Washburn v. City of Fed. Way, 66534–1–I.

Decision Date23 July 2012
Docket NumberNo. 66534–1–I.,66534–1–I.
Citation169 Wash.App. 588,283 P.3d 567
CourtWashington Court of Appeals
PartiesCarola WASHBURN and Janet Loh, individually and on behalf of the Estate Of Baerbel K. Roznowski, a deceased person, Respondents, v. CITY OF FEDERAL WAY, a Washington corporation, Appellant.

OPINION TEXT STARTS HERE

Robert L. Christie, Thomas P. Miller, Christie Law Group, Seattle, WA, for Appellant.

Nathan P. Roberts, James Lovejoy, John R. Connelly, Jr., Connelly Law Offices, Tacoma, WA, for Respondent.

COX, J.

[169 Wash.App. 591]¶ 1 This is a wrongful death action arising from an act of domestic violence in which Paul Kim stabbed to death Baerbel Roznowski, his intimate partner, in her home. Kim murdered Roznowski shortly after a City of Federal Way police officer served Kim with a temporary protection order restraining him from either contacting Roznowski or being within 500 feet of her residence.

¶ 2 Unchallenged jury instructions become the law of the case.1 Here, the City did not appeal the trial court's instruction regarding its police department's duty to exercise ordinary care in the service and enforcement of court orders. Likewise, there is a debate that we need not resolve whether the City properly excepted below to the instruction it did not appeal. A jury could rationally find from the evidence in this record that the City breached its duty to Roznowski to enforce the protection order. Thus, the jury verdict stands to the extent of liability and damages in favor of Roznowski's estate.

¶ 3 The City claims that the trial court erroneously denied its first summary judgment motion. We do not generally review an order denying summary judgment after a case goes to trial.2 Here, there were material factual issues prior to trial, and the denial of the City's first motion for summary judgment did not turn solely on a substantive issue of law. Accordingly, we do not review the denial of this summary judgment motion.

¶ 4 The City also claims that the court erroneously denied its Civil Rule 50(a) motion for judgment as a matter of law at the end of the plaintiff's case in-chief.3 In order to lay a foundation for appeal, the City was required to either renew its motion pursuant to CR 50(b) or move for a new trial, claiming insufficiency of evidence to support the verdict.4 Here, the City did neither. Accordingly, we do not review the trial court's denial of the CR 50(a) motion at the close of the plaintiff's case-in-chief.

¶ 5 Finally, the trial court properly exercised its discretion by granting the motion for a new trial on damages to Roznowski's daughters, Carola Washburn and Janet Loh (collectively Washburn). We affirm the judgment on the verdict to the extent of liability and damages to Roznowski's estate and also affirm the grant of a new trial on Washburn's damages.5

[169 Wash.App. 593]¶ 6 Kim and Roznowski were intimate partners. Each had a separate residence, but Kim spent most of his time living at Roznowski's home in Federal Way.

¶ 7 The relationship between the two grew increasingly troubled. Several days before the events that gave rise to this action, Roznowski called 911 to report a verbal domestic situation. The police reported that Roznowski and Kim had calmed down prior to their arrival and neither of them showed any signs of injury. Nevertheless, in accordance with the City police's protocol for domestic disturbance calls, an officer left a domestic violence booklet with Roznowski. The officer also explained to Roznowski that she could obtain an anti-harassment order.

¶ 8 Days after this incident, Roznowski contacted a domestic violence advocate working at the King County Prosecutor's Office located in the Norm Maleng Regional Justice Center. After consultation with the advocate, Roznowski sought a protection order from the superior court to restrain Kim from being in her home or near her. She completed the paperwork herself and presented it for consideration by a court commissioner on May 1, 2008. The paperwork included a Petition for an Order for Protection–AH and a proposed Temporary Protection Order and Notice of Hearing–AH.6

¶ 9 Roznowski's affidavit supporting her petition for the protection order identified Kim as the person from whom she sought protection and identified him as her “boyfriend.” The affidavit also stated, among other things, that his most recent acts included:

4/30 verbal attacks by Paul Kim because I moved wood to clean yard. He is vehement about owning this pile of wood along with a stack, 10' W x 6' H along the fence, as well as misc. supplies on side of fence. I gave him notice that I'll [sic] plan to move 2 years ago. Nothing was done.

....

[169 Wash.App. 594]4/29 verbal attacks about same subject. He won't commit when he'll remove items and personal belongings in crawl space. I can't put house on market for sale until done. He deliberately stalls, and the repeated answer is it takes time.... Paul Kim's residence is at 331 S 1st ... Federal Way but stays at [Roznowski's] home. He has violent, verbal, insulting outbursts.

....

[l]ast year [Kim's] outburst frightened me, I called 911, he came close to hitting me. He left my place as promised. Within 15 min. I received several calls from him. I changed the locks except for one door.

He is capable of physical violence. I witnessed him beating his oldest son in the past. In his present state of mind he can easily retaliate with [sic] me.7

¶ 10 A court commissioner entered Roznowski's proposed temporary protection order. By its plain terms, it restrained Kim “from making any attempts to contact” Roznowski.8 It also restrained him “from entering or being within 500 feet” of her residence.9 The order also stated a return date of May 14, 2008, at 8:30 a.m. for a hearing on the issuance of a permanent protection order.

¶ 11 Roznowski then delivered copies of her petition and the temporary protection order to the City's police department for service on Kim.10 At the police department, she completed and submitted an additional document called a Law Enforcement Information Sheet (LEIS).11

[169 Wash.App. 595]¶ 12 The LEIS states at the top of the form:

Do NOT serve or show this sheet to the restrained person! Do NOT FILE in the court file.Give this form to law enforcement.12

¶ 13 Below the above directives in the LEIS, Roznowski provided additional information about Kim to the police. She stated that an interpreter who spoke Korean would be needed to serve Kim.13 She provided his residence address, but further specified that he could be served at her residence address.14

¶ 14 Under the portion of the LEIS seeking “Hazard Information” about Kim, Roznowski checked the box marked “Assault.” 15 The LEIS also states that Kim is a “current or former cohabitant as an intimate partner” and that Roznowski and Kim are “living together now.” 16 The LEIS states further that Kim did not know that he would be “moved out of the home.” 17 The LEIS also states that Kim did not know that she was obtaining the protection order.18

¶ 15 Significantly, Roznowski also stated in the LEIS that Kim was “likely to react violently when served.” 19

¶ 16 Early in the morning of May 3, 2008, Officer Andrew Hensing of the City's police department picked up a folder at police headquarters in order to perform the service of the protection order on Kim that Roznowski sought. The folder included Roznowski's affidavitand petition for a protection order, the temporary protection order entered by the commissioner,and the LEIS that we described earlier in this opinion.20

¶ 17 Around 8:00 a.m. that morning, Officer Hensing arrived near Roznowski's residence and parked his vehicle. He testified at trial that he did not completely read the papers in the folder prior to serving Kim.21 Thus, he was then unaware of the information about Kim contained in the LEIS and in Roznowski's affidavit supporting her petition for a protection order. It appears that he did not read the information in the LEIS stating that a Korean interpreter would be needed because there was no interpreter with the officer.

¶ 18 Officer Hensing testified at trial that he knocked at the front door of Roznowski's home, and Kim answered.22 Officer Hensing asked Kim to identify himself.23 The officer then served the order on Kim. According to the officer, a brief conversation between the two followed.

¶ 19 Officer Hensing testified that he told Kim that he had been served with an anti-harassment order and that there was a hearing date stated in the order. 24 He asked Kim if he could read English and told Kim to read the order, which he testified that Kim then did.25 Officer Hensing also testified that he asked Kim if he had any questions.26

¶ 20 Officer Hensing testified that he “saw someone in the background” during the exchange with Kim at the door of Roznowski's home, but did not know whether the person “was male or female.” 27 He did not inquire further and returned to his parked vehicle. There, he completed the return of service form. The entire interaction with Kim took about five minutes and was completed by 8:13 a.m.28 Officer Hensing left the scene without taking any further action.

¶ 21 The evidence at trial showed that Kim remained at Roznowski's residence after Officer Hensing departed. This was notwithstanding the protection order's direction that Kim was restrained from either entering or being within 500 feet of the residence or from contacting Roznowski.

¶ 22 Less than an hour after Officer Hensing served Kim, Roznowski sent an e-mail message to her daughter, Carola Washburn. She wrote:

Well—[Kim] was served this morning. He doesn't understand a thing and right away the blame came I am making trouble.... I gave him until 11 to move stuff, then I'll get the key and garage door opener.29

¶ 23 Kim called a friend and asked him to come over. Kim left the house with his friend for a brief period to go to a bank. He withdrew funds, gave them to the friend, and...

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