George H. Minehart Ii v. Morning Star Boys Ranch Inc

• Decision Date: 08 June 2010
• Docket Number: No. 28981-8-III.
• Citation: Minhart v. Morning Star Boys Ranch, Inc., 156 Wash.App. 457, 232 P.3d 591 (Wash. App. 2010)
• Parties: George H. MINEHART II, Petitioner,v.MORNING STAR BOYS RANCH, INC., fka Spokane Boys Ranch, Inc., a Washington corporation; Father Joe Weitensteiner, individually, Respondents and Cross-Petitioners.
• Court: Washington Court of Appeals

156 Wash.App. 457

232 P.3d 591

George H. MINEHART II, Petitioner,v.MORNING STAR BOYS RANCH, INC., fka Spokane Boys Ranch, Inc., a Washington corporation; FatherJoe Weitensteiner, individually, Respondents and Cross-Petitioners.

No. 28981-8-III.

Court of Appeals of Washington Division 3.

June 8, 2010.

COPYRIGHT MATERIAL OMITTED

Derek P. Radtke, Ralph Glenn Phillips, Phillips & Webster PLLC, Woodinville, WA, Martin Gales, Attorney at Law, Spokane, WA, for Petitioner.

James B. King, Christopher Joseph Kerley, Evans, Craven & Lackie, P.S., Michael Early McFarland Jr., Attorney at Law, Spokane, WA, for Respondents and Cross-Petitioners.

KORSMO, A.C.J.

¶ 1The parties have brought competing motions for discretionary review of rulings on various motions in limine in a pending trial in the Spokane County Superior Court.¹The matter was referred to a panel of judges for consideration pursuant to RAP 17.2(b).The parties appeared for oral argument.The motions for discretionary review are both denied.We exercise the discretion granted by RAP 17.6(b) to explain our reasoning in this opinion.

FACTS

¶ 2 This is the second of some 19 separate actions brought by individuals who formerly lived at Morning Star Boy's Ranch, Inc.(MSBR).²Each case, we are told, involves allegations that the plaintiff was sexually abused by MSBR director FatherJoe Weitensteiner and/or other members of the staff of the facility.In addition to having Fr. Weitensteiner found individually liable, the plaintiffs seek to hold MSBR liable for damages on various theories including civil conspiracy.³

¶ 3 The first trial resulted in the jury returning a defense verdict.The parties renewed their motions in limine for the second trial involving claims by plaintiffGeorge Minehart II.As relevant here, the trial court excluded testimony from other former MSBR residents ⁴ who allege they were sexually abused while resident at the ranch if the witness failed to report the incident to MSBR employees or authorities.The court permitted testimony of other residents who did report abuse.In each instance the trial court weighed the prejudicial impact of the proposed testimony against its probative value.Where the abuse was reported, the court found the testimony admissible in support of the conspiracy and vicarious liability theories as tending to prove knowledge by MSBR.Where the abuse was not reported, the court determined that the evidence was more prejudicial than probative.

¶ 4 Mr. Minehart seeks discretionary review of the decision to exclude six of his proposed witnesses and the limitations placed on the testimony of a seventh.The defendants seek review of the court's decision to permit testimony from five former residents, as well as testimony from investigators and an expert witness.They also allege the trial court should not have suppressed evidence that Fr. Weitensteiner passed a polygraph examination.

ANALYSIS

¶ 5 Interlocutory review is disfavored.Maybury v. City of Seattle,53 Wash.2d 716, 721, 336 P.2d 878(1959).“Piecemeal appeals of interlocutory orders must be avoided in the interests of speedy and economical disposition of judicial business.”Id.Pretrial review of rulings confuses the functions of trial and appellate courts.A trial court finds facts and applies rules and statutes to the issues that arise in the course of a trial.An appellate court reviews those rulings for legal error and considers the harm of the alleged error in the context of its impact on the entire trial.An appellate court is not competent to review most evidentiary rulings when a trial has not yet occurred both because it does not find its own facts and because it is incapable of assessing the impact of the evidence on the whole case.

¶ 6 Interlocutory review is available in those rare instances where the alleged error is reasonably certain and its impact on the trial manifest.RAP 2.3(b) defines four situations in which an appellate courtmay grant pretrial review.Only the first two of those criteria are argued by the parties:

(1)The superior court has committed an obvious error which would render further proceedings useless;

(2)The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act.

RAP2.3(b)(1), (2).⁵Under these criteria, there is an inverse relationship between the certainty of error and its impact on the trial.Where there is a weaker argument for error, there must be a stronger showing of harm.⁶

¶ 7An appellate court reviews a trial court's evidentiary rulings for abuse of discretion.E.g., State v. Powell,126 Wash.2d 244, 258, 893 P.2d 615(1995);Kappelman v. Lutz,167 Wash.2d 1, 6, 217 P.3d 286(2009).Discretion is abused when it is exercised on untenable grounds or for untenable reasons.State ex rel. Carroll v. Junker,79 Wash.2d 12, 26, 482 P.2d 775(1971).Thus, even where an appellate court disagrees with a trial court, it may not substitute its judgment for that of the trial court unless the basis for the trial court's ruling is untenable.An errant interpretation of the law is an untenable reason for a ruling.State v. Tobin,161 Wash.2d 517, 523, 166 P.3d 1167(2007).

¶ 8 With these well-settled principles in mind, it is clear that discretionary review is not warranted in this case.The court determined which evidence of other incidents of sexual abuse would be admitted or excluded on ER404(b) grounds, after applying the four-part test established by our case law.State v. Lough,125 Wash.2d 847, 889 P.2d 487(1995).⁷It is the job of the trial judge to decide what evidence will be presented to a jury.ER 104.⁸

¶ 9 Mr. Minehart proposed to offer the evidence of other incidents of sexual abuse for two purposes: knowledge on the part of MSBR, and common plan.In determining whether the incidents occurred, the trial court reviewed the deposition testimony offered by the parties, and explained her decision as turning largely on the presence or absence of evidence to corroborate the witnesses' present testimony that the abuse occurred.The corroborating evidence identified by the trial court was limited in this case to whether the incidents were reported to authorities.Plaintiff attacks the trial court's decision that it did not believe several of the witnesses, while defendants attack the trial court's determination that some of the abuse did occur.These arguments do not establish error.Credibility determinations are peculiarly matters for the trier-of-fact and may not be second-guessed by an appellate court.Thorndike v. Hesperian Orchards, Inc.,54 Wash.2d 570, 572, 575, 343 P.2d 183(1959);Quinn v. Cherry Lane Auto Plaza, Inc.,153 Wash.App. 710, 717, 225 P.3d 266(2009).

¶ 10 In determining relevance and probative value, the trial court concluded that for “knowledge” purposes, the evidence of reported incidents was relevant and highly probative, indicating that MSBR had knowledge that could then be imputed to it for vicarious liability, including conspiracy.For “common plan” purposes, the trial court determined that the specific acts with respect to the reported incidents were very similar and the plaintiff's need for the evidence was high.These appear to be tenable grounds for ruling and do not establish the existence of either obvious or probable error.Equally important, the record does not support a determination that trial proceedings were rendered useless or substantially altered the status quo.

¶ 11The parties' arguments do not satisfy the obvious or probable error standards of RAP 2.3(b)(1) and (2).

¶ 12The parties also challenge the trial court's exercise of the balancing of the probative value of the evidence versus its prejudicial impact, which is the final step of the ER404(b) analysis.This type of ruling, too, is one that an appellate court simply is not in a position to meaningfully review where there has been no trial.The trial court had the benefit of assessing the importance of this evidence in the first trial and is in a far better position at this time to determine the value and the prejudice of the information.Neither party has demonstrated error, let alone such significant error that the standards of either criterion have been satisfied.In view of the fact that the plaintiff is permitted to introduce several other instances of abuse and the defendants successfully defended the previous case even though the same evidence was admitted, we also do not see how either could establish the prejudice prong of either RAP 2.3(b)(1) or (2).

¶ 13 Mr. Minehart also argues that ER404(b) should not be applicable to a case of civil conspiracy, pointing to RCW 10.58.090.That statute permits use of evidence of prior sexual abuse in a criminal case, notwithstanding ER404(b), if the evidence satisfies ER 403.The critical point here is that the statute expressly limits itself to criminal cases.RCW 10.58.090(1).⁹The trial court could not be committing either obvious or probable error by ignoring a statute that by its express terms is not applicable to a civil case.This argument, too, does not justify review.

¶ 14 The decision to admit or exclude evidence of prior sexual abuse does not warrant this court's intervention.Discretionary review of those rulings is denied.

¶ 15Defendants also argue that the court committed obvious error by permitting evidence of a Department of Social and Health Services(DSHS) investigation of MSBR in the 1970s, and allowing plaintiff's expert to testify to legal matters.They also challenge the decision to exclude mention of Fr. Weitensteiner's successful polygraph examination.In view of their successful defense in the first trial despite the admission or exclusion of this same evidence, it does not appear that the defendants can establish that further trial proceedings have been rendered useless.RAP 2.3(b)(1).

¶ 16 With respect to the challenges...