WA Legal Roundup
As the Division I opinions didn't come in until late in the day, and your esteemed blogger had a date (don't worry, it went horribly awkward horribly quickly), I am giving you all three division opinions in one lengthy post. Okay, so I really don't have the energy to make it lengthy, but I will give you all the pertinent details nonetheless.
Laffranchi v. Devore
This case involved a landlord who could not keep up with payments (or, rather, chose not to give the rent to the person who held a secured deed of trust). You can guess what happened. During the forced sale, LaFranchi, the secured creditor, gave notice only to the landlord. Only he served the landlord at the place where his tenant lived. The tenant, not wanting to break any federal laws, didn't open the mail. The court of appeals held that the trial court lacked jurisdiction to hear the unlawful detainer action. Evidently LaFranchi forgot about these little things called statutory requirements:
The only entities required by statute to be made defendants to an unlawful detainer action are a tenant of the premises, and any subtenant, in actual possession at the time the complaint is filed. CR 4(b)(1)(i) requires that a summons contain the names of the parties to an action, plaintiff and defendant. Laffranchi does not deny that DeVore was a tenant in possession at the time he filed the complaint. DeVore was not made a party, defendant or otherwise. He was not identified in the caption of either the summons, as required by CR 4(b)(1)(i), or the complaint. His name does not appear in the text of either pleading. The prayer of the complaint does not request any relief against him. Laffranchi's failure to join DeVore as a defendant deprived the court of subject matter jurisdiction under chapter 59.12 RCW.
When reading this opinion, two things really stuck out at me. The first was the poor record keeping. Though several rulings were made, none were on the record. Who are these willy nilly judges that think a court won't ever have to review their actions. The other thing that struck me as odd was the court's discussion of mootness. The time for the lease had well expired by the time the court of appeals heard the case, and DeVore had already long ago moved out after the lock change. Then again, I suppose at this point it was all about making sure he could get his fees back.
Viad Corp. v. Payne
Payne is a boring corporate law case. Did a sale of assets transfer the liability of the selling corp. Short answer: No. A sale of assets isn't a merger, unless the buying corp. did something to make it so. As a plaintiff's attorney, I really feel for the Payne's. Its an easy way for a corporation to avoid judgment liability. When it comes to toxins or asbestos or any number of things, the liability should stick. At the very least, the judgment creditors should get first whack at the proceeds of the sale. If anyone would want to work on legislation on this, let me know and I'd be willing to put my two cents into the bill.
In re the matter of Nagle
This case should stand as a lesson to all attorneys never to assume that your case is on a certain docket and never to assume that the judge won't be having a bad day. Nagle wrongly assumed his client had been transferred to drug court and didn't show up for a hearing. The judge assumed he could disregard process and enter a contempt order without a hearing as statutorily required. Nagle's sanction was thrown out by the court of appeals, but he was unable to get attorneys fees. I'm guessing that's their little way of saying: "You still should have checked the calendar."
Winkler v. Giddings, et al.
This case should stand as a lesson to all attorneys that your experts need to be qualified. You need to know they're qualified. You need to get it on the record that they're qualified. A plaintiff now is unable to recover because a plaintiff's attorney did not assure that their expert was knowledgeable as to the standard of care for a physician in Washington. The court of appeals pulled no punches, first citing the statutory language of what a plaintiff was required to prove:
The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.
RCW 7.70.040(1). Winkler attempted to show that a national standard was sufficient. The court of appeals rejected the argument, distinguishing the cases cited on largely ground of procedural posture.
Just a random side-note, but the fact that the cases were so poorly distinguished makes me think you'll see Division I taking a different stance should the issue come before it and a supreme court decision in about 3 years. You heard it here first, people. I'm the <a href="http://www.perezhilton.com
">Perez Hilton of the legal blogging community. Anyhow, back to the case at hand:
Unlike the doctor in Eng [127 Wn. App. 171, 173 (2005)], Dr. Giddings showed that the standard of care differs depending on the area of the country and the surgeon's preference and training. The trial court made a preliminary finding of fact that Dr. Ruckenstein was not familiar with the standard of care in Washington and then concluded that he was, therefore, not qualified to testify by RCW 7.70.040(1). Again, that finding is supported by this record, and that finding supports the judge's conclusion that the requirements of the statute were not satisfied.