Bowers v. Spokane County, No. 24722-8-III (Wash. App. 5/31/2007)
| Decision Date | 31 May 2007 |
| Docket Number | No. 24722-8-III.,24722-8-III. |
| Court | Court of Appeals of Washington |
| Parties | RHONDA S. BOWERS, individually and as Personal Representative of the Estate of Rachelle Jean Bowers, Appellant, v. SPOKANE COUNTY, a Legal Subdivision of the State of Washington, Respondent. |
Appeal from Spokane Superior Court. Docket No: 04-2-00435-1. Judgment or order under review. Date filed: 11/01/2005. Judge signing: Honorable Paul Arthur Bastine.
Counsel for Appellant(s), Thomas Michael Roberts, Logan Professional Bldg, 101 E Augusta Ave, Spokane, WA, 99207-2407.
Counsel for Respondent(s), Heather Yakely, Attorney at Law, 818 W Riverside Ave Ste 250, Spokane, WA, 99201-0910.
At the close of the plaintiff's case, finding no negligence as a matter of law, the trial court dismissed Rhonda S. Bowers' suit against Spokane County for the death of her daughter, Rachelle J. Bowers. The accident occurred when Rachelle's1 car struck a County snowplow head on while driving on an alleged poorly maintained County road. Rhonda appealed. Rhonda amended her appeal to include the trial court's denial of her CR 60(b) request for relief in superior court based upon the judge's failure to recuse. Rhonda contends the court erred in certain evidence rulings, dismissing her case, and not granting a new trial. We find no error in the trial court rulings, and affirm.
On February 2, 2001, 23-year-old Rachelle was driving west on Peone Road in Spokane County, coming home after her graveyard shift. The roadway was paved with a gravel shoulder extending to a ditch. Sandra Aukerman, a former Spokane County employee was driving a large sand truck with an attached snowblade in the up position east on Peone Road. The weather was rainy and above freezing. As the two vehicles neared, Rachelle's vehicle appeared to drift across the centerline and hit the truck head on. Unrestrained, Rachelle was thrown from the vehicle. She was airlifted to the hospital where she later died. She left an infant son.
In January 2004, Rhonda, individually and on behalf of Rachelle's estate, filed a wrongful death claim against the County, alleging its failure to maintain Peone Road caused Rachelle to overcorrect and veer into the truck's path. The parties agreed to a judge pro tempore (pro tem).
Before trial, the court limited certain evidence at the County's request. Pertinent are opinion testimony from nearby resident, Andy Knapp, that rutting along the road caused the accident; five newspaper photographs taken 13 days after the accident; and undisclosed damages documentation. Without the damages documentation, the court found Rhonda could not prove financial dependence, a necessary element of her individual loss of consortium claim, and dismissed it.
When Rhonda rested her case, the court granted the County's request for judgment, concluding Rhonda failed to establish negligence. Rhonda appealed. Later, she unsuccessfully filed a CR 60(b) motion for relief from judgment, arguing the "pro tem" trial judge violated the appearance of fairness doctrine because the County was currently representing him on a different matter and because he was previously represented by the law firm retained by the County's insurer to represent the County in the current matter. She amended her notice of appeal to include this ruling.
The issue is whether the trial court erred by abusing its discretion in denying Rhonda's CR 60(b) motion for new trial. Rhonda contends the pro tem judge violated the appearance of fairness doctrine because the County currently represents him in another matter, and the law firm hired by the County's insurer to represent the County in this matter previously represented the pro tem judge.
We review the denial of a motion to vacate under CR 60 for abuse of discretion. DeYoung v. Cenex Ltd., 100 Wn. App. 885, 894, 1 P.3d 587 (2000). Our focus is whether the trial court exercised its discretion on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Rhonda urges violations of CR 60(b)(4) and CR 60(b)(11). Relief may be granted from an order if there was "fraud . . . , misrepresentation, or other misconduct of an adverse party." CR 60(b)(4) (emphasis added). Further, relief may be granted for "[a]ny other reason justifying relief from the operation of the judgment." CR 60(b)(11).
Urging an appearance of fairness violation claims the trial judge was impartial or his or her impartiality may be reasonably questioned. Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000). Due process, the appearance of fairness, and Canon 3(D)(1) of the Code of Judicial Conduct require disqualification of a judge biased against a party or whose impartiality may be reasonably questioned. State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996).
CR 60(b)(4), however, concerns misconduct by an adverse party. Since the pro tem judge is not an adverse party, Rhonda's appearance of fairness argument does not fit within this section of the rule. Thus, CR 60(b)(4) does not aid Rhonda.
The CR 60(b)(11) catch-all provision is limited to situations involving extraordinary circumstances not covered by any other section of the rule; it does not support relief from judgment for all conceivable reasons. State v. Keller, 32 Wn. App. 135, 140-41, 647 P.2d 35 (1982). Recusal lies within the discretion of the trial judge, and his or her decision will not be disturbed without a clear showing of an abuse of that discretion. Wolfkill, 103 Wn. App. at 841. "The trial court is presumed . . . to perform its functions regularly and properly without bias or prejudice." Id. "The party moving for recusal must demonstrate prejudice on the judge's part." In re Parentage of J.H., 112 Wn. App. 486, 496, 49 P.3d 154 (2002).
Here, the trial judge was apparently being represented by the County in another matter. But, the law firm hired by the County's insurer is not the law firm concerned in the other matter. Further, the single representation of the pro tem judge by the County's law firm was years ago by a long retired firm member. Further still, Rhonda shows no prejudice. While the judge ruled in favor of the County and dismissed Rhonda's actions, no inference of bias or prejudice can be drawn from an adverse ruling. See Rhinehart v. Seattle Times Co., 51 Wn. App. 561, 579-80, 754 P.2d 1243 (1988) ().
Rhonda argues a pro tem judge should be held to a higher standard than a sitting judge because the parties have to consent to the pro tem judge. See Const. art. 4, § 7 (). She cites no legal authority to support this argument and we find none. We are not persuaded any exists.
Our Supreme Court has held, "A judge pro tempore is subject to the same standards as a regular judge." In re Disciplinary Proceeding against Michels, 150 Wn.2d 159, 170, 75 P.3d 950 (2003) (citing In re Disciplinary Proceeding against Niemi, 117 Wn.2d 817, 820 P.2d 41 (1991)). "The Code of Judicial Conduct requires judges to disqualify themselves in any proceeding in which their impartiality may reasonably be questioned." Michels, 150 Wn.2d at 170. Judicial integrity is sacrificed if the appearance of fairness is ignored. Id.
Given the above, whether a judge is elected, appointed, or pro tem, he or she must be impartial and free from bias. A pro tem judge is held to this same high standard. Moreover, no evidence suggests the pro tem judge in this case acted outside the Canons of Judicial Conduct.
Rhonda argues the County had a duty to disclose its prior representation of the pro tem judge. This argument, however, was not assigned error; therefore, it is not properly before us. Conard v. Univ. of Wash., 119 Wn.2d 519, 537, 834 P.2d 17 (1992).
The issue is whether the trial court abused its discretion in disallowing evidence of Mr. Knapp's opinion testimony and the newspaper photographs. Rhonda contends the court would not have granted dismissal as a matter of law had it admitted and considered the excluded evidence. We defer our analysis concerning excluded evidence allegedly supporting her RCW 4.24.010 dependency claim to Part C.
Absent an abuse of discretion, this court will not disturb on appeal a trial court's rulings on motions in limine. Gammon v. Clark Equip. Co., 38 Wn. App. 274, 286, 686 P.2d 1102 (1984).
1. Mr. Knapp's Testimony. Mr. Knapp was allowed to testify about his observations of the conditions and tire marks on Peone Road after the accident. He was prevented from testifying to his opinion as to how the accident occurred.
Generally, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." ER 602. The burden of laying a foundation that a witness had an adequate opportunity to observe the facts to which he testifies is upon the proponent. 5 Karl B. Tegland, Washington Practice: Evidence § 219 (2d ed. 1982).
Evidence Rule 701 governs the admissibility of opinion testimony by lay witnesses. It requires lay opinion be limited to that which is "(a) . . . rationally based on the perception of the witness, (b) [and is] helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." ER 701(a)(b).
While Mr. Knapp was a resident along Peone Road and he is familiar with it, he was not an eyewitness to the accident; therefore, he did not have personal knowledge or a perception of how the accident happened. Thus,...
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