Roberson v. Perez

• Decision Date: 29 January 2004
• Docket Number: No. 20583-5-III.
• Citation: Roberson v. Perez, 83 P.3d 1026, 119 Wash.App. 928 (Wash. App. 2004)
• 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, Respondents, 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, Appellant.
• Court: Washington Court of Appeals

83 P.3d 1026

119 Wash.App. 928

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, Respondents, 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, Appellant.

No. 20583-5-III.

Court of Appeals of Washington, Division 3, Panel Nine.

January 29, 2004.

Catherine W. Smith, Howard M. Goodfriend, Edwards, Sieh, Smith & Goodfriend PS, Seattle, WA, Stanley A. Bastian, Jeffers, Danielson, Sonn & Aylward PS, Wenatchee, WA, for Appellant.

Leslie J. Olson, James M. Beecher, Olson & Olson PLLC, Seattle, WA, Robert C. Van Siclen, John Stocks, Van Siclen, Stocks & Firkins, Auburn, WA, for Respondents.

KURTZ, J.

Following an earlier appeal which remanded this action for trial, a jury awarded Jonathan and Honnah Sims $3 million in damages against Douglas County. The jury found that the county had negligently investigated child sexual abuse allegations made against the Simses. The county now contends for the first time that the Simses do not have a cause of action under chapter 26.44 RCW because their child was not the subject of a harmful placement decision resulting from a negligent criminal investigation. See M.W. v. Dep't of Soc. & Health Servs., 149 Wash.2d 589, 70 P.3d 954 (2003). The Simses counter that Division One, in the parties' first appeal, decided that they had a cause of action for negligent investigation under chapter 26.44 RCW. See Rodriguez v. Perez, 99 Wash.App. 439, 994 P.2d 874, review denied, 141 Wash.2d 1020, 10 P.3d 1073 (2000). The Simses' position is that the Division One decision is the law of the case, and this court should not revisit the issue. See RAP 2.5(c). We conclude that the law of the case doctrine does not preclude review and that chapter 26.44 RCW does not accommodate a parent's cause of action against the State where the State's actions did not result in an adverse child placement decision.

FACTS

The plaintiffs in this case include Honnah Sims and other members of a Wenatchee church. They were accused of sexual abuse offenses against children who also attended that same church. But, the alleged victims did not include Ms. Sims's own child. In fact, when Ms. Sims learned that she was the subject of a sexual abuse investigation, she sent her child to live with relatives in another state. After a jury trial, Ms. Sims was acquitted of the charges.

Subsequently, the Simses and other parents sued Douglas County and the City of Wenatchee on several theories, one of which was that the county was liable to them under chapter 26.44 RCW for negligently investigating the allegations against them. The superior court dismissed this claim under CR 12(b)(6). Division One of the Court of Appeals reversed the summary judgment, holding "that a negligent investigation claim against the respondents is cognizable under RCW 26.44." Rodriguez, 99 Wash.App. at 451-52, 994 P.2d 874. The Court of Appeals remanded the claim for trial. At trial, the Simses were awarded damages against Douglas County.

The county now appeals.

ANALYSIS

Originally, the superior court granted Douglas County's CR 12(b)(6) motion to dismiss the Simses' and other parents' claims for damages for negligent investigation against the county. Division One of the Court of Appeals reversed that decision and remanded for trial. Rodriguez, 99 Wash. App. 439, 994 P.2d 874. This appeal is from the subsequent trial and jury verdict in favor of the Simses.

Law of the Case. The law of the case doctrine is established both in our case law and court rules. The doctrine provides where there has been a determination of applicable law in a prior appeal, the law of the case doctrine ordinarily precludes an appeal of the same legal issue. It also provides that questions determined on appeal, or which might have been determined had they been presented, will not be considered in a subsequent appeal if there is no substantial change in the evidence at the remanded trial. State v. Worl, 129 Wash.2d 416, 425, 918 P.2d 905 (1996) (quoting Folsom v. County of Spokane, 111 Wash.2d 256, 263-64, 759 P.2d 1196 (1988)).

This doctrine has been incorporated in RAP 2.5(c), which provides that

if the same case is again before the appellate court following a remand:

. . . .

(2) ... [t]he appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.

In Sintra, Inc. v. City of Seattle, 131 Wash.2d 640, 652, 935 P.2d 555 (1997), the court stated, "[w]e have interpreted this rule to allow review of a previous decision when the decision is erroneous and when justice would best be served by review." See also First Small Bus. Inv. Co. v. Intercapital Corp., 108 Wash.2d 324, 333, 738 P.2d 263 (1987).

The Prior Appeal. In the first appeal, the county asked the appellate court to affirm the decision of the trial court that Washington does not recognize a cause of action for negligent criminal investigation of a child abuse allegation. Rodriguez, 99 Wash.App. at 443, 994 P.2d 874. Rejecting this contention, the court held that "both the children who are suspected of being abused and their parents" constitute a "protected class" who may be harmed by a negligent investigation of a child abuse allegation. Id. at 445, 994 P.2d 874. Consequently, they have a claim for negligent investigation against law enforcement, as well as against the Department of Social and Health Services. But, the holding is limited by its facts to children suspected of being abused and their parents. No one has accused Ms. Sims of sexually abusing her child. Even so, the Simses argue that the holding of the case is that they have a cause of action under chapter 26.44 RCW.

In the first appeal, the precise question before the court was whether Washington recognized a cause of action for negligent criminal investigation of a child abuse allegation. The court held that a parent or child could bring a negligent investigation action against law enforcement. Rodriguez, 99 Wash.App. at 441, 994 P.2d 874. The appellate court was not asked to decide, and did not decide, whether such a cause of action applied to a parent whose child was not the subject of abuse allegations. If a question was not considered in the first appeal and the appellant is not precluded from raising the question on remand, the question does not fall within the law of the case doctrine. Columbia Steel Co. v. State, 34 Wash.2d 700, 706, 209 P.2d 482 (1949).

For example, in Holst v. Fireside Realty, Inc., 89 Wash.App. 245, 258, 948 P.2d 858 (1997), Ms. Holst argued that the law of the case doctrine prevented Fireside from denying its agency status because that issue had been determined in a prior appeal. Rejecting Ms. Holst's argument, the court stated "we did not determine, in the first appeal, whether Fireside was acting as Rader's agent; rather, we held only that if Fireside was acting as Rader's agent, Fireside did not adequately disclose that fact." Id. Similarly, the prior appellate court here did not determine in the first appeal whether the Simses had a cause of action, where their child was not the subject of abuse allegations. Rather, the court only held a cause of action existed under chapter 26.44 RCW in cases arising out of a negligent criminal investigation.

Waiver. The Simses emphasize the county is raising the issue of the their right to make a claim under chapter 26.44 RCW for the first time on appeal and argue that the issue should have been raised before the superior court on remand. Their position is that the county cannot raise it for the first time in this appeal. We disagree. "Facts establishing standing are as essential to a successful claim for relief as is the jurisdiction of a court to grant it. Thus, we hold that the insufficiency of a factual basis to support standing may also be raised for the first time on appeal in accordance with RAP 2.5(a)(2)." Mitchell v. Doe, 41 Wash.App. 846, 848, 706 P.2d 1100 (1985); see also Gross v. City of Lynnwood, 90 Wash.2d 395, 400, 583 P.2d 1197 (1978).

In M.W. v. Department of Social and Health Services.¹ During the pendency of this appeal, our Supreme Court significantly limited the potential scope of claims under chapter 26.44 RCW. When a case is appealed after being remanded by the appellate court, the court may apply the law in effect at the time of the second appeal in reaching its decision. RAP 2.5(c)(2); Miller v. Aetna Life & Cas. Co., 80 Wash.App. 55, 58, 906 P.2d 372 (1995).

In M.W. v. Department of Social and Health Services, the Supreme Court held that a child, who suffered post-traumatic stress disorder due to Department of Social and Health Services' officers physically examining her in the course of investigating alleged child abuse, did not have a cause of action under the statute. In doing so, it reversed the Court of Appeals. The court stated that "[a]lthough the statute supports a claim for negligent investigation in limited situations, such a claim is available only when [the Department of Social and Health Services] conducts a biased or faulty investigation that leads to a harmful placement decision, such as placing the child in an abusive home, removing the child from a...