Damiano v. Lind
| Decision Date | 25 August 2011 |
| Docket Number | No. 29416-1-III,29416-1-III |
| Court | Washington Court of Appeals |
| Parties | JILL DAMIANO and DAVID DAMIANO, Appellants, v. JON CHARLES LIND; and the marital community comprised of JON CHARLES LIND and SUELLEN LIND, Respondents. |
Kulik, C.J. — This is a dispute between next door neighbors over the disappearance of a cat named Boo. Jill and David Damiano filed a lawsuit against Jon and Suellen Lind, asserting that Mr. Lind trapped Boo and then abandoned, injured, or killed Boo so that Boo was not found and has never returned home to the Damianos.
The trial court granted summary judgment in favor of the Linds on the Damianos' claims of bailment, negligence, malicious injury to a pet, trespass to chattels, conversion, outrage, gross negligence, and fraud.
We review a summary judgment dismissal de novo to determine whether issues of material fact exist. We consider all facts and reasonable inferences in the light most favorable to the Damianos.
We affirm the dismissal of the claims based on bailment, negligence, outrage, gross negligence, and malicious injury to a pet. We reverse dismissal of the trespass to chattels, conversion, and fraud claims and remand for trial.
On July 24, 2009, Ms. Damiano woke up at about 5:00 a.m. because her cat, Boo, was meowing loudly. Ms. Damiano recognized Boo's meows. Boo's habit was to come home early in the morning after being let out the previous evening. Consequently, Ms. Damiano assumed that Boo was sitting on the back porch waiting for his breakfast.
When Ms. Damiano did not find Boo on the back porch, she followed the meows over to her neighbors'—the Linds'—garage. At the time, Ms. Damiano believed that Boo was stuck in a small space in the Linds' garage. Not wanting to wake the Linds, Ms. Damiano spent the next hour going in and out of her home to call Boo. Ms. Damiano last heard Boo's meows sometime around 6:15 a.m.
Finally, Ms. Damiano dressed to go to the store. Before she left, she knocked on the Linds' door, but no one answered. At approximately 7:05 a.m., Ms. Damiano left forthe store. While driving away, Ms. Damiano saw Mr. Lind driving back toward his home in his sport utility vehicle (SUV). Mr. Lind smiled and waved. Ms. Damiano was surprised that she had not seen him leave in his vehicle because she had been in her backyard numerous times that morning.
Ms. Damiano made a u-turn and followed Mr. Lind home. Ms. Damiano told Mr. Lind that she had heard Boo's meows in his garage. She offered to trade Boo for some zucchinis and to pay for any damage he might have caused. Mr. Lind turned "'beet'" red and stuttered, "'Cat . . . cat . . . no, I haven't seen a cat.'" Clerk's Papers (CP) at 100. Mr. Lind said that they could look in the garage. Mr. Lind told Ms. Damiano that he had not seen a cat in his garage. Mr. Lind also stated that there was a trap by the deck. He explained that carpenters were coming soon to enclose his deck because cats fought under it.
According to Ms. Damiano, Mr. Lind's demeanor continued to be out of character; he was sweating profusely and he seemed agitated. After Ms. Damiano went home, Mr. Lind worked in his backyard for most of the day. Several times, Ms. Damiano tried to get Mr. Lind's attention to ask about Boo, but Mr. Lind would not acknowledge her.
The morning of the incident, Mr. Lind prepared a voluntary witness statement for the Chewelah Police Department. Mr. Lind stated that he trapped a "dark colored feralcat" in the late evening of July 23, 2009, or the early morning hours of July 24. CP at 78. Mr. Lind explained that he immediately released the cat on his driveway and that it ran south across the street to the field.
Mr. Lind stated that when Ms. Damiano came over to ask about her cat:
I did not mention I'd caught a cat (unknown owner) that morning because [Ms. Damiano] didn't ask and I felt like a total idiot just then. I am very sorry for this outcome but I do not believe I caused any harm to the cat. I also do not know the ownership of the cat I trapped.
CP at 78. Ms. Damiano stated that all the cats she saw in the neighborhood were pets. A neighbor stated that she had seen no coyotes in the area.
Mr. Lind periodically sets a live trap on his premises. He baits the trap with a can of tuna. Mr. Lind maintains that he sets traps because of the skunk problem in the neighborhood. In the last three years, Mr. Lind says he has unintentionally trapped three cats.
Mr. Lind asserts that he never relocated or killed animals in his traps. He maintains that on the night of July 23, 2009, he set the trap near the deck, not in the garage. Mr. Lind told Ms. Damiano that cats fought under the deck. He did not mention seeing any skunks under the deck.
Officer Brandon Molett stated that:
Jon Lind admitted to me that he trapped the Damianos' cat, Boo, but did not know it was their cat until later that morning, after he allegedly releasedBoo and spoke to Mrs. Damiano.
The Damianos searched for Boo in the town of Chewelah for an extended period. They posted signs, knocked on doors, and walked trails. The Damianos never found Boo, even though his habit was to come home early in the morning every day. Ms. Damiano said that, CP at 116. One month after Boo disappeared, another neighbor had two missing cats in one week. That neighbor had not seen any coyotes in the area.
The day of Boo's disappearance, Ms. Damiano did not see Boo on the Linds' property. No one observed the Linds harm, injure, or kill Boo. Ms. Damiano has no evidence of any injury to her cat. She does not know whether Boo is alive or dead. Ms. Damiano alleges that she has suffered the loss of her pet and emotional distress due to that loss.
The Damianos filed this action against the Linds, alleging claims of bailment, negligence, malicious injury to a pet, trespass to chattels, conversion, outrage, gross negligence, and fraud. The trial court dismissed these claims on summary judgment. This appeal follows.
A motion for summary judgment will be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002) (quoting Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000)). The court must consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439, 452, 842 P.2d 956 (1993). "The nonmoving party must set forth specific facts showing a genuine issue and cannot rest on mere allegations." Baldwin v. Sisters of Providence, 112 Wn.2d 127, 132, 769 P.2d 298 (1989)).
Motion to Strike. The Linds contend the trial court erred by denying their motion to strike various witness statements. In their brief, the Linds set out a few rules of evidence and then list whole pages or series of pages for this court to review. Without specificity, the Linds sometimes include a short comment, and sometimes do not, e.g., "CP 73, Second Declaration of Brandon R. Molett," or "CP 96-110, hearsay and irrelevant evidence throughout," with no comment. Resp'ts' Br. at 10.
Briefs should contain "argument in support of issues presented for review," alongwith citations to authority and references to the record. RAP 10.3(a)(6). We decline to review the court's decision to deny the motion to strike because the Linds' briefing lacks sufficient specificity for review.
Evidence on Summary Judgment. The Linds rely on Schmidt v. Pioneer United Dairies, 60 Wn.2d 271, 373 P.2d 764 (1962) for the principle that a jury should not be permitted to speculate as to equally reasonable inferences. However, Schmidt was decided after a jury trial and applied the sufficiency of the evidence standard, not the summary judgment standard. Id. at 272. We apply the summary judgment standard here.
The Linds assert that the Damianos' case is based on speculation. The Damianos point to an accidental death case, Englehart v. General Electric Co., 11 Wn. App. 922, 527 P.2d 685 (1974). In Englehart, the court allowed an accidental death to be proved by a reasonable inference from circumstantial evidence. Id. at 926. Significantly, circumstantial and direct evidence are accorded equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
We must consider the facts and all reasonable inferences in the light most favorable to the Damianos. Here, the facts and inferences raise questions of material fact with regard to the Damianos' claims of trespass to chattels, conversion, and fraud.
Breach of Bailment Claim. The Damianos assert that Mr. Lind breached hisbailment obligations by releasing Boo rather than returning him to the Damianos.
Generally, a bailment is a consensual transaction where a duty of care is recognized. Collins v. Boeing Co., 4 Wn. App. 705, 710, 483 P.2d 1282 (1971). However, in an involuntary or constructive bailment, the possession is involuntarily thrust upon another, as in a possession taken by a finder or a possession by mistake. Id. If a bailment exists and the item is lost, a presumption of negligence applies. Chaloupka v. Cyr, 63 Wn.2d 463, 466, 387 P.2d 740 (1963). Here, no consensual transaction existed between Ms. Damiano and Mr. Lind. Hence, Ms. Damiano must establish the existence of an involuntary bailment with Mr. Lind regarding Boo.
The Damianos rely on two Washington cases to support their involuntary bailment claim, Chaloupka and Hatley v. West, 74 Wn.2d 409, 445 P.2d 208 (1968). Neither of these cases involves an involuntary bailment. Hatley involved a particular kind of bailment where a person, for consideration, takes in animals for care and pasturing on his or her land. Hatley, 74 Wn.2d at 409-10. Here, there was no consideration. Chaloupka involved a consensual transaction between Mr. Chaloupka and the...
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