author: Lawrence-Berrey, C.J.

text:
    Junghee Kim SPICER and David Spicer, wife and husband; Yakima Arts Academy, a Washington limited liability company, Respondents, v. Paul PATNODE, individually and on behalf of the marital community, Appellant.
    No. 36065-2-III
    Court of Appeals of Washington, Division 3.
    FILED JUNE 25, 2019
    PUBLISHED OPINION
   Lawrence-Berrey, C.J.

¶ 1 Over the course of four months, Paul Patnode regularly and repeatedly remote-started his Ford F-250 pickup, revved its engine, and activated its alarm to scare Junghee Spicer's young piano students as they walked past his truck on the way to their piano lessons. Mr. Patnode's purpose was to interfere with Ms. Spicer's piano lesson business and to cause her severe distress. He failed in his first objective, but accomplished the second. The trial court found in favor of Ms. Spicer on her claim of outrage and awarded her $40,000.

¶ 2 The primary question we answer is whether Mr. Patnode's conduct was sufficiently outrageous and extreme to sustain the trial court's award. Conduct that is done infrequently merely to annoy a person cannot form the basis of an outrage claim. But the same conduct, done frequently over a period of weeks or months with the intent to cause severe emotional distress to a person, can form the basis of an outrage claim. We hold that Mr. Patnode's conduct was sufficiently outrageous and extreme to present a question of fact. For this reason, we defer to the finder of fact and affirm.

FACTS

Background prior to purported tortious conduct

¶ 3 Paul and Melissa Patnode live across Lyle Loop Road from Junghee and David Spicer. In 2009, Ms. Spicer began teaching private piano lessons in her home, mostly to children. That year, Mr. Spicer suffered a stroke. Three years later, he had to retire early. To supplement their income, Ms. Spicer increased the number of piano lessons she taught.

¶ 4 In February 2012, Mr. Patnode complained to the Spicers about Ms. Spicer's piano teaching business. Unable to resolve the problems, Mr. Patnode complained to Yakima County. His complaints included increased traffic, damage to a sprinkler in his front yard, noise from car doors shutting and remotely locking, and headlights coming into his house.

¶ 5 The complaints prompted Yakima County to require the Spicers to obtain a conditional use permit for their business. On July 11, 2012, the Spicers obtained a minor home occupation permit from Yakima County. The permit authorized Ms. Spicer to teach piano lessons for up to five students per day. Lessons were permitted from 2:00 p.m. to 6:00 p.m., Monday through Friday, September through May. The permit required the Spicers to provide off-street parking for customers.

¶ 6 In August 2012, Yakima County issued a modified permit that authorized Ms. Spicer to provide lessons for two additional months per year and increase the number of students to six per day. The Spicers were still required to provide off-street parking for customers.

¶ 7 Throughout 2012, Mr. Patnode continued complaining to Yakima County about Ms. Spicer's business. His complaints included Ms. Spicer teaching instruments other than piano and teaching outside the authorized hours. In addition, he complained that parents dropped their children off and picked them up along the street. He believed that this violated the off-street parking requirement.

¶ 8 In December 2012, Mr. Patnode sued the Spicers and alleged that their piano business violated the restrictive covenants that applied to the neighborhood. In 2014, the Spicers prevailed on summary judgment. Mr. Patnode was ordered to pay more than $30,000 for the Spicers' attorney fees and costs.

¶ 9 In 2014, the city of Selah annexed the parties' neighborhood. Mr. Patnode began complaining to the city of Selah that Ms. Spicer continued to violate her modified permit. That year, the Spicers formed Yakima Arts Academy, LLC

(YAA). Ms. Spicer, through YAA, continued to teach piano lessons, both in her house and also in a leased building in Yakima.

Purported tortious conduct

¶ 10 From around Thanksgiving 2015 to March 24, 2016, Mr. Patnode parked his Ford F-250 diesel pickup along the sidewalk next to the Spicers' residence where piano students entered the Spicers' home. Other vehicles belonging to Mr. Patnode or his household also parked along the Spicers' side of the street.

¶ 11 During this time, Mr. Patnode regularly and repeatedly remote-started his F-250 and set off its alarm when Ms. Spicer's students and their parents walked by the F-250. Ms. Spicer observed this conduct approximately 12 times. When Ms. Spicer observed this conduct, it frightened her and her students. Mr. Spicer observed this conduct about six times.

Ms. Spicer's 2016 anti-harassment petition

¶ 12 In 2016, Ms. Spicer petitioned for an anti-harassment order against Mr. Patnode. Based on evidence presented at the anti-harassment hearing, the court granted Ms. Spicer's request and entered an anti-harassment order. The order prevented Mr. Patnode from parking vehicles on Ms. Spicer's side of the street and required him to disable the remote-start and alarm for his F-250. Mr. Patnode complied with the order.

This lawsuit

Partial grant of summary judgment for the Spicers

¶ 13 In May 2016, the Spicers filed this lawsuit against Mr. Patnode. They sought damages for intentional interference with their piano business and damages for intentional infliction of emotional distress. Prior to trial, the Spicers moved for partial summary judgment. The motion sought to preclude Mr. Patnode from disputing (1) his conduct had no legitimate or lawful purpose and (2) his conduct caused Ms. Spicer substantial emotional distress. The Spicers contended that these issues had already been litigated and necessarily decided when they obtained the anti-harassment order in March 2016. The trial court granted their motion.

Trial

¶ 14 At trial, Ms. Spicer testified that Mr. Patnode's conduct caused her severe emotional distress because she feared for her safety and the safety of her children and students. She explained that Mr. Patnode's remote-starting his truck scared her because she was concerned he would "go to the next step and actually physically harm somebody." Report of Proceedings at 131.

¶ 15 Ms. Spicer testified that Mr. Patnode caused her to suffer from anxiety and insomnia, and that she began taking anti-anxiety medication in 2013. At some point after Mr. Patnode began remote-starting his truck, Ms. Spicer began taking an additional anti-anxiety medication.

¶ 16 Two parents and one piano student testified about arriving for and leaving from piano lessons between Thanksgiving 2015 and March 24, 2016. They testified they observed Mr. Patnode's F-250 remotely starting, its engine revving, and its alarm activating on multiple occasions. One parent testified that this made her scared and concerned for her children's safety. One student testified that every time he had a piano lesson between those dates, he observed the F-250 remotely start, its engine rev loudly, and its alarm activate. The parents did not take their children out of piano lessons with Ms. Spicer, and the student who testified did not quit taking lessons from Ms. Spicer.

¶ 17 The trial court found that Mr. Patnode did not cause any loss of business to the Spicers. The court, however, did find that Mr. Patnode's conduct was sufficiently outrageous to constitute intentional infliction of emotional distress.

The trial court further found that Ms. Spicer, but not Mr. Spicer, had proved compensable damages.

¶ 18 The trial court entered the following findings of fact to which Mr. Patnode assigns error:

23. In 2016, Ms. Spicer filed a petition for an anti-harassment order against Mr. Patnode. The Court takes judicial notice that following a hearing, the Yakima County Superior Court orally concluded that Mr. Patnode was remotely starting his F-250 and setting off vehicle alarms and doing so on purpose repeatedly for the purpose of harassing the Spicers, making their lives more difficult. ...[ ]
....
32. Junghee Spicer suffered severe emotional distress as a result of Mr. Patnode parking vehicles on the street alongside the Spicers [sic] house from Thanksgiving 2015 to March 24, 2016, and regularly and repeatedly remote starting his F-250 pickup (which included revving the engine, lights turning on) and remotely setting off the vehicle alarm while it was parked on the street alongside the Spicers' house, where children/students and their parents were walking to and from lessons at the Spicers' residence.
33. The conduct of Mr. Patnode described above was directed towards Ms. Spicer. Mr. Patnode sought to interfere with the Spicers' music business. Ms. Spicer was the direct recipient of Mr. Patnode's conduct even though she was not present for, and did not observe, all instances when Mr. Patnode remote-started his F-250 or remotely set off the vehicle alarm when students and/or parents were walking to or from piano lessons.
34. Ms. Spicer was fearful for her safety and for the safety of her students. ... Ms. Spicer suffered insomnia and anxiety as a result of Mr. Patnode's conduct. Ms. Spicer began taking anti-anxiety medication in 2013. At some time after the remote-start/alarm incidents described above, Ms. Spicer began to take one additional anti-anxiety medication. At the time of trial Ms. Spicer was also taking a third anti-anxiety medication.

Clerk's Papers (CP) at 322-26.

¶ 19 In addition, the trial court entered the following conclusion of law, to which Mr. Patnode also assigns error:

6. Mr. Patnode's conduct ... was outrageous conduct. Ms. Spicer was the object of Mr. Patnode's course of conduct. Mr. Patnode's conduct was directed at Ms. Spicer through her piano students and their parents. Mr. Patnode's object was to interfere with the teaching business and cause distress to Ms. Spicer. Mr. Patnode's conduct went beyond all possible bounds of decency, and was atrocious and utterly intolerable in a civilized society. Mr. Patnode's conduct was intentional, he knew it would cause or inflict Ms. Spicer with emotional distress, and his conduct in fact caused Ms. Spicer severe emotional distress.

CP at 327-28 (emphasis added).

¶ 20 The trial court awarded Ms. Spicer $40,000 in damages.

¶ 21 Mr. Patnode timely appealed. A panel of this court granted oral argument, which occurred at Whitman College, in Walla Walla, Washington.

ANALYSIS

¶ 22 Mr. Patnode makes three arguments: (1) conduct that Ms. Spicer or her immediate family members did not observe cannot form the basis of Ms. Spicer's outrage claim, (2) his conduct does not rise to the level of extreme and outrageous conduct as a matter of law, and (3) substantial evidence does not support the trial court's finding that Ms. Spicer suffered severe emotional distress. We address the issues in the order argued by Mr. Patnode.

1. EVIDENCE NOT DIRECTLY WITNESSED BY MS. SPICER

¶ 23 Mr. Patnode argues the trial court erred by considering evidence not directly witnessed by Ms. Spicer or her immediate family members. His argument implies that his conduct was directed at the young piano students.

¶ 24 When the outrageous conduct is directed at a third person, the plaintiff must be an immediate family member of the person who is the object of the defendant's action, and he must be present at the time of the conduct. Grimsby v. Samson, 85 Wash.2d 52, 60, 530 P.2d 291 (1975) (citing RESTATEMENT ( SECOND ) OF TORTS § 46 cmt. l ( AM. LAW INST. (1965))). This rule has no application here, where the outrageous conduct was directed at Ms. Spicer rather than at a third person.

¶ 25 Here, the trial court found:

Ms. Spicer was the object of Mr. Patnode's course of conduct. Mr. Patnode's conduct was directed at Ms. Spicer through her piano students and their parents. Mr. Patnode's object was to interfere with the teaching business and cause distress to Ms. Spicer.

CP at 327.

¶ 26 The above finding is well supported by the evidence. For years, Mr. Patnode sought to substantially prevent, Ms. Spicer from teaching piano lessons at her house. He began by acting within the legal process. He first complained to Ms. Spicer, later he complained to Yakima County, and still later he complained to the city of Selah. When these complaints failed, he brought a lawsuit to prevent Ms. Spicer from teaching piano lessons out of her house. He alleged that Ms. Spicer's piano lesson business violated the neighborhood's restrictive covenants. The Spicers had that lawsuit dismissed and were awarded their reasonable attorney fees.

¶ 27 Shortly after, Mr. Patnode began acting outside the legal process. Mr. Patnode began scaring Ms. Spicer's young piano students by remote-starting his F-250, revving its engine, and activating its alarm. The young students, walking by his truck, did nothing to warrant being scared. In fact, Mr. Patnode testified he did not remote-start his truck for the purpose of scaring the piano students or their parents. The trial court reasonably found that Mr. Patnode's conduct was not directed at the young piano students, but instead was directed through them to Ms. Spicer. Because Mr. Patnode's conduct was directed at Ms. Spicer, the trial court did not err by considering evidence not directly witnessed by Ms. Spicer.

2. EXTREME AND OUTRAGEOUS CONDUCT

¶ 28 Mr. Patnode argues, as a matter of law, his conduct does not amount to extreme and outrageous conduct.

¶ 29 To constitute outrage, the conduct at issue "must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' " Reyes v. Yakima Health Dist., 191 Wash.2d 79, 91, 419 P.3d 819 (2018) (internal quotation marks omitted) (quoting Grimsby, 85 Wash.2d at 59, 530 P.2d 291 ). "Consequently, the tort of outrage 'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration." Kloepfel v. Bokor, 149 Wash.2d 192, 196, 66 P.3d 630 (2003)

(internal quotation marks omitted) (quoting Grimsby, 85 Wash.2d at 59, 530 P.2d 291 ).

¶ 30 In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must show (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of emotional distress. Lyons v. U.S. Bank Nat'l Ass'n, 181 Wash.2d 775, 792, 336 P.3d 1142 (2014). The claim is also known as the tort of outrage. Id. "Although the three elements are fact questions for the jury, th[e] first element of the test goes to the jury only after the court 'determine[s] if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.' " Robel v. Roundup Corp., 148 Wash.2d 35, 51, 59 P.3d 611 (2002) (quoting Dicomes v. State, 113 Wash.2d 612, 630, 782 P.2d 1002 (1989) ).

¶ 31 We examine Washington decisions to determine what type of conduct is sufficiently outrageous and extreme to impose liability on an actor. Mr. Patnode cites Strong v. Terrell, 147 Wash. App. 376, 195 P.3d 977 (2008) and Snyder v. Medical Service Corporation of Eastern Washington, 98 Wash. App. 315, 988 P.2d 1023 (1999), aff'd, 145 Wash.2d 233, 35 P.3d 1158 (2001) for the proposition that inflicting emotional harm on another over a period of months is insufficient to meet the high standard of outrageousness. In both cases, the plaintiff employees were subject to demeaning and insulting verbal treatment by their supervisors over a period of months. Strong, 147 Wash. App. at 381, 195 P.3d 977 ; Snyder, 98 Wash. App. at 319, 988 P.2d 1023. Both courts noted that liability for outrage does not extend to treatment akin to " 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' " Snyder, 98 Wash. App. at 321-22, 988 P.2d 1023 (internal quotation marks omitted) (quoting Grimsby, 85 Wash.2d at 59, 530 P.2d 291 ); accord Strong, 147 Wash. App. at 386, 195 P.3d 977. The courts reviewed the supervisors' treatment of their respective employees, determined that the treatment did not rise above insults, threats, and trivialities, and concluded that no liability existed. Strong, 147 Wash. App. at 386-87, 195 P.3d 977 ; Snyder, 98 Wash. App. at 322, 988 P.2d 1023.

¶ 32 Mr. Patnode next cites Saldivar v. Momah, 145 Wash. App. 365, 186 P.3d 1117 (2008) to further support the proposition that inflicting emotional harm on another over a period of months is insufficient to meet the high standard of outrage. In that case, a woman and her husband fabricated allegations of sexual abuse against a physician and filed a lawsuit against him alleging that he sexually abused her. Id. at 390, 186 P.3d 1117. The trial court dismissed the plaintiffs' claims after they rested, finding that the sexual abuse claim was not credible and that the purported victim had lied on the stand. Id. at 383-84, 186 P.3d 1117. The trial court also found that the attorney for the plaintiffs filed " 'irrelevant and salacious declarations ... for the improper purpose of eliciting media/public attention, to harass and damage the reputation of Dr. Momah, and to ... gain advantage in other litigation.' " Id. at 386, 186 P.3d 1117. Due to plaintiffs' false claims and their attorney's actions, Dr. Momah lost his job, suffered a stroke, and was uninsurable and unemployable. Id. at 384, 186 P.3d 1117. The trial court awarded Dr. Momah substantial damages on his outrage claim against the plaintiffs and their attorney. Id. at 385, 186 P.3d 1117. The appellate court reversed and concluded that the conduct was insufficient to constitute outrage. Id. at 390, 186 P.3d 1117.

¶ 33 We contrast Saldivar with Phillips v. Hardwick, 29 Wash. App. 382, 628 P.2d 506 (1981). There, the Phillips agreed to purchase the Hardwicks' house and entered into an earnest money agreement. Id. at 384, 628 P.2d 506. The Hardwicks later learned that their new house would not be ready until shortly after the agreed closing date of November 25. Id. The Phillips agreed to rent the house to the Hardwicks until December 1. Id. The Hardwicks did not vacate as agreed. Id. On December 2, the Hardwicks told the Phillips that because they were tenants, the Phillips were powerless to remove them. Id. The Phillips drove by the house on December 3. Id. They looked inside, noticed the furniture was gone, and arranged to move in the following day. Id. The next day, when they arrived with a carload of furniture, the Hardwicks initially prevented them from moving in. Id. When the Phillips returned with a second carload, they noticed two deputy sheriffs. Id. at 384-85, 628 P.2d 506. The deputies determined that the Phillips had the right of possession and advised the Hardwicks of this, yet the Hardwicks refused to leave. Id. at 385, 628 P.2d 506. The next day, the Phillips commenced two lawsuits. Id. The first lawsuit was an unlawful detainer, and the second lawsuit sought damages on various theories, including intentional infliction of emotional distress. Id. The Hardwicks moved out a few days later and gave the keys to the Phillips. Id. In the second lawsuit, the trial court found in favor of the Phillips and awarded them over $11,000. Id. at 383, 628 P.2d 506. On appeal, the trial court affirmed the damages award on the basis that reasonable minds could differ as to whether the Hardwicks' conduct was sufficiently outrageous. Id. at 388-89, 628 P.2d 506.

¶ 34 We cannot reconcile Saldivar with Phillips . Saldivar involved extreme conduct that caused extensive emotional and financial damages. Yet, the appellate court reversed the trial court's finding of outrage. Phillips involved a few days' delay in occupancy that caused a mere annoyance to a home purchaser. Yet, the appellate court affirmed the trial court's finding of outrage. We disagree with both decisions.

¶ 35 We find support for our disagreement in Wolf v. Scott Wetzel Servs., Inc., 113 Wash.2d 665, 782 P.2d 203 (1989), which appears to take a middle approach. There, Mr. Wolf lifted a heavy timber at work and injured his lower back. Id. at 667, 782 P.2d 203. He filed a workers' compensation claim. Id. His employer was self-insured, and Mr. Wolf's claim was administered by Scott Wetzel Services, Inc. (SWS). Id. Mr. Wolf received time loss and medical payments. About six months after the injury, SWS learned from Mr. Wolf's attending physician that Mr. Wolf could return to work. Id. As a consequence, SWS closed Mr. Wolf's claim. Id. A few months later, Mr. Wolf and his new physician requested the claim to be reopened on the basis that the lower back injury " 'may have contributed to psychological problems.' " Id. SWS denied the request. Id. Mr. Wolf appealed the denial and the denial eventually was reversed. Id. Mr. Wolf brought suit against SWS alleging bad faith denial of his claim and outrage. Id.

¶ 36 In denying Mr. Wolf's outrage claim, our high court explained:

As illustrative of what constitutes [outrage], ... [i]n [an appellate case from California], it was alleged that an investigator hired by the insurance carrier befriended the claimant, misrepresenting his true capacity and intentions. Then, during an excursion to Disneyland, the investigator enticed the claimant into crossing a rope bridge and engaging in other physically demanding activities. Unbeknownst to the claimant, another investigator filmed her while she did so. Upon discovering at a subsequent hearing how she had been deceived, the claimant suffered a physical and mental breakdown requiring hospitalization. We agree that such conduct is indeed outrageous under the standard adopted by this court.
The same cannot be said for the conduct involved in the present case. ... The facts ... in the present case in no way suggest that the claims administrator for the self-insured employer engaged in conduct that could constitute the tort of outrage. Furthermore, ... Mr. Wolf is alleging only "bad faith" in the administration of his workers' compensation claim.

Id. at 678-79, 782 P.2d 203 (footnote omitted).

¶ 37 As the cases reflect, what constitutes outrage is nebulous and difficult to define. But three things are clear. First, to impose liability, the law requires the conduct to be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency as to be utterly intolerable in a civilized community. Reyes, 191 Wash.2d at 91, 419 P.3d 819. Second, liability may not be imposed for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Strong, 147 Wash. App. at 386, 195 P.3d 977 ; Snyder, 98 Wash. App. at 321-22, 988 P.2d 1023. And third, somewhere between these standards, the question of liability passes from a court of law to the trier of fact. Robel, 148 Wash.2d at 51, 59 P.3d 611.

¶ 38 Had Mr. Patnode remote-started his truck occasionally to scare passing piano students, this would not be actionable. Rather, it would constitute a mere annoyance-a triviality. But this is not what Mr. Patnode did. Instead, he engaged in a course of conduct over a period of four months intending to cause Ms. Spicer sufficient emotional distress so she would stop teaching piano lessons at her house. He intended to achieve through harassment what he had been unable to achieve through legal means. In order to achieve his purpose, he knew he had to cause Ms. Spicer severe emotional distress. And he did.

¶ 39 The dissent classifies this conduct as merely childish. We disagree. The conduct-because it occurred frequently over a period of months-clearly exceeds insults, indignities, threats, annoyances, petty oppressions, or other trivialities. We believe a trier of fact could consider the conduct to be so outrageous in character, and so extreme in degree, as to be utterly intolerable in a civilized community. For this reason, the question of liability passes from us to the trier of fact.

3. SEVERE EMOTIONAL DISTRESS

¶ 40 Mr. Patnode argues substantial evidence does not support the trial court's finding that Ms. Spicer suffered severe emotional distress. We disagree.

¶ 41 We will not overturn a trial court's finding of fact if it is supported by substantial evidence. Gorman v. Pierce County, 176 Wash. App. 63, 87, 307 P.3d 795 (2013). Substantial evidence is that amount of evidence sufficient to persuade a fair-minded person that a given premise is the truth. Phillips, 29 Wash. App. at 387, 628 P.2d 506.

¶ 42 To prevail on an outrage claim, a plaintiff must show that he or she actually suffered severe emotional distress as a result of the defendant's conduct.

Kloepfel, 149 Wash.2d at 201-03, 66 P.3d 630. Mr. Patnode first argues that regularly and repeatedly remote-starting his F-250 over the course of four months, revving its engine, and activating its alarm could not have caused a reasonable person to suffer severe emotional distress. We disagree. It was Mr. Patnode's objective to cause Ms. Spicer to suffer sufficient emotional distress so she would stop teaching piano lessons at her house. This objective could not be accomplished by mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Mr. Patnode's argument that Ms. Spicer could not have suffered severe emotional distress runs counter to his objective. If he did not think his conduct would accomplish his objective, he would not have engaged in it.

¶ 43 Mr. Patnode next argues no one could believe his conduct could reasonably cause Ms. Spicer to fear for her safety. We disagree. One of the parents testified that Mr. Patnode's conduct made her scared and concerned for her children's safety.

¶ 44 Mr. Patnode, citing Sutton v. Tacoma School District No. 10, 180 Wash. App. 859, 324 P.3d 763 (2014), argues that Ms. Spicer's symptoms of stress and insomnia were insufficient to constitute extreme emotional distress. There, a teacher pinned a first grade special education student against the wall and cornered her by chest-bumping her while yelling insults at her. Id. at 863, 324 P.3d 763. The child's grandmother witnessed the incident. Id. She testified that the child was scared, angry, sad, and mad, and did not want to return to the teacher's class. Id. at 872, 324 P.3d 763. We held that this evidence was sufficient to constitute emotional distress. Id. However, there was no evidence of how long the emotional distress lasted. Id. Because actionable outrage requires emotional distress that is more than transient, we affirmed the trial court's summary judgment. Id. at 874, 324 P.3d 763.

¶ 45 Sutton is distinguishable. Here, Ms. Spicer suffered emotional distress throughout Mr. Patnode's four-month course of conduct.

¶ 46 Affirmed.

I CONCUR:

Fearing, J.

Korsmo, J.

Outrageous conduct is conduct "which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim 'Outrageous!' "

Reid v. Pierce County , 136 Wash.2d 195, 201-02, 961 P.2d 333 (1998) (quoting Browning v. Slenderella Sys., 54 Wash.2d 440, 448, 341 P.2d 859 (1959) (quoting RESTATEMENT ( SECOND ) OF TORTS § 46(g) ( AM LAW INST. 1965) )). As the court more recently stated:

The conduct must be " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' "

Reyes v. Yakima Health Dist., 191 Wash.2d 79, 91, 419 P.3d 819 (2018) (quoting Grimsby v. Samson , 85 Wash.2d 52, 59, 530 P.2d 291 (1975) (quoting RESTATEMENT § 46 cmt. d)).

¶ 47 The main element of an outrage claim is, of course, outrageous behavior. Remote starting a car or setting off a car alarm when someone is walking past simply is not atrocious conduct, nor is it "utterly intolerable in a civilized community." Mr. Patnode's behavior was juvenile, childish, oafish, puerile, immature, infantile, and lame. It would not have even qualified as a bad junior high school prank in a less sophisticated time. He was annoying, but he was not outrageous.

¶ 48 Washington requires more than this simplistic behavior to satisfy the threshold requirements for the tort of intentional infliction of emotional distress. The definition of the tort is found in RESTATEMENT § 46 :

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the person is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

Ms. Spicer's action proceeded under § 46(2)(b), meaning that she had to show that outrageous conduct directed at third persons in her presence resulted in bodily harm. While the remaining elements were established, the outrageous conduct element was not. She failed to meet the required threshold showing. Jackson v. Peoples Federal Credit Union , 25 Wash. App. 81, 84, 604 P.2d 1025 (1979).

¶ 49 In Jackson , the plaintiff sued in outrage because the credit union had attempted to repossess his car at his place of work after a dispute arose over loan repayment; the incident aggravated his diabetes, a condition known to the credit union. Id. at 83-84, 604 P.2d 1025. Division Two of this court rejected the outrage claim, determining that the behavior of the credit union failed to meet the "extreme and outrageous" standard of the tort. Id. at 84, 604 P.2d 1025 (quoting RESTATEMENT § 46 cmt. h).

¶ 50 Proof of outrageous behavior is the sine qua non of this tort. There is no exception for the intentional infliction of distress by nonoutrageous behavior. While the steady dripping of small amounts of water may erode a foundation just as effectively as a deluge, this tort is only concerned with the latter possibility. Behavior must be beyond the pale to be actionable.

¶ 51 Our case law long has reached that same conclusion. Infliction of emotional distress by intentional behavior is by itself inadequate to establish this tort. We have found far more offensive behavior than noisy car alarms and remote vehicle starting insufficient to establish outrageous behavior. E.g., Repin v. State , 198 Wash. App. 243, 392 P.3d 1174 (2017) (holding that veterinarian's unsuccessful attempt at euthanasia, failure to warn of risks, and the dog's immense suffering not sufficiently outrageous); Christian v. Tohmeh, 191 Wash. App. 709, 737-38, 366 P.3d 16 (2015) (doctors' course of conduct-obfuscation of plaintiff's diagnosis, yelling and shouting at her and telling her problems were in her head; telling other doctors that her emotional issues made her history less valid-insufficient to meet the "extremely high" standard of outrage); Strong v. Terrell , 147 Wash. App. 376, 388-89, 195 P.3d 977 (2008) (finding conduct insufficient where coworker told blonde jokes, ridiculed plaintiff's personal life, called her a bum, and made other disparaging remarks over the course of several years). Saldivar v. Momah, 145 Wash. App. 365, 186 P.3d 1117 (2008) (holding that filing suit against physician with malicious intent is not " 'utterly intolerable in a civilized community' ").

¶ 52 While no prior Washington case has been based on car noises, a couple of Ohio cases have rejected the notion that such behavior is outrageous. Krlich v. Clemente , 2017-Ohio-7945, 98 N.E.3d 752, 757, 759 (Ct. App.) (finding car horn honking "at all hours of the day and night," alleged lewd gestures, and more (such as paintballing plaintiff's home and driving on their lawn) not sufficiently extreme and outrageous for intentional infliction of emotional distress);

Allen v. Pirozzoli, No. 103632, 2016-Ohio-2645, 2016 WL 1600344 (Ct. App. Apr. 21, 2016) (unpublished) (conduct of setting off fireworks, standing in his driveway when plaintiff would pull in the driveway, horn honking, banging on fence and windows, revving motorcycle in front of plaintiff's house insufficient to establish outrageousness).

¶ 53 Mr. Patnode is clearly a bad neighbor, but he also is bad at being an outrageous one. Although the trial court's desire to punish him for his conduct is understandable, and appreciated by this writer, that conduct simply does not make the grade for the tort of outrage. He intentionally inflicted emotional distress, but did so in a bland enough manner that this particular claim was not actionable. This was harassment pure and simple. Since the majority rewrites the tort of intentional infliction of emotional distress by treating the outrageous conduct element as a question of fact for the trier-of-fact, I respectfully dissent.

      Mr. Patnode challenges 16 of the trial court's findings of fact. Of these, 12 are quite nuanced and are unimportant to the issues on appeal. The remaining challenges, those to findings of fact 23, 32, 33, and 34, are specifically addressed below.

      Mr. Patnode persuasively argues that the trial court erred by taking judicial notice of the previous court's oral ruling. See State v. Hescock, 98 Wash. App. 600, 606, 989 P.2d 1251 (1999). We give no weight to finding of fact 23. This does not impair the same findings contained in finding of fact 32, subject to those findings being supported by substantial evidence.

      This finding comes from the trial court's conclusion of law 6. To the extent a conclusion of law contains a finding of fact, an appellate court will treat it as a finding of fact. Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 353, 172 P.3d 688 (2007).

      Each party cites several cases from other jurisdictions in support of their arguments. As shown below, even Washington cases are inconsistent on what type of conduct is sufficiently egregious to constitute outrage. It is, therefore, unsurprising that the out-of-state cases discussed by the parties and the dissent are inconsistent and unhelpful.

      The Wolf court's analysis comports with the various illustrations contained in the Restatement (Second) of Torts § 46. Whereas the conclusions reached in the intermediate appellate decisions in Strong and Snyder do not comport with the illustrations.

      No Washington court has applied the Restatement (Third) of Torts § 46, so, like the majority, I will confine my remarks to the Restatement (Second). It should be noted that comment i in the Second Restatement is now found as comment h in the Third Restatement.

      Unpublished Ohio opinions may be cited as authority in that state. See Ohio Sup. Ct. Rep. Op. R. 3.4. Thus, they may be relied on in this state. GR 14.1(b).


source: Caselaw Access Project

license: Public Domain

text:
    Leslie and Harlene ROBBINS, Respondents, v. MASON COUNTY TITLE, et al., Petitioners.
    No. 96726-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, May 2, 2019.
    ORDER
   ¶ 1 This case came before the Court on its May 1, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is granted. Review of the issue raised in the Respondents' answer to the petition is also granted.

For the Court /s/ Fairhurst, CJ. CHIEF JUSTICE


author: Leach, J.

text:
    In the MATTER OF the DETENTION OF C.B.
    No. 77471-9-I
    Court of Appeals of Washington, Division 1.
    FILED: June 17, 2019
    Casey Grannis, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
    Andrei Nedelcu, King County Prosecutor's Office, Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
    PUBLISHED OPINION
   Leach, J.

¶1 C.B. appeals the trial court's order for an involuntary 90-day commitment. She claims that she did not waive her alleged constitutional right to a jury trial. But C.B. does not have a constitutional right to a jury trial in this proceeding. And because C.B. was given notice of her statutory right to demand a jury and did not do so, we affirm.

FACTS

¶2 In July 2017, a King County designated mental health professional detained C.B. for 72 hours of psychiatric evaluation and treatment. Three days later, Harborview Medical Center filed a 14-day involuntary treatment petition. After a probable cause hearing, the trial court ordered her committed for 14 days. Her attorney acknowledged receiving a copy of the court's findings of fact, conclusions of law, and order by signing the original. This document included a statement that C.B.'s defense attorney notified C.B. that she had the right to a full hearing and/or a jury trial if Harborview sought involuntary treatment beyond this 14-day period.

¶3 In August, Harborview asked the court to commit C.B. involuntarily for 90 days. At a trial setting hearing, the trial court scheduled a bench trial on this request. C.B.'s attorney signed the scheduling form and initialed the statement confirming C.B.'s oral waiver of a jury trial.

¶4 At trial, C.B.'s defense attorney explained why C.B. could not be transported in person to court. She said she had informed C.B. of her right to be present and that C.B. had waived that right. The court accepted the requested waiver of appearance.

¶5 Witnesses testified that C.B.'s mental impairment resulted in her inability and unwillingness to care for herself. The trial court found by clear, cogent, and convincing evidence that C.B. was gravely disabled and less restrictive alternatives to 90 days of involuntary commitment were not in her best interest. It ordered C.B. involuntarily committed for 90 days. C.B. appeals.

ANALYSIS

¶6 An appellate court reviews a claim of a constitutional right to a jury trial de novo. It also reviews the interpretation of a statute or court rule de novo.

Mootness

¶7 As a preliminary issue, C.B. asserts that her case is not moot. We agree.

¶8 For certain commitment orders, including the one C.B. challenges, Washington's involuntary treatment act (ITA) provides for collateral consequences in later petitions and hearings. So the challenged involuntary commitment order may have an adverse impact on C.B. in any future effort to involuntarily commit her. Because this case is not moot, we address the merits of her appeal.

Right to Jury Trial

¶9 C.B. claims that the Washington State Constitution guarantees the right to a jury trial in 90-day commitment proceedings. We disagree.

¶10 The Washington Constitution provides, "The right of trial by jury shall remain inviolate." To determine whether this right exists for a particular case, Washington courts use a two-step analysis. First, the court identifies the scope of the right to a jury trial in 1889. Second, the court decides whether "the type of action at issue is similar to the one that would include the right to a jury trial at that time."

¶11 The Code of 1881 was in effect when Washington adopted its constitution in 1899. Section 1632 of this code provided an individual with the right to demand a jury trial in a case to decide whether she could be committed indefinitely to a " 'hospital for the insane.' " So, in 1889, the jury trial right attached to a case involving a request for indefinite detention. But no statute provided for a defined period of temporary confinement similar to the provisions of the ITA. So in 1889 the right to a jury trial did not extend to a request to involuntarily commit a person for 90 days.

¶12 Our Supreme Court's consideration of other provisions of the ITA shows that a proceeding to decide if a person should be involuntarily committed for 90 days is not similar to the 1889 commitment proceeding that included a right to a jury trial. In In re Detention of M.W., our Supreme Court considered whether a provision of the ITA providing the procedure for recommitting individuals found incompetent to stand trial for violent felonies violated the constitutional right to a jury trial. The court held it did not. We find the court's explanation instructive:

This civil commitment process is distinguishable from indefinite civil commitment schemes that require jury trials on initial commitment because the ITA involves only short periods of commitment and requires the State to file a new petition and carry a high burden of recommitment at the expiration of each period (here, every 180 days).[ ]

¶13 For purposes of our analysis, the 90-day commitment period in issue cannot be distinguished. So no state constitutional jury right exists for a 90-day commitment under the ITA.

¶14 C.B. contends that In re Quesnell recognizes a constitutional right to a jury trial applicable here. It does not. In Quesnell, the Washington Supreme Court held that a guardian ad litem could not waive an individual's right to a jury trial in a commitment proceeding after that individual had asserted it through private counsel. In a footnote, the court stated that "[o]ur ruling in this case is limited strictly to the single issue involved."

¶15 Recently, this court decided that no constitutional right to a jury trial exists for a 14-day probable cause hearing under the ITA. Here, we extend that holding and conclude that the Washington Constitution does not provide for a right to a jury for proceedings on a petition for a 90-day involuntary commitment.

¶16 Whether C.B. had a constitutional right or a statutory right to a jury trial, the result would be the same. She must demand it or it is waived. The statutes and cases from the Code of 1881 to the present all have required a party subject to a proceeding for involuntary commitment demand a jury for the right to attach. The Washington Constitution, article I, section 21 allows the legislature to "provide ... for waiving of the jury in civil cases where the consent of the parties interested is given thereto." In 1973, the legislature adopted the ITA. It requires that a defendant demand a jury for a 90-day proceeding or that right is waived. So, whether the right is constitutional or statutory, the act provides the method for its assertion: demand a jury or lose the right to have one.

¶17 We next consider C.B.'s claim that she had to be notified in open court of her jury trial right before it could be waived. We again disagree.

¶18 MPR 3.3 contains the procedure for demanding a jury in an ITA proceeding. C.B.'s claim requires an interpretation of this rule. When an appellate court interprets a court rule, it uses the same tools used for statutory construction. When an appellate court interprets a statute, its goal is to "give effect to the legislature's intent." The court first looks to the rule or statute's plain language, "considering the text of the provision in question," its context, "related provisions, and the statutory scheme as a whole." The court seeks a construction that avoids constitutional problems if possible. Courts construe civil commitment rules and statutes strictly because they involve a deprivation of liberty. But we also "keep in mind the need to satisfy the intent of the statute [or rule] while avoiding absurd results."

¶19 The ITA gives the State the right to request a longer period of temporary commitment if a person involuntarily committed for a short period of time exhibits a mental impairment that renders her gravely disabled. To address this possibility, the ITA requires the trial court provide a person committed for 14 days with this written notice: "if involuntary treatment beyond the fourteen day period ... is to be sought, such person will have the right to a full hearing or jury trial as required by RCW 71.05.310" when a 14-day petition is granted.

¶20 If the State determines additional commitment is necessary, it may then file a 90-day involuntary petition, and the court clerk "shall set a time for the person to come before the court on the next judicial day after the day of filing unless such appearance is waived by the person's attorney." The ITA states that "[a]t the time set for appearance the detained person shall be brought before the court, unless such appearance has been waived and the court shall advise him or her of ... his or her right to a jury trial." It also provides that "[i]f the person named in the petition requests a jury trial, the trial shall commence within ten judicial days of the first court appearance after the probable cause hearing."

¶21 MPR 3.3 describes more specifically the procedure for demanding a jury in an ITA proceeding. The Washington Supreme Court adopted this rule under the authority granted by the ITA. MPR 3.3(b) provides that the defendant must demand a jury trial "[w]ithin two judicial days after the person detained is advised in open court of his right to a jury trial as provided in RCW 71.05.300." If a defendant follows this procedure, the jury trial must commence within ten judicial days after the preliminary appearance. If the defendant does not timely demand a jury trial, "the matter shall be heard without a jury."

¶22 C.B. contends that MPR 3.3(b) requires the defendant be notified in open court of the right to a jury trial. We disagree.

¶23 The statutory scheme for involuntary commitment anticipates that the defendant may not be present for the trial setting hearing on a petition for a 90-day commitment. It states that if a petition is filed, the court "shall set a time for the person to come before the court on the next judicial day after the day of filing unless such appearance is waived by the person's attorney." At this hearing, "the court shall advise [the person subject the petition] of ... her right to a jury trial." This is the "open court" proceeding referenced in MPR 3.3(b). If the person waives appearing in court on this date, she also waives the verbal notice that RCW 71.05.300(2) instructs the trial court to give her. C.B.'s claim would eliminate the right to waive an appearance conferred by the statute and force every subject of a petition to appear, regardless of their physical or mental conditions, so the court could advise them of their right to a jury. We reject this unreasonable and unnecessarily burdensome result.

¶24 C.B. waived her appearance at the trial setting hearing. By waiving this appearance, she waived her right to be orally advised in open court of her right to demand a jury. C.B. did not demand a jury trial. The trial court did not err by conducting a hearing on the petition without a jury.

¶25 C.B. next claims that she did not waive her right to a jury trial because the record does not establish that she had notice of her right to a jury trial. But it does. The written order committing her for 14 days stated, "If involuntary treatment beyond the fourteen day period ... is to be sought, respondent will have the right to a full hearing or jury trial as required by RCW 71.05.310." It also stated that counsel had provided C.B. with a notice of C.B.'s right to a hearing or jury trial and that C.B. orally waived this right in her attorney's presence. C.B.'s defense counsel signed this order indicating C.B. received notice and orally waived her right to jury trial. Her current counsel's claim requires that we presume her trial counsel misrepresented her own and her client's actions. We decline to do so.

¶26 C.B. cites to Quesnell as support for her claim that the State must prove an affirmative waiver directly from C.B. But in Quesnell a guardian ad litem waived the right to a jury trial after the appellant, through private counsel, demanded it. Because of the demand, the right was not implicitly waived. A proceeding without a jury at that point was proper only if the appellant had notice and provided an affirmative waiver. Quesnell provides no guidance where the defendant does not demand a jury trial.

¶27 C.B. also contends that her attorney failed to demonstrate specific authorization to waive the right to a jury on C.B.'s behalf. But she provides no authority to support her contention that specific authorization must be shown when a demand must be made for a jury and, in the absence of such a demand, waiver is implicit. Instead, she cites to two cases where a waiver or withdrawal occurred after a demand was made. And she cites to two other cases that involve adoption and deprivation of parental custody, neither of which address an implicit waiver of the right to a jury trial that occurs when a party does not demand one.

Since she cites no authority on point, we assume that she has found none.

¶28 Finally, C.B. claims that she had to knowingly, intelligently, and voluntarily waive the right for the waiver to be valid. In an earlier unpublished case we refused to interpret RCW 71.05.310 and MPR 3.3(b) to require knowing, intelligent, and voluntary waiver of the jury right, and we decline to do so now. The knowing, intelligent, and voluntary standard is the standard for a waiver of a jury trial in criminal cases. But a civil case differs from a criminal prosecution. And the general rule for waiving a jury trial in civil cases under CR 38 is that a party implicitly waives her right if she does not demand it.

¶29 C.B. contends that Godfrey v. Hartford Casualty Insurance Co. requires this court to apply a criminal standard to the analysis of jury waiver in civil as well as criminal cases. But, as the State points out, Godfrey is narrowly limited to contractual waivers of the right to a jury in arbitration clauses. It does not purport to overturn case law and court rules that allow for implicit waiver of the right to jury trial in a civil case without a showing of knowing, intelligent, and voluntary action. In a subsequent case, Adler v. Fred Lind Manor, the court explained, "The crux of our decision in Godfrey was that by knowingly and voluntarily agreeing to arbitration, a party implicitly waives his right to a jury trial by agreeing to an alternate forum, arbitration."

¶30 C.B. fails to establish the court erred by conducting the trial on the 90-day involuntary commitment petition without a jury. The Washington Constitution does not confer a right to a jury trial for a hearing on a 90-day commitment proceeding. Under the ITA, C.B. had to demand a jury to receive one. And because she waived her right to appear, she also waived her right to be notified in open court of her right to a jury trial. By failing to demand a jury trial, she implicitly waived her statutory right to one.

CONCLUSION

¶31 We affirm. The Washington Constitution does not confer the right to a jury trial for a 90-day commitment proceeding. C.B.'s attorney provided her notice of her statutory right to a jury trial. By waiving her presence in court at the trial setting hearing, she also waived her right to notice in open court of her statutory right to demand a jury. She failed to demand a jury and so implicitly waived the right. The trial court did not err in conducting the trial on the petition without a jury.

WE CONCUR:

Verellen, J.

Schindler, J.

      C.B.'s attorney and the court discussed the possibility of a videoconference or phone call, but C.B. declined. On August 28, 2017, this court concluded that a respondent to a petition for involuntary treatment was not "present" under RCW 71.05.310 in a videoconference. It did not rule on telephonic presence. In re Det. of J.N., 200 Wash. App. 279, 290, 402 P.3d 380 (2017).

      In re Det. of S.E., 199 Wash. App. 609, 614, 400 P.3d 1271 (2017), review denied, 189 Wash.2d 1032, 407 P.3d 1152 (2018).

      Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ; State v. McEnroe, 174 Wash.2d 795, 800, 279 P.3d 861 (2012).

      The State does not address this issue.

      Ch. 71.05 RCW.

      In re Det. of M.K., 168 Wash. App. 621, 626, 279 P.3d 897 (2012) (citing RCW 71.05.012, .212, .245).

      See M.K., 168 Wash. App. at 625, 279 P.3d 897.

      The State does not discuss this issue.

      Wash. Const. art. I, § 21.

      In re Det. of M.W., 185 Wash.2d 633, 662, 374 P.3d 1123 (2016) (citing Endicott v. Icicle Seafoods, Inc., 167 Wash.2d 873, 884, 224 P.3d 761 (2010) ).

      M.W., 185 Wash.2d at 662, 374 P.3d 1123 (citing Endicott, 167 Wash.2d at 884, 224 P.3d 761 ).

      M.W., 185 Wash.2d at 662, 374 P.3d 1123 (citing Endicott, 167 Wash.2d at 884, 224 P.3d 761 ).

      Sherwin v. Arveson, 96 Wash.2d 77, 83, 633 P.2d 1335 (1981).

      S.E., 199 Wash. App. at 617, 400 P.3d 1271.

      185 Wash.2d 633, 641, 374 P.3d 1123 (2016).

      Former RCW 71.05.320(3)(c)(ii) (2013).

      M.W., 185 Wash.2d at 663, 374 P.3d 1123.

      M.W., 185 Wash.2d at 663, 374 P.3d 1123.

      83 Wash.2d 224, 240-41, 517 P.2d 568 (1973).

      Quesnell, 83 Wash.2d at 242, 517 P.2d 568.

      Quesnell, 83 Wash.2d at 242 n.23, 517 P.2d 568.

      S.E., 199 Wash. App. at 627-28, 400 P.3d 1271.

      S.E., 199 Wash. App. at 616, 400 P.3d 1271 (quoting Code of 1881, ch. 110 § 1632); Quesnell, 83 Wash.2d at 242, 517 P.2d 568 ; In re Ellern, 23 Wash.2d 219, 224, 160 P.2d 639 (1945).

      S.E., 199 Wash. App. at 616, 400 P.3d 1271 (quoting Code of 1881, ch. 110 § 1632); Quesnell, 83 Wash.2d at 242, 517 P.2d 568 ; Ellern, 23 Wash.2d at 224, 160 P.2d 639.

      Ch. 71.05 RCW; S.E., 199 Wash. App. at 625, 400 P.3d 1271.

      RCW 71.05.300, .310; see also MPR 3.3(b).

      State v. George, 160 Wash.2d 727, 735, 158 P.3d 1169 (2007).

      TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wash.2d 273, 281, 242 P.3d 810 (2010).

      State v. Evans, 177 Wash.2d 186, 192, 298 P.3d 724 (2013).

      State v. Chester, 133 Wash.2d 15, 21, 940 P.2d 1374 (1997).

      In re Det. of Swanson, 115 Wash.2d 21, 27, 793 P.2d 962 (1990).

      Swanson, 115 Wash. 2d at 28, 793 P.2d 962.

      See, e.g., RCW 71.05.240(3)(c).

      RCW 71.05.240(5).

      RCW 71.05.300.

      RCW 71.05.300(1).

      RCW 71.05.300(2).

      RCW 71.05.310.

      RCW 71.05.570 (conferring authority upon the Washington Supreme Court to "adopt such rules at it shall deem necessary with respect to the court procedures and proceedings provided by this chapter").

      RCW 71.05.310.

      MPR 3.3(b).

      RCW 71.05.300(1) (emphasis added).

      RCW 71.05.300(2).

      Quesnell, 83 Wash.2d at 242, 517 P.2d 568.

      Quesnell, 83 Wash.2d at 242-44, 517 P.2d 568.

      Quesnell, 83 Wash.2d at 238-39, 517 P.2d 568 ; Graves v. P.J. Taggares Co., 94 Wash.2d 298, 305, 616 P.2d 1223 (1980).

      In re Adoption of Coggins, 13 Wash. App. 736, 739, 537 P.2d 287 (1975) ; In re Welfare of Houts, 7 Wash. App. 476, 482, 499 P.2d 1276 (1972).

      Grant County v. Bohne, 89 Wash.2d 953, 958, 577 P.2d 138 (1978) ("Where no authorities are cited, the court may assume that counsel, after diligent search, has found none.").

      In re Det. of J.G., No. 70369-2-I, slip op. at 4-5, 2013 WL 4001513 (Wash. Ct. App. Aug. 19, 2013) (unpublished), http://www.courts.wa.gov/opinions/pdf/703692.pdf.

      State v. Stegall, 124 Wash.2d 719, 724-25, 881 P.2d 979 (1994) ; State v. Hos, 154 Wash. App. 238, 249, 225 P.3d 389 (2010).

      Addington v. Texas, 441 U.S. 418, 428, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

      CR 38(b)-(d) ; Sackett v. Santilli, 101 Wash. App. 128, 133-34, 5 P.3d 11 (2000), aff'd, 146 Wash.2d 498, 47 P.3d 948 (2002).

      142 Wash.2d 885, 898, 16 P.3d 617 (2001).

      Godfrey, 142 Wash.2d at 898, 16 P.3d 617.

      153 Wash.2d 331, 360, 103 P.3d 773 (2004) (citation omitted).

      The State contends that even if criminal standards apply, C.B.'s waiver was valid. Since this is not a criminal case and C.B. did not demand the right to a jury, we need not address this issue. We note that many issues relating to waiver could be avoided with an amendment to MPR 3.3 that requires the filing of a written waiver of the right to a jury trial signed by any detained person who does not personally appear at a trial setting hearing.


text:
    Randolph PETERSON, a taxpayer resident, Appellant, v. State of Washington DEPARTMENT OF REVENUE, a state agency; Port of Benton, a Washington port district, Respondents.
    No. 79090-1-I
    Court of Appeals of Washington, Division 1.
    FILED: June 17, 2019
    Andrew Gordon Yates, Timothy David Wackerbarth, Lane Powell PC, Po Box 91302, 1420 5th Ave. Ste. 4200, Seattle, WA, 98111-9402, for Plaintiff.
    Paul J. Lawrence, Gregory J. Wong, Alanna Peterson, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Respondents.
    Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, William Christopher Schroeder, William John Schroeder, Anne Kathleen Schroeder, KSB Litigation, P.S., 221 N Wall St. Ste. 210, Spokane, WA, 99201-0824, for Appellant/Cross-Respondent.
    Rob J. Crichton, Eric Ryan Laliberte, Keller Rohrback LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, Thomas A. Cowan Jr., Gravis Law PLLC, 503 Knight St. Ste. A, Richland, WA, 99352-4257, for Respondents/Cross-Appellant.
   PUBLISHED OPINION

Mann, A.C.J.

¶1 Randolph Peterson sued the Port of Benton (Port) alleging that the Port violated article VIII, section 7 and article I, section 12 of the Washington Constitution by allowing Burlington Northern Santa Fe Railway Co. (BNSF) the free use of public railroad tracks despite the wear and tear caused by BNSF's use of those tracks. Peterson appeals the trial court's order granting summary judgment and dismissing his case. We affirm.

I.

¶2 In 1947, the Atomic Energy Commission (AEC), and the predecessors to BNSF and the Union Pacific Railroad (UP) entered into a contract to establish rail service to the Hanford Nuclear Reservation (Hanford). The 1947 contract provided that the predecessors of BNSF and UP would each pay one half of $ 100,000 to AEC, which equaled the cost to construct 5.4 miles of rail tracks between Hanford and the north bank of the Yakima River, in return, BNSF and UP would be entitled to use those tracks free of rental or any other charge. The 1947 contract was terminable upon six months' notice. The Interstate Commerce Commission (ICC) approved the 1947 contract and included in its report that "when full payment has been made, [BNSF and UP] should thereafter be permitted to operate over the tracks without further payments."

¶3 In 1998, the Department of Energy (DOE) declared certain parts of its Hanford property to be surplus, and transferred 767.13 acres of industrial property to the Port by indenture. The conveyance was valued at $ 5.1 million. The conveyance included the 5.4 miles of railroad tracks built under the 1947 contract. The indenture assigned DOE's rights under the 1947 contract to the Port. As assignee, the Port agreed to be bound by the obligations and considerations in the 1947 contract. The successor to the ICC, the Surface Transportation Board (STB), approved the transfer.

¶4 The same day that the indenture became effective, the Port entered into a maintenance and operation agreement with Livingston Rebuild Center, Inc. (LRC), where the Port paid LRC to maintain the track. Peterson controlled LRC. Subsequently, Peterson formed the Tri-City Railroad Co. (TCRY) as a local, short-haul railroad company, and LRC assigned its rights and obligations under the maintenance agreement to TCRY.

¶5 In 2000, the Port entered an agreement with TCRY to interchange railroad cars. Under the interchange agreement, TCRY charged BNSF a per-car fee for exchanging cars for the benefit of BNSF's customers. The interchange agreement "specifically reserved BNSF's rights under the 1947 and 1961 Agreements."

¶6 In 2002, TCRY negotiated a lease agreement with the Port for the right to operate the track and use certain real and personal property. The lease obligated TCRY to "use the Property for the operation and maintenance of railroad transportation facilities." The lease was "subject to the restrictions contained in the Indenture between the United States of America and the Port, the amendments thereto, and the Quit Claim Deed from the United States of America." The lease also obligated TCRY's "use, operations, and maintenance of the tracks [to] comply with the provisions of the Quit Claim Deed and Indenture from the United States of America through which the Port acquired title to the property." Additionally, the lease indicated that TCRY was provided with copies of the indenture.

¶7 The lease indicated that TCRY, "at its sole cost and expense, shall maintain the Property and all improvements and fixtures then existing thereon in good condition and repair, subject to reasonable wear and tear." Until 2009, BNSF paid TCRY to interchange cars, on a per-car basis. The interchange fees were used to maintain the tracks. BNSF provided TCRY with a written termination notice because BNSF realized it "could operate its own cars on the Richland Trackage at a savings of around $ 100-150 per car" under the 1947 contract.

¶8 When BNSF ended its agreement with TCRY in 2009, TCRY did not believe that BNSF had a right to operate directly on the tracks and attempted to physically block BNSF's use of the tracks. BNSF responded by filing a lawsuit in the United States District Court seeking declaratory and injunctive relief prohibiting TCRY from blocking BNSF's access to the rail tracks. BNSF Ry. Co. v. Tri-City & Olympia Ry. Co. LLC, 835 F. Supp. 2d 1056, 1066 (E.D. Wash. 2011). The District Court declared that "for all of the historical complexity surrounding the Richland Trackage, the relative rights of the parties are actually quite simple: The United States granted BNSF and UP's predecessors in interest full rights to operate on the Richland Trackage, and TCRY took possession of the Richland Trackage subject to these rights." BNSF Ry. Co., 835 F. Supp. 2d at 1066-67. The District Court entered a permanent injunction requiring TCRY to allow BNSF and UP to directly serve customers on the tracks. BNSF Ry. Co., 835 F. Supp. 2d at 1066.

¶9 Peterson filed this action on August 15, 2016, alleging the Port and the Washington Department of Revenue (DOR) violated their statutory taxing duties, article VIII, section 7, and article I, section 12 of the Washington Constitution.

BNSF and UP successfully moved to intervene. Port taxpayers, Peggi Doggett, Jennifer Hartsfield, Jason Mount, Mandi Oukrop, and James Summey then successfully moved to intervene, objecting to the Port's gift of public funds and property to BNSF.

¶10 All parties moved for summary judgment. The trial court granted the Port's and BNSF's motions for summary judgment and denied Peterson's motion for summary judgment. Peterson appeals.

II.

¶11 Peterson argues first that by allowing BNSF to use its tracks rent free, and without paying for the impact to the tracks from wear and tear, the Port has made an unconstitutional gift of public funds in violation of article VIII, section 7 of the Washington Constitution. Peterson contends that the trial court erred when it found that there was no issue of material fact as to whether the Port was receiving a grossly inadequate return. We disagree.

¶12 We review summary judgment de novo and consider the facts in a light most favorable to the nonmoving party. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). "[S]ummary judgment is appropriate where there is 'no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.' " Elcon Const., Inc. v. E. Wash. Univ., 174 Wash.2d 157, 164, 273 P.3d 965 (2012). "In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact." Young, 112 Wash.2d at 225, 770 P.2d 182. If the moving party is the defendant and meets this initial showing, "then the inquiry shifts to the party with the burden of proof at trial." Young, 112 Wash.2d at 225, 770 P.2d 182. Constitutional issues are reviewed de novo. State v. Jorgenson , 179 Wash.2d 145, 150, 312 P.3d 960 (2013).

A.

¶13 Article VIII, section 7 of the Washington Constitution provides:

No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

The purpose of this constitutional provision is "to prevent state funds from being used to benefit private interests where the public interest is not primarily served." Japan Line, Ltd. v. McCaffree, 88 Wash.2d 93, 98, 558 P.2d 211 (1977).

¶14 To determine whether there has been a gift of state funds, courts apply a two-pronged analysis:

First, the court asks if the funds are being expended to carry out a fundamental purpose of the government? If the answer to that question is yes, then no gift of public funds has been made. The second prong comes into play only when the expenditures are held not to serve fundamental purposes of government. The court then focuses on the consideration received by the public for the expenditure of public funds and the donative intent of appropriating body in order to determine whether or not a gift has occurred.

CLEAN v. State, 130 Wash.2d 782, 797-98, 928 P.2d 1054 (1996). The court's analysis focuses on consideration and donative intent. City of Tacoma v. Taxpayers of City of Tacoma, 108 Wash.2d 679, 702, 743 P.2d 793 (1987). To overcome the presumption that the indenture is constitutionally valid, Peterson must show that BNSF's use of the railway amounts to a "transfer of property without consideration and with donative intent." General Tel. Co. v. City of Bothell, 105 Wash.2d 579, 588, 716 P.2d 879 (1986) ; City of Tacoma, 108 Wash.2d at 702, 743 P.2d 793.

B.

¶15 The parties do not dispute that the answer to the first prong of the CLEAN analysis-whether BNSF's use of the tracks rent free carries out a fundamental governmental purpose-is no. The focus thus turns to whether there was a donative intent and consideration. CLEAN, 130 Wash.2d at 797-98, 928 P.2d 1054. "We use the donative intent element to determine how closely we scrutinize the sufficiency of the consideration, 'the key factor.' " City of Tacoma, 108 Wash.2d at 703, 743 P.2d 793 (quoting Adams v. Univ. of Washington, 106 Wash.2d 312, 327, 722 P.2d 74 (1986) ). "Absent a showing of donative intent or gross inadequacy, trial courts should only apply a legal sufficiency, under which a bargained-for act or forbearance is considered sufficient consideration." City of Tacoma, 108 Wash.2d at 703, 743 P.2d 793 ; King County v. Taxpayers of King County, 133 Wash.2d 584, 601, 949 P.2d 1260 (1997).

1.

¶16 Peterson argues that the Port had express donative intent when it allowed BNSF to use the railroad tracks rent free. Donative intent can be determined as a matter of law. King County, 133 Wash.2d at 597-601, 949 P.2d 1260. Peterson makes several arguments in support of his contention that the Port had express donative intent.

¶17 Peterson first argues that the Port's donative intent is evident because it has never terminated BNSF's revocable permit, the Port allows no other tenant to use its public property rent free, and no other government entity in Washington allows BNSF to use publicly-owned tracks without monetary compensation. This evidence is not sufficient to show that the Port had donative intent when it began allowing BNSF to use the rail tracks rent free. To the contrary, under the indenture, the Port received property valued in 1998 at $ 5.1 million in exchange for agreeing to honor BNSF's operating rights under the 1947 contract.

¶18 Peterson next argues that the Port's donative intent is evident because UP continued to pay for its use of the railroad until 2017 while BNSF did not. Peterson contends that the Port required UP to begin paying monetary consideration in 2000, threatening to terminate UP's permit to use the tracks, while treating BNSF differently. It is unclear why UP continued to pay for its use of the track until 2017. However, UP's continued payment until 2017 does not demonstrate that the Port had donative intent when it allowed BNSF to continue to use the tracks rent free. Terminating BNSF's and UP's rights would leave the businesses the Port serves without Class I rail service.

¶19 Finally, Peterson argues donative intent is demonstrated because the Port hid BNSF's rent free use of the tracks from the State Auditor. Peterson argues that the Port was audited in 2012 and 2015 and never disclosed that BNSF was using Port property without paying monetary consideration or leasehold tax. Peterson fails, however, to offer a legal basis for why the Port was required to do so, where BNSF does not have a lease with the Port and thus does not pay leasehold taxes.

¶20 Peterson has failed to demonstrate express donative intent.

2.

¶21 Peterson next argues that, even if the Port did not have express donative intent, donative intent can also be demonstrated by the presence of grossly inadequate consideration. In general, we agree. See King County, 133 Wash.2d at 601, 949 P.2d 1260 ("In the absence of donative intent or grossly inadequate return, the Court's review is limited to the legal sufficiency of the consideration for the lease."); City of Tacoma, 108 Wash.2d at 703, 743 P.2d 793. We disagree, however, with Peterson's position that this inquiry provides the court with an avenue to engage in "careful consideration of the 'consideration' received by the Port for the use of its tracks by BNSF." Peterson offers no legal support for such a detailed inquiry. To the contrary, in King County, our Supreme Court, over a vigorous dissent, made clear that reviewing courts "do not inquire into the adequacy of consideration, but employ a legal sufficiency test." 133 Wash.2d at 597, 949 P.2d 1260. As the Court explained,

[w]e have been reluctant to engage in an in-depth analysis of the adequacy of consideration because such an analysis interferes unduly with governmental power to contract and would establish a "burdensome precedent" of judicial interference with government decision making.

King County, 133 Wash.2d at 597, 949 P.2d 1260. Adopting Peterson's call for a careful inquiry into the consideration as part of our analysis of the donative intent element would result in the same judicial interference that King County cautioned against.

¶22 Instead, while a grossly inadequate return may be relevant to the donative intent inquiry, we conclude that our review for gross inadequacy is similar to the general equitable contract law principal under which courts may set aside a contract where the consideration is "so gross as to shock the conscience," and thus may suggest fraud or other wrongdoing. See Miebach v. Colasurdo, 102 Wash.2d 170, 178, 685 P.2d 1074 (1984) ; Binder v. Binder, 50 Wash.2d 142, 150, 309 P.2d 1050 (1957). Peterson, does not argue, nor is there any evidence to support, that the consideration for the 1947 contract and the indenture was unconscionable. Cf. King County, 133 Wash.2d at 599-601, 949 P.2d 1260 (rejecting the Taxpayers' argument that the Mariners' lease was "unconscionable" because the "consideration for the lease ... is so grossly inadequate").

¶23 Instead, the Port bargained for nearly 768 acres of land, worth $ 5.1 million dollars in 1998, in exchange for assuming the obligations of the federal government in the 1947 contract. The Port has over 250 leases generating income. While it is clear from the indenture that the Port may terminate BNSF's and UP's rights to use the track on a six-month notice, doing so would leave the Port without any Class I railroads. "An incidental benefit to a private individual or organization will not invalidate an otherwise valid public transaction." King County, 133 Wash.2d at 596, 949 P.2d 1260. The benefits to BNSF are incidental to acquiring $ 5.1 million in property and having two Class I railroads competing. The consideration for the contract and indenture was not grossly inadequate.

C.

¶24 Peterson also fails to demonstrate that the 1947 contract and indenture were not supported by legally sufficient consideration. King County, 133 Wash.2d at 597, 949 P.2d 1260. Legal sufficiency "is concerned not with comparative value but with that which will support a promise." King County, 133 Wash.2d at 597, 949 P.2d 1260 (quoting Browning v. Johnson, 70 Wash.2d 145, 147, 422 P.2d 314 (1967) ). The adequacy of consideration is a question of law and may be determined by a court on summary judgment. King County, 133 Wash.2d at 597, 949 P.2d 1260.

¶25 The 1947 contract was supported by legally sufficient consideration. The 1947 contract provided that the predecessors of BNSF and UP would each pay one half of $ 100,000 to the AEC, which equaled the cost to construct 5.4 miles of rail tracks between Hanford and the north bank of the Yakima River. In return, BNSF and UP would be entitled to use those tracks free of rental or any other charge. Similarly, the indenture was supported by legally sufficient consideration. The Port received nearly 768 acres of land, worth $ 5.1 million dollars in 1998, in exchange for assuming the obligations of the federal government in the 1947 contract.

¶26 Summary judgment and dismissal of Peterson's claims under article VIII, section 7, was appropriate.

III.

¶27 Peterson next contends that the indenture violates the anti-favoritism provision of the privileges and immunities clause of the Washington Constitution. Because Peterson fails to identify any law that grants an unconstitutional privilege or immunity, and does not allege that this dispute implicates a fundamental right of state citizenship, we disagree.

¶28 Article I, section 12 of the Washington Constitution provides, "[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." We analyze claims brought under article I, section 12 using a two-step analysis. Ockletree v. Franciscan Health Sys., 179 Wash.2d 769, 776, 317 P.3d 1009 (2014). First, we determine if the law in question involves a privilege or immunity, and second, if so, whether the legislature had a "reasonable ground" for granting the privilege or immunity. Ockletree, 179 Wash.2d at 776, 317 P.3d 1009.

A.

¶29 As a threshold matter, the plain language of article I, section 12 applies to the passing of a "law." Peterson's claim is based on the 1947 contract and the indenture. Both are contracts, not laws and thus, on its face article I, section 12 is not applicable. Peterson argues, however, that the Port's resolution allowing it to enter the indenture has the force of law.

¶30 RCW 53.12.245 indicates that "[a]ll proceedings of the port commission shall be by motion or resolution recorded in a book or books kept for such purpose, which shall be public records." However, RCW 53.08.070 provides that "a port district may enter into any contract for wharfage, dockage, warehousing, or port or terminal charges, with the United States or any government agency thereof ... under such terms as the commission may, in its discretion, negotiate." While the Port adopted a resolution to enter the indenture with the DOE, RCW 53.08.070 authorizes the Port to negotiate the contract, in its discretion. Thus-while resolutions may have the force of law when operating as a general law-here, the resolution allowed the Port to enter a private contract with DOE, which cannot be challenged as a "law" under article I, section 12. Peterson does not cite any authority where an appellant successfully challenged a government contract as violating the privileges and immunities clause.

B.

¶31 Moreover, even if the resolution approving the indenture can be characterized as a law, and therefore subject to article I, section 12 analysis, Peterson's argument fails because he has failed to identify a fundamental right at issue.

¶32 "The privileges and immunities clause is concerned both with avoiding favoritism and preventing discrimination." Am. Legion Post #149 v. Wash. State Dep't. of Health, 164 Wash.2d 570, 606, 192 P.3d 306 (2008). But, "[a] privilege is not necessarily created every time a statute allows a particular group to do or obtain something." Am. Legion Post #149, 164 Wash.2d at 606-07, 192 P.3d 306 (citation omitted). "Privileges and immunities 'pertain alone to those fundamental rights which belong to the citizens of this state by reason of such citizenship.' " Grant County Fire Protection Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 812-13, 83 P.3d 419 (2004) (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902) (emphasis added).)

¶33 Peterson argues that the "government's obligation to be properly compensated for use of public property" is the fundamental right at issue. He cites Grant County and Ockletree in support. Peterson asserts that Grant County stands for the proposition that "the right to be exempt, in property or persons, from taxes or burdens which the property or persons of citizens of some other state are exempt from" is a fundamental right. Grant County, 150 Wash.2d at 813, 83 P.3d 419. But Peterson does not argue that BNSF's treatment is a result of its citizenship in another state. Similarly, Peterson cites Ockletree for the proposition that an exemption in Washington's Law Against Discrimination for religious groups implicated a fundamental right. But Peterson fails to explain how Ockletree is analogous or relevant to this dispute.

¶34 Peterson failed to identify a law and a fundamental right belonging to the citizens of this state to which the privilege and immunities and clause applies. Summary judgment and dismissal of his claim under article I, section 12 of the Washington Constitution was appropriate.

¶35 We affirm.

WE CONCUR:

Dwyer, J.

Appelwick, C.J.

      The parties to the original 1947 contract were the AEC, Northern Pacific Railway Company, the Oregon-Washington Railroad & Navigation Company, and its lessee the Union Pacific Railroad Company.

      A second agreement was entered between the railroads and AEC in 1961 addressing use of certain spur tracks. The 1961 agreement was converted to a permit in 1979. The 1961 agreement and 1979 permit did not change the relevant terms of the 1947 contract.

      The property today is valued in excess of $ 50 million dollars.

      The Port also agreed to be bound by the terms of the 1961 agreement and 1979 permit.

      Currently BNSF and UP operate as Class I carriers, providing competitive interstate service to businesses in the Port.