Rickey v. Michael B. Smith Guardian Ad Litem for Clarence G. Munce
| Decision Date | 27 October 2015 |
| Docket Number | No. 45255-3-II,45255-3-II |
| Court | Washington Court of Appeals |
| Parties | KRISTEY L. RICKEY and KELLEY R. CAVAR, individually, and as Co-Executrixes of the Estate of Gerald Lee Munce, Deceased, Respondents, v. MICHAEL B. SMITH as Litigation Guardian Ad Litem for CLARENCE G. MUNCE, Appellant. |
GORDON MCCLOUD, J.P.T. — Clarence Munce (Munce) appeals a trial court judgment awarding damages, including reasonable costs and attorney fees, to Kristy L. Rickey and Kelly R. Cavar, co-executrixes of their father Gerald Munce's estate (Gerald's estate).
This is a lawsuit by a son's estate against his father arising out of a particularly tragic incident. Munce shot his son Gerald Munce in the back and killed him. Gerald's estate sued Munce for personal injuries, wrongful death, survival, and outrage. Following a series of proceedings that ultimately resulted in the trial court striking Munce's answer and affirmative defenses as sanctions for discovery violations, that court granted summary judgment on liability against Munce. Without any further discovery violations, the trial court entered an order of default against Munce. The trial court then held a reasonableness hearing on the amount of damages, in which it prohibited Munce from cross-examining witnesses or presenting evidence and limited his arguments to legal matters only. The trial court ultimately awarded $2,048,975.94 to Gerald's estate for loss of parental consortium, attorney fees, and costs.
Although the trial court properly granted summary judgment to Gerald's estate on its tort claims, it improperly entered the order of default, improperly denied Munce the right to a jury trial on damages, and improperly limited his right to participate in the damages hearing. We therefore affirm in part, reverse in part, and remand.
In June 2008, Clarence Munce shot his son Gerald in the back and killed him. Munce told police that he intended only to scare Gerald. No one else witnessed the incident. The State charged Munce with first degree murder. During the course of the criminal proceedings, Gerald's daughters, Kristy L. Rickey and Kelley R. Cavar, both individually and as co-executrixes of Gerald's estate, filed claims against Munce in superior court under Washington's wrongful death and survival statutes. In his answer to Gerald's estate's wrongful death complaint, Munce asserted severalaffirmative defenses—including self-defense, assumption of risk, apportionment, and comparative fault. He also asserted counterclaims for assault and battery.
Pending a competency determination for Munce in the criminal case, the superior court in the civil case entered an order staying discovery from Munce for 120 days. Munce was then found incompetent to stand trial in the criminal case. The trial court in the civil case then lifted its discovery stay1 and appointed Michael Smith to act as Munce's guardian ad litem.
Munce did not move to further stay discovery in the civil case pending the outcome of the criminal proceedings. Instead, he timely responded to Gerald's estate's pending discovery requests, but he provided little or no substantive information. Instead, he objected to most of the requests for admission and provided equivocal admissions and denials to the interrogatories based on his assertion of the Fifth Amendment2 privilege against self-incrimination and his alleged mental incompetency. On July 2, 2009, the original trial court ordered Munce to present himself for deposition; it also allowed Munce's criminal defense attorney, ErikBauer, to attend the deposition with Munce to "instruct and assert privileges." Clerk's Papers (CP) at 464.3 During that deposition, Bauer instructed Munce to refuse to take the oath and to refuse to answer all but one question—his name—based on the Fifth Amendment privilege against self-incrimination. U.S. CONST. amend. V. Gerald's estate moved for sanctions against Munce based on his inadequate responses to discovery requests and his abuse of the Fifth Amendment privilege during his deposition: it moved to strike Munce's affirmative defenses and answer, to dismiss his counterclaims, and to deem him in default based on his failure to provide any meaningful substantive answer or response to discovery requests.
The original trial court ruled that Munce's blanket assertion of the Fifth Amendment privilege during his deposition was improper. The court imposed severe sanctions: CP at 2219. The original trial court's written findings, entered January 22, 2010, stated, "[T]he Court will impose sanctions as follows: (1) Defendant's Affirmative Defenses and Answers shall be stricken; (2) Defendant's Counter-claim[s] shall be stricken and shall forthwith be dismissed." And it reiterated, "[T]he Court shall not enter an Order ofDefault, which would be tantamount to a directed verdict on the issue of liability in this matter."4 CP at 1386.
Munce moved for reconsideration of the sanction order, arguing, "While this Court stated in its oral ruling that it was not imposing the most severe sanction of a directed verdict, the court has for all practical purposes, granted a directed verdict for the plaintiffs by dismissing the defendant's affirmative defenses and counterclaims." CP at 1132. The original trial court acknowledged Munce's argument but nonetheless issued an order striking Munce's answer, including his affirmative defenses and counterclaims.
The wrongful death case against Munce was then transferred to a different superior court judge. Gerald's estate moved for (1) summary judgment "regarding the issues of negligence and proximate cause," and (2) an order of default. CP at 1443-58. On the negligence issue, the motion for summary judgment stated, "Clarence Munce procured an M1 carbine rifle from behind his front door, thereafter exited his home onto his front porch where he pointed the rifle in the general direction of his son Gerry, pulled the trigger, firing a shot which struck Gerry causingfatal injuries." CP at 1456. Gerald's estate argued, "As all affirmative defenses have been stricken in this case, thus any justification or excuse for such behavior is now irrelevant." Id. On the proximate cause issue, Gerald's estate claimed that "there is simply no question that based on all available medical evidence, the sole proximate cause of Gerald's death was the bullet fired from Clarence's M1 carbine rifle." CP at 1458. Further, Gerald's estate asserted in the motion for partial summary judgment, "As is self-evident and should have always been the case, this case should simply proceed on issues relating to damages." Id.
On June 10, 2011, this second trial court judge granted summary judgment in part. This judge ruled that Munce was negligent but reserved the question of contributory negligence for trial:
CP at 2451. The court denied Gerald's estate's motion for reconsideration. CP at 2363-64. That second trial court also reinstated Munce's answer and contributory negligence affirmative defense. CP at 2459.
Gerald's estate moved for discretionary review of the trial court's order granting in part and denying in part Gerald's estate's motion for partial summary judgment and reinstating the answer and affirmative defense, as well as the denial of his motion for reconsideration. Verbatim Report of Proceedings (VRP) (June 14, 2013) at 4; CP at 2363-65; Rickey v. Munce, noted at 174 Wn. App. 1019, 2013 WL 1164068, at *1 (Wash. Ct. App. Mar. 19, 2013).
We granted discretionary review. On March 19, 2013, we reversed the second trial court's amendment of the original trial court's discovery sanction order and remanded for trial. Rickey, 2013 WL 1164068, at *1. We ordered the trial court on remand to preclude Munce from presenting his previously stricken answer and contributory negligence affirmative defense. Id. This ruling on discretionary review addressed the second court's denial of summary judgment on what it termed the "proximate cause component" of Gerald's estate's claim.5 That ruling did not explicitly address the second trial court's denial of summary judgment on negligence. We stated, though, that we anticipated a trial on damages:
Even though the [first trial court's] ruling deprived Munce of his affirmative defenses, there remained for trial at that point the issue of liability and damages. And even if entry of a default judgment might arguably have been an option when the second judge later granted Gerald's estate's motion for summary judgment on the issue of Munce's liability, the issue of damages, at least, still remained for trial.
On remand, Gerald's estate moved again for an order of default against Munce, arguing that "the Defendant ha[s] failed to plead, or otherwise defend, after due and proper service of process on Defendant." CP at 2491. Gerald's estate further asserted, ...
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