Ertman v. City of Olympia, 46675
| Decision Date | 31 December 1980 |
| Docket Number | No. 46675,46675 |
| Citation | 621 P.2d 724,95 Wn.2d 105 |
| Parties | Evan G. ERTMAN, Petitioner, v. CITY OF OLYMPIA, a municipal subdivision of the State of Washington, Donald Hume and Richard Minshull, Respondents. |
| Court | Washington Supreme Court |
William E. Cullen, Jr., Olympia, for petitioner.
Clinton, Fleck, Glein & Brown, Richard J. Glein, Seattle, for respondents.
This case presents the question whether the trial court properly granted respondents' (defendants') motion for a new trial on the basis of newly discovered evidence. In an unpublished opinion, the Court of Appeals held that the grant of a new trial was proper, and we affirm the Court of Appeals.
Petitioner (plaintiff) Evan Ertman filed an action against respondents City of Olympia and Olympia police officers Donald Hume and Richard Minshull for assault, wrongful arrest, and imprisonment, stemming from an incident which occurred in the men's restroom of the Governor House restaurant. The police officers had been searching for an escaped felon believed to be in the area when they encountered petitioner. Petitioner maintained that he was the victim of an unprovoked attack, whereas the two officers claimed that petitioner swung at them as soon as they asked him for identification.
At trial, after both sides had rested, but before the case was submitted to the jury, respondents' counsel received a telephone call from one Stephen Brown, a previously unknown witness, who had allegedly witnessed the incident. Respondents immediately moved to reopen their case for the purpose of calling Brown as a witness. The trial court denied the motion but suggested that counsel could raise the matter again in a motion for a new trial.
The jury awarded petitioner $11,250 in damages. Respondents then moved for a new trial on the ground of newly discovered evidence, submitting in support of the motion an affidavit by Mr. Brown which explained that he had followed the officers into the restroom and that he saw petitioner strike one of the officers before the policeman had a chance to say or do anything. The trial court granted the motion for a new trial under CR 59 and RCW 4.76.020, citing as grounds that the discovery of Brown constituted the discovery of new material evidence which could not, with reasonable diligence, have been produced at trial.
We believe this is not strictly a case of due diligence in the discovery of evidence, for respondents had offered to produce the testimony of Brown at trial, even though the offer, due to Brown's sudden tardy appearance, was made after both parties had rested. Instead, this is a case where the court erroneously denied a motion to reopen the case in order to permit Brown to testify. In denying the motion, the trial court judge ruled I have no particular doubt that this constitutes, perhaps, newly discovered evidence ...
I think the way to do this is to proceed and present this matter to the jury realizing that (counsel), on behalf of the Defendants, could at that time move to reopen on the basis of newly discovered evidence subject to the verdict of the jury.
See State v. Remick, 163 Wash. 326, 360 P. 1054 (1931).
An erroneous denial of a motion to reopen the case may be reversed if an appellate court finds that the trial court abused its discretion. Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 599 P.2d 1289 (1979). The court in this case should have granted respondents' motion because Brown was a material witness in...
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