Van Blaricom v. Kronenberg

• Decision Date: 15 July 2002
• Docket Number: No. 47666-1-I.,47666-1-I.
• Citation: 50 P.3d 266,112 Wash.App. 501
• Court: Washington Court of Appeals
• Parties: Donald P. VAN BLARICOM and Janice L. Van Blaricom, Appellants, v. Donald B. KRONENBERG and Jane Doe Kronenberg, Respondents.

50 P.3d 266

112 Wash.App. 501

Donald P. VAN BLARICOM and Janice L. Van Blaricom, Appellants, v. Donald B. KRONENBERG and Jane Doe Kronenberg, Respondents.

No. 47666-1-I.

Court of Appeals of Washington, Division 1.

July 15, 2002.

Elena Luisa Garella, Arnold Joseph Barer, Law Offices of Arnold J. Barer, Seattle, for Appellants.

Anne Melani Bremner, Theron A. Buck, Stafford Frey Cooper, Seattle, for Respondents.

SCHINDLER, J.

This case raises the issue of whether an attorney who uses RCW 6.25.070(2) to obtain a prejudgment writ of attachment on real property without prior notice or hearing and in the absence of exigent circumstances may be liable under 42 U.S.C § 1983. We hold there may be such liability.

Attorney Donald Kronenberg represented Theresa Obermiller in a lawsuit against Donald Van Blaricom alleging he had assaulted her when she was a teenager.¹ Shortly after he filed the suit, Kronenberg obtained ex parte prejudgment writs of attachment on the Van Blaricoms' property. These writs were discharged before trial. At the conclusion of Obermiller's case, the lawsuit was dismissed. Donald Van Blaricom and his spouse Janice Van Blaricom (the Van Blaricoms) then sued Kronenberg. The trial court dismissed most of the Van Blaricoms' claims on summary judgment and they appeal.² We conclude that the Van Blaricoms have alleged facts sufficient to warrant a trial on two claims, violation of due process under 42 U.S.C. § 1983 and abuse of process. We reverse the summary judgment order with respect to these claims and remand for trial. Summary judgment is affirmed with respect to the Van Blaricoms' claims for defamation, invasion of privacy, false light, malicious prosecution, duress and coercion.³ We also affirm the trial court's rulings on the motion to compel, the motion to strike, and the motion for reconsideration.

The trial court dismissed Obermiller's lawsuit at the conclusion of the plaintiff's case because there was no expert testimony establishing causation. Donald Van Blaricom and Obermiller entered into an agreement in which Obermiller released Van Blaricom from any further claims and waived her right to appeal the trial court's dismissal of her case. In exchange, Van Blaricom released Obermiller and third party defendant RLI Insurance from a claim of defamation and from all other counterclaims including specifically his right to recover damages for wrongful prejudgment attachment of his property.⁴ The trial court entered a Stipulation, Release, and Order of Dismissal of Obermiller's lawsuit on December 8, 1997.

In 1999, the Van Blaricoms filed this suit against Obermiller's attorney, Donald Kronenberg. The Van Blaricoms claimed wrongful attachment and deprivation of due process based on the ex parte prejudgment attachment of their property. They also alleged coercion, invasion of privacy, defamation, false light, malicious prosecution, abuse of process, outrage, and negligent infliction of emotional distress. Donald Van Blaricom is a former chief of the Bellevue Police Department and a former Bellevue City Council member. He currently works as an expert witness. The Van Blaricoms contend Kronenberg engaged in an unethical litigation strategy of publicizing Obermiller's allegations in an effort to damage his professional reputation as a means of forcing him into a settlement of Obermiller's case. Kronenberg moved for summary judgment on all claims except for the claims of negligent and intentional infliction of emotional distress. The Van Blaricoms also moved for summary judgment on the due process claim. The trial court granted Kronenberg's motion and this appeal followed.

The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court. Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000). The court considers the facts and the inferences from the facts in the light most favorable to the nonmoving party. Bremerton Pub. Safety Ass'n v. City of Bremerton, 104 Wash.App. 226, 230, 15 P.3d 688 (2001). The court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lybbert, 141 Wash.2d at 34,1 P.3d 1124.

SECTION 1983 DUE PROCESS CLAIM

The complaint in the Obermiller lawsuit was filed on June 27, 1996. Approximately one month later, on July 24, 1996, Kronenberg, relying on RCW 6.25.070(2)⁵ filed a motion for issuance of a writ of attachment on two parcels of real property owned by the Van Blaricoms.⁶ The Van Blaricoms were not served with the complaint and did not receive notice of the lawsuit or the writs until after the writs had been issued.

The motion for issuance of the writs was based on RCW 6.25.030(9) which provides that a writ of attachment may be issued if "the damages for which the action is brought" are for injuries arising from the commission of a crime. In support of the motion for a writ of attachment, Kronenberg submitted Obermiller's declaration alleging that Van Blaricom assaulted her and that her damages were more than the value of the properties. Obermiller posted the minimum bond of $3,000 on the Van Blaricoms' property which was worth in excess of $500,000. On August 6, 1996, a superior court commissioner ordered the issuance of writs of attachment on the Van Blaricoms' properties.

The Van Blaricoms asserted their right under RCW 6.25.070(3) to an early post attachment hearing and challenged the issuance of the writs.⁷ On March 25, 1997 the trial court partially vacated the writ with respect to the Bellevue property on the ground that, as to community property, the writ was issued without legal basis. The trial court scheduled a hearing to determine the probable validity of the plaintiff's claim. At the conclusion of this evidentiary hearing, the trial court discharged the writ on Donald Van Blaricom's separate property, finding that Obermiller had not established the probable validity of her claims.⁸ The order specifically reserved ruling on the Van Blaricoms' claim for wrongful attachment. This court denied discretionary review of the trial court's order discharging the writs of attachment.

The Van Blaricoms allege that Kronenberg, in obtaining the prejudgment writs of attachment, is liable under 42 U.S.C. § 1983 because he knew or should have known that, absent exigent circumstances, writs of attachment on real property without prior notice and an opportunity to be heard violate their due process rights.⁹ The trial court granted Kronenberg's motion for summary judgment on this claim concluding that the ex parte prejudgment attachment procedure was warranted by then-existing law.¹⁰

As an initial matter, Kronenberg asserts that Donald Van Blaricom's release of his client, Obermiller, precludes any claim against him based on the prejudgment writs of attachment. An agreement to release a specific person generally releases only that person. See RCW 4.22.060 ("A release ... or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides."). Our case law demonstrates that under certain circumstances, an attorney may be liable to a third party for acts undertaken in the course of legal representation, when those acts amount to tortious conduct. See Fite v. Lee, 11 Wash.App. 21, 521 P.2d 964 (1974) (attorney could be held separately liable for the use of writs of garnishment when the use of those procedures constituted an abuse of process). Kronenberg has not established any basis for concluding that Donald Van Blaricom's release of claims against Obermiller precludes suing him.

As to the merits of the due process claim, there is a considerable amount of federal jurisprudence addressing the constitutional requirements for attachment, garnishment and replevin statutes and potential liability under 42 U.S.C. § 1983 where procedures used to attach or seize property are constitutionally insufficient.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution precludes states from depriving any person of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV § 1. Congress created a civil action for deprivation of rights, 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Under 42 U.S.C. § 1983, a plaintiff must establish that a federally protected constitutional or statutory right has been violated by state action or persons acting under color of state law. Barry v. Fowler, 902 F.2d 770, 772 (9th Cir.1990); Torrey v. City of Tukwila, 76 Wash.App. 32, 37, 882 P.2d 799 (1994).

The United States Supreme Court has addressed the constitutional due process requirements with respect to seizures of property in several cases and has held that the statutory procedures for attachment of property are subject to the due process requirements of the Fourteenth Amendment. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). Due process requires, at a minimum, that deprivation of property be preceded by notice and opportunity...