Fondren v. Klickitat County

• Decision Date: 21 November 1995
• Docket Number: No. 13660-4-III,13660-4-III
• Citation: 905 P.2d 928,79 Wn.App. 850
• Court: Washington Court of Appeals
• Parties: Clyde FONDREN and Jennifer Fondren, husband and wife, Appellants/Cross-Respondents, v. KLICKITAT COUNTY; the Klickitat County Sheriff's Office; Elmer Kinder; and Richard McComas, Respondents/Petitioners.

Page 850

79 Wn.App. 850

905 P.2d 928

Clyde FONDREN and Jennifer Fondren, husband and wife Appellants/Cross-Respondents, v. KLICKITAT COUNTY; the Klickitat County Sheriff's Office Elmer Kinder; and Richard McComas, Respondents/Petitioners.

No. 13660-4-III.

Court of Appeals of Washington, Division 3,

Panel Two.

Nov. 21, 1995.

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, for Appellants.

David Utevsky, Foster, Pepper & Shefelman, Seattle, for Respondents.

THOMPSON, Chief Judge.

Clyde and Jennifer Fondren appeal the dismissal of most of their claims, which arise from the investigation of a fatal shooting for which Mr. Fondren was first convicted, then acquitted on retrial after remand from this Court. The Defendants were granted review of the Superior Court's refusal to dismiss the Fondrens' remaining claim. We find merit in both arguments. We therefore remand for further proceedings on the Fondrens' allegations of malicious prosecution, false arrest, false imprisonment, civil rights violation, outrage, and defamation. We dismiss the Fondrens' claim based on negligent investigation.

On September 25, 1982, a man was shot and killed during an altercation near the Fondrens' home in rural Klickitat County. ¹ Mr. Fondren was arrested, charged, and tried for second-degree murder. The Fondrens' complaint alleges there was no probable cause for the arrest and prosecution, and sheriff's deputies mishandled the investigation and "failed to fully and truthfully convey all relevant facts [they] knew, or should have known."

Mr. Fondren's first trial resulted in a conviction for second-degree manslaughter. This Court reversed the conviction, holding the trial court's instructions had failed clearly to inform jurors the State had the burden of proving the absence of self-defense beyond a reasonable doubt. State v. Fondren, 41 Wash.App. 17, 18, 701 P.2d 810, review denied, 104 Wash.2d 1015 (1985). After a second trial, a jury acquitted Mr. Fondren, finding in a special verdict that he had acted in defense of himself or another.

The Fondrens then filed this action, containing the following claims: (1) civil rights violations under 42 U.S.C. § 1983; (2) malicious prosecution; (3) negligence; (4) infliction of emotional distress; (5) defamation; (6) false arrest and imprisonment; and (7) outrage. After the decision in Hanson v. Snohomish, 121 Wash.2d 552, 852 P.2d 295 (1993), the Defendants moved for judgment on the pleadings, arguing the Fondrens' complaint fails to state a claim upon which relief can be granted. See CR 12(b)(6); CR 12(c). Applying Hanson, the Superior Court dismissed all of the Fondrens' claims except negligence, which it treated as a claim for negligent investigation. The Fondrens appealed, and this Court granted discretionary review of the refusal to dismiss the negligence claim.

This case arises from a motion to dismiss the Fondrens' claims for "failure to state a claim upon which relief can be granted" under CR 12(b)(6). On appeal, the Superior Court's ruling on such a motion is a question of law, and is reviewed de novo. Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781 (1988), aff'd on reh'g, 113 Wash.2d 148, 776 P.2d 963 (1989).

To prevail on a CR 12(b)(6) motion, a defendant has the burden of establishing "beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief." Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wash.2d 959, 961, 577 P.2d 580 (1978) (citing Halvorson v. Dahl, 89 Wash.2d 673, 674, 574 P.2d 1190 (1978); Berge v. Gorton, 88 Wash.2d 756, 759, 567 P.2d 187 (1977)); Hoffer, 113 Wash.2d at 153, 776 P.2d 963. The motion should be granted "sparingly and with caution in order to make certain that plaintiff is not improperly denied a right to have his claim adjudicated on the merits." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1349, at 192-93 (2d ed. 1990); see Orwick v. Seattle, 103 Wash.2d 249, 254, 692 P.2d 793 (1984). Usually, dismissal is granted under this rule "only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." 5A Wright & Miller § 1357, at 344; see Hoffer, 110 Wash.2d at 420, 755 P.2d 781. The motion should be denied if the plaintiff can assert any hypothetical factual scenario that gives rise to a valid claim, even if the facts are alleged informally for the first time on appeal. Bravo v. Dolsen Cos., 125 Wash.2d 745, 750, 888 P.2d 147 (1995).

The Defendants moved to dismiss the Fondrens' complaint in response to the Supreme Court's decision in Hanson. In that case, Mr. Hanson was convicted of first-degree assault. Hanson, 121 Wash.2d at 554, 852 P.2d 295. The appellate court reversed the conviction, holding the trial court had erred in admitting fiction written by Mr. Hanson. Hanson, 121 Wash.2d at 555, 852 P.2d 295. Mr. Hanson was acquitted on remand. Hanson, 121 Wash.2d at 555, 852 P.2d 295. He filed a civil action, claiming malicious prosecution, false arrest and imprisonment, negligent investigation, defamation, and civil rights violations. Hanson, 121 Wash.2d at 555, 852 P.2d 295. The trial court in the civil action denied summary judgment on the defamation claim, and Mr. Hanson later abandoned his negligent investigation claim. Hanson, 121 Wash.2d at 555 n. 3, 852 P.2d 295. However, the trial court dismissed the remaining claims, holding collateral estoppel barred relitigation of the issues. Hanson, 121 Wash.2d at 555, 852 P.2d 295. The appellate court reversed, holding collateral estoppel did not apply. Hanson v. Snohomish, 65 Wash.App. 441, 828 P.2d 1133 (1992), rev'd, 121 Wash.2d 552, 852 P.2d 295 (1993).

The Supreme Court held "that a conviction, although later reversed, is conclusive evidence of probable cause, unless that conviction was obtained by fraud, perjury or other corrupt means, or, of course, unless the ground for reversal was absence of probable cause." Hanson, 121 Wash.2d at 560, 852 P.2d 295; see Restatement (Second) of Torts § 667(1) (1977). Because probable cause is a complete defense to claims for malicious prosecution, as well as false arrest and imprisonment, the court held those claims were barred unless Mr. Hanson could establish the conviction was obtained by fraud, perjury, or other corrupt means. Hanson, 121 Wash.2d at 560, 563-64, 852 P.2d 295. The court then addressed whether identification procedures in the criminal trial constituted fraud, perjury, or other corrupt means. Hanson, 121 Wash.2d at 560, 852 P.2d 295. Because those procedures were held to be proper, both in the trial court and on appeal of the original conviction, the Supreme Court held Mr. Hanson was barred by collateral estoppel from relitigating that issue. Hanson, 121 Wash.2d at 561-63, 852 P.2d 295. The Supreme Court thus affirmed the dismissal of the malicious prosecution and false arrest and imprisonment claims. Hanson, 121 Wash.2d at 563-64, 852 P.2d 295. Finally, the court affirmed the dismissal of Mr. Hanson's civil rights claim because it was predicated on the State claims. Hanson, 121 Wash.2d at 564, 852 P.2d 295.

The Fondrens first invite us to reconsider the rule in Hanson. ² However, as a decision of the Washington Supreme Court, Hanson is binding on all lower courts in the state. See State v. Gore, 101 Wash.2d 481, 487, 681 P.2d 227 (1984). Whatever the merits of the Fondrens' argument in this regard, Hanson is binding precedent.

The precise issue raised here is whether, under Hanson, any or all of the Fondrens' claims are barred because Mr. Fondren's criminal conviction conclusively establishes the existence of probable cause.

Malicious prosecution, false arrest, and false imprisonment claims

Mr. Fondren's conviction conclusively establishes probable cause, unless the conviction was obtained by fraud, perjury, or other corrupt means. Hanson, 121 Wash.2d at 560, 852 P.2d 295. Because probable cause is a complete defense to claims for malicious prosecution, false arrest, and false imprisonment, these claims appear to be barred under Hanson.

However, the Fondrens argue Hanson does not apply in these circumstances. They first point out that Mr. Fondren was charged with second-degree murder, but convicted only of second-degree manslaughter. Although the conviction may establish probable cause for manslaughter, they argue, it does not establish probable cause for murder, the crime for which the Defendants charged and tried Mr. Fondren. However, probable cause exists when a person of reasonable caution is justified in believing "an offense has been or is being committed." State v. Gluck, 83 Wash.2d 424, 426-27, 518 P.2d 703 (1974) (emphasis added). Mr. Fondren's conviction on a lesser charge merely reflects the jurors' conclusion that the facts proved a different (but related) crime; it does not detract from their conclusion that some offense had been committed. The Fondrens also point out that in Hanson, the ground for reversal of the conviction was evidentiary error, while the error in Mr. Fondren's case was of constitutional magnitude. ³ This argument belies the clarity of the Hanson rule, under which the conviction is conclusive evidence of probable cause. The rule's application does not depend on the severity of the error. This assignment of error is without merit.

The Fondrens next contend the Hanson rule does not apply because Mr. Fondren's conviction was obtained by fraud, perjury, or other corrupt means. The complaint alleges, among other things, that Defendant "Kinder and/or other agents of Klickitat County and the Klickitat County Sheriff's Office, ... failed to fully and truthfully convey all relevant facts he knew, or should have known." Arguably, this is an allegation of perjury, an explicit exception to the general Hanson rule.

The Fondrens also point out that the appeal of Mr. Fondren's conviction included claims of...