. It would be a strange rule of evidence that would exclude the most rehable evidence of a conversation in favor of the uncertain and self-interested recollection of the parties.\\nThe defendant seeks to rely on the Alaska court's reasoning in State v. Glass in support of departing from the reasoning of White. The Glass court reasoned that while the risk of a conversation being repeated is well known and not entitled to privacy protection, the risk of a recording is \\\"not yet rooted in common American experience, and it should not be thrust upon us\\\". State v. Glass, 583 P.2d at 877 (quoting Holmes v. Burr, 486 F.2d 55, 72 (9th Cir.), cert. denied, 414 U.S. 1116, 38 L. Ed. 2d 744, 94 S. Ct. 850 (1973)). The empirical basis for this understanding of American experience is doubtful. In any event, even if the risk is not known, that fact is a poor reason for the judicial system not to avail itself of the best evidence of the conversation. Alaska stands alone. A number of other states have reached the same conclusion that we do.\\nThe Legislature has recognized a general privacy right in private conversations, and we find nothing unconstitutional in the exception it has provided for investigation of drug dealing. Indeed, the Legislature has provided a number of safeguards in RCW 9.73.230 not present in RCW 9.73.030 or RCW 9.73.090. We hold RCW 9.73.230 to be a constitutional exercise of legislative authority. The taped evidence of Kadoranian's conversations is admissible.\\nAffirmed.\\nA majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.\\nGrosse, C.J., and Kennedy, J., concur.\\nUnited States v. White, 401 U.S. 745, 752, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971).\\n106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).\\nThe six Gunwall factors are: (1) textual language, (2) differences in the text, (3) state constitutional and common law history, (4) preexisting state law, (5) structural differences, and (6) matters of particular state or local concern. Gun-wall, at 61-62.\\n\\\"The State of Washington has a long history of extending strong protections to telephonic and other electronic communications.\\\" Gunwall, at 66.\\n58 Wn.2d 171, 361 P.2d 739 (1961).\\nSee RCW 9.73.030.\\nJennen, at 174.\\nFor example, RCW 9.73.030(1), enacted in 1967, provides, in part:\\n\\\"Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:\\n\\\"(a) Private communication transmitted by telephone . without first obtaining the consent of all the participants in the communication;\\n\\\"(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation . . .\\\".\\nRCW 9.73.030(2) reads:\\n\\\"Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.\\\"\\nRCW 9.73.090(1) reads:\\n\\\"The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances:\\n\\\"(a) Recording incoming telephone calls to police and fire stations, licensed emergency medical service providers, emergency communication centers, and poison centers;\\\"\\nSee RCW 9.73.230(l)(a)-(c), (6).\\nSee also State v. Cisneros, 63 Wn. App. 724, 821 P.2d 1262 (1992) (holding that a police intercept authorized by a judge pursuant to RCW 9.73.090(2) does not violate article 1, section 7 of our constitution).\\n94 Wn.2d 531, 617 P.2d 1012, 24 A.L.R.4th 1191 (1980).\\nWilliams, at 549.\\n104 Wn.2d 179, 180-81, 703 P.2d 1052 (1985).\\n583 P.2d 872 (Alaska 1978).\\nSee, e.g., Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd, 494 U.S. 299,108 L. Ed. 2d 255,110 S. Ct. 1078 (1990); People v. Phillips, 41 Cal. 3d 29, 52, 711 P.2d 423, 222 Cal. Rptr. 127 (1985); People v. Velasquez, 641 P.2d 943 (Colo.), cert. denied, 459 U.S. 805, 74 L. Ed. 2d 43, 103 S. Ct. 28 (1982); Morningstar v. State, 428 So. 2d 220 (Fla. 1982), cert. denied, 464 U.S. 821, 78 L. Ed. 2d 95, 104 S. Ct. 86 (1983); State v. Boone, 581 P.2d 571 (Utah 1978); People v. Richardson, 60 Ill. 2d 189, 328 N.E.2d 260, cert. denied, 423 U.S. 805, 46 L. Ed. 2d 25, 96 S. Ct. 13 (1975).\"}"

wash/1748345.json

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+"{\"id\": \"1748345\", \"name\": \"The State of Washington, Respondent, v. Raul L. Mireles, Appellant\", \"name_abbreviation\": \"State v. Mireles\", \"decision_date\": \"1994-04-05\", \"docket_number\": \"No. 12411-8-III\", \"first_page\": \"605\", \"last_page\": \"617\", \"citations\": \"73 Wash. App. 605\", \"volume\": \"73\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T17:49:53.186696+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Raul L. Mireles, Appellant.\", \"head_matter\": \"[No. 12411-8-III.\\nDivision Three.\\nApril 5, 1994.]\\nThe State of Washington, Respondent, v. Raul L. Mireles, Appellant.\\nHugh M. Spall, for appellant..\\nJeffrey C. Sullivan, Prosecuting Attorney, and Bruce Hanify, Deputy, for respondent.\", \"word_count\": \"3361\", \"char_count\": \"20040\", \"text\": \"Thompson, C.J.\\n\\u2014 Raul L. M\\u00edreles was convicted for possession of a controlled substance (cocaine) with intent to deliver. His sentence was ordered to run consecutively to a federal sentence previously imposed. He appeals his conviction and sentence, contending the trial court (a) erred in denying his suppression motions, (b) violated his right to a speedy trial under CrR 3.3, and (c) abused its discretion by ordering his state sentence to run consecutively to his federal sentence. We affirm.\\nFacts and Procedural History\\nOn July 11, 1990, employees of the Department of Social and Health Services (DSHS), Office of Support Enforcement (OSE), seized a pickup truck registered to Mr. M\\u00edreles. DSHS claimed a lien on the vehicle for unpaid child support. The truck was taken to Bill's Towing in Sunnyside where Nan-nette Hulse of OSE conducted an inventory search. She found a green canvas bag on the passenger floorboard. She unzipped it and saw what she believed were narcotics. She closed the bag, replaced it on the floorboard, and called police.\\nSunnyside police obtained a search warrant for the vehicle and its contents. They seized United States currency and 265 grams of cocaine pursuant to the warrant.\\nOn July 13, 1990, Mr. M\\u00edreles was charged with possession of a controlled substance, cocaine, with intent to deliver. ROW 69.50.401(a). He was arraigned on July 27, 1990, and released. While awaiting trial, he was arrested by federal authorities and taken into custody.\\nOn September 10, 1991, the State obtained an order from the Yakima County Superior Court directing the issuance of a writ of habeas corpus ad prosequendum to the United States Marshal for the delivery of Mr. M\\u00edreles for trial in Yakima. Federal authorities agreed to release him after his trial on the federal charges.\\nMr. M\\u00edreles waived his state speedy trial rights through September 16,1991. On October 7,1991, while still in federal custody, Mr. M\\u00edreles moved for dismissal of the state charges based on violation of his speedy trial rights. Alternatively, he requested a trial on the state charges in absentia. His motion was denied.\\nMr. Mireles was found guilty on the federal charge. He was sentenced on February 28, 1992, and released for trial by the State. On April 3, defense counsel orally moved to suppress the evidence seized from his vehicle. The trial court determined the search was a valid OSE inventory search and denied the motion.\\nOn April 6, Mr. Mireles' bench trial commenced. During trial, defense counsel questioned the validity of the seizure of the vehicle by DSHS, as distinguished from the seizure of the canvas bag from within it. The seizure was deemed lawful and Mr. Mireles was found guilty as charged. He was sentenced to 48 months' incarceration, to be served upon completion of his federal sentence.\\nSuppression Motions\\n1. Contentions. Mr. Mireles contends the OSE search of his vehicle violated his rights under the Fourth Amendment and article 1, section 7 of the Washington Constitution. He cites Florida v. Wells, 495 U.S. 1, 109 L. Ed. 2d 1, 110 S. Ct. 1632 (1990); State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980); State v. Vonhof, 51 Wn. App. 33, 37-38, 751 P.2d 1221, review denied, 111 Wn.2d 1010 (1988), cert. denied, 488 U.S. 1008 (1989); and numerous other cases.\\nMr. Mireles contends that even if his privacy was not invaded by the search, liened property cannot be seized without probable cause to believe it belongs to the target of the seizure. According to Mr. Mireles, there was no probable cause to believe the bag belonged to him because it was found on the passenger side of the vehicle. He also contends the bag and its contents were not subject to a lien by DSHS because they were exempt under RCW 6.15.010. Without the lien, OSE lacked possessory rights.\\nThe State contends DSHS was entitled to seize the vehicle pursuant to RCW 74.20A. Under RCW 74.20A.030(1), the State is subrogated to a child's right to collect from his or her parent, and under RCW 74.20A.030(2), subrogation includes the right to initiate actions for the collection of moneys owed. The collection methods available to DSHS are judicial, RCW 74.20A.040, and administrative, RCW 74.20A.055. Once the obligation is perfected statutorily, as in this case, the State is in the position of a secured creditor with the same rights as other creditors to seize property. RCW 74.20A.060(1), (2).\\nThe State contends the search which followed the lawful seizure of the vehicle was an inventory search which did not require a warrant. South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976); Houser; State v. McFadden, 63 Wn. App. 441, 820 P.2d 53 (1991), review denied, 119 Wn.2d 1002 (1992).\\n2. Standard of Review. Although a trial court's findings following a. suppression hearing are of great significance to a reviewing court, when constitutional rights are at issue the appellate court will make an independent evaluation of the evidence. State v. Mennegar, 114 Wn.2d 304, 309-10, 787 P.2d 1347 (1990).\\n3. Findings of Fact. Mr. M\\u00edreles assigns error to portions of finding of fact 3 entered after the first suppression hearing and portions of finding of fact 3 entered after the second suppression hearing. Both state in relevant part: \\\"That at Bill's Towing, Nannette Hulse of the OSE began an inventory search of the Nissan Pickup.\\\" At the first suppression hearing, a videotape of the search taken by DSHS was admitted into evidence without objection. Apparently, it convinced the trial court that OSE was not looking for evidence and was surprised at its discovery. As the court observed:\\n[It was] obvious from the video as soon as that bag was opened . . . they realized that they had contraband there. I mean, it was the very first thing the person indicated. . . .\\nI think she said a swear word.\\nGreg Broyles, an employee of DSHS and a child support officer at the time of the search, testified that he participated in five or six seizures for DSHS and an inventory search was a \\\"standard practice\\\". He said checklists had been developed for use in such searches and everything was to be written down and its condition checked off. He identified Ms. Hulse on the videotape as the person conducting the search. He further testified during trial that the purpose of an inventory search is to document what is found in order to avoid spurious claims. The challenged findings are supported by substantial evidence.\\n4. Conclusions of Law. Mr. Mireles assigns error to conclusions of law 2 through 4 from the first suppression hearing and conclusions of law 3 and 4 from the second suppression hearing. In these conclusions, the trial court determined that DSHS employees had prior justification for their intrusion into the vehicle; a search warrant was unnecessary because the defendant no longer had a reasonable expectation of privacy; the search was reasonable; and the evidence was admissible.\\nThe Fourth Amendment and Const, art. 1, \\u00a7 7 protect citizens from unreasonable searches by the government and its agents. Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967); Vonhof (direct law enforcement is not a prerequisite). Searches conducted without a warrant are per se unreasonable unless they fall within a few recognized exceptions. State v. Bell, 108 Wn.2d 193, 196, 737 P.2d 254 (1987); Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507, 514 (1967). The burden of proving an exception rests upon the State. State v. Chrisman, 100 Wn.2d 814, 822, 676 P.2d 419 (1984); Katz, at 357.\\nA routine inventory search is a recognized exception to the warrant requirement. Opperman; United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977); Houser. The exception has been recognized because, unlike a probable cause search and a search incident to arrest, the purpose of an inventory search is not to discover evidence of a crime but to perform an administrative or caretaking function. See Colorado v. Bertine, 479 U.S. 367, 372, 93 L. Ed. 2d 739, 107 S. Ct. 738, 742 (1987) (purpose of an inventory search by police is to protect property while in custody; insure against claims of lost, stolen, or vandalized property; and guard the police from danger); Houser, at 154 (purposes of inventory search are to find, list, and secure from loss during detention property belonging to a detained person and to protect police and temporary storage bailees from liability due to dishonest claims of theft).\\nThe central inquiry in an inventory search is whether it is reasonable under all the facts and circumstances of the particular case. Opperman, at 373 (citing Coolidge v. New Hampshire, 403 U.S. 443, 509-10, 29 L. Ed. 2d 564, 91 S. Ct. 2022, 2059-60 (1971)). Using this analysis, inventory searches conducted according to standardized police procedures have been upheld as reasonable where there is no showing of excessive discretion or investigatory motive. Opperman, at 372; Bertine, at 375. Conversely, inventory searches which are \\\"a ruse for a general rummaging in order .to discover incriminating evidence\\\" are unreasonable. Wells, at 4.\\nHere, Mr. Broyles testified to written standardized inventory procedures adopted by DSHS. Those procedures were followed by OSE. The apparent lack of a specific policy governing closed or sealed luggage or containers does not invalidate the search under Wells or Opperman. Nor does Mr. Broyles' testimony reflect that the search was a \\\"ruse\\\" to discover incriminating evidence. The inventory of the truck and the contents of the bag were consistent with the general purpose of an OSE search and the discovery by Ms. Hulse was inadvertent. The search was reasonable under the Fourth Amendment.\\nMr. M\\u00edreles has asserted sufficient compelling reasons to undertake an independent state constitutional analysis as to the validity of the search. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). As he contends, article 1, section 7 differs from the Fourth Amendment and generally affords individuals greater protection against warrantless searches and seizures than does the Fourth Amendment. Bell, at 196. It provides that \\\"[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law\\\". The reasonableness of a search under article 1 must also be decided in light of the facts and circumstances of the case. Houser, at 148.\\nIn a \\\"normal\\\" impound situation by police, the expectation is that the owner will reclaim the vehicle and its contents. The opposite is true when property is seized pursuant to RCW 74.20A. In the latter case, the owner's reasonable expectation is that the seized property will be sold to satisfy the lien and any reasonable expectation of privacy will be accordingly reduced, if not eliminated.\\nMr. M\\u00edreles does not challenge the validity of the lien filed by DSHS on December 13, 1985, as to \\\"All Property\\\". Neither does he deny being personally served with a DSHS notice and finding of financial responsibility. He does however, for the first time on appeal, contend that the bag and its contents were personal property exempt from execution under RCW 6.15.010.\\nEven if Mr. M\\u00edreles' argument is considered, it is inaccurate. The exemption statute he cited limits the type and amount of personal property exemptions. It does not create a blanket exemption for all personal property. For example, it does not exempt cash over $100. Further, \\\"other\\\" personal property not enumerated in the statute is exempt in an amount not to exceed $1,000, of which only $100 may be in cash. RCW 6.15.010(1), (3)(b). Therefore, Mr. M\\u00edreles had no reasonable expectation that all personal property in the vehicle would be exempt from execution. Further, without opening the bag, DSHS would have no way of knowing whether any of its contents were exempt.\\nThe State's argument that a warrant was not required because DSHS \\\"owned\\\" the personal property contained in the bag also lacks merit. At the time of the seizure, DSHS had the rights of a secured creditor and was entitled to possession only until the property was sold or returned to its owner.\\nThe validity of the inventory search is not, however, dependent on the existence of lien rights by DSHS on the personal property in the vehicle. In this respect, the reasoning in McFadden is instructive. In McFadden, a vehicle was seized pursuant to RCW 69.50.505, which allows for seizure of vehicles used to facilitate drug transactions.\\nWhile this is not an impound case, we think that the law as to an inventory search following a lawful impound provides guidance. Inventories following lawful impound are justified [citing State v. Simpson, 95 Wn.2d 170, 188-89, 622 P.2d 1199 (1980)]. The reasons which justify an inventory search following im-poundment are even more compelling when the search follows a seizure pursuant to RCW 69.50.505. In a normal impound situation the expectation is that the owner will reclaim his vehicle. The contrary is the case in seizure of a vehicle used to facilitate drug transactions, where the expectation is that the vehicle will be forfeited. Although the vehicle is to be forfeited, there is no right to forfeit the contents, which must be returned to the owner thereof. Balancing the societal need for the search against the privacy interest provided by the constitution, we find that the search was valid.\\n(Footnotes omitted.) McFadden, at 448. Mr. Mireles contends he had the right to reject the protections afforded him by an inventory search. He cites State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984). We fail to see how Mr. Mireles could have rejected the protection the inventory search provided him under the circumstances presented here.\\nMr. Mireles' argument there was no \\\"probable cause\\\" to believe the bag was his because it was on the passenger side of the vehicle lacks merit. Cf. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971).\\nSince the challenged search by OSE was reasonable, the evidence seized pursuant to the police warrant was properly admitted in evidence.\\nSpeedy Trial\\nWe address next Mr. M\\u00edreles' contention he was deprived of his right to a speedy trial under CrR 3.3.\\nMr. M\\u00edreles contends time spent in federal custody is not included within the 90-day speedy trial period required under CrR 3.3 unless the State makes a reasonable attempt to bring the accused to trial. CrR 3.3(g)(6); State v. Anderson, 121 Wn.2d 852, 855 P.2d 671 (1993). He argues the State did not make a reasonable attempt because it issued a writ of habeas corpus ad prosequendum which federal authorities refused to honor and it should have followed 18 U.S.C. \\u00a7 4085 (repealed by Pub. L. No. 98-473, \\u00a7 218, 98 Stat. 2027). Moreover, he should have been tried in absentia.\\nCrR 3.3(c)(1) requires that a defendant released from jail be brought to trial not later than 90 days after arraignment. CrR 3.3(g) excludes certain periods from the 90-day limit, including \\\"[t]he time during which a defendant is detained . in a federal jail or prison . . .\\\". CrR 3.3(g)(6). See also State v. Pizzuto, 55 Wn. App. 421, 425-29, 778 P.2d 42 (the time during which a person is held by a foreign jurisdiction pending trial is excluded under CrR 3.3 if a release cannot be secured), review denied, 113 Wn.2d 1032 (1989).\\nTime spent by a defendant in a federal jail or prison is excluded in calculating the CrR 3.3(d)(4) speedy trial time limits unless the State acts in bad faith or fails to exercise due diligence in attempting to obtain the defendant for trial. Anderson. We find no basis for distinguishing rights under CrR 3.3(d)(4), at issue in Anderson, from rights under CrR 3.3(c)(1), at issue here. Therefore, we hold the State was obligated to exercise good faith and due diligence in obtaining Mr. Mireles for trial.\\nAccording to Mr. Mireles, the State should have proceeded to obtain his release under 18 U.S.C. \\u00a7 4085. However, section 4085 was repealed and ineffective at the time Mr. Mire-les committed the federal offense. This may explain why the State moved for a writ of habeas corpus ad prosequendum and federal authorities responded to the writ as issued by the State. There is no evidence of bad faith or lack of due diligence by the State in procuring Mr. Mireles for trial.\\nThe trial court refused to try Mr. Mireles in absentia because it found he was not absent and would be available as soon as he was tried on the federal charge. CrR 3.4(a) provides:\\nThe defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown.\\nThe trial court did not err in determining that there was no good cause for excluding Mr. Mireles from his own trial. State v. Bernhard, 45 Wn. App. 590, 596-98, 726 P.2d 991 (1986), review denied, 107 Wn.2d 1023 (1987). The cases he cites apply to those situations where the court tries a defendant in absentia and the defendant contends he did not waive his presence at trial, e.g., State v. LaBelle, 18 Wn. App. 380, 568 P.2d 808 (1977).\\nConsecutive Sentences\\nMr. Mireles' final contention is the trial court abused its discretion under RCW 9.94A.400 because it deliberately delayed sentencing in order to place itself in the position of being the last sentencing court.\\nRCW 9.94A.400(3) gives each successive sentencing court control over the relationship of its sentence to sentences previously imposed. See also In re Long, 117 Wn.2d 292, 303, 815 P.2d 257 (1991). Consequently, the later sentencing court always sets the relationship of its sentence to the former and the later court has discretion to expressly order the sentence for the latter offense to run consecutively to the former. As noted previously in this opinion, there is no evidence the trial court deliberately delayed the trial or otherwise manipulated the sequence of trials in order to \\\"get the last shot\\\" at Mr. Mireles.\\nWe affirm the conviction and sentence.\\nMunson and Schultheis, JJ., concur.\\nReview denied at 124 Wn.2d 1029 (1994).\\nRCW 6.15.010 lists types and amounts of personal property exempt from execution, attachment, and garnishment.\\nWells, the lack of standardized procedures by police resulted in the exclusion of marijuana seized from a locked suitcase discovered by police while conducting an inventory search of a vehicle. There was no record of a police policy that addressed the opening of closed containers found during inventory searches. The Supreme Court held that \\\"absent such a policy, the . . . search was not sufficiently regulated to satisfy the Fourth Amendment. . .\\\". Wells, at 5.\\nOn appeal, Mr. M\\u00edreles does not contend the seizure of the vehicle was unlawful. Since the trial court's findings and conclusions as to the legality of the seizure of the vehicle have not been challenged, we express no opinion thereon.\\nMr. Mireles does not assign error to the trial court's decision that his speedy trial rights were not violated. He does, however, present the issue at page 4 of his opening brief.\\nCrR 3.3(d)(4) provides:\\n\\\"If a cause is remanded for trial after an appellate court accepts review or stays proceedings, the defendant shall be brought to trial not later than 60 days after that appearance by or on behalf of the defendant in superior court, with notice to both parties of any such appearance, which next follows receipt by the clerk of the superior court of the mandate or other written order, if after such appearance the defendant is detained in jail, or not later than 90 days after such appearance if the defendant is thereafter released whether or not subject to conditions of release.\\\"\"}"

wash/1773966.json

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+"{\"id\": \"1773966\", \"name\": \"Manufacturers Acceptance Corporation, Appellant, v. Irving Gelb Wholesale Jewelers, Inc., Respondent\", \"name_abbreviation\": \"Manufacturers Acceptance Corp. v. Irving Gelb Wholesale Jewelers, Inc.\", \"decision_date\": \"1977-06-29\", \"docket_number\": \"No. 1416-3\", \"first_page\": \"886\", \"last_page\": \"895\", \"citations\": \"17 Wash. App. 886\", \"volume\": \"17\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T00:54:37.489717+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Manufacturers Acceptance Corporation, Appellant, v. Irving Gelb Wholesale Jewelers, Inc., Respondent.\", \"head_matter\": \"[No. 1416-3.\\nDivision Three.\\nJune 29, 1977.]\\nManufacturers Acceptance Corporation, Appellant, v. Irving Gelb Wholesale Jewelers, Inc., Respondent.\\nLukins, Annis, Bastine, McKay & Van Marter, P.S., Robert G. Beaumier, and Keith D. Rieckers, for appellant.\\nWilliam J. Powell, for respondent.\", \"word_count\": \"2808\", \"char_count\": \"17124\", \"text\": \"Munson, C.J.\\nAppellant, Manufacturers Acceptance Corporation (MAC), originally brought this action against Emanuel Gelb, his wife, and Irving Gelb Wholesale Jewelers, Inc. (corporation) to recover the outstanding balance of an inventory loan and to enforce the security agreement thereon. The Gelbs and the corporation counterclaimed contending that these transactions were usurious, seeking attorneys' fees and an offset for double the interest already paid on the loan. MAC dismissed Mr. and Mrs. Gelb at the outset of trial and now appeals the trial court's judgment awarding the corporation recovery under its counterclaim, discharging the security agreement and awarding attorneys' fees and costs. We affirm in part, reverse in part, and remand.\\nPrior to 1969, Emanuel Gelb had been employed by his cousin, Irving, as a traveling salesman in Irving's wholesale jewelry business. In August 1969, Emanuel Gelb purchased the business from Irving. As part of the transaction, Emanuel and his wife formed Irving Gelb Wholesale Jewelers, Inc.; the corporation assumed all Irving Gelb's prior business obligations and MAC released Irving Gelb from liability.\\nOn August 19, 1969, the corporation entered into the following agreements with MAC:\\n1. A security agreement;\\n2. A factoring agreement; and\\n3. A management service agreement.\\nIn addition, a document attached to the factoring agreement entitled \\\"guaranty\\\" was executed by the Gelbs personally guaranteeing to MAC all liabilities of the corporation. By utilizing and effecting these agreements, MAC provided the corporation with financing and management services.\\nThe security agreement designated the corporation's inventory as security for any existing or future indebtedness to MAC, including a promissory note for over $55,000, which was Irving Gelb's prior obligation to MAC. From August 1969 through July 1973 MAC made monthly cash advances totalling $521,600 (secured by the security agreement) to the corporation. Each time a cash advance was made, MAC prepared, and the corporation signed, a promissory note stating the amount of the cash advance and designating interest at 12 percent. Each note was due the first of the following month.\\nUnder the factoring agreement, at the end of each month the corporation would furnish MAC with a list of all of its accounts receivable. MAC would then select from this list those accounts which it would buy. The agreement provided that MAC would remit to the corporation 80.25 percent of the purchase price of these accounts receivable, retaining 18.25 percent in a reserve account, and charging .875 percent as a factoring charge. On the first of each month, MAC would apply as credit against the jewelry corporation's loan balance approximately 80 percent of accounts receivable accepted for factoring that month. Payments would likewise be debited.\\nMAC assisted Mr. Gelb in attempts to collect the factored accounts receivable, if necessary. From August 1969 through December 1, 1973, MAC factored accounts receivable totalling $591,135.44 and received payment on these accounts totalling $667,281.23. Based upon these factored accounts receivable, MAC has credited $553,177.34 to the corporation's outstanding loan balance.\\nAt the beginning of each month, after MAC had credited the factored accounts, it would prepare a new note reflecting the corporation's outstanding balance and the previous month's cash advances, plus interest and service charges for the loan, the factoring agreement, and the management service agreement.\\nPursuant to the management service agreement, MAC provided substantial services to the jewelry corporation. These services included assistance to Emanuel Gelb in effecting the purchase of the jewelry business from Irving Gelb; assistance in hiring and interviewing of personnel; assistance in the collection of accounts; assistance in accounting matters; assistance in sales programming; assistance in advertising; consultation as to his customers, particularly in determining whether to extend credit to such customers; consultation on matters affecting his suppliers, including the guaranty of payment to specific suppliers; and consultation when the corporation entered the retail business. The management service agreement provided that MAC's compensation for these services be based upon two different computations: (a) a monthly fee of .875 percent of the gross amount of the accounts receivable factored by MAC; plus (b) a monthly fee of 1.187 percent of the outstanding loan balance owed by the corporation.\\nEmanuel Gelb's business was relatively successful until the middle of 1972. From that point on, it began to decline. Attempts to restimulate business were ineffective, and in July of 1973, MAC ceased making cash advances. MAC ultimately commenced this action December 1, 1973, alleging an indebtedness owed it of $140,948.10.\\nThe trial court concluded that the three separate agreements were valid, that they were not so interrelated that they must, by necessity, be construed as a single transaction, that the corporation owed the amount MAC sought, but, that only .875 percent of the gross factored accounts was a reasonable fee for services rendered under the management service agreement and that the 1.187 percent charge, based upon the outstanding loan balance, was unreasonable and usurious. MAC appeals, assigning error to the court's conclusion of usury.\\nThe trial court made the following findings to which no assignment of error is made:\\n15. The court further finds that Emanuel Gelb had prior business experience, had developed a familiarity with the business he purchased from his cousin during his previous work with the firm, that he had the benefit of the advice of counsel during all the period of negotiations for the purchase of the business, even though this counsel was also serving as counsel for Irving Gelb and MAC; that Emanuel Gelb knew MAC had been functioning as a source of supply of money previous to his purchase and that he was not unaware of the ingredients of the documents he signed which specified the various service charges, factoring charges and the fact that there was a security agreement held by MAC on all inventory and proceeds.\\n16. The Court further finds that MAC provides a special and unique type of business financing, available to business people who may be starting without any operating capital and who otherwise could obtain no money from other lending institutions, either to purchase or operate a business. The Court further finds that Emanuel Gelb could not have obtained funds from any other lending institutions nor have obtained management service assistance such as MAC offered and supplied in this instance. Under the circumstances the court finds that Emanuel Gelb was not a captive borrower.\\n17. The Court finds that the total service charges collected by MAC were: factoring: $26,455.16 and notes: $61,788.07.\\n18. The Court further finds that the factoring of accounts receivable appears to be a reasonable method of business financing without which may [sic] businesses would not operate, and that the discount charged in this case is reasonable in the industry.\\n19. The Court further finds that there was a great deal of activity in way of consultation management, advice and the like on the part of, MAC which activity was of value, justifying MAC in making a reasonable charge as compensation therefor.\\n20. The Court further finds that in the case of the promissory notes, the total interest charged exceeded 12% per annum by a small amount.\\n21. The Court fails to find any reasonable relationship between the service charges made on the outstanding balance of the loan and the actual services rendered by mac.[ ]\\nAnd further concluded in part:\\n2. The Court concludes as a matter of law that the three documents signed by the parties were not so interrelated that they must by necessity be construed as one single transaction, although there are cross-references in the agreement, the Court concludes that the factoring agreement and service agreement are separate transaction [s] from the security agreement.\\n3. The Court further concludes as a matter of law that the factoring arrangement is not a cover for usury, that the factoring charges are reasonable and that it was within the contemplation of the parties though not specified in the factoring agreement that MAC should have the authority to make repeated discount charges and service charges monthly.\\n4. The Court further concludes as a matter of law that the services rendered by MAC to defendant were of a value commensurate with the service charge made under the factoring agreement.\\n6. The Court further concludes as a matter of law that the service charge under the management service agreement of 1.187% per month of the outstanding balance on the loan, was a charge made simply because of the existence of the inventory loan, resulted in an additional charge for the advance of those monies of 14.244% per year, and was likewise usurious.\\n7. The Court further concludes as a matter of law that the principal balance due MAC is the amount of the last note of December 1, 1973, namely $140,948.10, for which sum MAC is entitled to recover.\\nAs the corporation accurately notes, no error having been assigned, the findings are treated as verities. Union Bank v. Kruger, 1 Wn. App. 622, 463 P.2d 273 (1969). Nonetheless, the findings must support the conclusions. No error has been assigned to the court's failure to enter any findings on the elements of usury, which are:\\n1. A loan or forbearance, express or implied;\\n2. Money or its equivalent constituting the subject matter of the loan or forbearance;\\n3. An understanding between the parties that the principal shall be repayable absolutely;\\n4. The exaction of something in excess of what is allowed by the law for the use of the money loaned or for the benefit of the forbearance; and\\n5. An intention to violate the law.\\nFlannery v. Bishop, 81 Wn.2d 696, 698, 504 P.2d 778 (1972); National Bank of Commerce v. Thomsen, 80 Wn.2d 406, 410, 495 P.2d 332 (1972); Sullivan v. White, 13 Wn. App. 668, 670, 536 P.2d 1211 (1975); Schmitt v. Matthews, 12 Wn. App. 654, 531 P.2d 309 (1975).\\nThe failure to make an express finding on a material fact is deemed to have been found against the party having the burden of proof. Baillargeon v. Press, 11 Wn. App. 59, 67, 521 P.2d 746 (1974). A material fact is one upon which the outcome of the litigation depends. Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963). Since usury is an affirmative defense, the corporation had the burden of proving the elements of usury. Malotte v. Gorton, 75 Wn.2d 306, 450 P.2d 820 (1969); Maynard v. England, 13 Wn. App. 961, 538 P.2d 551 (1975). We find no evidence from which to imply a finding of the existence of all the elements.\\nHere, it is apparent that MAC must concede the existence of the first three elements; they form the basis for its original claim of money owing and unpaid.\\nThe trial court concluded the three agreements were not so related as to require that they be construed as one transaction. Because substantial evidence supports such findings and conclusions, we are bound by them. Johnson v. Safeway Stores, Inc., 1 Wn. App. 380, 382, 461 P.2d 890 (1969). The effect of this is to negate any inference that the service agreement was a mandatory prerequisite to the advancement of any money secured by the corporate inventory. Furthermore, the court found that MAC had performed valuable services under its service agreement, and was entitled to a reasonable fee. But after finding: (1) that both parties freely entered into valid separate contracts; (2) that the corporation was not a captive borrower; and (3) that valuable services were performed, the court erred in applying the usury laws. There is no evidence to support, nor did the court find, either that a requirement of the loan was the execution of the service agreement or that the service agreement was a sham or camouflage used to extract an illegal rate of interest for the use of the money advanced. The court found the fee under the service agreement was unreasonable\\u2014that the corporation had bargained for and paid an exorbitant fee; but it failed to find that the fee under the service agreement was extracted for the use of the money loaned under the security agreement. The court correctly concluded that the fee was related to the inventory loan \\\"simply because of the existence of the inventory loan\\\"; however, the findings do not support a conclusion that the fee was for the purpose of obtaining a greater interest on the money loaned. Parties are free to contract for any fee, or to relate that fee to any index, upon which they mutually agree. The fact that this fee was financially unwise for one party does not give the court power to alter the contract, unless the fee violates a statutory provision. No statute was violated here. Having concluded that the usury law was improperly applied, we need not consider MAC'S other assignments of error.\\nWe affirm that portion of the judgment awarding MAC the principal balance due on its promissory note, reverse that portion of the judgment: (a) awarding the corporation money damages pursuant to the penalties for usury; (b) satisfying MAC'S security agreement, and (c) awarding the corporation attorneys' fees and costs. We remand for a determination of the attorneys' fees due MAC under its note and security agreement.\\nGreen and McInturff, JJ., concur.\\nPetition for rehearing denied August 17, 1977.\\nReview denied by Supreme Court February 3, 1978.\\nThese percentages total 99.375 percent, leaving a difference of .625 percent. In explaining this discrepancy, the vice-president of MAC testified that, after the corporation was advanced the 80.25 percent and the .875 percent factoring charge was deducted, the remainder was placed in the reserve account.\\nMAC, in its reply brief, challenges this finding and asserts that, at best, it is a mixed finding of fact and conclusion of law, and therefore need not be set out verbatim in its brief. We are inclined to agree that this is a mixed finding and conclusion, but this fails to avoid the rule that assignments of error set out in the reply brief will not be considered. Puget Sound Marina, Inc. v. Jorgensen, 3 Wn. App. 476, 475 P.2d 919 (1970); CAROA 41.\\nWe recognize the court found in finding of fact No. 20 that the \\\"total interest charged exceeded 12% per annum by a small amount\\\", i.e., $54.22. This was due principally to an accounting error and appears to be merely an overcharge. It is de minimis and not the usury complained of on this appeal.\\nWe have held, however, that for the purpose of affirming a judgment, if no such finding is made and the evidence is not in conflict, the appellate court may imply the finding. LaHue v. Keystone Inv. Co., 6 Wn. App. 765, 776, 496 P.2d 343 (1972).\\nSome principles in the area of usury are:\\n(a) The purpose of the usury statute is to \\\"protect those who by adversity and necessity of economic life are driven to borrow money at any cost. The protection granted is based on the fact that many borrowers are powerless to resist the avarice of the money lenders.\\\" Baske v. Russell, 67 Wn.2d 268, 273, 407 P.2d 434 (1965).\\n(b) \\\"[T]he law has regard only for the actual facts, and searches for the real transaction between the parties, disregarding evasions, subterfuges and all kinds and varieties of camouflage.\\\" Home Sav. & Loan Ass'n v. Sanitary Fish Co., 156 Wash. 80, 91, 286 P. 76 (1930); accord, Busk v. Hoard, 65 Wn.2d 126, 135, 396 P.2d 171 (1964); National Bank of Commerce v. Backstrom, 1 Wn. App. 881, 465 P.2d 189 (1970);\\n(c) In determining whether a contract is usurious, if the contract can be construed as lawful or unlawful, the former construction will be adopted. German Sav., Bldg. & Loan Ass'n v. Leavens, 89 Wash. 78, 82-83, 153 P. 1092 (1916) and Simpson v. C.P. Cox Corp., 167 Wash. 34, 37, 8 P.2d 424 (1932).\\n(d) \\\" [T]he character of a contract with respect to usury is determined at the time the contract is made; and, if the contract in its inception is unaffected by usury, it cannot be invalidated by a subsequent transaction.\\\" Hafer v. Spaeth, 22 Wn.2d 378, 383, 156 P.2d 408 (1945); Clausing v. Virginia Lee Homes, Inc., 62 Wn.2d 771, 775, 384 P.2d 644 (1963).\\nWe are inclined to agree with the trial court that the fees charged under the service contract were unreasonable, i.e., $88,243.23.\\nThe security agreement contained a provision allowing reasonable attorneys' fees to MAC for both trial and appeal. Therefore, MAC is entitled to attorneys' fees for services rendered both at the trial and on appeal. Corinthian Corp. v. White & Bollard, Inc., 74 Wn.2d 50, 442 P.2d 950 (1968); Ranta v. German, 1 Wn. App. 104, 459 P.2d 961 (1969).\"}"

wash/1775995.json

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+"{\"id\": \"1775995\", \"name\": \"The State of Washington, Respondent, v. Michael George Vandal, Appellant\", \"name_abbreviation\": \"State v. Vandal\", \"decision_date\": \"1976-03-29\", \"docket_number\": \"No. 3832-1\", \"first_page\": \"1005\", \"last_page\": \"1005\", \"citations\": \"15 Wash. App. 1005\", \"volume\": \"15\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-11T00:54:41.578464+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Michael George Vandal, Appellant.\", \"head_matter\": \"[No. 3832-1.\\nDivision One.\\nMarch 29, 1976.]\\nThe State of Washington, Respondent, v. Michael George Vandal, Appellant.\", \"word_count\": \"44\", \"char_count\": \"278\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 71449, James W. Mifflin, J., entered May 7, 1975. Reversed by unpublished per curiam opinion.\"}"

wash/1791586.json

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+"{\"id\": \"1791586\", \"name\": \"Arnold G. Jones, Appellant, v. Robert E. Bayley Construction Company, Inc., et al, Respondents\", \"name_abbreviation\": \"Jones v. Robert E. Bayley Construction Co.\", \"decision_date\": \"1984-11-05\", \"docket_number\": \"No. 11218-0-I\", \"first_page\": \"1065\", \"last_page\": \"1066\", \"citations\": \"38 Wash. App. 1065\", \"volume\": \"38\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T20:19:55.618624+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arnold G. Jones, Appellant, v. Robert E. Bayley Construction Company, Inc., et al, Respondents.\", \"head_matter\": \"[No. 11218-0-I.\\nDivision One.\\nNovember 5, 1984.]\\nArnold G. Jones, Appellant, v. Robert E. Bayley Construction Company, Inc., et al, Respondents.\", \"word_count\": \"69\", \"char_count\": \"446\", \"text\": \"Appeal from judgments of the Superior Court for King County, No. 79-2-01912-7, Oluf Johnsen, J. Pro Tern., and Frank J. Eberharter, J., entered December 15, 1981, and November 4, 1980. Reversed in part and remanded by unpublished opinion per Corbett, A.C.J., concurred in by Williams and Ringold, JJ.\"}"

wash/179254.json

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+"{\"id\": \"179254\", \"name\": \"Wes Crosby, et al., Petitioners, v. Spokane County, et al., Respondents\", \"name_abbreviation\": \"Crosby v. Spokane County\", \"decision_date\": \"1999-02-04\", \"docket_number\": \"No. 65924-9\", \"first_page\": \"296\", \"last_page\": \"319\", \"citations\": \"137 Wash. 2d 296\", \"volume\": \"137\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Wes Crosby, et al., Petitioners, v. Spokane County, et al., Respondents.\", \"head_matter\": \"[No. 65924-9.\\nEn Banc.]\\nArgued June 23, 1998.\\nDecided February 4, 1999.\\nWes Crosby, et al., Petitioners, v. Spokane County, et al., Respondents.\\nWitherspoon & Kelley, by F.J. Dullanty, Jr.; and Kelly A. Nolen, for petitioners.\\nSteven J. Tucker, Prosecuting Attorney, and Robert B. Binger, Deputy, for respondents County of Spokane and Spokane County Board of Commissioners.\\nEugster, Haskell, by Stephen K. Eugster, for respondents Osborne, Loweree, and Pollard.\", \"word_count\": \"7441\", \"char_count\": \"45989\", \"text\": \"Madsen, J.\\nThe superior court dismissed this case involving review of a denial of a plat application on the basis the court lacked appellate jurisdiction because petitioners failed to submit an affidavit or verification in support of an application for a writ of certiorari as required by RCW 7.16.050. The Court of Appeals affirmed. We reverse.\\nFacts\\nOn June 24, 1993, petitioners Wes Crosby and C.H.D., Inc. (hereafter petitioners) submitted an application for a preliminary plat of a 31-lot residential development on 9.3 acres in the Spokane Valley. After a public hearing, the Spokane County Hearing Examiner Committee approved the application. Neighboring landowners, respondents Allen Osborne, Robert and Patricia Loweree, and James and Mary Pollard, appealed the Committee's decision to the Spokane County Board of Commissioners. In November 1993, following a public hearing, the Board reversed in a 2-1 decision. The Board's denial was without prejudice until a public sewer was extended to the property (the proposed plat involves land overlying the Spokane aquifer).\\nOn December 2, 1993, petitioners applied to Spokane County Superior Court for issuance of a writ of certiorari, naming the County and the Board as defendants. On January 6, 1994, petitioners obtained an order to show cause why a writ should not issue. On January 7, 1994, the County stipulated to issuance of the writ and the court signed an agreed order issuing a writ of certiorari directing the County to produce a copy of the agency record.\\nIn December 1994, the superior court held a hearing on the writ and, in February 1995, issued a letter decision concluding that the Board's decision was arbitrary and capricious because it was based on need for a sewer line when, at the time, applicable law allowed for subdivision development in the area without sewer. The court concluded that because petitioners had complied with the requirements existing at the time of the application, they had acquired vested rights. Before an order on the decision was entered, however, respondent Osborne moved to intervene for the purpose of a motion to dismiss the case because petitioners had failed to submit an affidavit or verification in support of the application for the writ, as required by RCW 7.16.050. Osborne later amended his pleadings to seek a declaration that the Board's decision was res judicata as to him. The superior court issued a letter decision granting the motion to intervene, following which petitioners moved to join respondents Loweree and Pollard as interve-nors (as they had also appealed to the Board). The Lower-ees and the Pollards did not object to being joined solely for purposes of moving to dismiss the case or for a declaration that the Board's decision was res judicata as to them.\\nOn November 14, 1995, the superior court issued orders granting Osborne's motion to intervene, granting petitioners' motion to join the Lowerees and the Pollards, and granting the respondents-neighboring landowners' motion to dismiss for lack of jurisdiction due to petitioners' failure to submit an affidavit or verification. The court also held that dismissal was required because petitioners failed to join indispensable parties, Osborne, the Lowerees, and the Pollards, within the statute of limitations period (within 30 days of filing their application for a writ), and held that the Board's denial of the plat application was res judicata as to respondents Osborne, Loweree, and Pollard.\\nPetitioners appealed to this court, which transferred the appeal to the Court of Appeals. Division Three affirmed the superior court. Crosby v. Spokane County, 87 Wn. App. 247, 941 P.2d 687 (1997), review granted, 134 Wn.2d 1019 (1998). The Court of Appeals held that the superior court lacked jurisdiction due to petitioners' failure to file an affidavit or verification within 90 days after filing the application for a writ of certiorari, and, in light of that conclusion, declined to reach other issues raised by the parties.\\nPetitioners then sought discretionary review by this court, which was granted.\\nJurisdiction\\nA superior court is a court of general jurisdiction. However, when it acts in an appellate capacity in a statutory writ proceeding it has only such jurisdiction as is conferred by law. Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181 (1974); KSLW v. City of Renton, 47 Wn. App. 587, 595, 736 F.2d 664 (1986). Thus, statutory procedural requirements must be satisfied before a superior court's appellate jurisdiction is invoked. City of Seattle v. Public Employment Relations Comm'n, 116 Wn.2d 923, 926, 809 P.2d 1377 (1991). If a court lacks jurisdiction over a writ proceeding, it \\\"may do nothing other than enter an order of dismissal.\\\" Deschenes, 83 Wn.2d at 716. The issue whether a court has jurisdiction is a question of law subject to de novo review. See State v. Squally, 132 Wn.2d 333, 937 P.2d 1069 (1997).\\nRCW 7.16.050 provides that an application for a writ of certiorari, a \\\"writ of review,\\\" \\\"must be made on affidavit by the party beneficially interested . . . .\\\" A verification may be substituted for an affidavit. RCW 9A.72.085; Gordon v. Seattle-First Nat'l Bank, 49 Wn.2d 728, 731, 306 P.2d 739 (1957). The purpose of the requirement is to \\\"assure the truthfulness of the pleadings and to discourage claims without merit . . . .\\\" Griffith v. City of Bellevue, 130 Wn.2d 189, 194, 922 P.2d 83 (1996). Both the superior court and the Court of Appeals reasoned that submission of an affidavit or verification is a jurisdictional requirement which was not satisfied in this case.\\nWe agree that the statutory affidavit/verification requirement is jurisdictional. However, we have recognized that in some circumstances jurisdictional requirements may be satisfied by substantial compliance. \\\" ' \\\"Substantial compliance has been defined as actual compliance in respect to the substance essential to every reasonable objective of [a] statute.\\\" ' \\\" (Alteration in original.) Continental Sports Corp. v. Department of Labor & Indus., 128 Wn.2d 594, 602, 910 P.2d 1284 (1996) (quoting City of Seattle v. Public Employment Relations Comm'n, 116 Wn.2d 923, 928, 809 P.2d 1377 (1991) (quoting In re Writ of Habeas Corpus of Santore, 28 Wn. App. 319, 327, 623 P.2d 702 (1981))). The doctrine of substantial compliance has been utilized where invocation of a superior court's appellate jurisdiction is concerned. For example, the doctrine has been applied when determining compliance with notice of appeal requirements under the industrial insurance act, RCW 51.52.110. In re Discipline of Saltis, 94 Wn.2d 889, 621 P.2d 716 (1980).\\nMoreover, we have specifically applied substantial compliance principles when deciding cases involving defective affidavits or verifications in support of applications for statutory writs of certiorari, in a case where an affidavit in support of an application for a writ of certiorari was signed by the applicant's attorney rather than by the applicant, the court held that the defect did not deprive the court of jurisdiction. In re Welfare of Messmer, 52 Wn.2d 510, 326 P.2d 1004 (1958). More recently, we held that the failure to sign a verification in support of an application for a writ of certiorari was not a defect which deprived the superior court of jurisdiction. Griffith v. City of Bellevue, 130 Wn.2d 189. In Messmer and in Griffith, substantial compliance with the jurisdictional requirement, not strict compliance, was held sufficient.\\nThe Court of Appeals, however, found Griffith distinguishable from the present case because there a verification had been timely filed, while in this case no affidavit or verification was submitted at all. We agree that generally noncompliance with a statutory mandate is not substantial compliance. See San Juan Fidalgo Holding Co. v. Skagit County, 87 Wn. App. 703, 709, 943 P.2d 341 (1997). However, as noted, the key to substantial compliance is the satisfaction of the substance essential to the purpose of the statute. Continental Sports Corp., 128 Wn.2d at 602. The writ statute authorizes a court to issue a writ without notice to the governmental body to which the writ is directed, RCW 7.16.050, and in such cases an affidavit or verification is especially needed to assure the truthfulness of the pleadings and discourage meritless claims. However, where the governmental body to which the writ is directed has notice and stipulates to issuance of the writ, generally the purpose of the requirement will be satisfied. Absent some clear indication in the record to the contrary, a court can assume that a governmental body would not agree to issuance \\u00f3f a writ based upon falsehoods or where a claim is frivolous. Here, a show cause hearing was scheduled at which the County could have argued against issuance of the writ, but instead the County stipulated to its issuance. Following the stipulation, there was little point in submission of an affidavit or verification. We conclude that the stipulation by the County served as an adequate substitute for the affidavit/verification requirement.\\nOur approach is consistent with sound public policy expressed in Griffith that the merits of controversies be reached. Griffith, 130 Wn.2d at 192-93. As we noted there, RCW 7.16.340 directs that the civil rules be applied in writ proceedings, and the purpose of the civil rules is to place substance over form to the end that cases be resolved on the merits. Id.\\nThe superior court should not have dismissed this case for lack of jurisdiction.\\nJoinder\\nThe superior court reasoned that dismissal is also required because the respondents-neighboring landowners were necessary and indispensable parties to the writ proceeding who were not joined within the statute of limitations period. In light of its decision on the affidavit/ verification issue, the Court of Appeals did not reach this issue. Because we hold dismissal was not warranted based upon lack of jurisdiction, the joinder issue requires resolution. We address the issue rather than remand to the Court of Appeals. See RAP 13.7(b).\\nRespondents-landowners maintain that petitioners failed to assign error to the superior court's decision on joinder. However, petitioners' assignment of error No. 3 referred to \\\"necessary and indispensable parties,\\\" they expressly raised the issue in their issues pertaining to assignments of error, and they devoted eight pages of their brief to arguing the issue. Br. of Appellants, at 1-2, 13-21. They address it in their petition for review and supplemental brief filed in this court. The issue has been sufficiently raised. See State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995).\\nWe note at the outset of our discussion that there is no dispute that the respondents-landowners had standing to appeal the Spokane Hearing Examiner Committee's decision to the Spokane Board of County Commissioners. If the Board had affirmed the Committee's decision, Osborne would have had standing to seek a writ of certiorari. Former RCW 58.17.180(2) conferred standing to seek review by way of a writ to \\\"[a]ny property owner entitled to special notice under RCW 58.17.090.\\\" RCW 58.17.090 requires special notice to \\\"adjacent landowners\\\" who are defined as \\\"owners of real property . . . located within three hundred feet of any portion of the boundary of the proposed subdivision.\\\" Osborne is such a landowner.\\nLikewise, the issue here is not whether respondents-landowners should have been allowed to intervene. Therefore, contrary to respondents-landowners' position, the joinder issue is not controlled by Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973). Loveless addressed whether certain neighboring landowners and an area association composed of owners and residents should have been permitted to intervene as a matter of right in an appeal to superior court from denial of a plat application. Just because a person may be a proper party with a right to intervene does not make that person a party who must he joined as a defendant.\\nThe question, instead, is whether as neighboring landowners who obtained reversal of the Committee's plat approval, respondents-landowners are indispensable parties who had to be joined by the petitioners in the writ proceedings. \\\"Where a proceeding has not been commenced against all of the indispensable parties within the statutory time it must be dismissed.\\\" 4 Edward H. Ziegler, Jr., Eathkopf's The Law of Zoning and Planning, \\u00a7 42.04[c][iii] (1996).\\nNumerous Washington decisions hold that the owner of property directly affected by a land use decision or a person with an interest in the property which is the subject of the land use decision is a party to be joined in writ proceedings involving that decision. E.g., South Hollywood Hills Citizens Ass'n v. King County, 101 Wn.2d 68, 70, 677 P.2d 114 (1984) (property owners in a plat dispute); Cathcart-Maltby-Clearview Community Council v. Snohomish County, 96 Wn.2d 201, 207, 634 P.2d 853 (1981) (property owners affected by rezone); National Homeowners Ass'n v. City of Seattle, 82 Wn. App. 640, 643-44, 919 P.2d 615 (1996) (property purchaser and project developer); Woodward v. City of Spokane, 51 Wn. App. 900, 903, 756 P.2d 156 (1988) (same); Coastal Bldg. Corp. v. City of Seattle, 65 Wn. App. 1, 5, 828 P.2d 7 (1992) (neighboring lot owner who had legal right to park on affected lot); Veradale Valley Citizens' Planning Comm. v. Board of County Commr's, 22 Wn. App. 229, 232-33, 588 P.2d 750 (1978) (successful property owner-applicant); Andrus v. Snohomish County, 8 Wn. App. 502, 503, 507 P.2d 898 (1973) (grantee of conditional use permit).\\nRespondents-landowners are not, however, the plat applicants or persons whose property is the subject of the land use decision at issue, nor do they have an interest in that property. Thus, these and similar cases do not support respondents-landowners' position that they were required to be joined in the writ proceedings.\\nFurther, during the relevant time period, no statute required that respondents-landowners be made parties to the writ proceedings. In the absence of any statute mandating that they be made parties, respondents-landowners advance other arguments for joinder.\\nRespondents-landowners maintain that under CR 19 they were indispensable parties to the writ proceedings. CR 19 concerns parties who must be joined for a just adjudication. The rule involves a two-part analysis. \\\"First, a determination [must be made] whether the parties are needed for just adjudication. CR 19(a). Second, if the absent parties are needed, but it is not possible to join those parties, then the court must determine whether the parties are indispensable\\\" under CR 19(b), i.e., whether \\\" 'in equity and good conscience' the action should proceed . or be dismissed.\\\" See In re Johns-Manville Corp., 99 Wn.2d 193, 198, 660 P.2d 271 (1983) (quoting Aungst v. Roberts Constr. Co., 95 Wn.2d 439, 443, 625 P.2d 167 (1981)).\\nRespondents-landowners contend that they were existing parties before the Board, and therefore they were required to be joined because complete relief could not be afforded to existing parties to the action without their joinder. The issue here is joinder on appeal to superior court. Until they were made party intervenors, respondents-landowners were not parties in the writ proceedings. CR 19(a)(1) contemplates joinder of persons where complete relief cannot otherwise be accorded to \\\"those already parties . . . .\\\" This portion of the rule clearly refers to parties other than the person whose joinder is at issue. Respondents-landowners' status as parties before the Board does not automatically make them parties to be joined if feasible under CR 19(a)(1).\\nWhether respondents-landowners have an interest relat ing to the subject matter of the action which demands they be joined if feasible is addressed by CR 19(a)(2). The person must have an \\\"interest relating to the subject of the action\\\" and must be so situated that in his or her absence disposition of the action \\\"may as a practical matter impair or impede his ability to protect that interest\\\" or leave one who is already a party subject to the risk of multiple or inconsistent obligations. CR 19(a)(2)(A) and (B). Respondents-landowners do not have such an interest. They are property owners whose neighborhood may be affected by plat approval because a subdivision would be built. They are also the persons who obtained reversal of the Committee's grant of the plat application. However, they are not the persons whose property is the subject of the land use decision at issue. This is a crucial distinction in this statutory writ proceeding.\\nAs we have previously recognized, a successful property owner-applicant is a necessary party to a writ proceeding which is to invalidate or affect the owner-applicant's interest in his or her property because he or she is most affected by the granting of a writ of review. Cathcart-Maltby-Clearview, 96 Wn.2d at 207 (quoting Veradale Valley, 22 Wn. App. at 232-33); Andrus, 8 Wn. App. 507-08. In light of his or her property interest, a property owner has a significant interest in opposing those trying to reverse on appeal a decision favorable to the property owner. A zoning or planning board acting as a quasi-judicial body represents the public interest and is primarily interested in assisting the court to make a proper judgment. It has no legal interest in the outcome of the decision other than to assure a correct decision which serves the public interest, and thus does not adequately represent a successful property owner- applicant. Cathcart-Maltby-Clearview, 96 Wn.2d at 207 (quoting Veradale Valley, 22 Wn. App at 233).\\nIn contrast, respondents-landowners have no legal, property, financial or ownership interest in the property which is the subject of the land use decision, and thus do not have an interest significantly affected by that decision. Their interest is like that of the public in general\\u2014to assure that a correct decision is made in accord with applicable laws and proper public interest considerations. That interest is sufficiently represented by the Board.\\nFinally, parties to the writ proceedings will not be subject to multiple or inconsistent obligations in the absence of respondents-landowners.\\nWe conclude that the respondents-landowners are not parties to be joined if feasible under CR 19(a).\\nAlthough we need go no further on the joinder issue, we add that even if we were to assume that respondents-landowners are parties to be joined if feasible, we would hold that this action should not be dismissed for failure to join them because they would not be indispensable parties under CR 19(b). The doctrine of indispensability is not jurisdictional but is founded on basic equitable principles. Cathcart-Maltby-Clearview, 96 Wn.2d at 206; Lakemoor Community Club, Inc. v. Swanson, 24 Wn. App. 10, 17, 600 P.2d 1022 (1979). Nonetheless, if an indispensable party is not joined, dismissal of a writ of certiorari is ordinarily required. Cathcart-Maltby-Clearview, 96 Wn.2d at 207.\\nAs noted, the test applied under CR 19(b) to determine whether a party is an indispensable party is whether in equity and good conscience the action should have pro ceeded or been dismissed. A court must consider \\\"the extent to which an absent party may be prejudiced and whether the plaintiffs will have an adequate remedy if the action is dismissed.\\\" Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 51, 738 P.2d 665 (1987). As we have explained, the interests of the public, including those who are neighbors, are represented by the Board. That representation tends to limit any possible prejudice to neighboring landowners. In addition, because their property is not the subject of the land use decision at issue, their property interests will not be directly impacted in the writ proceedings. On the other hand, petitioners would be deprived of any remedy if this action is dismissed for nonjoinder. Such would be a particularly harsh result, especially given that because of the peculiar posture of this case, this court has the benefit of knowing that the superior court had ruled in its letter decision in favor of petitioners on the merits. Equity and good conscience therefore dictate that even if we were to hold that respondents-landowners are parties to be joined if feasible under CR 19(a), they are not indispensable parties under CR 19(b).\\nRespondents-landowners contend, however, that due process requires that because they were parties before the Board they must be made parties to the appeal. They rely upon Veradale Valley, 22 Wn. App. 229.\\n\\\"Due process protections are implicated only where the individual interest asserted is encompassed within the protection of life, liberty, or property.\\\" Washington Fed'n of State Employees v. State, 127 Wn.2d 544, 558, 901 P.2d 1028 (1995). While the failure to serve indispensable parties is not jurisdictional, such a failure results in the inability of a trial court to render a judgment which provides interested parties their rights to due process of law. Lakemoor Community Club, Inc. v. Swanson, 24 Wn. App. 10, 17, 600 P.2d 1022 (1979) (citing 3A James W Moore, Federal Eractice \\u00b6 19.01, 19.04 (2d ed. 1978)).\\nIn Veradal\\u00e9 Valley, the court held that a property owner whose land was the subject matter of a favorable zoning decision was held to he a necessary and indispensable party to writ proceedings. The court observed that procedural due process requires that an individual have notice and an opportunity to be heard before being deprived of a valuable property right. Veradale Valley, 22 Wn. App. at 232. The court reasoned notice when judicial review was sought had to be given to a person who has acquired a property right as a result of a favorable zoning decision. Id.\\nThus, in Veradale Valley the individual held to he indispensable to the writ proceedings, and required by due process to be given notice of the review proceedings, was a property owner whose property was directly affected by the zoning decision being challenged. Here, respondents-landowners' properties are not the subject of the land use decision being appealed. Veradale Valley does not support respondents-landowners' position that due process principles dictate that they be made indispensable parties to the writ proceedings. Nor do we agree with respondents-landowners that they acquired valuable property rights as a result of their successful efforts before the Board which as a matter of due process demand that they be made parties in the writ proceedings. As noted, their interests are adequately protected in the writ proceedings.\\nOur decision accords with decisions in other jurisdictions where the issue has been whether neighboring or adjacent landowners are indispensable parties in an appeal to a court from a quasi-judicial decision of a zoning or planning board. In Murphy v. Town of Chino Valley, 163 Ariz. 571, 789 P.2d 1072 (1989), a neighboring landowner complained that property owners improperly built an arena for roping events in noncompliance with zoning ordinances. A zoning administrator concluded the use was grandfathered in, and from that decision the neighbor appealed to a board, which reversed and required that the property owner apply for a conditional use permit. The property owners petitioned for review in a special action in superior court. The court said that the only necessary parties to the special action were the property owners and the board. Id. at 574. While acknowledging that there may be facts in a given case requiring that the complainant be made a party to review proceedings, the court held that an abutting or neighboring landowner is not per se an indispensable party to further litigation merely as a result of having taken a position before the board. The court reasoned that the board represents the community at large. Id. The court also noted that lack of indispensable party standing does not affect standing to intervene. Id. See also, e.g., Peoples Trust Co. v. Board of Adjustment, 60 N.J. Super. 569, 160 A.2d 63 (1959) (plaintiffs nonjoinder as parties defendant the objectors who appeared at the board hearing was not error because those persons were not necessary or indispensable parties); Nepi v. Lammot, 52 Del. 281, 156 A.2d 413 (Super. Ct. 1959) (not necessary to join as defendants in statutory writ proceedings persons who appeared before board of adjustment and objected to issuance of permit); but see, e.g., Fong v. Planning & Zoning Bd. of Appeals, 212 Conn. 628, 632-34, 563 A.2d 293 (1989) (abutting landowner who initiated proceedings before board which resulted in appeal to court acquired a special interest in the subject matter of the appeal and was an indispensable party to appeal). We also note that the Court of Appeals recently held in circumstances similar to those in the present case that neighboring landowners were not required to be joined as parties in writ proceedings. Department of Corrections v. City of Kennewick, 86 Wn. App. 521, 937 P.2d 1119 (1997), review denied, 134 Wn.2d 1002 (1998).\\nWe add that in the future the question of who is an indispensable party in proceedings involving court review of a local land use decision will be largely answered by the Land Use Fetition Act of 1995, RCW 36.70C (Laws of 1995, ch. 347, \\u00a7 701-19), which replaces the writ of certiorari in most land use cases. There is no claim that the Act applies in this case. We note that it was enacted after the proceedings took place, and nothing in it suggests it is retroactive. However, in the future the Act may resolve joinder issues like that raised in this case.\\nRes judicata\\nThe superior court held that the Board's decision is res judicata as to the respondents-landowners who obtained its favorable decision. While an appeal does not suspend or negate res judicata effects of a decision (otherwise a party who lost could start a new action while the appeal was pending), \\\"res judicata can . be defeated by later rulings on appeal.\\\" Lejeune v. Clallam County, 64 Wn. App. 257, 266, 823 P.2d 1144 (1992). The superior court had jurisdiction of this case. Respondents-landowners are not necessary and indispensable parties. Accordingly, the superior court has authority to review the Board's decision and reverse on the basis that the Board's decision is arbitrary and capricious\\u2014thereby defeating any res judicata effect of that decision.\\nAttorney fees\\nPetitioners ask for attorney fees pursuant to RCW 64.40.020, arguing that the superior court has already determined that the Board's decision was arbitrary and capricious. The request is premature. We will not speculate about the possible course of this action upon remand, but note that there has been no determination of whether any damages are awardable under the statute. Therefore, we will not consider the request for attorney fees. See RCW 64.40.020; Cobb v. Snohomish County, 64 Wn. App. 451, 460, 829 P.2d 169 (1992) (where issue of damages has been reserved, request for attorney fees under RCW 64.40.020 premature).\\nIn light of our disposition of this case, we need not reach the remaining issues raised by the parties.\\nConclusion\\nWe conclude that under the circumstances in this case the superior court had appellate jurisdiction despite petitioners failure to comply with the affidavit/verification requirement of RCW 7.16.050. Respondents-landowners are not necessary and indispensable parties in the writ proceedings. Any res judicata effect of the Board's ruling as to the respondents-landowners can be defeated by a reversal on appeal by the superior court. The Court of Appeals is reversed and this case is remanded for further proceedings in accord with this opinion.\\nGuy, C.J., and Smith, Alexander, and Sanders, JJ., concur.\\nRCW 7.16.050 provides that an application for a writ \\\"must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.\\\"\\nThe court in Griffith noted in reciting the facts that the parties agreed to issuance of the writ in that case. Griffith v. City of Bellevue, 130 Wn.2d 189, 191, 922 P.2d 83 (1996). The court did not address the significance of the stipulation.\\nAs a general proposition, although statutes and practices are not uniform, persons who participate in an administrative zoning proceeding as parties are proper and appropriate parties on appeal from the proceeding. 8A Eugene Mc-Quillin, The Law op Municipal Corporations \\u00a7 25.318.20 (Julie Rozwadowski & James Solheim eds., 3d rev. ed. 1994).\\nNeighboring property owners may be proper intervening parties in actions or proceedings seeking rebef from or a reversal of a land use decision. 8A McQuillin, supra; see, e.g., American Sand & Gravel, Inc. v. Theken, 41 Ohio App. 3d 98, 534 N.E.2d 896 (1987) (neighbors who were successful before zoning board entitled to intervene as of right upon property owner's appeal to court of common pleas); Caran v. Freda, 108 R.I. 748, 279 A.2d 405 (1971) (objecting abutting landowners should have been permitted to intervene as party defendants in appeal to superior court from board decision).\\nNot all jurisdictions find even the property owner to be an indispensable party, although the view that he or she is \\\"seems to he in the ascendance.\\\" 4 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning \\u00a7 42.05[3] (1996).\\nIn contrast, in some other jurisdictions statutes have required that neighboring landowners be made parties to an appeal to court from an administrative zoning or other land use decision. For example, in Winston v. Zoning Bd. of Appeals, 407 Ill. 588, 95 N.E.2d 864 (1950), the court held that the failure to name as defendants those persons other than plaintiffs who were parties of record before a zoning board was fatal to court review of the board's decision, based upon express language in Illinois' former administrative review act requiring such joinder. In Washington, however, statutory writ of review (writ of certiorari) proceedings are not subject to the Administrative Procedures Act, ROW 34.05, including its provisions for judicial review of agency determinations. See ROW 7.16.360 (chapter not applicable to agency determinations reviewable under RCW 34.05). Thus, there is no comparable statute in Washington.\\n7CR 19(a) provides in part:\\nA person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (A) as a practical matter impair or impede his ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.\\nCR 19(b) provides:\\nIf a person joinable under (1) or (2) of section (a) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; [and] (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.\\nThe case upon which respondents-landowners rely for the proposition that a person is a necessary and indispensable party if that person's absence from the proceedings would prevent a court from affording relief to existing parties is Coastal Bldg. Corp. v. City of Seattle, 65 Wn. App. 1, 828 P.2d 7 (1992). In Coastal Building, the necessary and indispensable parties were adjacent lot owners who it was determined had a legal right, under a permit issued by the city, to park on the land which was the subject of the land use decision at issue. The Court of Ap peals clearly found the nature of the neighbors' right to he a compelling factor in its determination that they were necessary and indispensable parties, reasoning that their absence would impair or impede their ability to protect that interest. Id. at 5. Respondents-landowners do not have any similar interest in the property which is the subject of the plat application at issue in this case. Moreover, Coastal Building specifically turns on CR 19(a)(2), not 19(a)(1). CR 19(b)(1) is the part of the rule relied upon by respondents-landowners in this argument.\\nNormaUy, parties must be joined within the limitations period for applying for a writ, here 30 days. North St. Ass'n v. City of Olympia, 96 Wn.2d 359, 635 P.2d 721 (1981), disapproved on other grounds by Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 815 P.2d 781 (1991). In a number of cases where joinder did not occur within the limitations period, the issue has arisen as to whether joinder and relation back would be allowed under CR 15(c). E.g., North St. Ass'n, 96 Wn.2d 359; Woodward v. City of Spokane, 51 Wn. App. 900, 756 P.2d 156 (1988). Here, however, none of the parties has raised or argued the issue, and it is not before the court.\\nWe are aware that the superior court's letter decision was not made the subject of a court order before the motions for intervention and dismissal were made.\"}"

wash/1804196.json

@@ -0,0 +1 @@
+"{\"id\": \"1804196\", \"name\": \"In the Matter of the Marriage of Carla Wulfsberg, Petitioner, and David MacDonald, Respondent\", \"name_abbreviation\": \"In re the Marriage of Wulfsberg\", \"decision_date\": \"1985-12-20\", \"docket_number\": \"No. 13122-2-I\", \"first_page\": \"1041\", \"last_page\": \"1041\", \"citations\": \"42 Wash. App. 1041\", \"volume\": \"42\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T20:25:30.617373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Marriage of Carla Wulfsberg, Petitioner, and David MacDonald, Respondent.\", \"head_matter\": \"[No. 13122-2-I.\\nDivision One.\\nDecember 20, 1985.]\\nIn the Matter of the Marriage of Carla Wulfsberg, Petitioner, and David MacDonald, Respondent.\", \"word_count\": \"58\", \"char_count\": \"368\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 81-3-12220-9, James A. Noe, J., entered April 27, 1983. Affirmed as modified by unpublished opinion per Ringold, J., concurred in by Coleman and Grosse, JJ.\"}"

wash/180684.json

@@ -0,0 +1 @@
+"{\"id\": \"180684\", \"name\": \"The State of Washington, Respondent, v. Michael T. Johnson, Appellant\", \"name_abbreviation\": \"State v. Johnson\", \"decision_date\": \"2000-03-13\", \"docket_number\": \"No. 44242-2-I\", \"first_page\": \"1064\", \"last_page\": \"1064\", \"citations\": \"99 Wash. App. 1064\", \"volume\": \"99\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:57:30.570831+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Michael T. Johnson, Appellant.\", \"head_matter\": \"[No. 44242-2-I.\\nDivision One.\\nMarch 13, 2000.]\\nThe State of Washington, Respondent, v. Michael T. Johnson, Appellant.\", \"word_count\": \"56\", \"char_count\": \"360\", \"text\": \"Appeal from a judgment of the Superior Court for Snohomish County, No. 98-1-01895-4, Thomas J. Wynne and Gerald L. Knight, JJ., entered March 31, 1999. Affirmed by unpublished opinion per Ellington, J., concurred in by Grosse and Becker, JJ.\"}"

wash/180954.json

@@ -0,0 +1 @@
+"{\"id\": \"180954\", \"name\": \"The State of Washington, Respondent, v. Norman Gotcher, Appellant\", \"name_abbreviation\": \"State v. Gotcher\", \"decision_date\": \"2000-02-14\", \"docket_number\": \"No. 43991-0-I\", \"first_page\": \"1032\", \"last_page\": \"1032\", \"citations\": \"99 Wash. App. 1032\", \"volume\": \"99\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:57:30.570831+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Norman Gotcher, Appellant.\", \"head_matter\": \"[No. 43991-0-I.\\nDivision One.\\nFebruary 14, 2000.]\\nThe State of Washington, Respondent, v. Norman Gotcher, Appellant.\", \"word_count\": \"43\", \"char_count\": \"291\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 98-1-03657-1, James Bryan Street, J., entered January 11, 1999. Affirmed by unpublished per curiam opinion.\"}"

wash/1819529.json

@@ -0,0 +1 @@
+"{\"id\": \"1819529\", \"name\": \"The State of Washington, Respondent, v. Andrew Lee Jones, Appellant\", \"name_abbreviation\": \"State v. Jones\", \"decision_date\": \"1982-12-06\", \"docket_number\": \"No. 10598-1-I\", \"first_page\": \"1031\", \"last_page\": \"1032\", \"citations\": \"33 Wash. App. 1031\", \"volume\": \"33\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T21:09:32.452350+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Andrew Lee Jones, Appellant.\", \"head_matter\": \"[No. 10598-1-I.\\nDivision One.\\nDecember 6, 1982.]\\nThe State of Washington, Respondent, v. Andrew Lee Jones, Appellant.\", \"word_count\": \"44\", \"char_count\": \"287\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 81-1-00241-9, David W. Soukup, J., entered June 29, 1982. Dismissed by unpublished per curiam opinion.\"}"

wash/1819685.json

@@ -0,0 +1 @@
+"{\"id\": \"1819685\", \"name\": \"The State of Washington, Respondent, v. Marcia Ann Vela, Appellant\", \"name_abbreviation\": \"State v. Vela\", \"decision_date\": \"1983-01-10\", \"docket_number\": \"No. 10588-4-I\", \"first_page\": \"599\", \"last_page\": \"602\", \"citations\": \"33 Wash. App. 599\", \"volume\": \"33\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T21:09:32.452350+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Marcia Ann Vela, Appellant.\", \"head_matter\": \"[No. 10588-4-I.\\nDivision One.\\nJanuary 10, 1983.]\\nThe State of Washington, Respondent, v. Marcia Ann Vela, Appellant.\\nTerry Paul Watkins, for appellant (appointed counsel for appeal).\\nNorm Maleng, Prosecuting Attorney, and Jennifer Eychaner, Deputy, for respondent.\", \"word_count\": \"1005\", \"char_count\": \"5934\", \"text\": \"Corbett, J.\\nDefendant, Marcia Ann Vela, appeals her judgment and sentence for felony \\\"hit and run,\\\" contrary to RCW 46.52.020. We affirm.\\nThe defendant's automobile struck another car from the rear, forcing the latter into oncoming traffic where it collided with a third car. The ultimate impact was severe, causing extensive damage to the vehicles and seriously injuring the driver and passenger in the car that defendant had struck. Defendant stopped her car about 200 feet from the scene of the accident, got out, took about six steps back toward the scene, hesitated, then returned to her car and left. The front end of her car had been damaged and the hood popped up as she drove away. Defendant has not contested the fact that she was involved in the accident. At the trial, she claimed that she was so intoxicated that she was not aware that the accident had occurred.\\nDefendant assigns error to the failure of the trial court to instruct the jury that an element of the offense was defendant's knowledge that a person or persons were injured in the accident. The statute, RCW 46.52.020, is silent as to the element of knowledge. It has been interpreted to require knowledge of involvement in an accident. State v. Martin, 73 Wn.2d 616, 625, 440 P.2d 429 (1968). The court included this element in instruction 6, to which defendant excepted and now assigns error. Cf. WPIC 97.02 (revised 1982), which does not include the element of knowledge required by Martin.\\nDefendant urges that at the very least, the court should have instructed the jury according to the so-called \\\"Holford\\\" rule:\\n[C]riminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person. . . .\\nPeople v. Holford, 63 Cal. 2d 74, 80, 403 P.2d 423, 427, 45 Cal. Rptr. 167 (1965). We decline to adopt the \\\"Holford\\\" rule for two reasons. First, the standard of constructive knowledge set out in this rule is contrary to the subjective knowledge required by State v. Shipp, 93 Wn.2d 510, 514-16, 610 P.2d 1322 (1980). Second, requiring actual knowledge of injuries would preclude the statute from fulfilling its purpose. In this regard, we find the reasoning of the Illinois Supreme Court persuasive:\\nthe prosecution is required to prove that the accused had knowledge that the vehicle he was driving was involved in an accident or collision. We do not, however, hold that it is necessary for the prosecution to show also that the accused knew that injury or death resulted from the collision. To require this additional proof would impose a burden that would be unrealistically difficult to sustain and would tend to defeat the public interest which is served by requiring persons involved in vehicle collisions to stop and provide identification . . . and to be available to render assistance if required.\\nPeople v. Nunn, 77 Ill. 2d 243, 252, 396 N.E.2d 27, 31 (1979). The gravamen of the offense is failure to stop when one knows his vehicle has been involved in an accident. The court did not err by so instructing the jury.\\nAffirmed.\\nSwanson and Scholfield, JJ., concur.\\nReconsideration denied March 14, 1983.\\nReview granted by Supreme Court July 19, 1983.\\nRCW 46.52.020 reads, in pertinent part:\\n\\\"Duty in case of injury to or death of person or damage to attended vehicle or other property\\u2014Penalty. (1) A driver of any vehicle involved in an accident resulting in the injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to, and in every event remain at, the scene of such accident until he has fulfilled the requirements of subsection (3) of this section;. . .\\n\\\"(2) The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person or damage to other property shall immediately stop such vehicle at the scene of such accident or as close thereto as possible and shall forthwith return to, and in any event shall remain at, the scene of such accident until he has fulfilled the requirements of subsection (3) of this section;...\\\"\\nInstruction 6 reads, in pertinent part:\\n\\\"To convict the defendant Marcia Ann Vela of hit and run, each of the following elements of the crime must be proved beyond a reasonable doubt:\\n\\\" (1) That on or about the 29th day of December, 1980, the defendant was the driver of a vehicle;\\n\\\"(2) That the defendant's vehicle was involved in an accident with another vehicle driven by or attended by another person;\\n\\\" (3) That the accident resulted in injury to another person;\\n\\\" (4) That the defendant knew she was involved in an accident;\\n\\\" (5) That the defendant failed to carry out her obligation to fulfill all of the following duties:\\n\\\"(a) immediately stop the vehicle at the scene of the accident or as close thereto as possible.\\n\\\"(b) forthwith return to and remain at the scene of the accident until all duties are fulfilled.\\n\\\"(c) give her name, address and vehicle license number and exhibit her driver's license to any person struck or injured or any occupant of, or any person attending, any vehicle collided with.\\n\\\" (d) render to any person injured in the accident reasonable assistance, including the carrying or making of arrangements for the carrying of such person to a physician or hospital for medical treatment if it is apparent that such treatment is necessary or such carrying is requested by the injured person or on his behalf; and\\n\\\"(6) That the acts occurred in King County, Washington. .\\\"\"}"

wash/1822376.json

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+"{\"id\": \"1822376\", \"name\": \"In the Matter of the Marriage of Maxine May Erlenbush, Appellant, and Raymond G. Erlenbush, Respondent\", \"name_abbreviation\": \"In re the Marriage of Erlenbush\", \"decision_date\": \"1982-03-25\", \"docket_number\": \"No. 4001-1-III\", \"first_page\": \"1045\", \"last_page\": \"1045\", \"citations\": \"31 Wash. App. 1045\", \"volume\": \"31\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T23:08:21.144751+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Marriage of Maxine May Erlenbush, Appellant, and Raymond G. Erlenbush, Respondent.\", \"head_matter\": \"[No. 4001-1-III.\\nDivision Three.\\nMarch 25, 1982.]\\nIn the Matter of the Marriage of Maxine May Erlenbush, Appellant, and Raymond G. Erlenbush, Respondent.\", \"word_count\": \"59\", \"char_count\": \"365\", \"text\": \"Appeal from a judgment of the Superior Court for Franklin County, No. 23459, Robert S. Day, J., entered April 28, 1980. Affirmed by unpublished opinion per Munson, J., concurred in by Roe, A.C.J., and Green, J.\"}"

wash/1847573.json

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+"{\"id\": \"1847573\", \"name\": \"Nova E. Colson, Appellant, v. Francis M. Colson, Respondent\", \"name_abbreviation\": \"Colson v. Colson\", \"decision_date\": \"1970-06-09\", \"docket_number\": \"No. 123-40761-3\", \"first_page\": \"837\", \"last_page\": \"841\", \"citations\": \"2 Wash. App. 837\", \"volume\": \"2\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T22:10:54.321037+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nova E. Colson, Appellant, v. Francis M. Colson, Respondent.\", \"head_matter\": \"[No. 123-40761-3.\\nDivision Three.\\nJune 9, 1970.]\\nNova E. Colson, Appellant, v. Francis M. Colson, Respondent.\\nAlbert J. Schauble (of Aitken, Schauble & Shoemaker), for appellant.\\nJ. D. McMannis, for respondent.\", \"word_count\": \"1361\", \"char_count\": \"8047\", \"text\": \"Green, J.\\nNova Colson, plaintiff, was granted a decree of divorce from Francis Colson, defendant. At that time, the court made a division of the property. Being dissatisfied with this division, plaintiff appeals.\\nThe parties were married on June 20, 1951; no' children were born of this marriage. Each had been previously married to other spouses and engaged in wheat farming. At the time of their marriage, plaintiff farmed as her separate property 480 acres of land in which she owned a life or fee interest. She also owned farm machinery and equipment, a few cattle, a life interest in a residence and other miscellaneous property. Defendant farmed 325 acres of rented land, owned his farm machinery and equipment and other miscellaneous items of property. Following the marriage, defendant farmed all of the land; in later years, he also did some custom work off the farm and at times was employed in other work. Plaintiff worked during the later years of the marriage in a post office. All of the parties' assets and the income from those assets and replacement properties were used jointly; no attempt was made to segregate the properties. During the 17 years of marriage, the parties accumulated community property which the trial court found to be valued in excess of $120,000.\\nAfter trial the court awarded plaintiff all of her separate property consisting of an undivided one-half interest in 160 acres of farmland; a life estate in 320 acres of improved farmland; 10 shares of stock in the St. John Telephone Company; and a fully paid up life insurance policy on her life. The trial court proceeded to divide the community property on an approximately equal basis; plaintiff, $61,862.40 and defendant, $61,106.32.\\nFirst, plaintiff contends the court erred in numerous respects in the division of. property. She takes issue with the values placed upon the property by the trial court and contends the trial court erroneously determined that it must divide tlie community property on an equal basis. It is contended that the income derived from her separate property was used in the acquisition of assets determined to be community assets and that a fair division would be on a landlord-tenant crop-share basis. We disagree.\\nAll of the contentions urged by plaintiff on this appeal were argued to the trial court on conflicting evidence. In the absence of a manifest abuse of discretion, this court will not interfere with the trial court's disposition of property in a divorce action. Rehak v. Rehak, 1 Wn. App. 963, 465 P.2d 687 (1970); Mayo v. Mayo, 75 Wn.2d 36, 38, 448 P.2d 926 (1968); Robuck v. Robuck, 62 Wn.2d 917, 385 P.2d 50 (1963); DeRuwe v. DeRuwe, 72 Wn.2d 404, 433 P.2d 209 (1967). In DeRuwe, the court set out the general guidelines to be followed by a trial judge in dividing property in a divorce action:\\nAlthough the division of community property need not be exact, but just and equitable (Robuck v. Robuck, 62 Wn.2d 917, 385 P.2d 50 (1963)), with a wide latitude resting in the trial court's discretion to make the division (Bodine v. Bodine, 34 Wn.2d 33, 207 P.2d 1213 (1949)), more specific principles are available to aid the court in arriving at a just and equitable division in particular cases. First, the court must consider the necessities of the wife and the financial ability of the husband. Hogberg v. Hogberg, 64 Wn.2d 617, 393 P.2d 291 (1964). Then, it should take into consideration the age, health, education and employment history of the parties and their children, and the future earning prospects of all of them. The court should, likewise, give thought to the sources and dates of acquisition of all properties accumulated by the parties during marriage and what properties each brought into or contributed to the community property, along with the amounts and kinds of property left to be divided at the divorce. Even when regard is had for the fault of the parties and the wrong inflicted by the one upon the other, it is the economic condition in which the decree will leave the parties that engenders the paramount concern in providing for child support and alimony and in making a property division. Stacy v. Stacy, 68 Wn.2d 573, 414 P.2d 791 (1966).\\nIt is evident from a reading of the court's memorandum opinion and from the court's findings of fact and conclusions of law that each of the elements set out in DeRuwe was considered in the trial court's division of the property. The effect of the division of property was to place the wife in the position of receiving her income and support from the farming operation which was adequate to provide for her security. (She was awarded the house and all other items necessary to continue the farming operation.) On the other hand, the defendant was removed entirely from farming. He was given other assets sufficient to provide for his living and future economic security. We find no substantial support for plaintiff's contention that the trial court believed that since the properties were commingled it was compelled to divide the community property on an equal basis. The record is clear that following their marriage the parties treated all assets and all income on a joint basis and for their joint use. Consequently, we find no manifest abuse of discretion by the trial court in its division of property. Cf. Wills v. Wills, 50 Wn.2d 439, 312 P.2d 661 (1957); Ovens v. Ovens, 61 Wn.2d 6, 376 P.2d 839 (1962); Garrett v. Garrett, 67 Wn.2d 646, 409 P.2d 470 (1965).\\nSecond, plaintiff contends the trial court erred in ascribing partial blame for the separation of the parties to plaintiff. In finding of fact No. 3 the court said:\\n[WJhile both parties are more or less at fault, the husband's fault is the primary cause of this separation and that a divorce should be granted to the wife . . .\\nPlaintiff implies the trial court took fault into consideration in dividing the property. The record does not reflect that it did so. The record does reflect that defendant filed a cross-complaint seeking a divorce and testified that his wife was quarrelsome and in the last year she complained about his manner of farming. Finding of fact No. 3 is supported by the record and will not be disturbed.\\nThird, plaintiff urges that if the decree is not modified as to the division of property, plaintiff should be granted a new trial by reason of claimed misconduct by the trial judge. It is contended that in chambers, after presentation of the evidence but prior to argument, the trial judge said that he made an independent investigation of the circumstances under which the parties were married. Admittedly, plaintiff does not know the source or extent of the information obtained by the judge. At the time the comment was made, plaintiff's counsel did not inquire or make any investigation of what the judge meant by his statement. No motion or objection was made at that time; hence the record is void of any clarification of the statement claimed to have been made. Apparently, plaintiff who concedes her attorney told her of this remark prior to the rendering of the court's decision, placed no significance upon it or concluded it was favorable to her. Before error can be reviewed on appeal, the trial court must be given an opportunity to correct it. Matthias v. Lehn & Fink Prods. Corp., 70 Wn.2d 541, 424 P.2d 284 (1967). In any event, the primary thrust of this appeal is the division of property; therefore, any investigation the trial court may have made concerning the circumstances surrounding the beginnings of the marriage 17 years prior to this action could have little or no bearing on the issue of property division. The record fails to show the statement in any manner affected the court's division of property.\\nJudgment affirmed.\\nEvans, C. J., and Munson, J., concur.\\nPetition for rehearing denied July 23, 1970.\"}"

wash/1861793.json

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+"{\"id\": \"1861793\", \"name\": \"Dale A. Anderson, Respondent, v. Max Shain et al., Appellants\", \"name_abbreviation\": \"Anderson v. Shain\", \"decision_date\": \"1969-12-15\", \"docket_number\": \"No. 64-40462-1\", \"first_page\": \"469\", \"last_page\": \"472\", \"citations\": \"1 Wash. App. 469\", \"volume\": \"1\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:17:13.353360+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dale A. Anderson, Respondent, v. Max Shain et al., Appellants.\", \"head_matter\": \"[No. 64-40462-1.\\nDivision One.\\nDecember 15, 1969.]\\nPanel 1\\nDale A. Anderson, Respondent, v. Max Shain et al., Appellants.\\nMalcolm L. Edwards, for appellants.\\nDore, Dubuar, Badley & Cunningham and Fred H. Dore, for respondent.\", \"word_count\": \"1060\", \"char_count\": \"6389\", \"text\": \"Farris, J.\\nAction was commenced by Dale A. Anderson, doing business as Dale Anderson Realty, to recover $25,200 allegedly due as a real estate broker's commission. The trial court granted judgment as prayed for by the plaintiff. Defendant appealed.\\nThe appellants are the owners of a 50-unit apartment building located in King County known as the Fountainebleau Apartments. In September of 1965, the plaintiff learned that the property was for sale. He contacted defendant Stromberg and was advised that the sales price was $755,000 with a required down payment of $175,000. The plaintiff was also informed that a first mortgage of approximately $450,000 was an encumbrance on the property. The same month the plaintiff showed the apartment to Mr. and Mrs. James Reece, a couple with whom he had been involved in two prior real estate transactions. The Reeces were interested in the property but were either unwilling or unable to make the required down payment.\\nIn April, 1966, the plaintiff again contacted Stromberg. He was told that the defendants would consider taking a smaller down payment. On April 21, 1966, the plaintiff drew up an earnest money agreement offering $725,000 for the property. The Reeces signed the agreement and he submitted it to the defendants. The defendants did not accept the offer as written. They wrote in certain changes on the face of the agreement and returned it with the following letter dated April 25,1966, which states in part:\\nDear Mr. Anderson:\\nWe have accepted your Earnest Money Receipt and Agreement. This letter shall act as further conditions which will require your purchasers acceptance and shall further become part of the attached Earnest Money Recipt and Agreement.\\nThe additional terms and conditions are:\\n1. The purchase price shall be $745,000.00.\\n2. . . . The reason that we are requesting this ex-\\ntension is to give us time to contact our source of financing since the purchasers are paying a minimum down payment. Our requirements are such that we need more than $50,000.00 to conform with #1 of your Earnest Money Agreement whereby we agree to clear the property of all encumbrances except the present first mortgage.\\nThe earnest money agreement, dated April 21, 1966, with the changes, was initialed by all parties on a date that is not known from the record but the document was receipted by the Reeces on April 28, 1966. Subsequently, the plaintiff prepared a new earnest money agreement, dated May 3, 1966, which was accepted by the defendants on May 4, 1966. The second earnest money agreement was marked \\\"Supercedes E. M. Dated 4/21/66.\\\" Both earnest money agreements provided for a commission to be paid to plaintiff for his part in the purchase and sale. The provisions regarding plaintiff's commission were basically identical:\\n$25,200 to the above agent for services. . . . Commission payable $5,000.00 at closing and $5,000.00 each year including interest . . .\\nThe agreed down payment was insufficient to clear the property of all encumbrances except the $450,000 mortgage. The seller was unsuccessful in finding other financing to clear those encumbrances. It became impossible to close the transaction. The defendants refused to pay the commission.\\nIt is fundamental that an agreement to pay a broker's commission must be in writing. Plaintiff's right to recover must be founded on one or both of the earnest money agreements, there being no written listing agreement.\\nPlaintiff's services were totally performed as of May 4, 1966. He had secured a buyer for the property and had aided in negotiation of the purchase agreement. At this point, the parties could not frustrate his right to a commission by rescinding the agreement. Eckhoff v. Morgan, 64 Wn.2d 851, 394 P.2d 898 (1964). Nor would he lose his right to the commission if defects in the title caused the transaction to fail, unless he had notice of the possible defective title. Best v. Kelley, 22 Wn.2d 257, 155 P.2d 794, 156 A.L.R. 1387 (1945).\\nThe trial court found that a contract was entered into on April 25, 1966, when the defendants accepted the earnest money agreement adding some changes. The trial court also found that the plaintiff had no notice of the condition of title at that time. It is defendant's contention that no contract was formed until after the receipt of the letter of April 25, 1966, which was sufficient notice of the existence of additional encumbrances to the title.\\nThe acceptance of an offer must be identical with the offer or there is no meeting of the minds and no contract. Schuehle v. Schuehle, 21 Wn.2d 609, 152 P.2d 608 (1944). A reply to an offer that purports to accept it but materially changes the terms of the offer is not an acceptance. Blue Mt. Constr. Co. v. Grant County School Dist. 150-204, 49 Wn.2d 685, 306 P.2d 209 (1957). The defendants maintain that the letter of April 25, 1966, though purporting to accept, was a counteroffer. We agree. The amount of the purchase price was increased by $20,000. This was a material change in the terms of the offer. Until the agreement of April 21st and the changes in accordance with the letter of April 25th were accepted by the purchasers there was no valid contract between the parties. An obligation to pay the commission arose when the offer was accepted, unless at that time, plaintiff had notice of the defective title.\\nThe law does not require that the broker know the exact state of title. He need only have notice of a possible defect in the title. The language\\nOur requirements are such that we need more than $50,000.00 to conform with #1 of your Earnest Money Agreement whereby we agree to clear the property of all encumbrances except the present first mortgage.\\ncontained in the letter of April 25, 1966, was sufficient notice of encumbrances in addition to the $450,000 first mortgage. That letter was received by the plaintiff before the contract was formed.\\nThe plaintiff had notice of the defective title. He is therefore precluded from the recovery of a commission under the earnest money agreement. The judgment is reversed.\\nJames, C. J., and Swanson, J., concur.\\nPetition for rehearing denied February 6, 1970.\"}"

wash/1861843.json

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+"{\"id\": \"1861843\", \"name\": \"The State of Washington, Respondent, v. Annette Johnson et al., Appellants\", \"name_abbreviation\": \"State v. Johnson\", \"decision_date\": \"1969-12-30\", \"docket_number\": \"No. 31-40526-2\", \"first_page\": \"602\", \"last_page\": \"607\", \"citations\": \"1 Wash. App. 602\", \"volume\": \"1\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:17:13.353360+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Annette Johnson et al., Appellants.\", \"head_matter\": \"[No. 31-40526-2.\\nDivision Two.\\nDecember 30, 1969.]\\nThe State of Washington, Respondent, v. Annette Johnson et al., Appellants.\\nJack E. Tanner, for appellants.\\nCharles O. Carroll, Prosecuting Attorney, and Paul M. Acheson, Deputy, for respondent.\", \"word_count\": \"1660\", \"char_count\": \"9634\", \"text\": \"Armstrong, C. J.\\nThis is an appeal by defendants, Annette Johnson, Denise Williams, Janice Ruffin and Tina Minix, who were jointly tried and convicted of grand larceny. A jury was waived and they were tried by the court.\\nThe complaining witness, Antonio Parinas, had arrived in Seattle the day before the crime with his earnings as an Alaska cannery worker in his pockets. He wore two pair of trousers. In the inner pants he carried a wallet with over $1,000 which was secured by a safety pin on the pocket. In the outer pants he carried approximately $100.\\nOn December 5, 1967, he was approached by two women on the street who offered to engage in an act of prostitu tion. He clearly identified them as Annette Johnson and Tina Minix. Parinas agreed to their offer and went with the two women to a hotel room selected by them. The three of them lay on the bed where the women hugged and kissed him. He asked one to leave the room. Both left. Two other women whom he identified as Denise Williams and Janice Ruffin then came into the room. Parinas explained that he already had a date and could not have a date with them. Annette Johnson and Tina Minix then returned and all four of them attacked him. He was beaten, severely bitten, kicked, and the inner trouser pocket containing his wallet and over $1,000 was ripped.\\nThe women fled from the room and he pursued them. Two women ran to the front door of the hotel and the other two to the side door. He caught three of them endeavoring to enter a cab; a further altercation occurred and he shouted \\\"Help, police.\\\" The police arrived and took Annette Johnson, Denise Williams, Janice Ruffin and Parinas to the police station. Tina Minix was later arrested at the residence she shared with the other three women. The billfold was later found, but the money was never recovered. Parinas made a positive identification of the women and explained his knowledge in the following testimony:\\nQ. Do you know any of these girls other than from that one time that you met them? A. Well, I know these girls, but I never tried to mix up with them before. Q. And what was the extent of your knowledge of the girls? What was your\\u2014How did you know these girls? A. Well, they used to go with my friends in the hotel, sir. . . . A. Did one girl get away, one of the girls get away? A. Yes, sir. Tina get away.\\nWhen asked about how he knew the name of Tina Minix, Parinas said, \\\"I heard some of the girls on the sidewalk calling her Tina Minix.\\\"\\nAt the beginning of the trial defendants moved to waive a jury and to exclude witnesses from the courtroom. The trial judge heard the motions in the order in which they were made. It first had the defendants identify themselves in order to ascertain that they fully understood their right to a jury trial and their waiver thereof. One or two witnesses, not identified in the record, were in the courtroom at that time. The witnesses were then excluded. No objection to the court's order of handling the motions was made at that time.\\nOver objection, the court allowed the state to reopen its case, after the state and defendants had rested, in order to clarify identification of the defendants by presenting evidence relative to the lineup identification which took place on the day of the crime.\\nAfter reopening, Parinas was shown a photograph of six women in a lineup. He stated that he remembered only five women in the lineup. He acknowledged that the four defendants were portrayed in the photograph and that all four were present in the lineup. Defendants objected to introduction of the photograph because Parinas could not remember the number of women included in the picture. No objection was made to the fairness of the lineup which was attended by counsel for defendants.\\nDefendants make five assignments of error. Their first contention is that the state did not prove each of the elements of grand larceny against each of the defendants. The primary thrust of this contention is that the complaining witness was not sure which, if any, of the women took his wallet.\\nIn essence, larceny consists of the unlawful taking of property of another with the intent to deprive or defraud the owner thereof. State v. Harrell, 68 Wn.2d 44, 411 P.2d 407 (1966). To constitute grand larceny the relevant portions of RCW 9.54.090 state that it must be property of value taken from the person of another or property of value greater than $75 taken in any manner whatever.\\nThe evidence in the record clearly supports the trial court's finding that the four defendants stole from the person of the complaining witness his wallet containing in excess of $1,000. The fact that the wallet was removed by one of the defendants, but that the complaining witness had only a suspicion as to which of them took it, does not derogate from the evidence showing that all four were actively involved in the theft. All four were in the room with the complaining witness when it was taken, all four were involved in his physical abuse, and all four fled the room. The trial court rightly found that all of the defendants were principals within the definition of RCW 9.01.030 which includes \\\"Every person concerned in the commission of a felony, . . . whether he directly commits the act constituting the offense, or aids or abets in its commission,\\\" and directs that such person shall be proceeded against and punished as a principal.\\nA fact situation in point is found in Vigil v. People, 161 Colo. 224, 227, 421 P.2d 120 (1966). The complaining witness, while with the defendant and two others, was struck on the head and relieved of his watch and currency. Defendant contended that he could not be held liable because there was no direct evidence that he \\\"personally, actually, and physically\\\" took the victim's property. The Colorado Supreme Court denied this contention, stating:\\nIt is not necessary under such circumstances to prove actual possession of stolen property in one or another of the participants in such a joint venture. The act of one becomes the act of all; the act of all, the act of one.\\nWe agree with this statement. For an analogous Washington case see State v. Nichols, 148 Wash. 412, 269 P. 337 (1928). The trial court was correct in its determination that the elements of the offense were established as to each of the defendants.\\nDefendants claim that they were not properly identified at the trial. The desk clerk at the hotel where the women took Parinas for the act of prostitution, identified Tina Minix as one of the women who was in the hotel that day; however, he then identified two women other than the defendants. He also stated that he was not too certain of his identification due to the period of time. It is undisputed in the record that the complaining witness knew all of them and his identification was positive and unwavering at all times during the trial.\\nThere is no merit in defendants' contention that the lineup photograph should have been excluded because Parinas recalled only five instead of six women in the lineup. The record shows that the complaining witness' identification of the four defendants was again positive and unwavering. He stated that all four defendants were present in the lineup and all four were portrayed in the photograph.\\nWe find no error by the trial court, unfairness, or denial of due process of law in the reidentification of the defendants by the complaining witness through use of the lineup photograph. It is obvious that it was requested by the court merely to test the identification of the defendants at the time of the crime. The picture was admissible even though the complaining witness candidly pointed out his recollection was that there were five instead of six women in the lineup. The objection goes to the weight rather than the admissibility of the lineup picture.\\nDefendants' remaining contention goes to the presence of the complaining witness in the courtroom when the defendants were identified by the court in order to assure that they fully understood their jury trial waiver. This was accomplished immediately after defense counsel moved to waive a jury trial and to exclude the witnesses from the courtroom. The motions were made in that order as the first order of business at the opening of the case. The trial court granted both motions as quickly as possible in the order made without objection by defense counsel.\\nFurther, while the record indicates that there was a male witness present in the courtroom at the time of the jury waiver motion which resulted in identification of the defendants, it does not reveal whether that witness was the complaining witness or otherwise identify him. This becomes less important since the record shows that the complaining witness was acquainted with the defendants prior to the events of the offense charged. The record also shows corroborating evidence of the complaining witness' identification of the defendants at the pretrial lineup. In addition, two police officers identified the three women Parinas was holding at the taxicab.\\nWe find no error in the court's ruling on the motions presented to it or on the admission of evidence. The conviction of each of the defendants was justified on the facts presented and the applicable law.\\nThe judgment against each of the defendants is affirmed.\\nPearson and Petrie, JJ., concur.\\nPetition for rehearing denied March 12, 1970.\"}"

wash/1866946.json

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+"{\"id\": \"1866946\", \"name\": \"The State of Washington, Respondent, v. Timothy Guy Iddings, Appellant\", \"name_abbreviation\": \"State v. Iddings\", \"decision_date\": \"1971-06-08\", \"docket_number\": \"No. 346-41657-3\", \"first_page\": \"99\", \"last_page\": \"102\", \"citations\": \"5 Wash. App. 99\", \"volume\": \"5\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T20:43:55.030009+00:00\", \"provenance\": \"CAP\", \"judges\": \"Green and Evans, JJ., concur.\", \"parties\": \"The State of Washington, Respondent, v. Timothy Guy Iddings, Appellant.\", \"head_matter\": \"[No. 346-41657-3.\\nDivision Three.\\nJune 8, 1971.]\\nThe State of Washington, Respondent, v. Timothy Guy Iddings, Appellant.\\nWilliam L. Dowell, for appellant (appointed counsel for appeal).\\nHenry Dunn, Prosecuting Attorney, for respondent.\", \"word_count\": \"994\", \"char_count\": \"6047\", \"text\": \"Munson, C.J.\\nDefendant, Timothy Guy Iddings, appeals from convictions on three counts of first-degree kidnapping, three counts of second-degree assault, one count of robbery and one count of grand larceny. All charges arose out of the same incident and were tried at the same time as a result of a consolidation of informations.\\nDefendant's assignments of error may be grouped into three categories: (1) whether the trial court properly consolidated two informations for the purpose of trial; (2) whether certain evidence was properly admitted; and (3) whether the accumulation of alleged errors and prosecutorial misconduct deprived defendant of a fair trial.\\nDefendant allegedly abducted one woman and two men at gunpoint, forced them to drive him around Longview, Washington, demanded and was given the men's wallets, fired several shots through the windshield of their car and struck one of the men about the head with a revolver. Shortly after forcing the three abductees out of the car, defendant abandoned the vehicle and fled on foot. At the time of defendant's arrest the arresting officers had a general description of the culprit, as well as information which indicated the robber-abductor may have been an associate of one Gary Holcomb whom they had arrested earlier in connection with these crimes. Defendant, an associate of Holcomb whose description matched that of the abductor, was seen walking along the street in the vicinity of the abandoned car and in the general area where the victims had been released. He was stopped and frisked. A credit card belonging to one of the victims was found in his hand, visible to the arresting officers. His testimony explaining his possession of this card must have been rejected by the jury.\\nAt trial a 9-shot, .22 caliber revolver with a barrel approximately 5 inches in length was introduced. Defendant objected that no foundation had been laid for its introduction. Foundation testimony was given by Holcomb who stated it was similar to one belonging to defendant and which defendant had in his possession immediately prior to the robbery. Furthermore, one of the abductees testified that the weapon with which he was assaulted was a revolver with a 5-inch barrel.\\nIn defense, defendant testified he had been in the vicinity of the crime to see an old girl friend. In rebuttal, the state introduced certain photographs which contradicted defendant's description of the area where he allegedly waited to see her.\\nWhether the Court Erred in Consolidating the Informations\\nConsolidation of informations for trial lies within the sound discretion of the trial court. While numerous crimes are set forth in the consolidated informations, they arose out of one incident. The record clearly discloses defendant was not embarrassed or prejudiced by the consolidation. Therefore, we find no abuse of discretion by the trial court. State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968); State v. Hunter, 3 Wn. App. 552, 475 P.2d 892 (1970).\\nWhether Certain Evidence was Properly Admitted\\nWe find probable cause existed to justify defendant's arrest. State v. Todd, 78 Wn.2d 362, 474 P.2d 542 (1970); Evalt v. United States, 359 F.2d 534, 539 (9th Cir. 1966). The credit card and sweater introduced at trial were found in a search incident to that arrest and are consequently admissible. Hill v. California, 401 U.S. 797, 28 L. Ed. 2d 484, 91 S. Ct. 1106 (1971).\\nObjects offered in evidence have relevancy if they are connected either with the offense or the defendant. Many times they will be connected with both, but such is not necessary. They are relevant so long as they pertain to any issue involved. State v. Westphal, 62 Wn.2d 301, 382 P.2d 269 (1963); 1 H. Underhill, Criminal Evidence \\u00a7 115 at 114 (5th ed. P. Herrick Supp. 1970). Consequently, the two wallets identified as those taken from the victims on the night of the crime were properly admitted into evidence.\\nThe revolver, based upon the testimony of Gary Holcomb, was properly admitted as a weapon similar to the one used in the commission of the crime. As stated in Liakas v. State, 161 Neb. 130, 143, 72 N.W.2d 677 (1955), cert. denied, 351 U.S. 924, 100 L. Ed. 1454, 76 S. Ct. 780 (1956):\\n[Wjhere an accused is identified as having been at or near the scene of a crime about the time of its commission evidence showing that he owned, possessed, or had access to any articles with which the crime was or might have been committed is competent.\\nIn rebuttal the admission of three photographs of the general area described by defendant in his alibi was proper. The admissibility of same is within the discretion of the trial court and we find no abuse thereof.\\nWhether the Accumulation of Errors and Prosecutorial Misconduct Deprived Defendant of a Fair Trial\\nAn examination of the record indicates no prosecutorial misconduct. As for the cumulative effect of alleged errors, there is no indication they precluded defendant from receiving a fair trial. The evidence of either Gary Holcomb or the victims, if believed by the jury, would be sufficient to support defendant's conviction and the weight of their combined testimony is overwhelming in that regard. State v. Martin, 73 Wn.2d 616, 440 P.2d 429 (1968); State v. Stewart, 2 Wn. App. 637, 468 P.2d 1006 (1970).\\nJudgment affirmed.\\nGreen and Evans, JJ., concur.\\nPetition for rehearing denied June 28, 1971.\\nReview denied by Supreme Court July 26,1971.\\nThe abductor had paid peculiar attention to a white Thunderbird automobile during the abduction trip. A police officer had observed the Thunderbird in the area on two occasions during the time these crimes were being committed. On stopping the Thunderbird it was learned it was driven by Gary Holcomb. Defendant and Holcomb were known to the local police from previous criminal activities.\"}"

wash/240656.json

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+"{\"id\": \"240656\", \"name\": \"The State of Washington, Respondent, v. Robert Freeman, Appellant\", \"name_abbreviation\": \"State v. Freeman\", \"decision_date\": \"2001-07-02\", \"docket_number\": \"No. 47047-7-I\", \"first_page\": \"1063\", \"last_page\": \"1063\", \"citations\": \"106 Wash. App. 1063\", \"volume\": \"106\", \"reporter\": \"Washington Appellate Reports\", \"court\": \"Washington Court of Appeals\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T18:48:03.996783+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Washington, Respondent, v. Robert Freeman, Appellant.\", \"head_matter\": \"[No. 47047-7-I.\\nDivision One.\\nJuly 2, 2001.]\\nThe State of Washington, Respondent, v. Robert Freeman, Appellant.\", \"word_count\": \"43\", \"char_count\": \"282\", \"text\": \"Appeal from a judgment of the Superior Court for King County, No. 00-1-04611-8, Carol A. Schapira, J., entered July 21, 2000. Affirmed by unpublished per curiam opinion.\"}"

wash/2433848.json

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+"{\"id\": \"2433848\", \"name\": \"J. C. Cross, Respondent, v. J. C. Johnson, Appellant\", \"name_abbreviation\": \"Cross v. Johnson\", \"decision_date\": \"1898-11-01\", \"docket_number\": \"No. 2977\", \"first_page\": \"124\", \"last_page\": \"126\", \"citations\": \"20 Wash. 124\", \"volume\": \"20\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:08:22.497825+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. C. Cross, Respondent, v. J. C. Johnson, Appellant.\", \"head_matter\": \"[No. 2977.\\nDecided November 1, 1898.]\\nJ. C. Cross, Respondent, v. J. C. Johnson, Appellant.\\nACTIONS BETWEEN STOCKHOLDERS \\u2014 PLEADING\\u2014DEFAULT JUDGMENT \\u2014 EVIDENCE.\\nIn an action by one stockholder of a corporation against another, the complaint is good against demurrer, when it alleges that the corporation was indebted to plaintiff and others in amounts aggregating $763.77; that the defendant was treasurer of the corporation, and had, in collusion with its other officers, sued the corporation and obtained judgment by default; that an execution had been issued and the real estate of the corporation was about to be sold thereunder; that the defendant, as treasurer, had $500 in money belonging to the company and was also indebted on his stock subscription in the sum of $762.25; that he had refused to render any account to the stockholders, as treasurer, of the moneys alleged to be in his hands; and that, if allowed to proceed with the sale, the corporation would be rendered insolvent and the plaintiff\\u2019s debt would be lost, as well as his interest in the corporate property sacrificed.\\nWhere judgment is given against defendant for failure to answer, after the overruling of his demurrer to the complaint, the court is authorized, under Code Proc., \\u00a7 412 (Bal. Code, \\u00a7 5090), in proceeding to take evidence upon the allegations of the complaint.\\nAppeal from Superior Court, Ohelialis County.\\u2014Hon. Charles W. Hodgdon, Judge.\\nAffirmed.\\nGreene & Griffiths (J. A. Hutcheson, of counsel), for appellant.\\nJ. C. Cross, for respondent.\", \"word_count\": \"609\", \"char_count\": \"3670\", \"text\": \"Per Curiam.\\nThis was a suit by one stockholder of a corporation against another. The plaintiff alleged, in substance, that he was the owner and holder of seventeen shares of the paid up stock of the company, and also that the company was indebted to him in $563.77 and was indebted to other parties in small amounts aggregating $200, and that the defendant owed $762.25 on his stock subscription and was treasurer of the company, ^and as such treasurer had $500 in money on hand belonging to it; that the defendant had, by collusion with its other officers, sued the corporation for a large sum and had obtained a judgment by default thereon; that an execution had been issued and the real estate was about to be sold thereunder; that the defendant had refused to render any account to the stockholders, as treasurer of the company, of the moneys alleged to be in his hands; and that, if allowed to proceed with the sale, the corporation would be rendered insolvent and the plaintiff's debt would be lost, as well as his interest in the corporate property sacrificed. A demurrer to the complaint was overruled and the defendant refused to plead further, whereupon the court proceeded to take evidence offered by the plaintiff, made findings thereon, and rendered a judgment in favor of the plaintiff restraining the defendant from proceeding to enforce his said judgment, etc., and he has appealed.\\nThe first error alleged is the overruling of the demurrer. While the complaint was somewhat indefinite and uncertain, we think it was sufficient as against the demurrer and that the same was rightly overruled.\\nThe appellant next contends that the court erred in proceeding to take evidence, but no authority is cited, and such a course seems' to he provided for under \\u00a7 412, 2 Hill's Code (Bal. Code, \\u00a7 5090). The evidence taken and findings made thereon were all substantially within the allegations of the complaint. It is next contended that the evidence was insufficient to warrant the findings and judgment, hut, after an examination of the proof, we are convinced that we would not he warranted in disturbing the same.\\nAffirmed.\"}"

wash/2587125.json

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+"{\"id\": \"2587125\", \"name\": \"William B. Reinhardt et al., as Executors, Respondents, v. William M. Fleming et al., Appellants\", \"name_abbreviation\": \"Reinhardt v. Fleming\", \"decision_date\": \"1943-07-28\", \"docket_number\": \"No. 29015\", \"first_page\": \"637\", \"last_page\": \"642\", \"citations\": \"18 Wash. 2d 637\", \"volume\": \"18\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T20:02:12.243181+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William B. Reinhardt et al., as Executors, Respondents, v. William M. Fleming et al., Appellants.\", \"head_matter\": \"[No. 29015.\\nDepartment One.\\nJuly 28, 1943.]\\nWilliam B. Reinhardt et al., as Executors, Respondents, v. William M. Fleming et al., Appellants.\\nSkeel, McKelvy, Henke, Evenson & Uhlmann, A. A. Booth, and Reeves Aylmore, for appellants.\\nWright & Wright and A. J. Laughon, for respondents.\\nReported in 140 P. (2d) 504.\", \"word_count\": \"1674\", \"char_count\": \"9685\", \"text\": \"Simpson, C. J.\\nPlaintiffs, as executors of the estate of Grace Vaughn Bowman, deceased, instituted this action against defendants Fleming, husband and wife, and Bessie Jean Gloster, their daughter. The complaint alleged that the plaintiffs were executors of the estate of Mrs. Bowman, who died July 5, 1942; that, at the time of her death, she was owner of the real property described in the complaint; that defendants were in possession and refused to vacate the premises; that plaintiffs caused notice in writing to be served on defendants requiring them to vacate and surrender the premises, which they refused to do; and that by reason thereof the estate suffered damages in the sum of two dollars for each day subsequent to the date of service of demand-for possession. Further,-they ask for possession of the property and' a decree quieting title thereto as against any claims of the defendants; for .judgment for restitution and damages for withholding possession.\\nTh\\u00e9 defendants answered, denying the allegations of the complaint, except that concerning possession, and by way of affirmative defense alleged that Grace V. Bowman purchased the property involved for the benefit of defendant Gloster; that possession was delivered to her April 5, 1941, and that Mrs. Gloster had been in undisturbed and peaceful possession since that date and had made improvements thereon and paid the taxes; that, subsequent to the delivery of possession, Mrs. Bowman confirmed her intention of vesting title in Mrs. Gloster \\\"by acts, declarations and written instrument.\\\" Defendant Gloster prayed for a decree quieting her title to the property.\\nThe case was tried to the court and resulted in judgment in favor of plaintiffs. Findings of fact and con- elusions of law were entered. The court found that the plaintiffs had been damaged in the sum of forty dollars per month beginning September 1, 1942, and that the damage would continue until possession of the property was surrendered to plaintiffs.\\nThe question presented in this case is: Was the evidence sufficient to prove a gift of the property to appellant?\\n\\\"Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed: . . Rem. Rev. Stat, \\u00a7 10550 [P. C. \\u00a7 1908-21],\\nUnder certain circumstances, parol gifts or transfers of real property will be upheld. The evidence to sustain parol gifts must be clear, unequivocal, strong, convincing, and definite in character. Jackson v. Lamar, 67 Wash. 385, 121 Pac. 857; Sturgis v. McElroy, 113 Wash. 192, 193 Pac. 719.\\nThere are four requirements necessary to sustain a parol gift of real estate: First, it must be a gift in praesenti; that is, an absolute, present gift, not a promise, nor the expectation of some future act; second, possession must be given in furtherance of the gift; third, permanent and valuable improvements must be made which cannot be compensated for in damages; and, fourth, the donee must have changed his condition or circumstances or been induced to forego some benefit or assume some liability upon the strength of the gift such as would make it inequitable not to enforce the gift. Sturgis v. McElroy, supra; Gerry v. Gerry, 135 Wash. 468, 238 Pac. 5.\\nWe now summarize the evidence in order to ascertain whether the facts, measured by these rules, were sufficient to sustain a parol gift of the real estate.\\nMrs. Gloster and Mrs. Bowman were close and intimate friends for several years prior to July 5, 1942, the date of Mrs. Bowman's death. Appellant is one of seven preferred beneficiaries of Mrs. Bowman's will. The estate, apparently quite substantial, was left almost entirely to religious or missionary organizations or institutions, subject, however, to life estates for individuals and for this appellant. The Simpson Bible Institute of Seattle, in which Mrs. Bowman was interested and to which she contributed, was a beneficiary. In 1937, this appellant secured a position as teacher in that institution at the request of Mrs. Bowman. Until she moved into the house involved in this litigation in 1941, appellant lived several miles from the school, and it was on that account and in order to provide a place for Mrs. Gloster, that Mrs. Bowman secured the property. Shortly after Mrs. Bowman signed a contract of purchase and before she secured a deed, appellant took possession of the premises, which she has had since, and had never been asked to pay rent to the owner. Mrs. Bowman visited appellant many times, and gave her a piece of furniture as a welcome when she moved into the house.\\nWhile appellant was precluded from testifying as to any statement made to her by Mrs. Bowman, she was able to prove by other witnesses- \\u2014 the real estate agent who handled the transaction and friends \\u2014 that Mrs. Bowman had stated she was purchasing, or had purchased, the house as a home for Mrs. Gloster. Appellant paid the taxes on the premises and made some improvements. During the trial, she offered in evidence a letter dated January, 1942, signed by Mrs. Bowman, in which it was stated:\\n\\\"I am giving this property to you, free and clear, And my hope is that it will be your home as long as you live in Seattle\\u2014 . . .\\\"\\nAppellant was permitted to testify that she secured the letter in Mrs. Bowman's house in January, 1942, and that the signature was that of Mrs. Bowman. The offer of the letter in evidence was refused, as was each of the instruments accompanying it. Those instruments consisted of the deed to Mrs. Bowman, the title insurance policy, the real estate contract, and the envelope in which all the papers were contained.\\nDuring the month of March, 1942, appellant called at the office of Mr. Elias A. Wright and asked that he prepare a deed to her of the property. The evidence is in direct conflict between appellant and Mr. Wright as to what transpired on that occasion, and whether or not there were two visits or only one. Mr. Wright testified that appellant did call on him and that he refused her request to make a deed or call Mrs. Bowman, who was ill. He testified that, sometime during March, 1941, he did, at the instance of Mrs. Bowman, prepare a deed conveying the property to appellant. Mr. Wright testified concerning the circumstances concerning the making of this deed as follows:\\n\\\"Mrs. Bowman asked me to draw a quit claim deed to the property she had bought, a quit claim deed to Mrs. Gloster. I said all right, I would at the office\\u2014 I went out on my way home and the next morning I came to the office and I drew the deed. There wasn't any Mrs. Gloster there. She was not near there at all. I drew the quit claim deed and in the evening I took it out to Mrs. Bowman's house and she signed the deed which you have inspected. I asked her what I should do with the deed. She said, 'Keep the deed.' I said, 'Shall I deliver it?' She said, 'No, I don't want you to deliver it. I will tell you when to deliver it. I may never deliver it.' That is the sum and substance of my conversation. I brought the deed back and put it in the envelope and put it in my safe, and that is the deed.\\\"\\nSome evidence was introduced relative to the making and delivery of the deed which in a certain way Contradicted that given by Mr. Wright. However, the contradictory evidence was not very definite, and the court was entirely justified in finding that Mr. Wright was correct.\\nIt is unnecessary to decide upon the admissibility of the letter, for the reason that it does not indicate a present intent to make an immediate gift of the real property. True, as we have stated, the letter said, \\\"I am giving this property to you,\\\" which, standing alone, might indicate a definite decision to make a present gift of the property. However, the last portion of the letter states, \\\"I have included the deed which must be changed to your name, and which we will do, together, soon.\\\" Considering the letter in its entirety, which must be done in order to ascertain the intent of the writer, we must conclude that it did not make an absolute present gift, but left to the future the consummation of the promise to give.\\nThe other evidence to which we have referred does no more than indicate a desire to give the property to the appellant at some future date. Such evidence is not sufficient upon which to base a gift of real property.\\nThe improvements made by appellant, totaling one thousand dollars, could be' compensated for in damages. They consisted of remodeling a portion of the house in order to provide two reception rooms, one for men and the other for women. It is quite clear that th\\u00e9se amounts could have been easily ascertained, so that appellant could have recovered any money she may have spent in making the improvements. ' The financial loss which she may suffer on account of her failure to make title will be very small. She occupied the house for a considerable length of time and paid taxes for one year. Had she been compelled to pay rent, it would have been in an amount almost sufficient to equal the value of the improvements.\\nWe have examined the affidavits which were filed as the basis for the motion for a new trial. The showing made by them does not disclose any facts which would have justified the trial court in granting a new trial.,\\nThe judgment is affirmed.\\nMillard, Steinert, Jeffers, and Mallery, JJ., concur.\"}"

wash/2603573.json

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+"{\"id\": \"2603573\", \"name\": \"The State of Washington, on the Relation of C. A. Kinney, Respondent, v. Harley E. Chapman, as Auditor of Benton County, Appellant\", \"name_abbreviation\": \"State ex rel. Kinney v. Chapman\", \"decision_date\": \"1944-11-10\", \"docket_number\": \"No. 29411\", \"first_page\": \"737\", \"last_page\": \"742\", \"citations\": \"21 Wash. 2d 737\", \"volume\": \"21\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T17:08:56.240862+00:00\", \"provenance\": \"CAP\", \"judges\": \"Simpson, C. J., Steinert, and Jeffers, JJ., concur.\", \"parties\": \"The State of Washington, on the Relation of C. A. Kinney, Respondent, v. Harley E. Chapman, as Auditor of Benton County, Appellant.\", \"head_matter\": \"[No. 29411.\\nDepartment One.\\nNovember 10, 1944.]\\nThe State of Washington, on the Relation of C. A. Kinney, Respondent, v. Harley E. Chapman, as Auditor of Benton County, Appellant.\\nCheney & Hutcheson, for appellant.\\nGeorge O. Beardsley, for respondent.\\nReported in 152 P. (2d) 978.\", \"word_count\": \"1688\", \"char_count\": \"9838\", \"text\": \"Millard, J.\\nAs determined by the last (1940) Federal census, Benton county is classified as a county of the fifth class (Rem. Rev. Stat. (Sup.), \\u00a7 4200-la [P. C. \\u00a7 1567-11]). The statute (Rem. Rev. Stat. (Sup.), \\u00a7 4200-5a [P. C. \\u00a7 1567-16]) which fixes the salary of the sheriff for counties of the fifth class at two thousand dollars per annum, or $166.66 monthly, provides that no deputy \\\"shall receive larger compensation than provided- for the officer employing him.\\\" The sheriff employed relator as a deputy sheriff at an agreed salary of $2,700 per annum, or $225 monthly, or $7.25 daily. Relator worked one day, March 11, 1944. Payroll voucher was approved by the board of county commissioners for payment. Harley E. Chapman, auditor for Benton county, refused to honor the voucher in the amount of $7.25 and to issue a warrant therefor, on the ground that the voucher is for compensation of a deputy sheriff in excess of the salary provided by the statute for the sheriff who employed the deputy.\\nRelator instituted a proceeding for a writ of mandamus to compel the auditor for Benton county to issue and deliver to the relator a warrant upon the current expense fund of Benton county in the sum of $7.25. It was relator's position that the restrictive provision of the statute* (Rem. Rev. Stat. (Sup.), \\u00a7 4200-5a) is inapplicable, for the reason that Benton county was faced with an emergency situation by reason of the great influx of population and increased volume of crimes produced by a defense project within its boundaries, thereby necessitating employment of additional experienced and capable deputies to enable the sheriff to perform the mandatory duties of his office as required by law, which deputies could not be obtained if the sheriff were not permitted to pay wages to the deputies in excess of the sheriff's salary.\\nThe trial court expressed the view that no constitutional question was involved; that the statute (Rem. Rev. Stat. (Sup.), \\u00a7 4200-5a) was not unconstitutional when enacted, and cannot become unconstitutional because of an abnormal and unanticipated condition subsequently arising which would prevent the sheriff from discharging the mandatory duties of his office under the limitation. The court stated that all the authority in the state is to the effect that the limitations of our constitution yield to the necessity of discharging governmental functions, and that the limitation of a statute would fail to be operative in a like case.\\nState ex rel. Porter v. Superior Court, 145 Wash. 551, 261 Pac. 90, which was an original action of certiorari in this court to review a judgment entered by a superior court, affirming an order of the board of county commissioners declaring that an emergency existed in the office of the sheriff of that county and appropriating one thousand dollars to meet the emergency, is cited to sustain the court's view that the maintenance of the sheriff's office is a mandatory necessity. The court concluded that the evidence established the facts that an emergency existed as alleged, that more deputies are required, and that deputies cannot be procured at the maximum statutory salary of two thousand dollars per annum. Peremptory writ of mandamus was issued requiring the auditor to issue and deliver to relator a warrant in the sum of $7.25. The auditor appealed.\\nCounsel for respondent argues that the statute limiting the salary of deputy sheriffs to the amount of the salary of the sheriff is inapplicable or not relevant and \\\"must be laid aside\\\" when, as in the case at bar, the sheriff is unable to perform the mandatory duties of his office as required by law unless he is permitted to pay a salary to his deputies in excess of the salary received by the sheriff.\\nManifestly, the amount ($7.25) in controversy is insufficient to bring the action within the appellate jurisdiction of this court, unless the validity of a statute is involved.\\nArticle IV, \\u00a7 4, of the constitution of this state, defining the appellate jurisdiction of this court, prescribes\\n\\\" . . . its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy or the value of the property does not exceed the sum of two hundred dollars, unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute.\\\"\\nThe validity of the statute (Rem. Rev. Stat. (Sup.), \\u00a7 4200-5a) is not involved within the meaning of the constitutional provision quoted above, but only the application of the statute to the facts presented.\\nIn State ex rel. Ide v. Coon, 40 Wash. 682, 82 Pac. 993, we held that, where the amount in controversy is less than two hundred dollars, an appeal does not lie from a judgment of the superior court awarding a writ of mandate to compel the city officers to issue a warrant to pay a judgment, although the judgment was one entered by the supreme court for costs against the state, in an action prosecuted by the city, and the legal contention was involved that the city was not liable on the judgment. In criticising State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, which was overruled by State ex rel. Plaisie v. Cole, 40 Wash. 474, 82 Pac. 749, we said:\\n\\\"The main contention of appellants is that the mandamus proceeding in this case was a proceeding to enforce an execution on the judgment of this court, and not in any sense a civil action for the recovery of money; that the judgment of this court, having been a judgment for costs against the state, it cannot be recovered against the city; and that this court has power and jurisdiction at all times and under all circumstances to enforce its judgments; and the case of State ex rel. Jefferson County v. Hatch, 36 Wash. 164, 78 Pac. 796, is cited to sustain the contention. But that case, it seems to us, is not in point, for the reason that it was a direct application in this court to compel an obedience to the judgment of this court. The case of State ex rel. Plaisie v. Cole, supra, was a mandamus case to compel a justice of the peace to grant a change of venue, and we held there that, inasmuch as the amount in controversy in the original action was less than $200, this court would not take jurisdiction of the appeal under the constitutional provision above referred to, and the case of State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, was overruled. In that case it was held that, where a mandamus was sought for the purpose of compelling the proper city officers to issue a warrant for the payment of an officer's salary, the amount involved being less than $200, this court would take jurisdiction of an appeal in the case on the ground that mandamus is not a civil action at law for the recovery of money, within the meaning of the constitutional provision limiting the jurisdiction of this court. The court then returned to' the announcement made in its former decisions, viz., State ex rel. McIntyre v. Superior Court, 21 Wash. 108, 57 Pac. 352, and State ex rel. Wallace v. Superior Court, 24 Wash. 605, 64 Pac. 778, where the doctrine was announced that the constitutional limitation applied to cases that were brought in the form of mandamus the same as any other civil action.\\\"\\nSee, also, Smith v. Baughman, 192 Wash. 51, 72 P. (2d) 295, in which we held that an appeal from 'a judgment in mandamus proceedings requiring the issuance of a salary warrant in the s\\u00fcm of $166:60 will be dismissed for want of the jurisdictional amount in controversy, fixed at two hundred dollars, by constitution, Art. IV, \\u00a7 4.\\nThe trial court did not hold, nor do the parties contend, that Rem. Rev. Stat. (Sup.), \\u00a7 4200-5a, is unconstitutional. There is no challenge to the validity of the statute involved. The only question presented is whether the statute (Rem. Rev. Stat. (Sup.), \\u00a7 4200-5a) is applicable or relevant to the facts presented to the trial court. We have no jurisdiction over controversies of this character in which the amount involved is less than two hundred dollars.\\nThe appeal is dismissed.\\nSimpson, C. J., Steinert, and Jeffers, JJ., concur.\"}"

wash/2604512.json

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+"{\"id\": \"2604512\", \"name\": \"C. A. Burnham, Respondent, v. Commercial Casualty Insurance Company of Newark, New Jersey, Appellant\", \"name_abbreviation\": \"Burnham v. Commercial Casualty Insurance Co. of Newark\", \"decision_date\": \"1941-10-09\", \"docket_number\": \"No. 28387\", \"first_page\": \"624\", \"last_page\": \"640\", \"citations\": \"10 Wash. 2d 624\", \"volume\": \"10\", \"reporter\": \"Washington Reports\", \"court\": \"Washington Supreme Court\", \"jurisdiction\": \"Washington\", \"last_updated\": \"2021-08-10T19:23:42.924760+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. A. Burnham, Respondent, v. Commercial Casualty Insurance Company of Newark, New Jersey, Appellant.\", \"head_matter\": \"[No. 28387.\\nDepartment One.\\nOctober 9, 1941.]\\nC. A. Burnham, Respondent, v. Commercial Casualty Insurance Company of Newark, New Jersey, Appellant.\\nRyan, Askren & Mathewson and Henderson, Carna-han & Thompson, for appellant.\\nGeorge F. Yantis, William M. Lowry, and Carl H. Skoog, for respondent.\\nReported in 117 P. (2d) 644.\", \"word_count\": \"4917\", \"char_count\": \"29033\", \"text\": \"Millard, J.\\nUnder date of May 22, 1936, defendant, a foreign corporation, entered into a contract of insurance with plaintiff, under the terms of which defendant obligated itself to assume all liability not exceeding five thousand dollars for personal injuries to one person by reason of the ownership and/or use of a Dodge sedan owned by plaintiff. The insurer further agreed to investigate at its own cost any accident reported to it, and to settle any claim as the insurer deemed advisable, and, if action were brought against the assured on account of an accident, to defend such action in the name and on behalf of the assured, unless or until the insurer elected to effect settlement thereof.\\nApril 10, 1937, while driving his Dodge sedan across the Deschutes river bridge in Thurston county, plaintiff's sedan collided with a Chevrolet sedan, owned and operated by Arthur L. Johnson. As a result of that collision, Johnson sustained a serious compound fracture of his left leg which permanently and seriously impaired the usefulness of that leg.\\nOn or about September 11, 1937, Johnson instituted an action to recover against Burnham for the injuries he had sustained. The trial of that action resulted in disagreement of the jury. Judgment was entered July 12, 1938, in the amount of $21,400, upon verdict of the jury rendered in favor of Johnson on the second trial of the action. Defendant insurer had charge of the two trials of the action. It paid the amount of the insurance policy, five thousand dollars, and refused to conduct an appeal. On Burnham's appeal, the judgment was affirmed. Johnson v. Burnham, 198 Wash. 500, 88 P. (2d) 833.\\nIn January, 1940, plaintiff assured instituted this action against defendant insurer to recover the difference between the face of the policy of insurance and the amount of the judgment recovered against the assured in Johnson v. Burnham, supra. This action is based on the alleged negligence of defendant in the investigation, preparation, and trial of the case of Johnson v. Burnham, supra, and the alleged bad faith of defendant insurer in not attempting to secure a settlement with Johnson at a time when one could have been effected, and defendant's rejection of proposals of Johnson's counsel for settlement of the action. Defendant's motion for a nonsuit at conclusion of plaintiff's case was denied. Defendant stood upon its motion and' did not introduce any evidence. Trial of the cause to the court sitting with a jury resulted in verdict in favor of plaintiff in the amount of $17,098.20. From judgment entered on the verdict, motion for judgment notwithstanding the verdict having been overruled, defendant appealed.\\nThe alleged negligence and bad faith of appellant upon which respondent bases his right of recovery are failure to timely investigate the accident, rejection of Burnham's request to call material witnesses in trial of Johnson v. Burnham, supra, and refusal to settle the case or to enter into negotiations to effect a settlement of the case.\\nIt is prerequisite to recovery by respondent for alleged negligence of appellant in investigation, preparation, and trial of the case of Johnson v. Burnham, supra, that respondent sustain the burden of proving the negligence alleged and that, as a result of such negligence, respondent suffered certain damages. Sterios v. Southern Surety Co., 122 Wash. 36, 209 Pac. 1107.\\nIf appellant negligently failed to investigate the accident in which Johnson was injured until some months thereafter, respondent's recovery because of such negligence would, of course, be conditioned upon whether there was proof that any delay in making an investigation resulted in respondent's deprivation of the benefit of any evidence which would have been available.\\nDid respondent sustain the burden of proving appellant did not act upon reasonable grounds in proceeding as it did but that negligently and/or in bad faith appellant rejected respondent's request to call three witnesses and thereby deprived respondent of the benefit of material evidence? Did counsel for appellant insurer in good faith refuse to compromise Johnson's claim against Burnham? Unless the re fusal was in bad faith \\u2014 a mistake of judgment is not bad faith \\u2014 it cannot be a basis of recovery by respondent against appellant. The authorities uniformly hold that an insurance company is not liable beyond the limits of its policy for failure to compromise a claim against its assured when its determination is made in good faith.\\nThe facts are as follows: Six months subsequent to the above-mentioned automobile collision in which he sustained serious injuries, Johnson commenced an action against Burnham. The cause was tried to one jury which disagreed. The second trial to a jury resulted in verdict and judgment in favor of Johnson. That judgment was affirmed, on Burnham's appeal (Johnson v. Burnham, 198 Wash. 500, 88 P. (2d) 833).\\nRespondent orally notified appellant's two agents (Messrs. Kibbe and Morris) at Tenino immediately following the accident. A report to his company of the accident was made by Morris who, a day or so after the accident (in company with Burnham), visited the scene of the collision and made a rough diagram of the marks and breaks in the bridge where the automobile accident happened. A copy of that drawing was sent to appellant. Sometime later, Mr. Kibbe, agent for appellant, accompanied respondent to the bridge and made an investigation. On or about the time of the first trial of the action by Johnson against Burnham, Mr. Kibbe accompanied Mr. Burnham and an attorney representing Mr. Burnham and insurer (appellant in case at bar) to the scene of the accident. The attorney made a diagram of the bridge, and interrogated a Mr. Mulhall who was present at the bridge during this investigation.\\nRespondent testified that he requested counsel who represented him and insurer (appellant in case at bar) in trial of Johnson v. Burnham, supra, to offer in evidence the testimony of L. J. Johnson, P. C. Kibbe, and Guy Cooper, who would have testified that any one could stop a car going twelve or fifteen miles an hour within fifteen or twenty feet. The request was denied. Respondent testified that he was not aware of any facts which were ascertainable \\\"that they didn't find out about.\\\" There were no eyewitnesses to the accident who were not interviewed and called. The physical facts relative to the condition of the bridge were visible to the jury. The diagram made by an agent of appellant insurer of the bridge the morning after the accident was made available to the jury. There were no facts, according to respondent's testimony, which were not ascertained by appellant. Burnham insisted at all times that the negligence of Johnson, not Burn-ham's negligence, was the cause of the accident. The jury did not accept Burnham's story.\\nImmediately prior to the second trial of Johnson v. Burnham, supra, \\u2014 in the first trial the jury disagreed \\u2014one of appellant's attorneys informed respondent that Johnson's attorney was very anxious to settle for four thousand dollars. Respondent told appellant's attorney, who also represented respondent at that time, that he thought the insurance company should compromise the claim as Johnson was seriously injured. Appellant's attorney replied that appellant insurer would pay two thousand dollars; that Johnson's attorney \\\"could take it or leave it, just as he pleased.\\\"\\nAppellant's attorney testified that Johnson's attorney indicated \\\"that they might settle for $3,500.\\\" Appellant's attorney, who knew that Johnson was seriously injured, after the disagreement of the jury in the first trial, informed Johnson's attorney by letter that he thought that the worst thing that could possibly happen on the second trial would be a disagreed jury, and that, if Johnson's attorney were interested in the matter, appellant's attorney would endeavor to secure a settlement of two thousand dollars from appellant insurer. Johnson's attorney replied that he had submitted the offer to his client without comment and that his client was not interested.\\nExcept for the investigation described above, appellant did not attempt to consult any witnesses until immediately prior to the commencement of the first trial. That first trial resulted in disagreement of the jury. Appellant's agents made an immediate investigation of the accident. While there is some doubt whether they transmitted at once their report of the result of that investigation to appellant's home office, there is an absence of evidence that the investigations made by appellant's agents and by appellant's counsel failed to produce all material evidence concerning the accident. Respondent very frankly stated that he was not aware of any ascertainable,facts which were not discovered by appellant insurer. Respondent failed to show that there was any proof that any delay of appellant in making an investigation resulted in respondent's deprivation of the benefit of any evidence which would have been available had a different character of investigation been made. We repeat that there were no facts other than those which were ascertained by appellant prior to the first and second trials of Johnson v. Burnham, supra, which would have been of any service in the defense of the action; and respondent so testified.\\nThe suggestion or intimation that had counsel for appellant interviewed Johnson, prior to the time Johnson retained counsel and when he was unaware of the seriousness of his injury, for the purpose of inducing Johnson to make a settlement in an amount less than that to which he would have been entitled if there was liability, we need not discuss. It would have been the duty of respondent's counsel to advise Johnson, who was a layman, if counsel for respondent had attempted to thus negotiate with him, to consult counsel before agreeing to a compromise which would result in Johnson's loss of that to which he was entitled.\\nIt is a sufficient answer to the contention of respondent that counsel for appellant were guilty of negligence in rejecting the request of respondent, that L. J. Johnson, P. C. Kibbe, and Guy Cooper be called as witnesses as they would have testified as to the distance within which an automobile traveling at a certain speed could stop, to state that there is no showing that there was not already in the record a sufficiency of such evidence and that the testimony would not have been other than cumulative. There is no showing that the testimony of those three persons would have been material. It must be conceded that the qu\\u00e9stion of its materiality was one upon which reasonable minds might differ, hence counsel's mistake of judgment in not calling those witnesses can not be the basis of recovery by respondent.\\nNeither does the evidence which is recited above sustain the position of respondent that counsel for appellant made no effort to settle the case and refused to enter into negotiations for compromise of Johnson's claim.\\n- It is true that appellant owed a duty to respondent to investigate the facts and circumstances surrounding the accident which resulted in serious injury to Johnson, and, if that investigation disclosed liability on the part of the'assured, it was the duty of appellant insurer to make a good faith attempt to effect settlement. Of course, bad faith of appellant insurer in this respect would render the insurer liable.\\nIt is clear from a reading of the evidence, which is recited above\\\", that-counsel'for appellant m\\u00e1de an effort to compromise the claim of Johnson and entered into negotiations to effect a settlement. Appellant's counsel were representing Mr. Burnham in the case of Johnson v. Burnham, supra. At all times Mr. Burnham was insistent that he was not at fault. The. first trial resulted in a disagreement of the jury. The suggestion that Johnson's attorney was anxious to settle for four thousand dollars, which amount is a small percentage of the amount Johnson sought to recover for a serious injury, which offer appellant's counsel refused, considered in the light of all the other facts in this case, evidences the highest good faith on the part of counsel for appellant in the justness and correctness of the defense of nonliability. Counsel for respondent conceded in open court, at the time of the hearing of this appeal, that counsel who represented appellant in the trial court in the case of Johnson v. Burnham, supra, were not guilty of bad faith in any particular.\\nTo sustain the position of respondent, it would be necessary for us to indulge in the presumption that ascertainable material evidence was not obtained by appellant, and that the production of such evidence would have changed the verdict. The evidence is to the effect that all ascertainable material evidence was obtained by appellant. So, too, to establish bad faith it would be necessary for us to indulge in the presumptions that there was apparent liability on the part of Burnham; that appellant's counsel could foretell the result of the second trial after the first trial had resulted in disagreement of the jury; that counsel for appellant who represented Burnham in Johnson v. Burnham, supra, had no regard for the interest of their clients, as counsel for appellant made an offer of settlement in an amount less than the obligation of the insurer.\\nAppellant was represented by counsel whom respond ent concedes were not guilty of bad faith. Appellant's conduct of the case of Johnson v. Burnham, supra, from the beginning to the conclusion of that case, discloses nothing other than good faith on the part of appellant, and that appellant acted upon reasonable grounds in proceeding as it did.\\n\\\"It is obligatory upon insurer to exercise reasonable care in defending a suit against the insured, where it, upon receiving notice, assumes such defense, and this applies whether or not the contract requires it to defend, and an action lies by insured against insurer for breach of implied contract, or in tort for negligence, where the latter so negligently and carelessly prepares for trial of the cause, or conducts the defense, that a judgment is recovered against the employer insured, much in excess of the stipulated policy indemnity. In fact, an indemnity insurer, desiring to secure broad authority for the management of the defense to claims against the insured, and at the same time be relieved of the ordinary responsibility of one who undertakes to act for another, should stipulate for it in plain terms.\\\" 5 Couch Cyc. of Insurance Law, pp. 4117-4118, \\u00a7 1165a.\\nSee, also, 29 Am. Jur., pp. 808-809; 21 A. L. R. 766; 34 A. L. R. 748 et seq.; 71 A. L. R. 1467 et seq.; Attleboro Mfg. Co. v. Frankfort Marine, Etc., Ins. Co., 240 Fed. 573; Tyger River Pine Co. v. Maryland Casualty Co., 170 S. C. 286, 170 S. E. 346; and Appleman's Automobile Liability Insurance (1938 ed.), pp. 225, 226.\\nIn Wakefield v. Globe Indemnity Co., 246 Mich. 645, 225 N. W. 643, the city sought recovery for a loss sustained by reason of failure of insurers to accept a compromise offer of settlement. The policy was for ten thousand dollars. Counsel for the injured person agreed to compromise his action against the city for $4,325. The attorney for the insurance companies recommended acceptance of the offer, saying the case was dangerous. The insurance companies declined to settle. The injured person recovered a judgment in the amount of fifteen thousand dollars against the city. In holding that the policy amount constituted a deadline of contractual power, obligation, and duty, and that the exclusive power to control settlements, within the amount of the policy, is ceded to the insurer, and that the insurer was liable for bad faith in refusing settlement, the court said:\\n\\\"We think the rule adopted by the great weight of authority is in harmony with the contract of the parties and should be followed. Defendants are not liable to plaintiff for refusal to compromise Borski's claim unless the refusal was in bad faith.\\n\\\"The more perplexing questions are, What showing is necessary to make out a case of bad faith on the part of the insurer in refusing to settle? and whether the testimony raises a jury issue thereon. Upon the record here, we are not concerned with whether a finding of bad faith would have been against the great weight of the evidence. The question is whether the testimony most favorable to plaintiff raises an issue of fact.\\n\\\"It is not bad faith if counsel for the insurer refuse settlement under the bona fide belief that they might defeat the action, or, in any event, can probably keep the verdict within the policy limit, Stowers Furniture Co. v. American Indemnity Co. (Tex. Civ. App.), 295 S. W. 257; or have a 'fighting chance' to win, New Orleans, etc., R. Co. v. Casualty Co., 114 La. 154 (38 South. 89, 6 L. R. A. [N.S.] 562). A mistake of judgment is not bad faith. Mendota Electric Co. v. New York Indemnity Co. 175 Minn. 181 (221 N.W. 61).\\\"\\nLawson & Nelson Sash & Door Co. v. Associated Indemnity Corp., 204 Minn. 50, 282 N. W. 481, grew out of the recoverey of a judgment for ten thousand dollars, in an action to recover twenty-five thousand dollars for personal injuries arising out of the alleged negligence of one of plaintiff's employees'. The limit of plaintiff's policy of indemnity was seventy-five hundred dollars. The injured person agreed to settle for sixty-five hundred dollars. That offer of settlement was rejected by insurer's counsel, who made a counter offer of forty-five hundred dollars which the injured person rejected. The assured instituted an action to recover against the insurer the difference between the amount of the policy and the amount of the judgment recovered by the injured person against the assured. On appeal, the judgment in favor of defendant insurer was affirmed. In the course of its opinion, the court said, which language is apt in the case at bar,\\n\\\"Plaintiff's contractual liability must necessarily be determined by the terms of the policy. Nowhere therein does defendant agree to settle and pay any judgment, or to indemnify plaintiff against any amount that might be recovered against it. The specified limit is $7,500 plus the cost of defending the litigation. All that has been met and paid by defendant. Nor is there any suggestion of defendant's failure adequately to investigate the facts of the case and to prepare it thoroughly for trial. The pleadings and testimony in the Hofmann case have been carefully read. That case was tried with a high degree of efficiency. The most that can be said for the plaintiff in that case is that there was enough evidence to go to the jury on the questions of McDonald's negligence, Hofmann's contributory negligence, and the proximate cause of Hofmann's hurt. The case was a close one upon the facts. Under such circumstances and taking at full worth the testimony of Mr. Nelson, how can it be said by anyone that the case is one of 'clear' liability? (Compare Mendota Elec. Co. v. New York Ind. Co., 169 Minn. 377, 211 N. W. 317.)\\n\\\"We think defendant's conduct of the case from beginning to end bespeaks good faith on its part and that it acted upon reasonable grounds in proceeding as it did. After all, the probabilities and even the possibilities were as well known to the plaintiff as to the defendant. Both parties had full knowledge of all the facts. Plaintiff's proof does not even suggest that it was misled by reason of any suppression of facts on the part of defendant nor of any fraud being practiced by it. The most that can be said about the whole situation retrospectively is that Mr. Watson's judgment was better than that of Mr. Sawyer's, i. e., it would have been better for all concerned if the proposed settlement had been made effective. But, after all, no mortal has the gift of prophecy. Insofar as any standard of due care could be applied to the exercise of honest judgment, we think the result justified no other conclusion than that reached by the trial court. Here, as in Mendota Elec. Co. v. New York Ind. Co., 175 Minn. 181, 184, 221 N. W. 61, 62:\\n\\\" 'It takes something more than mere mistake to constitute bad faith, particularly with respect to the. action of an insurer under a policy of public liability which is not absolutely bound to make a settlement. The right to control negotiations for a settlement must of course be subordinated to the purpose of the contract, which is to indemnify the insured within the contract limit. But it takes something more than error of judgment to create liability. There must be bad faith with resulting injury to the insured before there can be a cause of action.' \\\"\\nIn Georgia Casualty Co. v. Mann, 242 Ky. 447, 46 S. W. (2d) 777, the assured sought to recover an amount in excess of the policy of insurance, on the ground that the insurance company was negligent in not compromising the case for less than the policy limit. The policy was for five thousand dollars. The injured person offered to settle for thirty-five hundred dollars. The insurer's attorney rejected the offer, saying he thought he had a good case. Verdict was for sixty-five hundred dollars. In reversing the judgment in favor of the assured, the Kentucky court of appeals said:\\n\\\"Then, too, the rule imposing on the agent liability for his failure to exercise ordinary care, diligence, and skill in attending to work of his principal does not ordinarily apply to mere errors of judgment after he has ascertained the facts. Weymer v. Belle Plaine Broom Co., 151 Iowa 541, 132 N. W. 27, Ann. Cas. 1913A, 451; Page v. Wells, 37 Mich. 415; Smith v. Fidelity & Columbia Trust Co., 227 Ky. 120, 12 S. W. (2d) 276, 62 A. L. R. 1353. In order to deal with the question from a more practical point of view, let us suppose that in this very case the insurance company had authorized its local counsel to defend or settle. Would it be contended for a moment that, although he exercised an honest judgment after ascertaining the facts, the company could recover of him the excess over what the case could have been compromised for on the ground that he failed to make the right choice? Clearly not. The gift of prophecy has never been bestowed on ordinary mortals, and as yet their vision has not reached such a state of perfection that they have the power to predict what will be the verdict of the jury on disputed facts in a personal injury case. The verdict represents the composite judgment of the assenting jurors, and oftentimes is but the resultant expression of conflicting views. Common experience teaches us that, even where the injuries would justify a more substantial verdict, some of the jurors, doubting whether there is any liability at all, are not willing to go that far, but insist on the verdict as returned. Calling it negligence for an agent not to divine what would be the result of a jury trial on disputed evidence, and permitting a jury to determine the question not solely on the facts as presented to him, but in the light of the subsequent verdict of the jury, would carry his responsibility beyond the bounds of reason and further than the demands of justice require. There is no reason why a different rule should apply to the case in hand. The facts were investigated, the evidence on the question of liability was conflicting, and the most that can be said is that in refusing to settle, the insurance company committed a mere error of judgment for which it cannot be held liable.\\n\\\"In announcing this conclusion we do not mean to be understood as holding that under no circumstances may an insurer incur liability in excess of the limit fixed by the policy for its refusal to settle. The agent is always under the duty to exercise the utmost good faith toward his principal, and we agree with the courts that hold that, if an insurer in refusing to settle acts in bad faith, it may become liable in excess of the policy limit. What facts will constitute bad faith need riot now be determined. It is sufficient for the purpose of this case to say that neither the facts pleaded nor proved showed bad faith on the part of the insurance company, and that its motion for a peremptory instruction should have been sustained.\\\"\\nIn Noshey v. American Automobile Ins. Co., 68 F. (2d) 808, the insurer issued a policy in the amount of ten thousand dollars to plaintiff, against whom an action was instituted by a person injured by assured to recover forty thousand dollars. The injured person offered to settle for ten thousand dollars, and the assured urged prompt acceptance of the offer. The insurer declined to accept until too late, and the result of the verdict was $22,500 against the assured. In the action brought by the assured against the insurer, it was held that the insurance company was liable for the excess on the ground that its rejection of the offer was not in good faith; however, the court said, respecting the contention that an insurer is liable for negligence in refusal to settle:\\n\\\"The law relating to the liability of an insurer for judgments exceeding the amount named in the policy has been carefully reviewed in recent cases, by the Circuit Court of Appeals of the Fifth Circuit (American Mutual Liability Insurance Company v. Cooper, 61 F. (2d) 446, 448), by the Michigan Supreme Court (Wakefield v. Globe Indemnity Co., 246 Mich. 645, 225 N. W. 643), and by the New York Court of Appeals (Best Building Co. v. Employers' Liability Assur. Corp., 247 N. Y. 451, 160 N. E. 911, 912, 71 A. L. R. 1464), and is the subject of exhaustive notes in 43 A. L. R. 326, and 71 A. L. R. 1467. There is no need to multiply citations. It appears to be well settled in cases of limited liability insurance that the insurer may so conduct itself as to be liable for the entire judgment recovered against the insured although the judgment exceeds the amount of liability named in the policy. Some of the cases hold that the insured is entitled to recover upon proof that the insurer in refusing to settle a claim for damages was guilty of negligence. In so far as any standard of due care may be applied to the exercise of an honest judgment in accepting or refusing an offer of compromise, the test is rejected in the better reasoned cases, and we think rightly so. The practical difficulties in applying such standard are at once suggested by the rhetorical question in the Best Building Company Case, supra, 'We may ask what would constitute negligence in the failure to settle a case, as distinguished from bad faith,' and by the laconic observation of the Kentucky Court in Georgia Casualty Company v. Mann, 242 Ky. 447, 46 S. W. (2d) 777, 779, 'The gift of prophecy has never been bestowed on ordinary mortals.' Nor within the policy limits has the insurer any contract obligation to effect settlement, as the policy contains no promise that it will do so under any and all conditions or circumstances, and none is to be implied, and beyond the policy limits the insurer has of course no authority to bind the assured by compromise in any amount whatsoever. The prevailing rule seems to be, however, that the insurer must act in good faith toward the assured in its effort to negotiate a settlement.\\\"\\nSee, also, Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73 and Hoyt v. Factory Mutual Liability Ins. Co., 120 Conn. 156, 179 Atl. 842.\\nThe following language from Hoyt v. Factory Mutual Liability Ins. Co., supra, is apropos, in view of the claimed offer of Johnson to accept a small percentage of the amount he sought to recover in full settlement for his injuries:\\n\\\"The very fact that the original offer made on behalf of the Langes was to settle for a sum less than the expenditures they claimed might well have been taken as indicating either a serious doubt on their part as to their ability to recover or an unwillingness to go to trial.\\\"\\nThe great weight of authority is to the effect that a charge of failure of an insurer to compromise a claim against the assured is not a valid basis for recovery against the insurer of an amount in excess of the limit fixed by the policy, in the absence of negligence or bad faith. Manifestly, there is no showing of actionable negligence or bad faith.\\nThe judgment is reversed, and the cause remanded with direction to the trial court to dismiss the action.\\nRobinson, C. J., Steinert, and Driver, JJ., concur.\"}"