McGuire v. Enoch-Jevne, No. 29353-6-II (consolidated with) (WA 8/23/2005)

• Court: Washington Supreme Court
• Writing for the Court: Houghton
• Decision Date: 23 August 2005
• Docket Number: No. 29353-6-II (consolidated with),No. 29683-7-II,29353-6-II (consolidated with),29683-7-II
• Citation: McGuire v. Enoch-Jevne, No. 29353-6-II (consolidated with) (WA 8/23/2005), No. 29353-6-II (consolidated with), No. 29683-7-II (Wash. Aug 23, 2005)
• Parties: SUSAN M. McGUIRE, individually and as Personal Representative of the Estate of MICHAEL J. McGUIRE, Deceased, and as Guardian Ad Litem for MORGAN McGUIRE, a minor, Respondent/Cross Appellant, v. TRACY JOE ENOCH-JEVNE and `JOHN UNPUBLISHED OPINION DOE' ENOCH-JEVNE, wife and husband; and JANET ENOCH and `JOHN DOE' ENOCH, wife and husband; KING COUNTY, a municipality, Defendants, STATE OF WASHINGTON; THE CITY OF ALGONA, a municipality, Appellants/Cross Respondents, PIERCE COUNTY, a municipality, Cross Respondent.

Page 1

Unpublished Opinion

SUSAN M. McGUIRE, individually and as Personal Representative of the Estate of MICHAEL J. McGUIRE, Deceased, and as Guardian Ad Litem for MORGAN McGUIRE, a minor, Respondent/Cross Appellant, v. TRACY JOE ENOCH-JEVNE and `JOHN UNPUBLISHED OPINION DOE' ENOCH-JEVNE, wife and husband; and JANET ENOCH and `JOHN DOE' ENOCH, wife and husband; KING COUNTY, a municipality, Defendants STATE OF WASHINGTON; THE CITY OF ALGONA, a municipality, Appellants/Cross Respondents, PIERCE COUNTY, a municipality, Cross Respondent.

No. 29353-6-II (consolidated with)

No. 29683-7-II

Court of Appeals of Washington, Division Two.

Filed: August 23, 2005

Appeal from Superior Court of Pierce County. Docket No: 99-2-14157-7. Judgment or order under review. Date filed: 08/30/2002. Judge signing: Hon. James R Orlando.

Counsel for Appellant(s), Robert L. Christie, Christie Law Group, PLLC, 220 W Mercer St Ste W411, Seattle, WA 98119-4347.

Paul Francis James, Attorney Generals Office, 629 Woodland Square Loop SE, PO Box 40126, Olympia, WA 98504-0126.

Counsel for Defendant(s), Kamela J James, Burgess Fitzer PS, 1501 Market St Ste 300, Tacoma, WA 98402-3333.

Lawrence Ernest Hoffman, Hoffman Law Firm, 108 22nd Avenue SW Ste 26, Olympia, WA 98501-1293.

Counsel for Respondent(s), Douglas Warren Vanscoy, Attorney at Law, Deputy Pros Atny, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.

Counsel for Appellant/Cross-Respondent, Stephen Louis Bulzomi, Messina/Bulzomi, 5316 Orchard St W, University Place, WA 98467-3633.

Kenneth Wendell Masters, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.

Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.

HOUGHTON, J.

A vehicle driven by Tracy Joe Enoch-Jevne (Jevne) killed Michael McGuire. At the time, Pierce County supervised Jevne as a result of a driving under the influence conviction (DUI), the State of Washington supervised her on a King County forgery conviction, and the City of Algona had a DUI sentence pending on her.

McGuire's estate (Estate) sued the State of Washington (State),¹ King² and Pierce Counties, and the City of Algona for negligence based on various events involving Jevne. The State, Pierce County, and Algona moved for summary judgment seeking dismissal of the Estate's claims. After striking portions of the Estate's expert's declaration regarding Pierce County's liability, the trial court granted Pierce County's motion and dismissed the Estate's claims against it. The trial court denied the State's and Algona's motions for summary judgment of dismissal.

The Estate appeals the trial court's order striking portions of its expert's declaration and granting Pierce County's summary judgment motion.³ The State and Algona appeal, arguing that the trial court erred in denying their motions for summary judgment. We affirm the trial court in all respects.

FACTS

On December 2, 1999, Jevne drove a truck that killed McGuire, a pedestrian. At the time she hit McGuire, Jevne had a lengthy criminal history.⁴ Three of her crimes and their related events pertain to this appeal: a conviction and sentence for a February 28, 1996 Algona DUI; a conviction and sentence for a May 14, 1998 Pierce County DUI; and a conviction and sentence for a June 4, 1998 King County forgery.

The February 28, 1996 charge arose when an Algona police officer arrested Jevne for DUI.⁵ She failed to appear multiple times to answer this charge. More than two and one-half years later, on November 16, 1998, the Algona municipal court found Jevne guilty of the February 28 charge and imposed a 360-day sentence, with 320 days suspended. It also imposed limitations on her driving and her consumption of drugs and alcohol.

On May 14, 1998, a Pierce County deputy sheriff arrested Jevne for DUI and driving with a suspended license. She failed to appear numerous times on these charges. More than one year later, on August 3, 1999, the Pierce County District Court imposed a 365-day sentence, with 185 days suspended, and placed her on probation through August 2001.

On June 4, 1998, a King County deputy sheriff arrested Jevne for forgery. After she was convicted as charged, on December 4, 1998, the court sentenced her to three months' incarceration followed by Department of Corrections (DOC)-monitored community supervision. The court ordered her to report to DOC within 72 hours of her release. After her February 26, 1999 release,⁶ she failed to report and comply with community supervision as ordered. Her community corrections officer (CCO) submitted a notice of violation on April 26, 1999, and a King County judge issued a bench warrant in early May 1999. As result, on June 4, 1999, the court ordered Jevne to serve 15 days, with 10 days credit for time served, and to report to DOC within 72 hours of her release.⁷

In May 1999, a Grant County deputy sheriff arrested Jevne on drug possession charges, but he transferred her to King County's Regional Justice Center (RJC) to hold her on the earlier Algona February 28, 1996 DUI charge.

On June 21, 1999, the Algona municipal court revoked Jevne's November 16, 1998 suspended sentence on her Algona DUI and sentenced her to 320 days' incarceration. At this time, Algona did not have a jail facility to house offenders. Instead, it sent offenders to other facilities. Apparently, rather than initially housing Jevne on her Algona DUI, on June 21, 1999, Algona had its police officer transport Jevne to the Pierce County Jail. The officer moved Jevne to that jail based on the outstanding Pierce County warrant arising from her May 14, 1998 Pierce County DUI, rather than to serve time on the Algona conviction.

The Algona officer completed the Pierce County Jail intake paperwork and noted in the `Other Remarks' section that Jevne `has Auburn court hold. Has been sentenced to jail on Algona charges. Please contact Algona P.D. prior to release. 253-833-2743.' VII Clerk's Papers (CP) at 1255. The Algona officer did not attach any supporting documentation relating to that sentence.⁸

On August 3, 1999, a Pierce County District Court judge sentenced Jevne to 180 days in jail on her May 14, 1998 Pierce County DUI and required her to report to the Pierce County District Court Probation Office within 24 hours of being released. With time served and early release credits, her release date was October 21, 1999. Before her release, Pierce County confirmed that she had an outstanding Aukeen District Court (Auburn, King County) warrant and transferred her to the RJC. A judge sentenced her to serve five days on the Auburn charge, resulting in an October 26, 1999 RJC release date on that conviction.⁹ Pierce County did not advise Algona that it planned to release Jevne to the RJC. Nor did the RJC notify Algona that it released Jevne from custody before she served her sentence on the February 28, 1996 DUI.

Meanwhile, with regard to the May 14, 1998 Pierce County DUI, a Pierce County Probation Officer (PO) was assigned to supervise Jevne after she completed her sentence. On September 30, the PO sent Jevne a letter concerning her supervision conditions after what the PO expected would be her October 21, 1999 release date. She replied that she would contact him after her release. On October 29, 1999, the PO learned that Jevne had been released from the RJC on October 26, and that she had failed to contact him within the required 24 hours. On November 3, the PO set an appointment for Jevne to meet with him on December 9, 1999. He also filed a notice of violation report on November 12, but he recommended that the court take no action for her one missed appointment. The Pierce County District Court judge followed the PO's recommendation.

The RJC released Jevne on October 26, 1999, instead of December 26, 1999. Jevne struck and killed McGuire on December 2, 1999. Initially, the Estate sued the State and King and Pierce Counties for their complicity in McGuire's death.¹⁰ It alleged that the State and Pierce County failed to (1) `implement and enforce an appropriate parole plan' for Jevne and (2) keep her incarcerated. CP (1/8/03) at 7.

Pierce County moved for summary judgment, seeking dismissal of the Estate's claims against it. In response, the Estate submitted expert William Stough's declaration. Arguing that the declaration contained inappropriate legal conclusions, Pierce County moved to strike specific lines and pages from Stough's declaration. The trial court granted Pierce County's motion.

The Estate's counsel sought clarification of the court's ruling and the following exchange took place:

{ESTATE'S COUNSEL}: Well, Your Honor, I don't think the motion was to strike his declaration, his motion was to strike certain portions of his declaration.

THE COURT: Well, I will strike the portions that relate to his legal conclusions, his speculation as to Judge Kenworthy's actions and {the Algona police officer's} actions in the case.

{PIERCE COUNTY'S COUNSEL}: And we had put page{s} and line{s} in our motion, Your Honor. I understand you are granting the motion to the page{s} and line{s} designated.

THE COURT: Yes.

Report of Proceedings (RP) (8/03/01) at 10-11. Nothing further was said about the order.

The trial court signed Pierce County's proposed order that mirrored its motion.¹¹ After striking most of Stough's declaration, the trial court granted Pierce County's motion for summary judgment by noting:

On the first issue on the jail hold, I don't believe that there has been a sufficient showing that there was a duty that was breached as to the booking procedure or the jail policy in this case.

{Jevne}, even with the officer's notation and taking every inference to that, was never released from the Pierce County Jail, she was returned to the jail that she had been sentenced, to serve her {Algona} time under, which was the King County Jail, and she was subsequently released improperly by King County.

I am going to grant the ...