Daily Decisions: Adverse Possession and the Revocation of Permission

James R. Herrin v. Ellen O’Hern (Division 1, May 14, 2012), is an adverse possession case, which is fine, but I think it’s more interesting as a summary judgment case. In short, the law placed a burden on the Herrins to establish a relevant fact and the Court concluded that they had done enough to create an issue of fact on the question. I’m not so sure about that. But first… the facts!

Back in the day, the Rothenbuhlers owned a large piece of land that a farmhouse, a field, a barn, and some acreage. In 1993, by deed of gift, the Rothenbuhlers transferred the southwest parcel (which is the farmhouse parcel) to James Herrin (who used to be married to one of their daughters. Then in 2003, the northeast parcel (barn, field, &c.) was transferred to Ellen O’Hern (another of the Rosthenbuhlers’ daughters) from her father’s estate following his death.

Well, it turns out that near the border between the parcels, there is a garage, some land, and a little fenced-in area. That land is technically on O’Hern’s property, but the record is clear that it “has always been used by the owners of the farmhouse property,” which are now the Herrins.

[Note: The Court of Appeals repeatedly referred to plaintiffs Herrin and Herrin as the Herrins, but then renders the possessive as the Herrins's. Yikes. Perhaps we could call that an adverse possessive? Ha! Jokes!]

This little problem was discovered after a 2008-ish survey; before the survey, nobody was aware of the encroachment. But once discovered, of course, everyone sued everyone else, with the Herrins claiming title to the land by adverse possession. O’Hern then moved for summary judgment, assuming that the Herrins could establish actual, open, continuous, and exclusive use. But she argued that the Herrins’ use was permissive, not hostile, and therefore could not support adverse possession.

Daily Decisions: Three Strikes, You’re Out (of Bases for Attorneys’ Fees)

Well, here we go again — another opinion with our friends from NYBA, Seattle Boat, Bridges, and Radovich. You’ll remember them from this morning’s post about quitclaim deeds and property disputes. In that opinion, the Court of Appeals reversed the trial court’s decision (on six separate grounds!) regarding the validity of the deed. In a companion opinion, Bridges Investment Group v. Radovich (Division 1, May 7, 2012), the Court of Appeals affirmed the trial court’s grant of partial summary judgment in favor of Bridges, but reversed all three bases of the trial court’s award of attorneys’ fees to Bridges (from Radovich).

Daily Decisions: No Summary Judgment if Claims Are “Inextricably Intertwined”?

An interesting holding and some confusing dicta from the Court of Appeals in Schorno v. Kannada (Division 2, May 1, 2012). But first, the facts: Amy Schorno is an adult — a married woman with a husband and children. Kevin Kannada was a kid 14 to 18 years old during the relevant period. The “relevant period” is so defined because during that time Kannada and Schorno engaged in sexual conduct, the nature of which is in dispute.

According to Schorno, when Kannada was 14 he attempted to kiss Schorno in her garage. She resisted and threatened to tell her husband. Kannada told her that if she did so, he would say that she initiated the kiss and that, because of his allegations, she would no longer be able to see her children. These sorts of threats continued, along with physical threats and actual force — hitting, choking, and threats to kill her, her husband, and her dog. Schorno therefore claimed that she was forced to continue a sexual relationship with Kannada for the next four years.

Kannada offered a version of events. He claimed that Schorno initiated the sexual relationship and therefore “groomed” him for sexual abuse. Under this theory, Schorno, through her actions, deprived Kannada of the ability to understand that the sexual conduct was wrong and therefore conditioned and/or desensitized him to the abuse.

Based on these divergent versions of events, the parties claimed and counterclaimed against each other. Schorno sued Kannada for assault, battery, defamation, outrage, and negligent infliction of emotional distress. Kannada sued Schorno for child sexual abuse based on sexual conduct before he turned 16.

Daily Decisions: When You Buy a Swamp, You’re Entitled to a Swamp

For some reason, this week included a rash of previously unpublished opinions getting published by the Courts of Appeals. What does that mean? It means more posts for you to read (and for me to write). So here goes.

Crystal Lotus Enterprises Ltd. v. City of Shoreline (Division 1, February 21, 2012) (published April 23, 2012), involves Crystal’s claims against the City for (1) trespass and (2) an unlawful taking. The trial court dismissed Crystal’s claims on summary judgment. Crystal appealed.

Daily Decisions: Contractual Release of Real Estate Broker Violates Public Policy, Is Therefore Invalid

In Hanks v. Grace (Division 1, April 2, 2012), the Court of Appeals held that an exculpatory clause in a rescission contract between a real estate broker and a seller, which purported to release the seller’s claims against the broker, was void for violation of public policy. While the wording of the holding limits it to the circumstances of this case, the opinion will certainly be cited as precedent to invalidate other similar releases.

Daily Decisions: Terrible Facts, Important Opinion

Washburn v. City of Federal Way (Division 1, March 26, 2012), is a shocking and depressing case — a wrongful death action against the City following a fatal act of domestic violence.  But it would be a mistake to read this case as limited to its terrible facts.  The Court’s decision includes a number of must-remember practice rules for all civil litigators, including the Court of Appeals’s limited ability to review denials of summary judgment, the need to object clearly and specifically to jury instructions, and the requirement (apparently previously unstated in Washington law) that a CR 50(a) motion be renewed post-verdict under CR 50(b) to preserve the right to appeal.

First, the facts: Baerbel Roznowski obtained a order of protection stating that her boyfriend, Paul Kim, was required to stay away from her and from her home.  She specifically warned the Federal Way Police Department in writing (on a Department form) that Kim was likely to respond violently when served with the order.  Despite Roznowski’s warning and the plain terms of the order (which required Kim to stay away from Roznowski’s home and from Roznowski), the Police Department served Kim with the order at Roznowski’s residence with Roznowski present.  The officer did not remove Kim from the residence.  The officer did not stay to ensure that Roznowski was safe.  Instead, the officer informed Kim that Roznowski had obtained an order against him and left Kim at Roznowski’s home with Roznowski.

Kim then left the residence, withdrew money from his bank, gave the money to a friend, returned to Roznowski’s residence, and stabbed Roznowski 18 times.  Roznowski’s daughters brought a wrongful death action against the City of Federal Way, both on behalf of the Estate and individually.  At trial, the jury concluded that the City was liable for Roznowski’s death and awarded $1.1M to the Estate.

The facts of this case are no doubt shocking.  But the Court of Appeals’s opinion is somewhat shocking on the law as well:  The Court of Appeals strongly implies that under the applicable law, the City owed no duty of care to Roznowski.  However, because of a series of apparent procedural mistakes by the City’s lawyers, the Court of Appeals holds that the City waived its ability to argue for the correct legal standard.

Daily Decisions: Age Discrimination, Pretext, and “Old Goats”

In Rice v. Offshore Systems, Inc. (Division 1, March 19, 2012) (previously unpublished), the Court of Appeals reviewed a trial court’s grant of summary judgment in favor of the defendant-employer OSI on the plaintiff’s claim that his termination was the result of age discrimination.

For purposes of the appeal and the summary judgment motion below, both parties agreed that the plaintiff had made a prima facie case for age discrimination and that OCI had offered a legitimate non-discriminatory reason.  The issue, therefore, was pretext.

The Court of Appeals held that the plaintiff had created an issue of fact regarding pretext for a variety of reasons.  First, the person who fired the plaintiff had a history of making disparaging remarks about the plaintiff’s age, such as calling him “an old goat” in front of other employees and saying “you’re too old to stay on the job.”  Moreover, OCI offered conflicting justifications for terminating the plaintiff — first stating that he was fired because he “tried to cut the lines” on a boat, and then later stating that it was because of his intoxication and conduct during a dock fire.  The plaintiff also argued that his intoxication and actions during the dock fire were reasonable.

Accordingly, the Court of Appeals held that “the record contains reasonable but competing inferences of discriminatory intent because OSI’s reasons are called into question by inconsistent reasons given and evidence rebutting their accuracy and credibility.”  The Court therefore reversed the grant of summary judgment.

Daily Decisions: Expert Testimony at Summary Judgment

In Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co. (Division 1, March 12, 2012) (previously unpublished), the plaintiff sought to establish that the “collapse” (as defined in the relevant policy documents) of its condominium occurred during its policy’s coverage period—between 1996 and 1999.  The plaintiff tendered its claim in 2007, which means some expert opinions were required to determine whether the claimed collapse had occurred during the relevant three-year window some ten years prior.

The defendant moved for summary judgment arguing that the plaintiff had not offered sufficient expert testimony that could be accepted by the jury and from which the jury could conclude that the collapse occurred during the relevant period.  The trial court agreed and therefore granted summary judgment.  The Court of Appeals affirmed.

This opinion illustrates the (sometimes interesting) situation of summary judgment motions in the face of competing expert testimony. The defendant’s summary judgment motion was not a typical Frye motion, in which the Court would have been required to determine whether the plaintiff’s proffered expert testimony was based on generally accept science.  Such a motion or hearing would require the Court to weigh facts and competing expert opinions—something not allowed on summary judgment.  Rather, the summary judgment motion argued that the record contained insufficient evidence for any finder of fact to conclude that the plaintiff’s expert testimony was generally accepted.  The defendant asserted that the record contained insufficient evidence of general acceptance.

As the Court of Appeals explained:

[The defendant] pointed to an absence of evidence that the bases of the opinions offered by [the plaintiff's] experts were generally accepted and [the plaintiff] failed to respond.  In light of this unrebutted evidence, the trial court did not err in concluding that the opinions were inadmissible and that [the plaintiff] could not prove a collapse condition existed during the coverage period.

Accordingly, summary judgment can be granted despite the existence of competing expert testimony if there is no issue of fact regarding the general acceptance of one party’s proffered expert opinions.

An amusing side note:  The “expert opinion” that the Court rejected was a formula offered by the plaintiff’s expert, which he invented to determine the historical progression of condominium rot.  The formula was y = ax^2 + c, where y is the percent of decay, x is the number of years, a is a decay rate, and c is a constant for the lag time between the completion of construction and the start of the rot.  One of the declarations offered in support of the “general acceptance” of the formula stated the following:

This is a formula . . . which approximates my observations, and those of other engineers in the field. . . . Equations such as this are commonly used by engineers and others for various applications.

So other people, including some engineers, use other equations for various other purposes, and therefore this particular equation that was invented for this particular purpose in this litigation has been generally accepted?  It is no surprise that the Court of Appeals latched onto this particular declaration of “support” as a basis for rejecting the proffered opinion.