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. Continue reading


SCOW: Seriously People, You Need Adequate Findings to Support Severe Discovery Sanctions

Today in Teter v. Deck (Wash., April 5, 2012), the Washington Supreme Court reaffirmed the requirement that to impose “the most severe discovery sanctions” a Court must make findings on the record — either orally or in writing — that:

(1) the discovery violation was willful or deliberate, (2) the violation substantially prejudiced the opponent’s ability to prepare for trial, and (3) the court explicitly considered less severe sanctions.

The exclusion of witness testimony is one of “the most severe discovery sanctions,” so it must be supported by such findings.

Here, the initially assigned judge was Judge Washington, who excluded the plaintiffs’ expert witness as a discovery violation. Later, the case was assigned to then-Judge (now Justice) Gonzalez, who presided over the trial.  Following a defense verdict, Judge Gonzalez granted plaintiffs’ motion for a new trial under CR 59 based on Judge Washington’s “error of law.”  Because Judge Washington did not make the necessary findings on the record, Judge Gonzalez’s granting of the CR 59 motion was not an abuse of discretion.***

In granting the new trial, Judge Gonzalez did a bit of belt-and-suspender-ing by supporting the grant with an additional basis: the misconduct of defense counsel at trial.  In approving of this additional basis, the Court explained that “a trial court may grant a new trial where misconduct of the prevailing party materially affects the substantial rights of the losing party.”  The determination of whether a party’s conduct meets this standard is reviewed for abuse of discretion.  The Supreme Court disapprovingly noted that the “Court of Appeals [which reversed Judge Gonzalez] appears to have reviewed Judge Gonzalez’s ruling as an issue of law.”  So that’s no good.

Here, defense counsel repeatedly attempted to show jurors exhibits that were not evidence and to question witnesses on subjects the Court had previously ruled to be inadmissible.  That’s a no-no.  Judge Gonzalez repeatedly admonished defense counsel on the record, but the conduct persisted.

Moreover, the plaintiffs did not waive the claim for a new trial my not moving for a mistrial.  The Supreme Court explained:  A new trial is appropriate “where (1) the conduct complained of is misconduct, (2) the misconduct is prejudicial, (3) the moving party objected to the misconduct at trial, and (4) the misconduct was not cured by the court’s instructions.”

The Court’s opinion closes with this stern reminder:

We have quite clearly held that explicit findings regarding the Burnet factors must be made on the record when a court imposes the most severe discovery sanctions, like excluding a witness.

Okay then.  Let’s all try to heed this instruction in the future!

***The Court actually applied a two-prong standard of review.  Because Judge Gonzalez concluded that Judge Washington’s exclusion order was an error of law, that conclusion was reviewed de novo.  Once the Court agreed with Judge Gonzalez on the error of law, it then reviewed his remedial decision — the granting of the new trial — for abuse of discretion.

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.

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