Osborne v. Seymour

• Decision Date: 09 November 2011
• Docket Number: No. 39797–8–II.,39797–8–II.
• Citation: 265 P.3d 917,164 Wash.App. 820
• Court: Washington Court of Appeals
• Parties: Krista OSBORNE, Respondent, v. Tom SEYMOUR, Appellant,Lloyd Bird and Pierce County, Defendants.

164 Wash.App. 820

265 P.3d 917

Krista OSBORNE, Respondent,

v.Tom SEYMOUR, Appellant,Lloyd Bird and Pierce County, Defendants.

No. 39797–8–II.

Court of Appeals of Washington, Division 2.

Nov. 9, 2011.

Catherine Wright Smith, Smith Goodfriend PS, Seattle, WA, Ronald Lamar Williams, Pierce Co. Pros. Ofc., Tacoma, WA, for Appellant.

Venita Michelle Lang, Attorney at Law, Gig Harbor, WA, for Defendants.

Fred Diamondstone, Law Offices of Fred Diamondstone, Seattle, WA, Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Tacoma, WA, for Respondent.HUNT, J.

[164 Wash.App. 825] ¶ 1 Tom Seymour appeals the trial court's (1) grant of partial summary judgment to Krista Osborne, holding him liable for violating her Fourth Amendment rights under 42 U.S.C. § 1983; (2) denial of his cross-motion and all defendants' summary judgment motion to dismiss Osborne's § 1983 claim against him, based on qualified immunity; and (3) award of attorney fees and costs of $340,654.14 against him. We affirm the trial court's summary judgment rulings. We vacate the trial court's award of attorney fees and costs and remand to the trial court to reduce the award to include the attorney fees and costs attributable only to Osborne's litigation of her § 1983 claim against Seymour. We also deny Osborne's request for attorney fees on appeal.

FACTS

I. 42 U.S.C. § 1983 and Fourth Amendment Violations

A. Restraining Orders

¶ 2 On July 25, 2004, Krista Osborne obtained an emergency temporary protection order against her then-husband, Lloyd Bird, prohibiting him from entering their residence. This protection order specifically stated:

[I]t is hereby ORDERED ... that the Respondent [Bird] is RESTRAINED from:

[A]ssaulting, harassing, or contacting the petitioner [Osborne] in any manner.

Going upon the premises of the petitioner's residence or workplace.

...

WARNING: VIOLATION OF THE PROVISIONS OF THIS ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE.... ONLY THE COURT CAN CHANGE THE ORDER UPON WRITTEN APPLICATION.

Clerk's Papers (CP) at 1046. This order was effective until August 6, 2004.

¶ 3 Also on July 25, the Pierce County Sheriff's Department (PCSD) suspended Bird, who was a detective assigned to the Domestic Violence Unit (DVU) ¹ . When notifying Bird about this emergency suspension, his supervisor, Sergeant Prentiss Hunsinger, told Bird: “A temporary protection order is in place. Don't come back to the residence.” CP at 779.

¶ 4 The next day, July 26, PCSD Sergeant Thomas E. Seymour, a “supervisor of the Domestic Violence Unit,” “was ... advised of the situation” “as part of protocol” for “domestics involving other law enforcement officers including law enforcement officers within [the domestic violence] department.” CP at 132. Around 2:00 PM that same day, Seymour served Bird with Osborne's restraining order against him and told Bird that the “order provided that [he (Bird) ] w [asn't] supposed to go to [the residence]” and “that [he] w[asn't] supposed to have any contact with [Osborne].” CP at 781.

¶ 5 Later that same day, Bird obtained a protection order against Osborne. In his petition, he requested “possession of essential personal belongings,” including “[a] Harley Davidson, Yamaha motorcycles ... clothing [and] essential items”; but he did not mark the boxes on the petition asking “the court [to] order the appropriate law enforcement agency to assist [him] in obtaining” “[p]ossession of [his] essential personal belongings” at “the shared residence.” CP at 1051. A superior court commissioner signed Bird's protection order against Osborne; but, like Bird's petition, this form order did not have marks in the boxes that would have permitted law enforcement agencies to assist Bird in obtaining his belongings. Nor did this order list under the heading “Petitioner [Bird] shall have possession of essential personal belongings” any specific items that Bird had noted in his petition, such as his Harley Davidson, Yahama motorcycle, and clothing. CP at 1055. Approximately one hour after the commissioner signed Bird's protection order, Seymour drove to Osborne's residence and served her with it. While there, Seymour took possession of several of Bird's handguns, his “commission card,” his “wallet badge,” and his “access card.” ² CP at 102.

¶ 6 The next day, July 27, Bird was in Seymour's office filling out paperwork to correct a “clerical error” in the temporary residential address noted in his restraining order against Osborne. CP at 140. The same superior court commissioner signed this modification order. CP at 110. Like the other two orders already in place, this modification order did not authorize law enforcement officers to assist Bird with taking possession of his personal property from Osborne's residence. On the contrary, this modification order stated only that the July 26 order “shall be ... continued in effect,” notwithstanding the correction of Bird's residential address. CP at 140. When Seymour served Osborne with this modification order, Seymour did not mention any plan to recover Bird's other possessions from the family home.

B. Unauthorized Physical Entry into Osborne's Home

¶ 7 Also on July 27, Bird told Seymour, “I need to get my clothing, and I don't have anything other than what I'm wearing,” and “I need to get a civil standby or something to get my clothing out of there.” CP at 796 (internal quotation marks omitted). Seymour then “quer[ied]” former DVU clerk's office employee Sarah Schaub about “her opinion on a civil standby.” ³ CP at 115. Although the parties dispute the contents of this conversation, Seymour concedes that Schaub did not provide any legal opinion on the lawfulness of a civil standby.

¶ 8 Bird also called Sergeant William Wells Cassio and asked “to meet him in University Place over a civil standby.” CP at 811. When they met, Bird explained to Cassio that he “had a protection order” and that “he was requesting a civil standby for that protection order so he could return to his residence”; and Bird “specifically asked [Cassio] if [he, Bird] could retrieve his Harley Davidson.” CP at 812. Cassio reviewed both Bird's protection order against Osborne and Osborne's protection order against Bird. Cassio “didn't see the authority for this civil standby that [Bird] was asking for,” concluded that there was “no authority” for Bird to retrieve his motorcycle, and “told [Bird] that [he, Cassio] wouldn't be assisting in [Bird's] civil standby.” CP at 812–14.

¶ 9 The next day, July 28, at 1:40 PM, Bird and Jenna Bird,⁴ his daughter from another relationship, met the following persons at the University Place police station: (1) Seymour; (2) PCSD Sergeant Gregory Dean Stonack, the “sergeant on duty” and the “supervisor of the City of University Place,” who “[wa]s very personal friends with ... Bird,” CP at 134, 186; and (3) PCSD Deputy Peter Anthony Aloisio, whom Stonack supervised. The apparent purpose of this meeting was to congregate the participants in the plan to retrieve Bird's belongings.

¶ 10 According to Stonack, at the University Place police station meeting, Seymour (1) said that “the brass was aware that the [Pierce County Sheriff's] department was going to be doing a civil standby at the Bird residence,” CP at 926; and (2) “indicate[d]” that Osborne's order against Bird “allowed Lloyd Bird to be accompanied by the sheriff's department and retrieve his personal effects.” CP at 928. Seymour did not, however, read the protection orders.

¶ 11 Nor did Seymour later contact his superiors or other law enforcement officers in the DVU to ask “whether [they thought] it was appropriate to do a civil standby for Lloyd Bird.” CP at 122. Despite the plan for law enforcement to accompany Bird to Osborne's home to retrieve Bird's personal belongings and the meeting at the University Place police station that afternoon, Seymour did not contact Osborne to inform her about the impending plan.

¶ 12 En route to Osborne's residence, Seymour called Craig S. Adams, a Pierce County deputy prosecuting attorney and the Pierce County Sheriff's legal advisor. Seymour “advise[d] [Adams] that [he, Seymour] w[as] going to do a civil standby for ... Bird” at Osborne's residence. CP at 125. But “because [he, Seymour, was] comfortable doing the civil standby” ⁵ and had not read the restraining orders himself, he (1) failed to tell Adams that the restraining orders in place did not give explicit permission for a civil standby; (2) did not tell Adams that Osborne's restraining order prohibited Bird from coming to her residence; and (3) did not ask Adams to review “the [restraining] orders to determine whether” ⁶ retrieving Bird's personal possessions was legal.

¶ 13 Seymour did, however, ask Adams “to clarify whether or not [Bird] c[ould] take [his motorcycle]” because “[law enforcement] d[oesn't] move motorcycles or real property” during civil standbys. CP at 835–36. According to Seymour, Adams told him that “as long as [the motorcycle is] not disputed property, [he, Bird, could] take his motorcycle.” CP at 837. Nevertheless, Adams did not “authorize[ ] Lloyd Bird to enter” Osborne's residence, nor did Adams “advise Sergeant Seymour to disregard the terms of any of the court orders.” CP at 877.

[164 Wash.App. 831] ¶ 14 Seymour was the “lead,” “commanding,” or “primary” officer during the “civil standby” with Bird at Osborne's home. CP at 158, 162, 256. Seymour and Aloisio knocked on Osborne's door, but no one answered. When Aloisio realized that Osborne was not home, he “asked [Seymour] to make it stop,” “point[ing] out to Sergeant Seymour that [Seymour, Stonack, and Aloisio] were not following what [he, Aloisio,] thought to be procedure.” CP at 165, 188. Seymour responded that he had an “order” that gave “[Bird] ... the right to enter the property and get his stuff” and that he (Seymour) “would just make a list” of items that Bird was taking. CP at 166, 190.

¶ 15 Bird opened the garage door with an electric garage...