Corey v. Pierce County
| Decision Date | 25 January 2010 |
| Docket Number | No. 62801-1-I.,No. 62505-5-I.,62505-5-I.,62801-1-I. |
| Parties | Barbara COREY, Individually, Respondent and Cross Appellant, v. PIERCE COUNTY; Pierce County Prosecuting Attorney's Office; Gerald A. Horne; and John Does 1-10, Appellant and Cross Respondent. |
| Court | Washington Court of Appeals |
Philip Albert Talmadge, Sidney Charlotte Tribe, Talmadge/Fitzpatrick, Tukwila, WA, for Barbara Corey.
Catherine Wright Smith, Howard Goodfriend, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, Joanne Henry, Sloan Bobrick PS, University Place, WA, John Arthur Miller, Miller Quinlan and Auter, Fircrest, WA, for Pierce County & Pierce County Prosecuting Attorney's Office.
¶ 1 Pierce County appeals a jury verdict in favor of Corey on claims of wrongful termination, defamation, false light, outrage, and negligent dissemination of unsubstantiated information. The County asserts that Corey was an at will employee, that no cause of action exists for negligent dissemination of unsubstantiated information, and that the evidence does not support the intentional tort claims. Pierce County also challenges the exclusion of disparaging evidence about Corey. Corey cross claims the denial of her motion for attorney fees as untimely. We agree that no cause of action lies for negligent dissemination of unsubstantiated information. However, striking that cause of action will not affect the judgment. We affirm in all other respects.
¶ 2 Plaintiff Barbara Corey worked for the Pierce County Prosecuting Attorney's Office (PCPA) for 20 years. While working as a deputy prosecuting attorney, Corey coorganized a guild to negotiate conditions of employment for deputy prosecuting attorneys, including just cause termination. Gerry Horne became the Pierce County Prosecuting Attorney in 2001 and appointed Corey to be his assistant chief criminal deputy prosecuting attorney. Corey served as the third highest ranking deputy prosecutor in the county. Assistant chief deputy prosecuting attorneys are not members of the guild or covered by the collective bargaining agreement. But, Corey testified that before she accepted the assistant chief criminal deputy position, Horne promised her the just cause termination benefit enjoyed by guild members. Corey maintains that she would not have taken the position were it not for Horne's promise, as she did not want her employment to be "subject to the vagaries of Pierce County politics."
¶ 3 In December 2003, Corey expressed concerns about John Neeb, a prosecutor in the sexual assault unit, to administrative deputy Dawn Farina. In early January 2004, Corey recommended to Farina that Neeb be transferred out of the felony division. Ultimately, Horne had authority to make the transfer. The parties' accounts of Corey's discussions with Neeb vary dramatically. Corey maintains that Horne and Farina asked her to announce the transfer to Neeb, asking her to put a positive spin on it. Corey then told Neeb. PCPA maintains that Horne initially approved the transfer, but that he rescinded it after Horne discovered that Corey's communication with Neeb about the basis of the transfer was inaccurate.
¶ 4 Horne testified that he then lost confidence in Corey. On January 27, 2004, Horne summoned Corey to his office. He questioned her about what she had told Neeb and others about the transfer. Corey defended herself and recounted her story. On January 28, Corey was again summoned to Horne's office. She asked Horne if she needed to have someone with her. Horne told Corey he was dismissing her. Horne gave Corey 40 minutes to resign in lieu of termination or be fired. Corey resigned.
¶ 5 In Corey's desk drawer, Horne's investigator found an envelope Corey had used to collect private donations for a colleague whose child was ill. Corey had not yet purchased the gifts, but did so shortly after resigning. Some at the PCPA were still concerned that some of the money raised might be unaccounted for. A PCPA investigator looked into the matter. At the end of February, one of Horne's investigators met with Horne and informed him there was no viable case to pursue against Corey. Corey maintains that Horne's office leaked to the Tacoma News Tribune (TNT) that there was an internal investigation of missing funds involving Corey.
¶ 6 The TNT published an article about Corey's departure. Karen Hucks, Senior deputy prosecutor quits, TACOMA NEWS TRIBUNE, January 30, 2004 at B1. Two additional stories by the same reporter appeared on March 5 and 6, 2004. Karen Hucks, How a deputy prosecutor lost her job, TACOMA NEWS TRIBUNE, March 5, 2004 at B1; Karen Hucks, Prosecutor fires aide, TACOMA NEWS TRIBUNE, March 6, 2004 at A1. The March 5 story reported on the circumstances surrounding Corey's resignation, including Corey's contention that Horne "set her up" by telling her to put a positive spin on the Neeb transfer, and extensive criticism of Horne and his reasons for seeking her resignation. Hucks, (March 5, 2004), Supra, at B1. The article also quoted Horne as saying that he had lost confidence in Corey's ability to speak for him and the office, and that when called upon, one has to tell the truth. Hucks, (March 5, 2004), Supra, at B1. Horne claimed that Corey had "put it on her fellow employees, and to me that's one of the most despicable things a person can do." Hucks, (March 5, 2004), Supra, at B1. Horne terminated Corey on March 5, 2004.
¶ 7 On March 6, 2004, an article appeared in which Horne stated that Corey was an at will employee and he needed no cause to fire her. Hucks, (March 6, 2004), Supra, at A1. The article contained a number of other statements from Horne, including the claim that Corey was subject to a "pending criminal investigation into whether money was mishandled in his office." Hucks, (March 6, 2004), Supra, at A12. Horne also claimed in the article that Corey had "told several lies" in connection with the Neeb transfer. Hucks, (March 6, 2004), Supra, at A1.
¶ 8 Corey testified that the article devastated her emotionally and professionally. She subsequently suffered severe depression, at one point was suicidal, and experienced an onset of epileptic seizures. It also prevented her from obtaining another position. Corey sued Horne and Pierce County for invasion of privacy, defamation, defamation by implication, false light, outrage, and breach of a contract formed by promissory estoppel.
¶ 9 Corey retained two experts, Professors Larry Echohawk and David Boerner, to inform the jury about the standard of care with respect to her invasion of privacy claim. Specifically, they were to address the role of prosecutors as ministers of justice and their responsibilities with respect to ongoing criminal investigations. The County moved to exclude the expert testimony, arguing that the question of whether there was a violation of an ethical rule is one of law, not fact, and that the rules of professional conduct cannot be the basis for a civil action. The trial court granted the County's motion in part and denied it in part. It allowed only one expert to testify as to matters within his expertise which may be relevant to issue in the case. It prohibited opinions on questions of law, credibility of witnesses, "standards of care or conduct" of prosecutors, or existence, applicability, or violations of ethical rules.
¶ 10 At the end of Corey's case in chief and again posttrial, the County moved for judgment as a matter of law under CR 50 on all issues. The County argued against the existence of the negligence claim, but the trial court concluded that a cause of action exists in Washington for negligent dissemination of confidential information, specifically the disclosure of unsubstantiated allegations. The County also argued that Corey had not met her burden on any of her intentional tort claims, and that promissory estoppel did not apply to provide Corey a basis for her wrongful termination claim. The trial court denied the County's motions.
¶ 11 After a three week trial, the jury returned a verdict in her favor. In a special verdict, the jury found for plaintiff on each of her theories, awarding $1,500,000 for "Damage to Reputation," $750,000 in noneconomic damages, $700,176 in economic damages, and $124,994 in "actual damages" on the promissory estoppel claim.
¶ 12 Corey moved for an award of attorney fees under RCW 49.48.030. The County moved to strike the request, arguing that it was untimely. The trial court granted the motion and denied her fee request as untimely under CR 54(d)(2). The County and the PCPA appeal. Corey cross-appeals the trial court's denial of her motion for attorney fees on her promissory estoppel employment claim.
¶ 13 Before the case went to the jury, and after the verdict, the County moved under CR 50 for judgment as a matter of law on all claims. The trial court denied these motions. The County appeals the trial court's refusal to grant the CR 50 motions on the intentional torts of defamation, defamation by implication, false light, and outrage.
¶ 14 A judgment as a matter of law is only appropriate when no substantial evidence or reasonable inference would sustain a verdict for the nonmoving party. Guijosa v. Wal-Mart Stores, Inc., 144 Wash.2d 907, 915, 32 P.3d 250 (2001). "`Such a motion can be granted only when it can be said, as a matter of law, that there is no competent and substantial evidence upon which the verdict can rest.'" Id. (quoting State v. Hall, 74 Wash.2d 726, 727, 446 P.2d 323 (1968)). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Id. The evidence must be viewed favorable to the nonmoving party. Id. In reviewing a decision on a motion for a judgment as a matter of law, an appellate court applies the same standard as the trial court. Id.
¶ 15 Corey's claims of...
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