Roberson v. Perez
| Decision Date | 01 December 2005 |
| Docket Number | No. 75486-1.,75486-1. |
| Citation | 156 Wn.2d 33,123 P.3d 844 |
| Parties | Robert ROBERSON and Connie Roberson, husband and wife; Robert Roberson as Guardian ad Litem for his minor child, Rebekah Roberson; Donna Rodriguez, a single person; Donna Rodriguez as Guardian ad Litem for her minor child, Kimberly Allbee, Plaintiffs, Jonathan Sims and Honnah Sims, husband and wife, and Jonathan Sims as Guardian ad Litem for his minor child, Daniel Sims, Petitioners, v. Robert PEREZ, Timothy Abbey, Laurie Alexander, Connie Saracino, Dean Reiman, Kate Carrow, Kenneth Badgley, City of Wenatchee, a municipality in the State of Washington, State of Washington, by and through its political subdivision Department of Social and Health Services, Cindy Andrews, Robin Wagg, Dave Helvey and Dan Laroche, Defendants, Douglas County, a corporate body within the State of Washington, Respondent. |
| Court | Washington Supreme Court |
John Stocks, Van Siclen Stocks & Finkins, Auburn, Philip James Buri, Buri Funston PLLC, Bellingham, for Petitioner/Appellant.
Catherine Wright Smith, Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, Seattle, Stanley Allen Bastian, Jeffers Danielson Sonn & Aylward PS, Wenatchee, for Appellee/Respondent.
Bryan Patrick Harteniaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae Washington State Trial Lawyers Assoc. Foundation.
En Banc.
¶ 1 After acquittal on six counts of rape and molestation of a child, Honnah Sims and her husband (Petitioners) successfully sued Douglas County (County) for negligent investigation of child abuse allegations. Petitioners now appeal a Court of Appeals decision reversing their jury award and dismissing their action.
¶ 2 The primary issues for our consideration are (1) the applicability of the law of the case doctrine to this matter, and (2) the scope of an implied cause of action for negligent investigation under chapter 26.44 RCW. We hold that the law of the case doctrine did not preclude successive appellate review of the scope and availability of Petitioners' asserted cause of action in light of intervening, controlling precedent from this court. We further hold that this cause of action does not extend to Petitioners because the County's investigation did not result in a "harmful placement decision" of the child. Accordingly, we affirm.
¶ 3 In early 1995, the City of Wenatchee (City) and Douglas County investigated allegations of child sexual abuse in the much publicized "Wenatchee sex ring." The City's investigation began after a foster child in the home of Wenatchee Police Detective Robert Perez claimed that she and other children had been sexually abused while attending the family's East Wenatchee church.1 The County then conducted its own independent investigation, initially prompted by reports forwarded to them by Detective Perez.
¶ 4 Honnah Sims was a Sunday school teacher at the East Wenatchee church. She lived with her husband Jonathan and her 13-year-old son Daniel in Wenatchee. In the spring of 1995, as the investigation into sexual abuse widened, Ms. Sims learned that she was identified in police reports among those accused of abusing children. It is not clear from the record, however, whether the County ever investigated Ms. Sims for abusing her son Daniel.
¶ 5 Ms. Sims feared that her arrest was imminent and that Child Protective Services (CPS)2 would place Daniel into foster care. Accordingly, in April 1995, the Simses sent Daniel to live with a grandparent in Kansas. The Simses also relinquished guardianship of Daniel to the same grandparent.
¶ 6 Ms. Sims was arrested on May 22, 1995. She was charged with six counts of rape and molestation of two children. Neither of the alleged victims was her son Daniel. In late July, approximately two months after her arrest, a jury acquitted Ms. Sims of all charges. Daniel returned in November of that same year, after having been separated from his family for approximately seven months. Daniel then made himself available for questioning regarding his own observations of alleged sexual activities at the church.
¶ 7 Subsequent to acquittal on the criminal charges, Ms. Sims and other similarly situated parents and their minor children commenced an action for damages against the City of Wenatchee, Douglas County, and additional defendants. The asserted claims included negligent investigation and negligent supervision, among others.3
¶ 8 After the court dismissed the negligent investigation and supervision claims under CR 12(b)(6), there was a trial on the remaining theories. The jury returned a verdict for the defendants on all claims. The plaintiffs appealed the dismissal of the negligent investigation and supervision claims.
¶ 9 Division One reversed the dismissal of the negligent investigation claim, recognizing negligent investigation of child abuse allegations by law enforcement as a basis of tort liability for the first time in the state of Washington.4 See Rodriguez v. Perez, 99 Wash.App. 439, 451-52, 994 P.2d 874, review denied, 141 Wash.2d 1020, 10 P.3d 1073 (2000). The court concluded that "both the children who are suspected of being abused and their parents comprise a protected class under RCW 26.44 and may bring action for negligent investigation," and remanded for trial. Id. at 445, 994 P.2d 874. The City and County sought our review.
¶ 10 We denied review. Rodriguez v. Perez, noted at 141 Wash.2d 1020, 10 P.3d 1073 (2000).
¶ 11 On remand, the King County Superior Court ordered a change of venue to Spokane County Superior Court. At the conclusion of the trial in that court, the jury returned a verdict for negligent investigation against Douglas County, awarding Ms. Sims $2,000,000, her husband Jonathan $1,000,000, and nothing to her son Daniel. The County appealed.5
¶ 12 On appeal, the County argued for the first time that the cause of action under chapter 26.44 RCW did not extend to the Simses. In the intervening period between the trial in Spokane County Superior Court and appellate oral argument, we issued our opinion in M.W. v. Dep't of Soc. & Health Servs., 149 Wash.2d 589, 70 P.3d 954 (2003). M.W. clarified the scope of potential claims for negligent investigation under chapter 26.44 RCW, recognizing claims "only when [Department of Social and Health Services] DSHS conducts a biased or faulty investigation that leads to a harmful placement decision." Id. at 591, 70 P.3d 954.
¶ 13 Based in part on this new authority, the County argued that the Simses could not maintain a cause of action for negligent investigation because (1) Ms. Sims was not investigated by the County for abusing her son Daniel, and (2) the Simses avoided any possible "harmful placement decision" by sending Daniel to live with a grandparent in Kansas.
¶ 14 The appeals court agreed, declined to follow as law of the case the prior Division One opinion that had recognized the Simses' cause of action, and remanded for trial. Roberson v. Perez, 119 Wash.App. 928, 934, 83 P.3d 1026 (2004). Citing this court's M.W. opinion, the Court of Appeals determined that the Simses could not maintain a cause of action because "their child was not the subject of a negligent criminal investigation that led to a harmful placement decision." Id. Accordingly, the court reversed the jury award and dismissed the action. Id. The Simses appealed, and we granted review, 153 Wash.2d 1001, 103 P.3d 1247 (2005).
¶ 15 Petitioners allege that the Court of Appeals committed several procedural errors by reaching the merits of the County's arguments regarding the scope and availability of the Simses' cause of action for negligent investigation. Petitioners allege that the Court of Appeals erred in reviewing this issue because (1) it was not raised in the trial court below, and (2) various formulations of the law of the case doctrine also prevent relitigation of the issue. Because these procedural issues are potentially dispositive, we address them at the outset.
¶ 16 In general, issues not raised in the trial court may not be raised on appeal. See RAP 2.5(a) (). However, by using the term "may," RAP 2.5(a) is written in discretionary, rather than mandatory, terms. See State v. Ford, 137 Wash.2d 472, 477, 484-85, 973 P.2d 452 (1999).
¶ 17 In addition to its discretionary nature, RAP 2.5(a) contains several express exceptions from its general prohibition against raising new issues on appeal, including the "failure to establish facts upon which relief can be granted." This exception is fitting inasmuch as "[a]ppeal is the first time sufficiency of evidence may realistically be raised." State v. Hickman, 135 Wash.2d 97, 103, n.3, 954 P.2d 900 (1998). For purposes of RAP 2.5(a), the terms "failure to establish facts upon which relief can be granted" and "failure to state a claim" are largely interchangeable. See 1 Washington Court Rules Annnotated RAP 2.5 cmt. (a) at 640 (2d ed. 2004) ( ).
¶ 18 The Court of Appeals held that the County could argue the failure to establish facts upon which relief can be granted for the first time on appeal. We agree and have previously so held:
In our opinion, this particular statutory limitation on the class of persons entitled to a civil cause of action for age discrimination operates to define the specific facts upon which relief may be predicated. A party may raise failure to establish facts upon which relief can be...
To continue reading
Request your trial
-
State v. Christian
...that jury instructions that are not objected to are treated as the properly applicable law for purposes of appeal." Roberson v. Perez, 156 Wash.2d 33, 41, 123 P.3d 844 (2005). Under this doctrine, "[i]n criminal cases, the State assumes the burden of proving otherwise unnecessary elements o......
-
Yakima County v. Yakima County Law Enforcement Officers Guild
...are the same as those raised in the first appeal. The matter has been decided and is the law of the case. See Roberson v. Perez, 156 Wash.2d 33, 41, 123 P.3d 844 (2005). Timeliness of Grievance ¶ 27 Again, the Guild contends that the question whether this grievance was timely has already be......
-
Grange Ins. Ass'n, Corp. v. Roberts
...An appellate court “may refuse to review any claim of error which was not raised in the trial court.” RAP 2.5(a); Roberson v. Perez, 156 Wash.2d 33, 39, 123 P.3d 844 (2005). Further, we do not consider issues argued for the first time in the reply brief. In re Marriage of Sacco, 114 Wash.2d......
-
State v. Vanhollebeke
...the evidence supporting the LFO imposition. In support of this argument, Mr. Vanhollebeke cites RAP 2.5(a)(2) and Roberson v. Perez, 156 Wash.2d 33, 39–40, 123 P.3d 844 (2005) (holding appellants could raise issue for the first time on appeal under RAP 2.5(a)(2) ). We recently rejected this......