Supreme Court Issues
September Term 2011

• Admiralty—Maintenance and Cure—Attorney Fees—Punitive Damages—Amount
• Adverse Possession—Public Land—Dedicated Alley—Applicability
• Arbitration—Mandatory Arbitration—Attorney Fees—Offer of Compromise Following Arbitration—Trial de Novo—Improvement of Position
• Building Regulations—Land Use Regulations—Vested Rights—Filing of Completed Permit Application—Factual Misrepresentations in Application—Standing—Failure to Challenge Issuance of Permit
• Contracts—Damages—Independent Tort Duty—Fraud—Interference With Business Relationship—Libel and Slander
• Contracts—Fixed-Term Service Contract—Early Termination Fee—Validity—Liquidated Damages Clause or Alternative Performance Provision
• Counties—Land Use Controls—Growth Management Act—Administrative Review—Growth Management Hearings Board—Jurisdiction—Scope
• Criminal Law—Crimes—Elements—Mental Elements—Strict Liability Offense—Volitional Act—Proof—Necessity
• Criminal Law—Evidence—Hearsay—Right of Confrontation—Public Records
• Criminal Law—Insanity—Competency to Stand Trial—Involuntary Commitment—Third Confinement—Standard of Proof
• Criminal Law—Punishment—Sentence—Life Imprisonment Without Parole—Persistent Offender Accountability Act—Prior Convictions—Proof—“Offender”—What Constitutes—Juveniles—Waiver of Declination Hearing
• Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Notice—In Charging Document—Necessity—Omission—Remedy
• Criminal Law—Review—Reversal of Conviction—Guilty of Lesser Offense—Instruction—Necessity
• Criminal Law—Sexual Offenses—Promoting Sexual Abuse of a Minor—Attempt—Fictitious Child
• Criminal Law—Sexual Offenses—Special Sex Offender Alternative—Suspended Sentence—Revocation—Credit for Community Custody Time—Entitlement
• Criminal Law—Trial—Presence of Defendant—Right to Be Present—Scope—Jury’s Inquiries During Deliberations
• Criminal Law—Weapons—Possession—By Felon—Prior Conviction—Notice of Weapons Prohibition—Absence of Notice—Effect
• Deeds of Trust—Nonjudicial Foreclosure—Trustee’s Sale—Statutory Provisions—Compliance—Necessity—Low Purchase Price in Relation to Grantor’s Equity—Bona Fide Purchaser—Who Qualifies—Factors
• Dismissal and Nonsuit—Want of Prosecution—Prohibition Against Dismissal—Noting for Trial—Mere Inaction
• Divorce—Child Custody—Parenting Plan—Restriction on Travel With Children—Validity—Sufficiency of Evidence
• Divorce—Child Support—Foreign State’s Order—Modification—Postmajority Support—Validity
• Insurance—Claim for Loss—Scope of Coverage—All-Risk Policy—Causation—Efficient Proximate Cause Rule—Peril Insured Against—Exclusions—Ensuing Loss Provision
• Insurance—Good Faith—Insured’s Bad Faith—Insured’s Right of Action—Attorney-Client Privilege—Applicability
• Juveniles—Parental Relationship—Dependency—Dismissal as to One Parent—Other Parent’s Right to Appeal
• Juveniles—Parental Relationship—Termination—Children
• Juveniles—Wrongful Death—Right of Action—Parents—Contribution to Child’s Support—Temporal Element
• Municipal Corporations—Services Provided by Another Municipality—Compensation—Fire Hydrants—Payment for Costs—Franchise Agreement—Indemnity Clause—Validity
• New Trial—Erroneous Exclusion of Witness—Misconduct of Counsel
• Open Government—Courts—Judicial Records—Documents—Sealing—Unsealing—Filed with Court in Anticipation of Court Decision
• Open Government—Public Disclosure—Exemptions—Investigative Records—Victim Impact Statement—Special Sex Offender Sentencing Alternative Evaluation
• Open Government—Public Disclosure—Public Records—Automobile Accident Reports—Collection and Maintenance of Statistical Information—Duty of Washington State Patrol—Disclosure By State Patrol—Federal Privilege—Applicability
• Parks and Recreation—Statutory Immunity—Nature and Use of Property—Bicycle Trail—Deed—Road or Street Purposes—Effect
• Personal Restraint—Timeliness—Facial Invalidity—Subsequent Caselaw—Retroactivity—Firearm Enhancement Based on Deadly Weapon Finding
• Products Liability—Asbestos—Duty to Warn—Respirator Manufacturer
• Taxation—Business and Occupation Tax—Deductions—Sales of Fuel for Foreign Consumption—Scope—Manufacturer of Fuel
• Taxation—Business and Occupation Tax—Deductions—Sales of Fuel for Foreign Consumption—Statutory Provisions—Retroactivity—Validity
• Taxation—Business and Occupation Tax—Pass-On to Customers—Negotiated Pass-On to Customers—Variable Amount—Validity
• Trespass—Timber—Fire Damage—Statutory Liability—Applicability
• Trespass—Timber—Fire Damage—Statutory Liability—Applicability—Measure of Damages—Relationship to Value of Land
• Trial—Record—Documents—Sealing—Filed With Court in Anticipation of Court Decision—Denial of Motion to Seal—Withdrawal of Documents

Admiralty—Maintenance and Cure—Attorney Fees—Punitive Damages—Amount

Whether under federal maritime law the trial court erroneously awarded attorney fees and excessive punitive damages to an injured seaman for his employer’s willful failure to pay maintenance and cure.

No. 85200-6, Clausen (respondent) v. Icicle Seafoods, Inc. (appellant). (9/15/11)

Adverse Possession—Public Land—Dedicated Alley—Applicability

Whether adverse possession may be validly asserted on land dedicated to public use as an alley.

No. 84828-9, Kiely (respondent) v. Graves (appellants). (10/25/11)

Arbitration—Mandatory Arbitration—Attorney Fees—Offer of Compromise Following Arbitration—Trial de Novo—Improvement of Position

Whether the plaintiffs in a personal injury suit who made an offer of settlement after mandatory arbitration but before trial de novo, and recovered more after trial than they offered in settlement, are entitled to attorney fees under RCW 4.84.250.

No. 85570-6, Williams, et al. (petitioners) v. Tilaye, et al. (respondents). (10/25/11)

Building Regulations—Land Use Regulations—Vested Rights—Filing of Completed Permit Application—Factual Misrepresentations in Application—Standing—Failure to Challenge Issuance of Permit

Whether neighboring landowners have standing to challenge a previously unchallenged building permit in connection with the issuance of a fish and wildlife variance, and if so, whether the building permit application was incomplete for vesting purposes because it contained factual misrepresentations.

No. 85177-8, Lauer, et al. (petitioners) v. Pierce County, et al. (respondents). (9/15/11)

157 Wn. App. 693 (2010)

Contracts—Damages—Independent Tort Duty—Fraud—Interference With Business Relationship—Libel and Slander

Whether the independent duty doctrine allows the plaintiff in this case assert tort claims of fraudulent inducement, interference with a contractual relationship, false light publication, and defamation in an action arising from a contract.

No. 83690-6, Elcon Constr., Inc. (petitioner) v. Eastern Wash. Univ. (respondent). (10/27/11)

Contracts—Fixed-Term Service Contract—Early Termination Fee—Validity—Liquidated Damages Clause or Alternative Performance Provision

Whether under Washington law an early termination fee charged by an internet and telephone service provider to subscribers who cancel their services before the end of the contract term is a lawful alternative performance provision or an unlawful liquidated damages clause.

No. 85810-1, Minnick, et al. (plaintiffs) v. Clearwire US LLC, et al. (defendants). (11/10/11)

Certified Question from U.S. Court of Appeals, Ninth Circuit

Counties—Land Use Controls—Growth Management Act—Administrative Review—Growth Management Hearings Board—Jurisdiction—Scope

Whether the growth management hearings board has jurisdiction to review a county’s rejection of a landowner’s proposal to change the zoning designation of his land, and if not, whether the county’s action was a land use decision subject to challenge under the Land Use Petition Act.

No. 84894-7, Stafne (petitioner) v. Snohomish County & Snohomish County Planning Dep’t (respondents). (11/10/11)

156 Wn. App. 667 (2010)

Criminal Law—Crimes—Elements—Mental Elements—Strict Liability Offense—Volitional Act—Proof—Necessity

Whether it is an implied element of the crime of rape of a child that the act of sexual intercourse was volitional.

No. 85511-1, State (petitioner) v. Deer (respondent). (10/27/11)

158 Wn. App. 854 (2010)

Criminal Law—Evidence—Hearsay—Right of Confrontation—Public Records

Whether the trial courts in these prosecutions for driving with a suspended license and unlicensed contracting violated the defendants’ right of confrontation by admitting letters from records custodians stating that the defendant’s license was suspended or that the no contractor’s license was found.

No. 85227-8 (consol. w/85557-9 & 85558-7), State (respondent) v. Jasper (petitioner); State
(respondent) v. Moimoi (petitioner); State (petitioner) v. Cienfuegos (respondent) (see also Criminal Law—Trial—Presence of Defendant—Right to be Present—Scope—Jury’s Inquiries During Deliberations). (11/8/11)

158 Wn. App. 518 (2010)

Criminal Law—Insanity—Competency to Stand Trial—Involuntary Commitment—Third Confinement—Standard of Proof

Whether under RCW 10.77.086 the State must prove by clear, cogent, and convincing evidence that the defendant in a criminal prosecution should be committed for an additional 180 days to restore competency to stand trial.

No. 85549-8, State (respondent) v. Hurst (petitioner). (10/27/11)

158 Wn. App. 803 (2010)

Criminal Law—Punishment—Sentence—Life Imprisonment Without Parole—Persistent Offender Accountability Act—Prior Convictions—Proof—“Offender”—What Constitutes—Juveniles—Waiver of Declination Hearing

Whether, in attempting to prove the existence of a prior “strike offense” for persistent offender purposes, the State adequately established that the defendant, who was a juvenile when he committed the prior offense, validly waived juvenile court jurisdiction and consented to trial in adult court, qualifying the offense as a strike offense.

No. 84949-8, State (respondent) v. Saenz (petitioner). (10/27/11)

156 Wn. App. 866 (2010)

Criminal Law—Punishment—Sentence—Outside Standard Range—Aggravating Circumstances—Notice—In Charging Document—Necessity—Omission—Remedy

Whether a conviction must be reversed for failure to allege an aggravated sentencing factor in the charging document where the trial court ultimately imposed only a standard range sentence despite the jury’s finding that the aggravating factor existed.

No. 85469-6, State (petitioner) v. Siers (respondent). (10/25/11)

158 Wn. App. 686 (2010)

Criminal Law—Review—Reversal of Conviction—Guilty of Lesser Offense—Instruction—Necessity

Whether after reversal of a conviction for second degree child molestation based on insufficient evidence the trial court may enter a conviction for the lesser included offense of attempted second degree child molestation even though the jury was not instructed on that offense.

No. 85653-2, In re Pers. Restraint of Heidari, Mansour Heidari (petitioner); State (respondent). (11/8/11)

159 Wn. App. 601 (2011)

Criminal Law—Sexual Offenses—Promoting Sexual Abuse of a Minor—Attempt—Fictitious Child

Whether a defendant who recruits adults to pose as minors for prostitution may be convicted of attempted promoting of commercial sexual abuse of a minor. See State v. Patel, 170 Wn.2d 476, 242 P.3d 856 (2010).

No. 85765-2, State (respondent) v. Johnson (appellant). (10/18/11)

Criminal Law—Sexual Offenses—Special Sex Offender Alternative—Suspended Sentence—Revocation—Credit for Community Custody Time—Entitlement

Whether, following revocation of a special sex offender sentencing alternative, the trial court must credit the defendant’s sentence for community custody time served on the sentencing alternative.

No. 85437-8, State (respondent) v. Pannell (petitioner). (9/15/11)

Criminal Law—Trial—Presence of Defendant—Right to Be Present—Scope—Jury’s Inquiries During Deliberations

Whether the trial court violated a criminal defendant’s constitutional right to be present when it responded to jury inquiries without notifying the defendant or his attorney.

No. 85227-8 (consol. w/85557-9 & 85558-7), State (respondent) v. Jasper (petitioner); State
(respondent) v. Moimoi (petitioner); State (petitioner) v. Cienfuegos (respondent) (see also Criminal Law—Evidence—Hearsay—Right of Confrontation—Public Records). (11/8/11)

158 Wn. App. 518 (2010)

Criminal Law—Weapons—Possession—By Felon—Prior Conviction—Notice of Weapons Prohibition—Absence of Notice—Effect

Whether a conviction for unlawful possession of a firearm is invalid if the trial court that entered judgment on the underlying conviction that made the defendant ineligible to possess firearms failed to provide the defendant notice of ineligibility under RCW 9.46.047(1).

No. 84580-8, State (petitioner) v. Breitung (respondent). (10/11/11)

155 Wn. App. 606 (2010)

Deeds of Trust—Nonjudicial Foreclosure—Trustee’s Sale—Statutory Provisions—Compliance—Necessity—Low Purchase Price in Relation to Grantor’s Equity—Bona Fide Purchaser—Who Qualifies—Factors

Whether a nonjudicial foreclosure sale was void on statutory and equitable grounds due to violations of the Deed of Trust Act and the low purchase price in relation to the deed grantor’s equity in the property, and if so, whether the buyer was a bona fide purchaser despite actual or constructive knowledge of these flaws.

No. 85260-0, Albice (respondent) v. Dickinson (petitioner). (9/22/11)

157 Wn. App. 912 (2010)

Dismissal and Nonsuit—Want of Prosecution—Prohibition Against Dismissal—Noting for Trial—Mere Inaction

Whether the trial court properly dismissed this action for want of prosecution under CR 41(b)(1) after the case had been noted for trial, on grounds that the plaintiff had taken actions suggesting that the case was closed.

No. 85654-1, Bus. Servs. of Am., Inc. (respondent) v. WaferTech LLC (petitioner). (11/8/11)

159 Wn. App. 591 (2011)

Divorce—Child Custody—Parenting Plan—Restriction on Travel With Children—Validity—Sufficiency of Evidence

Whether substantial evidence supports a parenting plan provision prohibiting the father from travelling out of the country with his children.

No. 85591-9, In re Marriage of Katare, Lynette Katare (respondent); Brajesh Katare
(petitioner). (11/15/11)

Divorce—Child Support—Foreign State’s Order—Modification—Postmajority Support—Validity

Whether under the Uniform Interstate Family Support Act a Washington court properly modified a child support order originally issued in Nebraska to require postsecondary education support until the child reached the age of 23 years when the original order limited support to the child’s minority and did not extend support beyond Nebraska’s statutory limit of 19 years of age.

No. 85112-3, Schneider (respondent) v. Almgren (petitioner). (9/22/11)

Insurance—Claim for Loss—Scope of Coverage—All-Risk Policy—Causation—Efficient Proximate Cause Rule—Peril Insured Against—Exclusions—Ensuing Loss Provision

Whether damages caused by collapsed shoring during the construction of a building are covered under the ensuing loss provision of an all-risk insurance policy that excludes coverage for faulty workmanship and design defects, and whether damages from the imminent collapse of a home deck are covered under the ensuing loss provision of an all-risk homeowners policy that excludes coverage for construction defects and rot.

No. 85350-9 (consol. w/85794-6), Vision One, LLC (petitioner) v. Philadelphia Indem. Ins. Co. (respondent); Sprague (respondent) v. Safeco Ins. Co. of Am. (petitioner) (9/15/11)

158 Wn. App. 91 (2010) Vision One
158 Wn. App. 336 (2010) Sprague

Insurance—Good Faith—Insured’s Bad Faith—Insured’s Right of Action—Attorney-Client Privilege—Applicability

Whether an insurer who employed an attorney to help determine coverage may invoke the attorney-client privilege to defeat the insured’s discovery request in a first party action for bad faith denial of coverage.

No. 85366-5, Cedell (petitioner) v. Farmers Ins. Co. of Wash. (respondent). (9/22/11)

157 Wn. App. 267 (2010)

Juveniles—Parental Relationship—Dependency—Dismissal as to One Parent—Other Parent’s Right to Appeal

Whether for purposes of standing to appeal a father was “aggrieved” by an order dismissing his son’s dependency as to the child’s mother.

No. 84916-1, In re the Dependency of Hyde, Jayden Hyde; Gregory L. Hyde (petitioner); State (respondent). STRICKEN

Juveniles—Parental Relationship—Termination—Children

Whether children have a constitutional right to counsel in proceedings to terminate parental rights.

No. 85729-6, In re the Dependency of M S R & T S R; Luak (appellant) v. Wash. State Dep’t of Soc. & Health Servs. (respondent). (10/18/11)

Juveniles—Wrongful Death—Right of Action—Parents—Contribution to Child’s Support—Temporal Element

Whether RCW 4.24.010 requires a parent of a deceased child to have regularly provided support to the child up to or near the time of the child’s death in order to bring a wrongful death action.

No. 85679-6, Estate of Bunch (petitioner) v. McGraw Residential Ctr., et al. (respondents). (11/8/11)

159 Wn. App. 852 (2011)

Municipal Corporations—Services Provided by Another Municipality—Compensation—Fire Hydrants—Payment for Costs—Franchise Agreement—Indemnity Clause—Validity

Whether indemnity provisions in water supply franchise agreements between the city of Tacoma and surrounding municipalities require the city to bear the cost of fire hydrants in the municipalities, and if so, whether they lawfully do so.

No. 84824-6, City of Tacoma (appellant) v. City of Bonney Lake, et al. (respondents). (10/20/11)

New Trial—Erroneous Exclusion of Witness—Misconduct of Counsel

Whether in a medical malpractice action a judge erroneously excluded the plaintiff’s medical expert as a discovery sanction, and whether defense counsel committed prejudicial misconduct during trial, justifying a subsequent judge in granting the plaintiff a new trial.

No. 85342-8, Teter (petitioner) v. Deck (respondent). (11/10/11)

Open Government—Courts—Judicial Records—Documents—Sealing—Unsealing—Filed with Court in Anticipation of Court Decision

Whether sealed documents appended to a summary judgment motion and filed with the trial court but not considered by the court in reaching its decision may be ordered to remain sealed only upon consideration of the five-part test articulated in Seattle Times v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).

No. 84903-0, Bennett, et al. (plaintiffs) v. Smith Bunday Berman Britton PS, et al. (respondents). (10/18/11)

156 Wn. App. 293 (2010)

Open Government—Public Disclosure—Exemptions—Investigative Records—Victim Impact Statement—Special Sex Offender Sentencing Alternative Evaluation

Whether victim impact statements and special sex offender sentencing alternative evaluations held by the prosecuting attorney’s office are exempt from disclosure under the Public Record Act.

No. 84940-4, Koenig (petitioner) v. Thurston County (respondent). (10/6/11)

155 Wn. App. 398 (2010)

Open Government—Public Disclosure—Public Records—Automobile Accident Reports—Collection and Maintenance of Statistical Information—Duty of Washington State Patrol—Disclosure By State Patrol—Federal Privilege—Applicability

Whether traffic accident reports that the Washington State Patrol must collect and maintain are subject to disclosure by physical location under the Public Records Act and are not exempt from disclosure under 23 U.S.C. § 409 even though the Department of Transportation receives and maintains the reports for § 409 purposes and only the department can produce accident reports by location.

No. 85408-4, Gendler (respondent) v. Batiste (petitioner). (10/11/11)

158 Wn. App. 661 (2010)

Parks and Recreation—Statutory Immunity—Nature and Use of Property—Bicycle Trail—Deed—Road or Street Purposes—Effect

Whether under the recreational use statute, RCW 4.24.210, the city of Mercer Island is immune from liability for an accident that occurred on a bicycle trail situated on land originally deeded to the city for road or street purposes.

No. 85583-8, Camicia (respondent) v. City of Mercer Island (petitioner). (11/15/11)

Personal Restraint—Timeliness—Facial Invalidity—Subsequent Caselaw—Retroactivity—Firearm Enhancement Based on Deadly Weapon Finding

Whether State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010), applies retroactively on collateral attack of a previously final judgment and sentence imposing a firearm enhancement based on the jury’s deadly weapon finding.

No. 81939-4, In re Pers. Restraint of Eastmond, James Eastmond (petitioner); State (respondent). (10/11/11)

Products Liability—Asbestos—Duty to Warn—Respirator Manufacturer

Whether the manufacturer of a respirator designed to protect users from inhaling asbestos particles and other contaminants has a duty to warn users of the danger of exposure to asbestos in cleaning the respirators and a duty to instruct on safe cleaning methods.

No. 85535-8, Macias (petitioner) v. Saberhagen Holdings, et al. (respondents). (10/20/11)

158 Wn. App. 931 (2010)

Taxation—Business and Occupation Tax—Deductions—Sales of Fuel for Foreign Consumption—Scope—Manufacturer of Fuel

Whether former RCW 82.04.433 (1985) allowed an oil refinery to deduct from its manufacturing business and occupation tax the proceeds of sales of marine bunker fuel for consumption outside the United States by vessels used primarily in foreign commerce.

No. 85556-1, Tesoro Refining & Mktg. Co. (respondent) v. State of Wash., Dep’t of Revenue (petitioner) (see also Taxation—Business and Occupation Tax—Deductions—Sales of Fuel for Foreign Consumption—Statutory Provisions—Retroactivity—Validity). (10/11/11)

159 Wn. App. 104 (2010)

Taxation—Business and Occupation Tax—Deductions—Sales of Fuel for Foreign Consumption—Statutory Provisions—Retroactivity—Validity

Whether a 2009 amendment that retroactively denies fuel manufacturers the business and occupation tax deductions of former RCW 82.04.433 (1985) violates due process of law.

No. 85556-1, Tesoro Refining & Mktg. Co. (respondent) v. State of Wash., Dep’t of Revenue (petitioner) (see also Taxation—Business and Occupation Tax—Deductions—Sales of Fuel for Foreign Consumption—Scope—Manufacturer of Fuel). (10/11/11)

159 Wn. App. 104 (2010)

Taxation—Business and Occupation Tax—Pass-On to Customers—Negotiated Pass-On to Customers—Variable Amount—Validity

Whether under RCW 82.04.500 a cellular telephone service provider may recoup its business and occupation taxes from customers through a monthly surcharge where the provider discloses before the sale of the service contract that it will collect the surcharge to cover gross receipts taxes but does not disclose the actual amount of the surcharge, which is variable.

No. 85581-1, Peck, et al. (plaintiffs) v. AT&T Mobility, et al. (defendants). (10/20/11)

Certified Question from U.S. District Court, for the Western District of Washington

Trespass—Timber—Fire Damage—Statutory Liability—Applicability

Whether defendants who started a fire on their property that spread to plaintiff’s property can be said to have destroyed or otherwise injured the plaintiff’s tress for purposes of the timber trespass statute, RCW 64.12.030.

No. 85905-1, Broughton Lumber Co. (plaintiff) v. BNSF Railway Co. & Harsco Corp. (defendants). (11/15/11)

Certified Question from U.S. District Court of Oregon, Portland Division

Trespass—Timber—Fire Damage—Statutory Liability—Applicability—Measure of Damages—Relationship to Value of Land

Whether a defendant who started a fire on its property that spread to the plaintiff’s property can be said to have destroyed or otherwise injured the plaintiff’s trees for purposes of the timber trespass statute, RCW 64.12.030, and whether damages under the statute must be reasonable in relation to the value of the underlying property.

No. 85781-4, Jongeward (plaintiff) v. BNSF Railway Co. (defendant). (11/15/11)

Certified Question from U.S. District Court, for the Eastern District of Washington

Trial—Record—Documents—Sealing—Filed With Court in Anticipation of Court Decision—Denial of Motion to Seal—Withdrawal of Documents

Whether a party who requests the sealing of documents submitted to court in support of a motion may withdraw the documents from consideration if the court denies the request to seal.

No. 86084-0, State (respondent) v. McEnroe (petitioner). (11/10/11)