Everett v. Abbey

• Decision Date: 21 September 2001
• Docket Number: No. 25985-1-II.,25985-1-II.
• Citation: 31 P.3d 721
• Court: Washington Court of Appeals
• Parties: Harold and Idella EVERETT, and Richard Everett, Respondents, v. Timothy ABBEY, individually and in his official capacity, Laurie Alexander, individually and in her official capacity, Connie Saracino, individually and in her official capacity, Kate Carrow, individually and in her official capacity, and State of Washington by and through its political subdivision Department of Social and Health Services, and Mark W. Shipman, M.D., and "Jane Doe" Shipman and their marital community, and Central Washington Health Association d/b/a Central Washington Hospital, a Washington Non-Profit Association; and Cindy Andrews, Appellants.

31 P.3d 721

Harold and Idella EVERETT, and Richard Everett, Respondents, v. Timothy ABBEY, individually and in his official capacity, Laurie Alexander, individually and in her official capacity, Connie Saracino, individually and in her official capacity, Kate Carrow, individually and in her official capacity, and State of Washington by and through its political subdivision Department of Social and Health Services, and Mark W. Shipman, M.D., and "Jane Doe" Shipman and their marital community, and Central Washington Health Association d/b/a Central Washington Hospital, a Washington Non-Profit Association; and Cindy Andrews, Appellants.

No. 25985-1-II.

Court of Appeals of Washington, Division 2.

September 21, 2001.

Jeffrey A. Freimund, Ofc of Atty Gen Torts Div, Olympia, for Appellants.

Tyler K. Firkins, Van Siclen Stocks & Firkins, Auburn, for Respondents.

Robert L. Christie, Johnson & Martens P.S., Seattle, Jerome R. Aiken, Meyer Fluegge & Tenney, Yakima, A. Clarke Johnson, Rosenow Johnson Graffe, Tacoma, for Defendants.

QUINN-BRINTNALL, J.

The State defendants appeal an interlocutory partial summary judgment order. In an earlier criminal proceeding against Harold and Idella Everett, a court reviewed several issues, including the techniques used when interviewing children in connection with an alleged child sex-abuse-ring investigation, and it allowed the Everetts to withdraw their guilty pleas.¹ The trial court in the present negligence action ruled that collateral estoppel barred the State defendants from litigating whether they used improper interview techniques when interviewing alleged child victims. We disagree. The requirements of collateral estoppel are not present in this case. We reverse the partial summary judgment order.

FACTS

As part of an investigation of child sex abuse in Wenatchee, Harold and Idella Everett were convicted in 1995 of sexually abusing some of their five children. In December 1997, the Everetts filed personal restraint petitions based on new evidence, including evidence of improper techniques used during the investigation of abuse allegations. Division Three of this court granted the petitions and ordered the case transferred to the Chelan County Superior Court for a reference hearing.

During the seven-day reference hearing in March 1998, several witnesses testified, including: Mr. and Mrs. Everett; all of their children; Detective Robert Perez, the lead investigator; Rebecca "Kate" Carrow (f/k/a Shaw),² the former public defender who represented Mrs. Everett in the original criminal proceeding; Connie Saracino, a Department of Social and Health Services (DSHS) case worker assigned to the Everett children's dependency case; and Laurie Alexander, a DSHS social worker who interviewed at least one of the Everett children during the investigation. Carrow, Saracino, and Alexander are defendants/appellants in the case before us.

In its Memorandum Decision on Reference Hearing, the reference court³ found that Perez and others not specified used improper interview techniques in interrogating the Everett children. The reference court also found that Perez "bullied" Mrs. Everett into confessing to sexual abuse. The reference court opined that on retrial, "[i]t will likely be found that the two daughters' allegations about which Mrs. Everett was being questioned were obtained while using improper interrogation techniques." Clerk's Papers at 756. The reference court also noted that the disclosure by the daughters "will no doubt be the subject of expert testimony if there is a new trial in the criminal cases or at the trial of the pending civil case." Clerk's Papers at 718.

While the reference court also found that DSHS adopted "CPS Child Interview Form Guidelines" published by the Harborview Sexual Assault Center, there is no evidence in the record that DSHS ever actually adopted these protocols. Over objection, the guidelines were admitted into evidence as Exhibit 47. The reference court opined that a jury likely would find that Perez did not follow the guidelines, particularly the one advocating verbatim documentation of interviews, because he did not want anyone to know of the methods he used to obtain evidence. The court stated that no rational trier of fact would believe many of the allegations of abuse.

The reference court again referred to future litigation and noted that it hoped that experts in child interview techniques would testify at retrial.

The parties' failure to call such witnesses in a Reference Hearing is understandable. There was not ample time to prepare for the hearing.[⁴] Also, this Court refused funds for the defense to hire and produce an expert on child memory, stating that it was unlikely that this would be needed at the Reference Hearing stage. It was not. It will, of course, be welcome if a retrial occurs.

Clerk's Papers at 761.

In an unpublished opinion,⁵ Division Three of this court granted the Everetts' personal restraint petitions and ordered the superior court to allow the Everetts to withdraw their guilty pleas. That court did not reach the merits of the reference court's admission of Exhibit 47. Instead, it held that the disputed evidence was not material to the reference court's conclusions about the impropriety of the interview techniques. Division Three concluded that "the evidence of Detective Perez's tactics is sufficient on its face to support a finding of impropriety.... The record supports the reference hearing court's finding the interview tactics used in this case were improper." Clerk's Papers at 783-84 (emphasis in original).

The Everetts filed a civil lawsuit in Thurston County Superior Court⁶ against DSHS ("the State"), Central Washington Health Association, and several individually named defendants:⁷ Timothy Abbey, Laurie Alexander, Connie Saracino, Kate Carrow, Mark W. Shipman, M.D., "Jane Doe" Shipman, and Cindy Andrews. The Complaint alleges, among other claims, that the defendants breached their duty to properly investigate allegations of child abuse. The Everetts then filed a Motion for Partial Summary Judgment Re: Liability as to State of Washington. The Everetts moved the court to adopt certain findings of fact of the reference court and Division Three regarding the State's use of improper investigative techniques, under the doctrine of collateral estoppel. The Everetts also sought an order granting partial summary judgment on the issue of liability with regard to the State defendants based on those findings. The summary judgment court granted a substantial part of the Everetts' motion. In its summary judgment order, the court ordered that "it shall be conclusively determined in this proceeding ... that the State of Washington performed improper interview techniques" during the investigation. Clerk's Papers at 10-11. The court precluded the State from litigating or asserting that it used proper child interview techniques during its investigation of alleged sexual abuse by the Everetts. The court specifically noted that the State was not precluded from litigating the issues of causation or damages, or from raising affirmative defenses regarding immunity.

The summary judgment court also found that the summary judgment order "effectively estops the State defendants from litigating whether a duty was breached as to the issues" regarding improper interview techniques. Clerk's Papers at 11.

The State defendants now appeal the summary judgment order.⁸

ANALYSIS

In the summary judgment order itself, the Thurston County Superior court ordered that:

1. The defendant State of Washington shall not be permitted to litigate in this proceeding, nor to assert in any manner, that its investigative techniques were proper with respect to its child interview techniques regarding the children interviewed during its investigation of alleged sexual abuse by Harold and Idella Everett. Instead, it shall be conclusively determined in this proceeding, based on the doctrine of collateral estoppel, that the State of Washington performed improper interview techniques with respect to the children interviewed during its investigation into allegations of child sexual abuse by Harold and Idella Everett[.]

2. However, the State shall not be precluded from litigating whether its improper conduct was either the cause in fact or the legal cause for any damages that may have arisen or may have been incurred by the plaintiffs nor shall the State be precluded from addressing whether in fact any damages have been incurred by the plaintiffs or any other affirmative defenses related to causation or damages in this case. Furthermore, the State shall not be precluded from asserting the affirmative[] defenses of Babcock immunity and/or a qualified immunity.

3. Pursuant to CR 54(b),[⁹] the Court expressly finds that there is no just reason for a delay in appealing this decision and that the adjudicated estoppel issues may be largely dispositive of plaintiff's primary claims for negligence as to the State defendants and may affect the viability of the claims against the other named defendants.... [T]his order effectively estops the State defendants from litigating whether a duty was breached as to the issues set forth herein above.

Clerk's Papers at 10-11 (emphasis added).

By its plain language, paragraph (1) of the summary judgment precludes the State—and only the State—from litigating or asserting that it used proper child interview techniques during the investigation of sexual abuse allegations against the Everetts. There is no mention in paragraph (1) of duty or breach.

In contrast, in paragraph (3), the court states that "this order effectively estops the State defendants from litigating whether a duty was breached as to the issues set forth herein above." Clerk's Papers at 11. Consistent with the court's listing of parties at the beginning of the summary judgment order,¹⁰ the court's use of the term "State defendants" refers collectively to defen...