author: Siddoway, J.

text:
    Francisco SORIANO, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
    No. 35626-4-III
    Court of Appeals of Washington, Division 3.
    Filed April 11, 2019 Publication Ordered June 4, 2019
    Marcus Richard Henry, Smart Law Offices P.S., P.O. Box 7284, Kennewick, WA, 99336-0617, for Appellant.
    Steve Vinyard, Attorney General's Office, Po Box 40121, Olympia, WA, 98504-0121, Labor & Indus. A.G. Office, Attorney at Law, 7141 Cleanwater Lane Sw, P.O. Box 40121, Olympia, WA, 98504-0121, for Respondent.
   Siddoway, J.

¶1 Francisco Soriano appeals the superior court's order affirming a decision of the Board of Industrial Insurance Appeals (Board) that he was eligible only for medical treatment expenses, not disability benefits, for an injury sustained in 1980. The decision of the Board turned on the meaning of an October 2014 order of the Department of Labor and Industries (Department), which had become final. Mr. Soriano argued that the October 2014 order found him eligible for both treatment and benefits, and was binding on the Department.

¶2 We agree with the superior court that the October 2014 order did not determine Mr. Soriano's eligibility for disability benefits. We decline to consider an argument that the director of the Department (Director) abused his discretion, which Mr. Soriano did not petition the Board to review. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 In October 1981, Francisco Soriano received a permanent partial disability award based on a 1980 workplace injury in which his right arm and hand were seriously injured. He has applied to reopen his claim several times in the years since.

¶4 When a worker applies to reopen a closed claim, the claim will be deemed reopened if the Department fails to deny the application within 90 days of receiving it. RCW 51.32.160(1)(d). When a worker applies to reopen a claim more than seven years after the first order closing the claim became final, however, the worker may only receive medical treatment on reopening, unless the Director, "upon his or her own motion," reopens the claim as to disability benefits as well. RCW 51.32.160(1)(a). Such claims are referred to as "over-seven" claims. Cascade Valley Hosp. v. Stach , 152 Wash. App. 502, 504, 215 P.3d 1043 (2009). The Director's decision on benefit eligibility in the case of "over-seven" claims is discretionary. Id. at 512, 215 P.3d 1043.

¶5 The application to reopen that is at issue was filed by Mr. Soriano in September 2013. When more than 90 days passed without any denial of the application, the Department sent a notice of decision to Mr. Soriano, the Department, and other interested parties in December 2013, ordering that the claim was deemed granted and reopened effective September 4, 2013. Id . The notice was signed in the name of the supervisor of industrial insurance, by a claim manager. It stated in part:

THE WORKERS [sic] IS NOT ENTITLED TO DISABILITY BENEFITS, SUCH AS TIME-LOSS COMPENSATION OR PERMANENT DISABILITY, UNLESS AND UNTIL THE DIRECTOR EXCERCISES [sic] HIS OR HER DISCRETION TO GRANT THEM.
THIS IS BECAUSE THE REOPENING APPLICATION WAS NOT RECEIVED
WITHIN THE TIME LIMITATION SET BY LAW (10 YEARS FROM FIRST CLAIM CLOSURE FOR EYE INJURY, 7 YEARS FROM FIRST CLAIM CLOSURE FOR ALL OTHER INJURIES).

Clerk's Papers (CP) at 51.

¶6 In January 2014, the Department issued a notice of decision "correct[ing] and supersed[ing]" the prior order. CP at 52. It made two word or spelling changes but carried forward the same information and caveats.

¶7 In May, the Department issued a notice of decision stating that "[t]he medical record shows treatment is no longer necessary." CP at 53. It stated that Mr. Soriano's claim was closed effective May 15, 2014.

¶8 Mr. Soriano protested and requested reconsideration of the Department's May 2014 order. In a notice of decision issued in August 2014, the Department stated it had reconsidered the May order, determined it to be correct, and affirmed it.

¶9 Mr. Soriano again protested and requested reconsideration of the Department's decision to close its claim. This time, the Department canceled the May closing order, in an October 16, 2014 notice of decision that it sent to Mr. Soriano and other interested parties. The notice stated:

The Department of Labor and Industries has canceled the closing order of 5/15/2014. The claim remains open for authorized treatment and benefits.

CP at 55. The notice was signed in the name of the supervisor of industrial insurance, this time by a claims consultant. A legend at the bottom of the notice stated that the order would become final "60 days from the date it is communicated to you" unless a request was made for reconsideration by the Department or it was appealed to the Board. CP at 55. Neither Mr. Soriano nor the Department appealed.

¶10 A year later, Mr. Soriano's lawyer received a letter from Joel Sacks, Director of the Department, notifying him that Mr. Soriano was eligible for medical benefits only. The letter stated that because Mr. Soriano's claim had been closed for more than seven years, any time-loss compensation benefits "must be approved by the director and can only be approved under special circumstances." CP at 56. It continued:

After reviewing the circumstances of your claim, I have determined Mr. Soriano is not eligible to receive time-loss benefits because he was not attached to the workforce when he filed reopening of this claim and he has no wages to replace. All medical benefits related to your injury will be covered under this claim. Your claim manager ... will send you an order reflecting my decision.

Id.

¶11 Mr. Soriano protested and requested reconsideration of the Director's October 1, 2015 letter. The Department responded with a notice of decision stating that "[o]nly the Director ... has the authority to gran[t] additional disability benefits such as time-loss compensation" and "[t]he Director has decided that only payment of medical benefits is appropriate." CP at 57.

¶12 Mr. Soriano appealed to the Board, where, in lieu of a hearing, the parties stipulated to facts and agreed exhibits. In a brief filed with the industrial appeals judge (IAJ) after the stipulation was filed, Mr. Soriano advanced two arguments. The first was that the Director had abused his discretion by failing to consider evidence and exercise discretion. He cited In re Robert Dorr, Jr. , designated as a significant decision by the Board, in which it held that in denying a worker's entitlement to disability benefits in an "over-seven" case, it is an abuse of discretion for the Director to completely "fail[ ] to consider the relevant factors contained in the Department's own policy for making such determinations." CP at 21. Mr. Soriano's second argument was that the Department's October 2014 order was res judicata that Mr. Soriano's claim "remained open for further treatment and benefits ." CP at 61. ¶13 In response to Mr. Soriano's argument that the Director had failed to exercise his discretion, the Department filed and sought to offer an additional three-and-a-half page exhibit: a memorandum to the Director that had recommended denying further benefits to Mr. Soriano. Mr. Soriano objected to its admission. The IAJ sustained the objection and rejected the proposed additional exhibit.

¶14 The IAJ affirmed the November 2015 Department order. Mr. Soriano petitioned the Board for review. The only basis for reversal he argued to the Board was that the IAJ erred when it failed to recognize that the October 2014 order was final and binding on the issue that "Mr. Soriano's claim was 'open for treatment and benefits.' " CP at 13. The Board denied Mr. Soriano's petition and adopted the IAJ's proposed decision and order as the decision and order of the Board.

¶15 Mr. Soriano then appealed the Board's decision to the Benton County Superior Court. Here, too, he argued that the October 2014 order, which he argued determined his eligibility for treatment and benefits, was binding on the Department. The trial court affirmed the Board's decision. Mr. Soriano appeals.

ANALYSIS

¶16 Mr. Soriano assigns error on appeal not only to the superior court's decision affirming the Board on the res judicata issue, but he also attempts to revive the alternative argument that the Director failed to exercise his discretion in Mr. Soriano's case in the manner that led to reversal and remand in Dorr. By statute, a petition for review of an IAJ decision "shall set forth in detail the grounds therefor and the party or parties filing the same shall be deemed to have waived all objections or irregularities not specifically set forth therein." RCW 51.52.104 ; Leuluaialii v. Dep't of Labor & Indus. , 169 Wash. App. 672, 684, 279 P.3d 515 (2012). This ground for reversal was not set forth in Mr. Soriano's petition for review by the Board. We refuse to consider it. We turn to the res judicata argument, the only issue properly presented for review.

¶17 In industrial insurance cases, the superior court conducts a de novo review of the Board's decision, relying exclusively on the Board record. RCW 51.52.115 ; Gallo v. Dep't of Labor & Indus ., 119 Wash. App. 49, 53, 81 P.3d 869 (2003), aff'd , 155 Wash.2d 470, 120 P.3d 564 (2005). The Board's findings and decision are prima facie correct and the party challenging the Board's decision has the burden of proof. Id . at 53-54, 81 P.3d 869. On appeal to this court, we review the superior court's decision under the ordinary standard of review for civil cases, reviewing whether substantial evidence supports the trial court's factual findings and then, de novo, whether the trial court's conclusions of law flow from the findings. RCW 51.52.140 ; Ruse v. Dep't of Labor & Indus ., 138 Wash.2d 1, 5, 977 P.2d 570 (1999).

¶18 The superior court's findings do not address Mr. Soriano's affirmative defense of res judicata. "Absent an express finding upon a material fact, it is deemed to have been found against the party having the burden of proof." Interlake Porsche + Audi, Inc. v. Bucholz , 45 Wash. App. 502, 518, 728 P.2d 597 (1986). It is evident from Mr. Soriano's briefing that he assigns error to the trial court's implicit adverse findings on the elements of res judicata.

¶19 Res judicata, or claim preclusion, is an affirmative defense that bars relitigation of claims and issues that were litigated, or could have been litigated, in a prior action. Loveridge v. Fred Meyer, Inc ., 125 Wash.2d 759, 763, 887 P.2d 898 (1995). For res judicata to apply, there must have been a final judgment on the merits in a prior action. Pederson v. Potter , 103 Wash. App. 62, 67, 11 P.3d 833 (2000). In the context of disputes with the Department, "[a]n unappealed Department order is res judicata as to the issues encompassed within the terms of the order, absent fraud in the entry of the order." Kingery v. Dep't of Labor & Indus ., 132 Wash.2d 162, 169, 937 P.2d 565 (1997). This is true, even if there was "an error in the Department's unappealed order." Id . at 170, 937 P.2d 565. The parties' dispute is over whether the October 2014 order decided the issue of Mr. Soriano's eligibility for disability benefits.

¶20 We emphasize that the Department's October 2014 order does not say that Mr. Soriano's claim "is open for treatment and benefits." It says the Department has canceled its closing order and Mr. Soriano's claim "remains open for authorized treatment and benefits." CP at 55 (emphasis added). Where a court's order is ambiguous, a reviewing court seeks to ascertain the intention of the court that entered it by using general rules of construction applicable to statutes, contracts and other writings. In re Marriage of Gimlett , 95 Wash.2d 699, 704-05, 629 P.2d 450 (1981). We will apply the same general rules of construction to the Department's October 2014 order. Evidence of the circumstances under which the order was entered may be considered for the purpose of ascertaining the intention of the agency entering the order and properly construing it. Berg v. Hudesman , 115 Wash.2d 657, 669, 801 P.2d 222 (1990).

¶21 The Department's December 2013 and January 2014 orders deeming Mr. Soriano's claim reopened both stated clearly that Mr. Soriano was not entitled to disability benefits unless the Director exercised discretion to grant them. When Mr. Soriano protested the May 2014 closure of his claim, he was necessarily asking the Department to revert to the claim's previously "deemed reopened" status; he did not make a new application to reopen. Similarly, when the October 2014 order stated that "[t]he claim remains open for authorized treatment and benefits," it was reverting to the claim's previous reopened status. CP at 55. That previously reopened status affirmatively denied disability benefits, clarifying what was "authorized."

¶22 Also significant is the cautionary language in the Department's December 2013 and January 2014 orders that "the Director" would have to exercise discretion to grant any disability benefits. The October 2014 order was signed by a claims consultant, acting for the supervisor of industrial insurance. It is only the Director, not Department claims consultants, who can reopen eligibility for disability benefits '"upon his or her own motion." RCW 51.32.160(l)(a).

¶23 Substantial evidence supports the findings of the trial court that support, in turn, its conclusions. Affirmed.

WE CONCUR:

Fearing, J.

Pennell, A.C.J.

      In re Dorr , No. 07 23982, at 4 (Wash. Bd. Ind. Ins. Appeals Jan. 6, 2009), http://www.biia.wa.gov/SDPDF/0723982.pdf. The Board publishes its significant decisions and makes them available to the public. "These decisions are nonbinding, but persuasive authority for this court." O'Keefe v. Dep't of Labor & Indus. , 126 Wash. App. 760, 766, 109 P.3d 484 (2005).


source: Caselaw Access Project

author: Verellen, J.

license: Public Domain

text:
    Edward P. LEREN, as Executor of the Estate of Marvin A. Leren, Respondent, v. KAISER GYPSUM COMPANY, INC., et al, Defendants.
    Elements Chemicals, Inc., Appellant.
    No. 77870-6-I
    Court of Appeals of Washington, Division 1.
    FILED: May 28, 2019
    Nathaniel Justin Ree Smith, Kyle M. Butler, Soha & Lang P.S., 1325 4th Ave. Ste. 2000, Seattle, WA, 98101-2570, William Armstrong, DeHay & Elliston L.L.P., 100 Pringle Avenue, Suite 700, Walnut Creek, CA, 94596-7379, Counsel for Appellant
    Matthew Phineas Bergman, Glenn S. Draper, Justin Olson, Bergman Draper Oslund, PLLC, 821 2nd Ave. Ste. 2100, Seattle, WA, 98104-1516, Colin Mieling, Craig Anthony Sims, Schroeter Goldmark & Bender, P.S., 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, Counsel for Respondent
    PUBLISHED OPINION
   Verellen, J.

¶ 1 We are asked to resolve whether the product line doctrine of successor liability applies to a distributor of raw asbestos where the acquired distributor faces strict liability under section 402A of the Restatement (Second) of Torts. We conclude the product line doctrine applies.

¶ 2 The purpose of the product line doctrine is to afford a product liability victim with a meaningful remedy when a successor business entity acquires the assets of a predecessor, leaving a mere corporate shell. Although stock purchasers are generally not responsible for the conduct of the companies in which they invest, if a business entity buys 100 percent of a corporation's stock in a single transaction and promptly begins the process of dissolving the corporation, thereby acquiring the predecessor's assets, then a court may look past the form of the combined stock purchase and dissolution to recognize the substance of an asset acquisition. And if, after acquiring the assets, the purchaser avails itself of the goodwill associated with the distributor's sales of unreasonably dangerous materials by holding itself out as a continuation of the acquired distributor, then the purpose, policy, and logic of the product line doctrine applies.

¶ 3 Additionally, the limitations period in RCW 23B.14.340 regarding claims against dissolved corporations and their shareholders does not apply to defeat the product line doctrine of successor liability.

¶ 4 A jury award of noneconomic damages is sustainable under the wrongful death and survivor statutes where the required beneficiary under RCW 4.20.020 is an adult child with compelling bonds of affinity that survived the stepparent's divorce.

¶ 5 Finally, the court properly declined to give a superseding cause instruction because the requesting party failed to show the decedent's employer had actual, specific knowledge of the harm from prolonged asbestos exposure.

¶ 6 Therefore, we affirm.

FACTS

¶ 7 Marvin Leren graduated from Ballard High School in 1961 and went to work for the Z-Brick Company the following year. Leren worked at Z-Brick until 1981. Z-Brick made thin, decorative bricks. Benson Chemical Corporation supplied Z-Brick with raw asbestos used to make the bricks. Leren poured 100-pound sacks of raw asbestos into large hoppers used to mix ingredients for the bricks. Pouring asbestos produced huge clouds of asbestos dust. After the bricks hardened, Leren cut them with a power saw, producing more dust. Generally, Z-Brick was "a mess" with "powder on the floor" and "particles floating in the air." Leren never wore a mask or any other protective gear.

¶ 8 In 1969, Leren met and began dating fellow Z-Brick employee Gretha Zylstra. He soon met Zylstra's three-year-old daughter Jo because she accompanied Zylstra and Leren on their first date. Leren and Zylstra married in 1974. They divorced amicably in 1985.

¶ 9 During the springtime of 2015, Leren felt short of breath and began losing energy. In late September or early October of that year, he had a lung biopsy and began feeling "immense pain." Soon after, he was diagnosed with the rare myloxoid variant of mesothelioma and began chemotherapy. Leren was admitted to the hospital after having a bad reaction to his first round of chemotherapy. He never left. Doctors placed him on palliative care. Leren made out a will on November 10, naming his brother Edward as administrator of his estate (the Estate), providing a monetary bequest to Jo. He filed a complaint seeking damages for negligence and product liability on November 19. He died on November 24, 2015.

¶ 10 The Estate maintained the lawsuit. Over the next 10 months, the Estate added a claim for wrongful death and added Elementis as a defendant. In the late 1970s, Harrisons & Crosfield (Pacific), Inc. (HCP) acquired 100 percent of Benson's stock and dissolved Benson as an independent company. Elementis is the undisputed successor to HCP.

¶ 11 Elementis was the sole defendant at trial. Based on the jury's special verdict and its own findings of fact, the court relied on the product line doctrine and entered judgment in favor of the Estate.

¶ 12 Elementis appeals.

ANALYSIS

I. Corporate Successor Liability

¶ 13 Leren alleged personal injuries from mesothelioma caused by frequent asbestos exposure. Because these exposures occurred prior to enactment of the Washington Product Liability Act, we evaluate potential liability using common law principles embodied in the Restatement (Second) of Torts. Under section 402A of the Restatement, strict liability may be imposed on any party involved in distributing an unreasonably dangerous product. It is undisputed that asbestos is unreasonably dangerous and that Benson distributed the raw asbestos that caused Leren's mesothelioma. The question is whether Elementis is liable for those sales based upon HCP's acquisition of Benson's assets.

¶ 14 Elementis argues it cannot be liable for Leren's injuries because HCP was a mere investor who acquired Benson's assets by automatic transfer upon dissolution rather than by purchase. The trial court disagreed. We review conclusions of law de novo.

¶ 15 Generally, a successor corporation is not responsible for its predecessor's liabilities simply because it acquired the predecessor's assets. But case law provides well-established exceptions. In product liability cases, successor liability arises where one corporation benefits from another's goodwill after acquiring its product line. Washington adopted the product line doctrine of corporate successor liability for the "essential purpose" of

afford[ing] a products liability claimant an opportunity to bring an action against the successor corporation when his or her rights against the predecessor corporation have been essentially extinguished either de jure, through dissolution of the predecessor, or de facto, through sale of all or substantially all of the assets of the predecessor.[ ]

¶ 16 We consider the following questions to decide whether the product line doctrine applies: (1) did the successor acquire substantially all the predecessor's assets, leaving no more than a mere corporate shell, (2) did the successor hold itself out to the general public as a continuation of the predecessor by producing the same product line under a similar name, (3) did the successor benefit from the goodwill of the predecessor?

¶ 17 Product line successor liability requires an asset transfer from predecessor to successor, though the transfer need not be a direct sale. Our Supreme Court adopted the product line doctrine to protect "otherwise defenseless victims" by ensuring they can seek "meaningful remed[ies]" while simultaneously protecting corporations from unexpected liability by requiring "a causal connection between the successor's acquisition and the unavailability of the predecessor." Reflecting this balance, a court should consider two issues when determining if these policy concerns are present: first, whether an asset transfer of any kind occurred between an alleged predecessor and its alleged successor, and second, whether the successor corporation by its acquisition actually "played some role in curtailing or destroying the claimants' remedies." These questions turn on the substance of an asset transfer rather than its form.

¶ 18 Typically, when a plaintiff seeks to hold a successor strictly liable through the product line doctrine, a successor holds itself out as a continuation of the predecessor by continuing to manufacture and sell the predecessor's product line. A manufacturer's goodwill is often associated with its specifically branded product lines. But section 402A allows strict liability for all sellers of unreasonably dangerous products, including distributors. The goodwill for a distributor of raw materials is associated with the distributor's customer relationships and reputation for quality service, quality materials, reliability, and competitive pricing. Thus, the goodwill transfer contemplated in the product line doctrine is "not that associated with individual products," but rather "that associated with the predecessor business entity." Where a successor distributor acquires a predecessor's goodwill, holds itself out as akin to the predecessor by continuing to distribute similar unreasonably dangerous products, and realizes benefits from those distributions, then the product line doctrine applies.

¶ 19 Elementis argues, though, that the product line doctrine is limited to manufacturers who produce unreasonably dangerous products because they can spread the cost of those products across their customer base. We disagree.

¶ 20 Consistent with the principles discussed above, California has held for over 30 years that a distributor of unreasonably dangerous goods may be strictly liable under the product line doctrine for its predecessor's conduct. In Kaminski v. Western MacArthur Company. a former welder's assistant suffering from mesothelioma sued the successor of the distributor that sold asbestos products to his employer.

¶ 21 In 1967, the predecessor asbestos distributor, Western Asbestos Company, was struggling. It made an agreement with the MacArthur Company to turn over all operational control in exchange for a large loan of operating capital. Western viewed the investment as a prelude to a purchase. It notified customers and suppliers of the potential change but emphasized that longtime corporate officers would remain to share their expertise. Seventeen months later, it was running out of money. MacArthur announced Western would dissolve and would let MacArthur purchase inventory and other assets equal to its debt, take over all outstanding contracts, and buy Western's records and customer lists. MacArthur then created a new company, Western MacArthur Company, to do this work. The new company retained 90 percent of Western's employees, kept similar board members, kept similar customers, supplied the same products, referred to itself as "Western," and honored work orders made out to the dissolved Western.

¶ 22 Under these facts, the court concluded the product line doctrine applied. It explained why the policy concerns underlying the doctrine were present:

When a distributor or retailer acquires a corporation and takes advantage of its goodwill and other corporate assets and facilities to inject the predecessor's product line into the stream of commerce, it continues "the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products."[ ]

¶ 23 The analysis in Kaminski is compelling. First, the court relied on our Supreme Court's reasoning in Hall v. Armstrong Cork, Inc. and explained MacArthur used its financial leverage and operational control to "engineer a takeover." Second, the "essence of the takeover" resulted in an asset transfer from Western to the new company that left the plaintiff without a meaningful remedy. Third, the new company was better positioned than the plaintiff to guard against the risks of injury and to spread the costs of injury around by seeking indemnification from the product's manufacturer. Thus, the court held the successor distributor was properly held liable because "[n]othing in [the product line doctrine] conceptually limits its reasoning to manufacturers.''

¶ 24 Similarly, the product line doctrine applies to HCP's acquisition of Benson. On January 10, 1977, HCP purchased 100 percent of Benson's stock from its founder and his wife. Just five weeks later, HCP's board of directors voted to dissolve Benson. HCP soon began making personnel decisions, including promoting a long-time Benson sales employee to regional manager and retaining Benson's founder as a consultant. On June 14, 1977, HCP filed a statement of intent to dissolve Benson. On July 26, 1978, HCP filed Benson's articles of dissolution. HCP then received all of Benson's assets. HCP expressly identified Benson as a division, maintained largely the same suppliers and customers, and continued operating in the same region. These details show a series of intentional steps to take control of Benson, making the company's assets part of HCP and leveraging Benson's goodwill while extinguishing Leren's ability to hold Benson liable for his injuries. We agree with the Kaminski court that the rationale behind the product line doctrine applies to a distributor in these circumstances.

¶ 25 As discussed, HCP acquired all of Benson's assets and left it "no more than a mere corporate shell." And there can be no question that HCP held itself out as a continuation of Benson post-dissolution. Substantial evidence supports findings of fact 6, 11, 12, and 13, which, in turn, support the court's conclusions "that Benson Chemical's goodwill was transferred to HCP and that HCP benefited from Benson's goodwill in its sale of asbestos products to consumers." For example, HCP, which did not operate in Washington or Oregon, acquired Benson's Pacific Northwest distribution network upon dissolution. And long after Benson's dissolution, HCP continued to place ads describing Benson as a division. HCP also continued to use Benson's name when distributing goods, maintained the same office in Seattle, maintained the same phone number for the Seattle office, maintained many of the same employees, and honored Benson's outstanding contracts. Further, it is undisputed Benson distributed raw asbestos before dissolution and HCP continued to distribute raw asbestos under Benson's name after dissolution.

¶ 26 Elementis contends, though, sufficient evidence does not support the court's conclusion that it sold similar products as Benson because HCP sold only Union Carbide's brand of raw asbestos, whereas Benson sold only Johns-Manville's brand of raw asbestos before its dissolution. Elementis is correct that the product line doctrine applies to a successor manufacturer where it continues producing the same product under a similar name but the doctrine does not limit liability to only those particular circumstances. The product line doctrine requires continued sales of "the same type of product"

for a successor distributor to be held liable; the products do not need to be identical. A distributor's goodwill is necessarily associated with the grade, quality, and price of the raw materials it provides, regardless of the materials' brands. On this record, the Johns-Manville and Union Carbide brands of asbestos were the same type of product: raw white asbestos.

¶ 27 Benson's goodwill was associated with its ability to deliver raw asbestos generally, and HCP leveraged that goodwill to continue selling raw asbestos after it dissolved Benson. HCP benefitted from those sales. Accordingly, the policies, essential purpose, and requirements of the product line doctrine support holding Elementis strictly liable.

¶ 28 Elementis argues Leren's recovery should be limited to the value of the corporate assets HCP received from Benson. Elementis relies on Lonsdale v. Chesterfield and Smith v. Sea Ventures, Inc. for this proposition. Neither case is compelling because, unlike the instant case, both involve lawsuits against a dissolved corporation. In absence of any persuasive authority, we decline Elementis's invitation to impose a cap on awards in successor liability cases.

¶ 29 In a related argument, Elementis contends Leren's claims are time-barred under the limitations period in RCW 23B.14.340 for a dissolved corporation or its shareholders. The court denied Elementis's motion for summary judgment seeking to dismiss this suit as untimely. We review summary judgment orders de novo.

¶ 30 The general rule at common law held that dissolved corporations ceased to exist and could not be sued, but the enactment of chapter 23B.14 RCW "showed the legislature's intent to cut any remaining ties" to that rule. RCW 23B.14.340 governs the survival of remedies against a dissolved corporation, its directors, its officers, or its shareholders. Dissolution does not strip a claimant of the ability to file a lawsuit. For a dissolution with an effective date prior to June 7, 2006, claims are timely when filed within two years of the date of dissolution.

¶ 31 Benson was dissolved in 1978, and Leren filed suit in 2015. But Elementis provides no authority for the proposition that the legislature intended to bar successor liability claims when it enacted the dissolution statute. Notably, Benson, the dissolved corporation, is not party to this lawsuit. Nor is Elementis a defendant in its capacity as successor to a former Benson shareholder. Rather, Elementis is a defendant because the Estate alleges it is liable as HCP's successor when HCP is in turn a successor to Benson. Therefore, RCW 23B.14.340 does not apply. The court did not err by denying Elementis's motion for summary judgment.

II. Wrongful Death and Survivor Actions

¶ 32 Elementis argues the court erred by denying its motion for judgment as a matter of law that the Estate lacked the statutory beneficiary required to maintain a wrongful death claim or receive an award of noneconomic damages under the survivor statute.

¶ 33 "We review judgments as a matter of law de novo." A motion for judgment as a matter of law admits the truth of the evidence and reasonable inferences favoring the nonmoving party. Statutory interpretation is also a matter of law reviewed de novo.

¶ 34 In its damages instructions, the court told the jury to consider economic damages, such as medical costs, and noneconomic damages, such as "pain, suffering, anxiety, emotional distress, and loss of enjoyment of life experienced," when calculating the extent of Leren's injury. The court also told the jury to "consider what Marvin Leren reasonably would have been expected to contribute to [stepdaughter] Jo Lefebvre in the way of love, care, companionship, and guidance." The jury awarded the Estate, on Leren's behalf, $ 294,000 in economic damages and $ 681,000 in noneconomic damages. The jury awarded Lefebvre "$ 0."

¶ 35 At issue here is the interplay between the general survival statute, RCW 4.20.046, and the wrongful death statute, RCW 4.20.020. The survival statute allows "[a]ll causes of action by a person" to "survive to the personal representatives of the [person] ... whether such actions arise on contract or otherwise." But the survival statute has an exception "[t]hat the personal representative shall only be entitled to recover damages for pain and suffering ... personal to and suffered by a deceased on behalf of those beneficiaries enumerated in RCW 4.20.020." That statute allows wrongful death actions only "for the benefit of the wife, husband, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused."

¶ 36 Elementis argues the Estate was not entitled to noneconomic damages under the survival statute because Lefebvre is not a statutory stepchild. Any legal relationship between Lefebvre and Leren was severed, Elementis contends, when Leren and Lefebvre's mother divorced in 1985.

¶ 37 A statutory stepchild under RCW 4.20.020 is " 'a child of one's [spouse] by a former marriage.' " The definition does not require "that stepchildren are necessarily the children of a present spouse by a previous marriage or a former partner." This is because " 'the relationship by affinity is in fact ... continued beyond the death of one of the parties to the marriage which created the relationship, and where the parties continue to maintain the same family ties and relationships, considering themselves morally bound to care for each other.' " Relationships by "affinity" are formed by marriage rather than blood.

¶ 38 The Estate relies on In re Estate of Blessing to argue Lefebvre is a statutory beneficiary. In Blessing, our Supreme Court held that the death and remarriage of a nonbiological parent did not sever the bond between a stepparent and her stepchildren. A woman married her first husband, and they had three children together. After their divorce, she married her second husband, who had four children from a previous marriage. They raised all seven children together, although she never adopted her second husband's children. He died after almost 30 years of marriage. The woman married for a third time, and her third husband died a few years later. After the woman died in a car accident, her estate brought wrongful death claims on behalf of her three biological children and four stepchildren. The court reasoned that the stepchildren "[i]ndisputably ... at least during the marriage, had legal status as 'stepchildren.' " And the "step relationship" continued even after they had become adults and the marriage terminated upon their father's death. The court rejected the argument "that once a marriage ends, the step relationship ends," so the fact of the woman's remarriage was not germane. Accordingly, the stepchildren "retained" their status under RCW 4.20.020.

¶ 39 Similarly, here, Lefebvre indisputably became Leren's stepdaughter from age seven through to adulthood. Lefebvre's mother testified that people regarded Leren as Lefebvre's biological father. As a child, Lefebvre did not have a relationship with her biological father, and she has always regarded Leren as her father. Leren taught Lefebvre how to tie her shoes, ride a bike, and catch a fish.

¶ 40 Further, Lefebvre and Leren " 'continue[d] to maintain the same family ties and relationships, considering themselves morally bound to care for each other' " even after the divorce. Leren, Lefebvre, and her mother regularly celebrated Lefebvre's birthdays together. For the five years Lefebvre lived overseas, she and Leren spoke by phone every week. Leren and Lefebvre regularly went camping together until she married. At Lefebvre's wedding, Leren walked her down the aisle and danced with her for the traditional father/daughter dance. Leren attended funerals for Lefebvre's maternal grandmother and uncle. Leren was present when Lefebvre's son was born, and Leren "was a strong figure" in her son's life. After learning of his diagnosis, Lefebvre spent every night at the hospital with Leren until he died. She informed her mother of his death. Leren left a bequest for Lefebvre in his will, which he made in the weeks before his death. Although Elementis distinguishes Blessing because that marriage terminated by death rather than divorce, the bonds of affinity between Leren and Lefebvre indisputably lasted until the end of Leren's life. The logic of Blessing controls here and requires a similar result.

¶ 41 Elementis warns that absurd results will flow from ruling in the Estate's favor. Specifically, Elementis fears that former spouses will be able to maintain wrongful death claims. But spouses are not stepchildren. The bonds of affinity formed by marriage have ceased to exist between spouses who choose to divorce-hence, the divorce. Divorces do not, in theory, sever the bonds of affinity between a stepparent and a stepchild any more than between a parent and a biological child. "Any concerns over the result or regarding which stepchildren should be entitled to recover in a wrongful death suit are far more appropriately factored into any damages determination." Lefebvre was a statutory beneficiary under RCW 4.20.020, and the Estate was properly allowed to collect noneconomic damages under RCW 4.20.046. The court did not err by denying Elementis's motion for judgment as a matter of law.

III. Superseding Cause of Injury

¶ 42 Elementis argues the court erred by denying its request for a jury instruction that Z-Brick's conduct was a superseding cause of Leren's injuries.

¶ 43 We review jury instructions de novo for legal errors. But the decision to provide a jury instruction depends on the facts of the case and is reviewed for abuse of discretion. A court abuses its discretion where its ruling is based on untenable grounds. Jury instructions are generally sufficient if they are supported by the evidence, allow each party to argue its theories of the case, and, read together, properly inform the jury of the applicable law.

¶ 44 As a general matter, the superseding cause theory applies to product liability actions. If an employer's conduct is at issue, failure to protect an employee from a product that is unreasonably unsafe can be a superseding cause where "the employer had actual, specific knowledge that the product was unreasonably unsafe and failed to warn or protect."

¶ 45 An industrial hygienist testified that it was widely known by 1964 that direct and indirect asbestos exposure could cause mesothelioma and that major studies were published as early as 1949 linking asbestos exposure to lung cancer. Additional testimony stated that all asbestos would have come with a warning printed on it beginning in 1972. But no one testified about Z-Brick's actual, specific knowledge during the years Leren worked with asbestos. Elementis relies heavily on testimony from a former employee that beginning around 1963, workers would say, "Put on your mask. I'm going to add the asbestos now," before pouring it into a hopper. This, according to Elementis, "shows an awareness of a hazard." But that same employee explained the masks were just basic dust masks costing around 10 cents apiece. Another Z-Brick employee testified the masks were for "nuisance dust" only. Elementis's evidence merely proves some workers were generally aware of the hazards from dust. It is not the same as an employer's knowledge of risks from repeated exposure to asbestos dust. Given the lack of testimony about Z-Brick's actual, specific knowledge, the court did not abuse its discretion.

¶ 46 Therefore, we affirm.

WE CONCUR:

Chun, J.

Dwyer, J.

      Report of Proceedings (RP) (Oct. 24, 2017) at 611.

      RP (Oct. 19, 2017) at 302-03.

      Ch. 7.72 RCW.

      Simonetta v. Viad Corp., 165 Wash.2d 341, 348, 354, 197 P.3d 127 (2008).

      Id. at 354-55, 197 P.3d 127 (citing Seattle-First Nat. Bank v. Tabert, 86 Wash.2d 145, 148-49, 542 P.2d 774 (1975) ; Restatement (Second) of Torts § 402A cmt. f (1965)).

      Blackburn v. State, 186 Wash.2d 250, 256, 375 P.3d 1076 (2016).

      Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wash.2d 475, 481-82, 209 P.3d 863 (2009) (citing Hall v. Armstrong Cork, Inc., 103 Wash.2d 258, 261-62, 692 P.2d 787 (1984) ).

      Exceptions include where "(1) the purchaser expressly or impliedly agrees to assume liability; (2) the purchase is a de facto merger or consolidation; (3) the purchaser is a mere continuation of the seller; or (4) the transfer of assets is for the fraudulent purpose of escaping liability." Martin v. Abbott Labs., 102 Wash.2d 581, 609, 689 P.2d 368 (1984). These four exceptions are not at issue here.

      Hall, 103 Wash.2d at 261-63, 692 P.2d 787 ; Martin, 102 Wash.2d at 609, 689 P.2d 368.

      Hall, 103 Wash.2d at 264, 692 P.2d 787.

      Id. at 262-63, 692 P.2d 787 (quoting Martin, 102 Wash.2d at 614, 689 P.2d 368 ); Fox v. Sunmaster Prods., Inc., 63 Wash. App. 561, 570-71, 821 P.2d 502 (1991).

      See Eagle Pac. Ins. Co. v. Christensen Motor Yacht Corp., 135 Wash.2d 894, 901, 959 P.2d 1052 (1998) (Successor "[l]iability may be imposed regardless of the exact form of [the] transfer of assets between the corporations.") (citing Stoumbos v. Kilimnik, 988 F.2d 949, 961 (9th Cir. 1993) (citing Martin, 102 Wash.2d at 609, 689 P.2d 368 )); see also Hall, 103 Wash.2d at 264, 692 P.2d 787 ("The policy justifications for our adoption of the product line [doctrine] require the transfer of substantially all of the predecessor's assets to the successor corporation as a prerequisite to imposing liability on the successor.") (emphasis added).

      Hall, 103 Wash.2d at 264-65, 692 P.2d 787.

      Hall, 103 Wash.2d at 264, 265-66, 692 P.2d 787.

      See, e.g., Martin, 102 Wash.2d at 609-12, 689 P.2d 368.

      Simonetta, 165 Wash.2d at 354-55, 197 P.3d 127.

      RP (Oct. 24, 2017) at 696-98, 739.

      Hall, 103 Wash.2d at 267, 692 P.2d 787.

      175 Cal. App. 3d 445, 450-51, 220 Cal. Rptr. 895 (Cal. Ct. App. 1985).

      Id. at 451, 220 Cal.Rptr. 895.

      Id. at 452, 220 Cal.Rptr. 895.

      Id.

      Id.

      Id. at 452-53, 220 Cal.Rptr. 895.

      Id. at 453, 220 Cal.Rptr. 895.

      Id. at 456, 220 Cal.Rptr. 895 (quoting Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964) ).

      103 Wash.2d 258, 265-66, 692 P.2d 787 (1984).

      Kaminski, 175 Cal. App.3d at 458, 220 Cal.Rptr. 895.

      Id.

      Id. at 456-57, 220 Cal.Rptr. 895.

      Id. at 456, 220 Cal.Rptr. 895.

      RP (Oct. 24, 2017) at 587, 700.

      CP at 985.

      RP (Oct. 24, 2017) at 594-95, 701.

      CP at 107.

      RP (Oct. 24, 2017) at 736.

      Id. at 595-98, 712-13, 714-16; Ex. 90.

      Elementis relies on another California case, Potlatch Corporation v. Superior Court of Riverside County, 154 Cal. App. 3d 1144, 1146, 201 Cal. Rptr. 750 (Cal. Ct. App. 1984), to argue a stock purchaser cannot be liable as a result of the purchase. But Potlatch is factually distinguishable, predates Kaminski, and, most importantly, the logic of Kaminski is apt and compelling.

      Martin., 102 Wash.2d at 614, 689 P.2d 368.

      CP at 989 (finding of fact 7). Findings of fact are supported by substantial evidence where there is sufficient evidence " 'to persuade a rational, fair-minded person of the truth of the finding.''" Blackburn, 186 Wash.2d at 256, 375 P.3d 1076 (quoting Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 353, 172 P.3d 688 (2007) ). When reviewing a jury verdict, we make all inferences in its favor. Klem v. Wash. Mut. Bank, 176 Wash.2d 771, 782, 295 P.3d 1179 (2013). Unchallenged findings of fact are verities on appeal. Robel v. Roundup Corp., 148 Wash.2d 35, 42, 59 P.3d 611 (2002).

      RP (Oct. 24, 2017) at 621-22, 677, 680.

      Id. at 714-16; Ex. 90.

      Id. at 595-96, 701-02, 712-13, 717, 737.

      Id. at 718; see Exs. 270, 281 (Benson-branded invoices showing post-dissolution sales of raw asbestos in Washington and Oregon).

      Elementis does not argue that the raw asbestos distributed before and after the dissolution were different types or grades of asbestos.

      E.g., Martin, 102 Wash.2d at 614, 689 P.2d 368.

      See George v. Parke-Davis, 107 Wash.2d 584, 588, 590, 733 P.2d 507 (1987) ("The product line [doctrine] requires the corporation to manufacture the same type of product, and not merely stay in the same type of manufacturing business.") (emphasis added).

      Leren argued additional theories of successor liability. Due to our reasoning, there is no need to address those theories unsuccessfully advocated at trial.

      99 Wash.2d 353, 662 P.2d 385 (1983).

      93 Wash. App. 613, 969 P.2d 1090 (1999).

      Ballard Square Condo. Owners Ass'n v. Dynasty Const. Co., 158 Wash.2d 603, 608, 146 P.3d 914 (2006).

      Id. at 609, 611, 146 P.3d 914.

      RCW 23B.14.050(2)(e)-(f).

      Ballard Square, 158 Wash.2d at 616, 146 P.3d 914. For dissolutions effective after June 7, 2006, claims are timely when filed within three years of the effective date of dissolution. RCW 23B.14.340.

      Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wash.2d 842, 848, 348 P.3d 389 (2015).

      Tapio Inv. Co. I v. State ex rel. the Dep't of Transp., 196 Wash. App. 528, 538, 384 P.3d 600 (2016).

      In re Est. of Blessing, 174 Wash.2d 228, 231, 273 P.3d 975 (2012).

      CP at 1933.

      CP at 1934.

      CP at 916.

      Id.

      RCW 4.20.046(1).

      Id.

      RCW 4.20.020 (emphasis added).

      Blessing, 174 Wash.2d at 232, 273 P.3d 975 (quoting Webster's Third New Int'l Dictionary 2237 (2002)).

      Id.

      Id. at 234, 273 P.3d 975 (quoting In re Estate of Bordeaux, 37 Wash.2d 561, 579-80, 225 P.2d 433 (1950) ).

      Id. at 233 n.3, 273 P.3d 975.

      174 Wash.2d 228, 273 P.3d 975 (2012).

      Id. at 235, 273 P.3d 975.

      Id. at 230, 273 P.3d 975.

      Id.

      Id.

      Id.

      Id.

      Id.

      Id. at 231, 273 P.3d 975.

      Id. at 235, 273 P.3d 975.

      Id.

      Id.

      RP (Oct. 25, 2017) at 757.

      Id. at 757-59, 762.

      Id. at 814.

      Blessing, 174 Wash.2d at 234, 273 P.3d 975 (quoting Bordeaux, 37 Wash.2d at 579-80, 225 P.2d 433 ).

      RP (Oct. 25, 2017) at 773.

      Id. at 835.

      Id. at 772-73.

      Id. at 774.

      Id.

      Id. at 822.

      Id. at 803.

      Id. at 776.

      Id. at 835-36.

      Blessing, 174 Wash.2d at 238, 273 P.3d 975.

      We note that the legislature recently enacted amendments to the wrongful death and survival statutes. Laws of 2019, ch. 159, §§ 1-4. Significantly, the amendments remove the requirement that a decedent's second tier beneficiaries, which include siblings, must have been dependent on the decedent to be a statutory beneficiary for a wrongful death action or for receipt of noneconomic damages in a survivor action. Id. at §§ 2-3. These amendments apply retroactively to any case pending in any court as of the law's effective date. Id. at § 6. This could provide an alternative legal theory that retroactively supports an award of noneconomic damages regardless of Lefebvre's status as a statutory beneficiary because Leren's brother is the Estate's personal representative.

      Although the court granted a partial motion for summary judgment on this issue in the Estate's favor, Elementis does not appeal that order and instead argues the court should have modified its order during trial and allowed the instruction.

      Paetsch, 182 Wash.2d at 849, 348 P.3d 389.

      Fergen v. Sestero, 182 Wash.2d 794, 802-03, 346 P.3d 708 (2015).

      Hizey v. Carpenter, 119 Wash.2d 251, 268, 830 P.2d 646 (1992).

      Fergen, 182 Wash.2d at 803, 346 P.3d 708.

      Taylor v. Intuitive Surgical, Inc., 187 Wash.2d 743, 767-68, 389 P.3d 517 (2017).

      Campbell v. ITE Imperial Corp., 107 Wash.2d 807, 817, 733 P.2d 969 (1987) (emphasis added). An employer's conduct also may constitute a superseding cause where "(1) the employer's intervening negligence created a different type of harm; or (2) the employer's intervening negligence operated independently of the danger created by the manufacturer." Id. Elementis does not argue either of these applies.

      RP (Oct. 23, 2017) at 437-38, 450.

      RP (Oct. 26, 2017) at 924-25.

      Appellant's Br. at 15, 37.

      Id. at 37.

      Ex. 328 at 16:00-16:30.

      RP (Oct. 25, 2017) at 769.


author: Sutton, J.

text:
    STATE of Washington, Respondent, v. Quran Dayman Ali INGRAM, Appellant.
    No. 50577-1-II
    Court of Appeals of Washington, Division 2.
    Filed June 4, 2019
    Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St., Seattle, WA, 98115-6655, for Appellant.
    Rachael Rogers, Clark County Prosecuting Attorney's Office, Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.
    PUBLISHED IN PART OPINION
   Sutton, J.

¶1 Quran Dayman Ali Ingram appeals from his jury trial convictions for residential burglary (domestic violence) and violation of a domestic violence court order. He argues that the trial court erred when it imposed bail and denied him pretrial release based on personal recognizance and by ruling that the validity of a foreign protection order is not an element of the offense of violation of a domestic violence court under RCW 26.50.110(1)(a). In the published portion of this opinion, we hold that although the bail issue is moot, we reach the issue because it is a matter of public importance; the trial court was not required to enter findings; the trial court erred by imposing bail without first considering less restrictive alternatives and Ingram's financial resources, and the validity of the foreign protection order is not an element of the offense.

¶2 In the unpublished portion of the opinion, we hold that remand for reevaluation of several legal financial obligations (LFOs) is required and do not reach Ingram's pro se ineffective assistance of counsel claim raised in his statement of additional grounds (SAG) because that claim involves matters outside the appellate record. Accordingly, we affirm Ingram's convictions, but we remand for the trial court to reexamine the LFOs consistent with this opinion.

FACTS

I. CHARGES

¶3 On November 30, 2016, Tiffany Ingram obtained a restraining order in Oregon (Oregon order), prohibiting her husband Ingram from entering or remaining in the area within 150 feet of her current or future residence. The Oregon order stated that the addresses of these locations were being withheld for safety reasons. In another section, the Oregon court struck additional language that stated, "Stay away from home on Rossiter, mother[']s on Alder, Sister[']s on Hood pl [sic] and Grandmother[']s on Riverview." Clerk's Papers (CP) at 56. Tiffany provided the Oregon court with a "safe" "[r]esidence/[c]ontact [a]ddress," in Portland. CP at 61.

¶4 On December 1, Tiffany, who had been staying with relatives in Oregon, returned to the home on Rossiter Lane that she and Ingram had shared, locked up the home, and turned off the lights. The next day, she drove past the home and saw that there were lights on inside. Tiffany called the police. The police found Ingram inside the home, and Ingram showed them a copy of the Oregon order. The police arrested Ingram.

II. PRETRIAL AND TRIAL PROCEEDINGS

¶5 The State charged Ingram with residential burglary (domestic violence) and a gross misdemeanor violation of a domestic violence court order. Ingram pleaded not guilty to the charges.

A. RISK ASSESSMENT AND BAIL HEARINGS

¶6 Ingram was booked into jail on December 2. On December 4, based on the statement of probable cause, a judge certified that there was probable cause to arrest Ingram. A court date was set for December 5.

¶7 In a December 4 risk assessment, the Clark County Corrections Release Unit assigned Ingram a "risk score" of four, which fell between a medium risk (three) and a high risk (five). The release unit's assessment noted that Ingram reported that (1) he had lived by himself in Vancouver, Washington for the past two and a half years, (2) he had previously lived in Portland, Oregon, (3) he had no family in Clark County, (4) he had not provided any references, and (5) he was unemployed. The assessment further stated that Ingram (1) had a history of escape, (2) was currently on probation on an Oregon driving-related charge, (3) had a criminal history, (4) had prior failures to appear but no bail jump convictions, and (5) had mental health issues including anxiety and post-traumatic stress disorder and had received prior psychiatric treatment. Based on these facts and its risk assessment, the release unit recommended that Ingram be denied release "due to extensive criminal, [failure to appear], and escape record." CP at 3. On December 4, a judge also issued an order of conditions for release on bail stating that Ingram was not subject to bail until a court hearing set for December 5.

¶8 At Ingram's first appearance on December 5, the State requested $ 60,000 bail. The State justified this request based on Ingram's prior convictions for unlawful possession of a firearm in 2007, second degree assault in 1997, second degree burglary in 1997, first degree escape in 1995, first degree robbery in 1994, and second degree robbery in 2001. The State also commented that Ingram had "six different cases [in Oregon] that have gone to warrant" and that he had "prior [failures to appear] on his cases." 1 Report of Proceedings (RP) at 5. Defense counsel, who had just been appointed to Ingram's case and had just received the statement of probable cause, requested $ 5,000 bail after noting that the no contact order violation did not involve violence.

¶9 The trial court set bail at $ 60,000 after commenting that when Tiffany applied for the restraining order, she had asserted that Ingram "had recently held a gun to her head." 1 RP at 6. The trial court also stated that it would reexamine bail at the next hearing. It does not appear that the trial court entered any written findings related to the bail decision following the December 5, 2016 hearing. At no point during the hearing did the trial court discuss any less restrictive alternatives to bail or Ingram's financial resources.

¶10 On December 16, Ingram was arraigned. He pleaded not guilty. Although the trial court had stated at the December 5 hearing that it would reexamine bail at the next hearing, no one raised any bail issues.

¶11 On December 21, before a different judge, Ingram requested that the court grant him supervised release. After arguing that there was insufficient evidence to support the charges because the Oregon order was invalid, Ingram requested that the trial court amend the bail order and grant him supervised release because he did not "have the funds to bail out" and he had a legitimate challenge to the charges. 1 RP at 12. After hearing Ingram's criminal history and argument from the parties, the judge deferred this decision to the original trial court judge, effectively denying Ingram's request for supervised release.

¶12 On December 28, before the first judge, Ingram asked for a bail reduction based on his legal argument that the Oregon protection order was invalid. The trial court denied this request. The trial court commented that it had originally set bail based on "criminal history, failures to appear, and [the] likelihood of reappearance in court," and that nothing had changed in relation to those factors. 1 RP at 22. During this hearing, there was no discussion of Ingram's financial status or any less restrictive conditions of release other than release on recognizance.

B. VALIDITY OF OREGON ORDER

¶13 At various stages of the pretrial proceedings, the parties addressed whether the validity of the Oregon order could be raised before the jury. The trial court ruled that Ingram could not "challenge the validity of the order in Oregon in a Washington criminal case" and that validity of the Oregon order was not an element of the offense. 1 RP at 103.

C. TRIAL

¶14 The State presented testimony from Tiffany and the officers who arrested Ingram. Ingram did not call any witnesses. The jury instructions for the violation of the court order did not require the jury to find that the Oregon order was valid.

¶15 The jury found Ingram guilty of residential burglary and violation of a domestic violence court order. Ingram appeals.

ANALYSIS

I. BAIL ISSUES

¶16 Ingram contends that the trial court erred when it set his bail and refused to release him on his own recognizance and when it denied his renewed motions to reduce his bail requirement. Specifically, Ingram argues that the trial court (1) failed to enter oral or written findings, (2) failed to consider the factors required in CrR 3.2(c) and (e) and the record does not support findings under either subsection, (3) failed to consider less restrictive conditions of release or Ingram's financial resources before imposing the bail requirement, and (4) denied him effective assistance of counsel by not allowing appointed defense counsel time to prepare for the initial bail hearing.

A. MATTER OF CONTINUING AND SUBSTANTIAL PUBLIC INTEREST

¶17 We must first address whether this issue is moot. An issue is moot if we can no longer provide effective relief. State v. Gentry , 125 Wash.2d 570, 616, 888 P.2d 1105 (1995). We can no longer provide effective relief here because Ingram has been convicted and pretrial bail is no longer available to him.

¶18 We may, however, consider a moot issue if it involves matters of continuing and substantial public interest. State v. Cruz , 189 Wash.2d 588, 598, 404 P.3d 70 (2017). In determining whether a case presents an issue of continuing and substantial public interest, we consider (1) the public or private nature of the issue, (2) whether guidance for public officers on the issue is desirable, and (3) the likelihood that the issue will recur. Cruz , 189 Wash.2d at 598, 404 P.3d 70. We also consider " 'the likelihood that the issue will escape review because the facts of the controversy are short-lived.' " State v. Huckins , 5 Wash. App. 2d 457, 463, 426 P.3d 797 (2018) (internal quotation marks omitted) (quoting Westerman v. Cary , 125 Wash.2d 277, 286-87, 892 P.2d 1067 (1994) ).

¶19 As we have recognized before, the setting of bail is an issue of a public nature and "there is currently a dearth of cases" addressing bail issues. Huckins , 5 Wash. App. 2d at 463-64, 426 P.3d 797 ; see also State v. Barton , 181 Wash.2d 148, 152, 331 P.3d 50 (2014) (accepting review of moot bail case because it was a matter of continuing and substantial public interest). Deciding this case would provide a useful reminder to the trial courts of the requirements of setting bail and release conditions for criminal defendants-issues that are likely to recur. Furthermore, "given the time constraints inherent in criminal cases, the issue might otherwise evade appellate review." Huckins , 5 Wash. App.2d at 464, 426 P.3d 797. Accordingly, we review Ingram's bail arguments on the merits because they present matters of continuing and substantial public interest.

B. FINDINGS

¶20 Ingram argues that the trial court was required to make "specific findings under CrR 3.2(a)(1) or (2)" and that the court failed to comply with this requirement. Br. of Appellant at 29. He suggests that the absence of specific findings demonstrates that the trial court ignored the presumption of release on personal recognizance pending trial. Ingram fails to establish that oral or written findings are required, but we review the record to determine if the trial court considered the relevant factors before determining whether release on personal recognizance was appropriate or whether bail was required.

¶21 Whether oral or written findings are required is a question of law, which this court reviews de novo. State v. Hanson , 151 Wash.2d 783, 784-85, 91 P.3d 888 (2004). We apply canons of statutory interpretation when construing court rules. State v. Robinson , 153 Wash.2d 689, 692, 107 P.3d 90 (2005). The plain language of a court rule controls when it is unambiguous. Robinson , 153 Wash.2d at 693, 107 P.3d 90.

¶22 CrR 3.2(a) provides:

Any person, other than a person charged with a capital offense, shall at the preliminary appearance ... be ordered released on the accused's personal recognizance pending trial unless:
(1) the court determines that such recognizance will not reasonably assure the accused's appearance, when required, or
(2) there is shown a likely danger that the accused:
(a) will commit a violent crime, or
(b) will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice.
....
In making the determination herein, the court shall, on the available information, consider the relevant facts including, but not limited to, those in subsections (c) and (e) of [ CrR 3.2 ].

(Emphasis added.) CrR 3.2(c) and (e) similarly require only that the trial court "consider" various factors and do not expressly require any oral or written findings.

¶23 Although oral or written findings are helpful on appeal, unlike other rules that clearly require oral or written findings, CrR 3.2 does not expressly require that the trial court enter any oral or written findings. CrR 3.2(a) requires only that the trial court (1) "determine" whether release on personal recognizance is insufficient to reasonably assure the defendant's appearance or protect against harm, and (2) "consider" the relevant facts. And CrR 3.2(c) and (e) only require the court to "consider" the factors. Thus, CrR 3.2 itself does not require oral or written findings.

¶24 Nor does Ingram cite to any other authority that requires oral or written findings in this context. Although he cites State v. Rose , 146 Wash. App. 439, 191 P.3d 83 (2008), for his assertion that the trial court must "rebut the presumption of release by making the specific findings under CrR 3.2(a)(1) or (2), prior to imposing any conditions of release," Rose did not address whether findings were required and does not require oral or written findings. Br. of Appellant at 29. In Rose , we merely examined the record to determine whether there was a "determination related to [the defendant's] unlikeliness to appear" and whether there was any evidence introduced "that would have supported a trial court finding that [the defendant] would be unlikely to appear." 146 Wash. App. at 450, 191 P.3d 83 (emphasis added).

¶25 Because oral or written findings are not required by the rule, Ingram cites no authority requiring the entry of oral or written findings under CrR 3.2(a), and the trial court made oral findings at a subsequent hearing, Ingram's argument fails.

C. CONSIDERATION OF FACTORS AND SUPPORT FOR FINDINGS

¶26 Ingram further argues that the record does not show that the trial court considered the required factors stated in CrR 3.2(c) and (e). In analyzing this issue, we examine the record to determine if the record supports a determination that Ingram would be unlikely to appear or that Ingram was a substantial danger. Rose , 146 Wash. App. at 446-47, 448-454, 191 P.3d 83. Here, the record supports both determinations.

¶27 We review a trial court's determination of whether a defendant is likely to flee and whether a defendant is likely to pose a substantial danger to the community for abuse of discretion. State v. Smith , 84 Wash.2d 498, 505, 527 P.2d 674 (1974). A trial court abuses its discretion if its decision falls outside the range of acceptable choices, its decision is unsupported by the record, or the court applies an incorrect legal standard. State v. Dye , 178 Wash.2d 541, 548, 309 P.3d 1192 (2013).

¶28 CrR 3.2(c) provides:

In determining which conditions of release will reasonably assure the accused's appearance, the court shall, on the available information, consider the relevant facts including but not limited to:
(1) The accused's history of response to legal process, particularly court orders to personally appear;
(2) The accused's employment status and history, enrollment in an educational institution or training program, participation in a counseling or treatment program, performance of volunteer work in the community, participation in school or cultural activities or receipt of financial assistance from the government;
(3) The accused's family ties and relationships;
(4) The accused's reputation, character and mental condition;
(5) The length of the accused's residence in the community;
(6) The accused's criminal record;
(7) The willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;
(8) The nature of the charge, if relevant to the risk of nonappearance;
(9) Any other factors indicating the accused's ties to the community.

¶29 Here, the information available to the trial court included the information in the release unit's report, which addressed factors 1 through 7. And the trial court was aware of Ingram's current charges and was able to review the factual basis for those charges, including the fact that Tiffany had informed law enforcement officers that she had applied for the no contact order after Ingram held a gun to her head. Additionally, the State described Ingram's criminal history, including his escape conviction and prior failures to appear in several Oregon cases. The information before the trial court also showed that the release unit considered Ingram to be a medium to high flight risk; Ingram had a history of escape and failure to appear; he had no employment tying him to the community; no one had vouched for him; Ingram had ties to another state, including formerly residing in Oregon; and that he had mental health issues. These factors support the determination that personal recognizance would not reasonably assure Ingram's appearance when required.

¶30 The evidence in the record also supports a finding of dangerousness.

¶31 CrR 3.2(e) provides:

In determining which conditions of release will reasonably assure the accused's noninterference with the administration of justice, and reduce danger to others or the community, the court shall, on the available information, consider the relevant facts including but not limited to:
(1) The accused's criminal record;
(2) The willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;
(3) The nature of the charge;
(4) The accused's reputation, character and mental condition;
(5) The accused's past record of threats to victims or witnesses or interference with witnesses or the administration of justice;
(6) Whether or not there is evidence of present threats or intimidation directed to witnesses;
(7) The accused's past record of committing offenses while on pretrial release, probation or parole; and
(8) The accused's past record of use of or threatened use of deadly weapons or firearms, especially to victims or witnesses.

¶32 The available information showed that Ingram had prior convictions for firearm possession and assault; no one had offered to vouch for him; the current charge, although not a violent offense in itself, stemmed from a protection order that was obtained following a violent act against the protected party; Ingram had a history of mental health issues; Ingram had in the past threatened Tiffany with a deadly weapon; and Ingram was on probation when he committed the current offense. These factors, particularly the recent violent act against Tiffany, support the determination that there was a substantial danger that if released, Ingram would either commit a violent crime or seek to intimidate a witness or interfere with the administration of justice.

D. FAILURE TO CONSIDER LESS RESTRICTIVE CONDITIONS OF RELEASE

¶33 Ingram next argues that the trial court failed to comply with CrR 3.2(d) by failing to consider less restrictive conditions of release and when setting the bail amount. Because the trial court did not consider less restrictive conditions of release or Ingram's financial resources before imposing the $ 60,000 bond as required under both CrR 3.2(b) and CrR 3.2(d), this argument has merit.

¶34 CrR 3.2(b) requires that if the trial court determines that the accused is not likely to appear if released on personal recognizance, it must impose the least restrictive of several enumerated conditions. Huckins , 5 Wash. App. 2d at 467-68, 426 P.3d 797. CrR 3.2(b) also requires that if the trial court imposes a bond, the court must consider the defendant's financial resources. CrR 3.2(b)(7). Similarly, CrR 3.2(d) requires that if the trial court determines that the accused poses a substantial danger, the court is allowed to impose one or more of several enumerated conditions. If the trial court requires the defendant to "post a secured or unsecured bond," the court can only impose this condition "if no less restrictive condition or combination of conditions would reasonable assure the safety of the community." CrR 3.2(d)(6). Additionally, if the trial court requires a bond, the court must consider, "on the available information, the accused's financial resources for the purposes of setting a bond that will reasonably assure the safety of the community and prevent the defendant from intimidating witnesses or otherwise unlawfully interfering with the administration of justice." CrR 3.2(d)(6)

¶35 Regardless of whether the trial court imposed bail to ensure Ingram's appearance or to protect the public, the court was required to consider less restrictive alternatives and to consider Ingram's financial resources. CrR 3.2(b)(7), (d)(6). There is nothing in the record suggesting that the trial court did either before setting bail. Thus, Ingram can show that the trial court erred by imposing the $ 60,000 bond. But because Ingram has been convicted and is no longer subject to pretrial bail or conditions, there is no relief that we can offer.

E. DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

¶36 Ingram also argues that the bail hearing "might have gone a different way" if he had not been forced to rely on newly assigned counsel who had no knowledge of the case or Ingram's personal circumstances. Br. of Appellant at 46. He suggests that with time to prepare, defense counsel would have been better prepared in relation to the facts and the law. Because Ingram cites no law in support of this argument beyond general law stating that effective assistance of counsel requires more than just having counsel physically present, we decline to address this issue. RAP 10.3(a)(6), Cowiche Canyon Conservancy v. Bosley , 118 Wash.2d 801, 809, 828 P.2d 549 (1992) (court need not address arguments unsupported by citation to authority).

II. VALIDITY OF THE FOREIGN PROTECTION ORDER IS NOT AN ESSENTIAL ELEMENT

¶37 Ingram next argues that the trial court erred when it concluded that the validity of the Oregon order was not an essential element of the offense of a violation of a domestic violence no contact order under RCW 26.50.110. Whether the validity of a foreign protection order is an element of the crime of violation of a domestic violence court order is an issue of first impression.

¶38 Ingram contends that the plain language of RCW 26.50.110(1)(a) establishes that the validity of the Oregon order is an essential element. The State responds that under State v. Miller , 156 Wash.2d 23, 123 P.3d 827 (2005), the validity of the Oregon order is not an essential element but, rather, a legal question related to the admissibility of the order for the trial court to decide. We hold that the validity of the Oregon order is not an essential element of the crime of violation of a domestic violence court order.

A. LEGAL PRINCIPLES

¶39 We review questions of law and issues of statutory interpretation de novo. State v. Conover , 183 Wash.2d 706, 711, 355 P.3d 1093 (2015) ; Miller , 156 Wash.2d at 27, 123 P.3d 827.

¶40 The essential elements of the crime are those that the State must prove to sustain a conviction. State v. Peterson , 168 Wash.2d 763, 772, 230 P.3d 588 (2010). To determine the essential elements, we first look to the statute. State v. Williams , 162 Wash.2d 177, 183, 170 P.3d 30 (2007) ; State v. Mason , 170 Wash. App. 375, 379, 285 P.3d 154 (2012).

¶41 Our primary objective when interpreting a statute "is to determine and give effect to the legislature's intent." State v. Budik , 173 Wash.2d 727, 733, 272 P.3d 816 (2012). We first look to the plain meaning of the statute. Budik , 173 Wash.2d at 733, 272 P.3d 816. " 'In determining the plain meaning of a provision, we look to the text of the statutory provision in question, as well as the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.' " Budik , 173 Wash.2d at 733, 272 P.3d 816 (internal quotation marks omitted) (quoting State v. Ervin , 169 Wash.2d 815, 820, 239 P.3d 354 (2010) ). "Commonsense informs our analysis" and we must avoid constructions that would yield to an unlikely, absurd, or strained result.

State v. Alvarado , 164 Wash.2d 556, 562, 192 P.3d 345 (2008) ; State v. Barbee , 187 Wash.2d 375, 389, 386 P.3d 729 (2017).

B. VALIDITY OF FOREIGN ORDER IS NOT AN ELEMENT

¶42 RCW 26.50.110(1)(a) provides in part:

Whenever ... there is a valid foreign protection order as defined in RCW 26.52.020 , and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsections (4) and (5) of this section[ ]:
(i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;
(ii) A provision excluding the person from a residence, workplace, school, or day care;
(iii) A provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location;
... or
(v) A provision of a foreign protection order specifically indicating that a violation will be a crime.

(Emphasis added.)

¶43 RCW 26.52.020 provides:

A foreign protection order is valid if the issuing court had jurisdiction over the parties and matter under the law of the state, territory, possession, tribe, or United States military tribunal. There is a presumption in favor of validity where an order appears authentic on its face.
A person under restraint must be given reasonable notice and the opportunity to be heard before the order of the foreign state, territory, possession, tribe, or United States military tribunal was issued, provided, in the case of ex parte orders, notice and opportunity to be heard was given as soon as possible after the order was issued, consistent with due process.

¶44 Ingram argues that RCW 26.50.110(1)(a) 's plain language, which requires a valid foreign protection order as defined in RCW 26.52.020, establishes that the validity of the foreign protection order is an element of the crime that must be found by the jury. But Ingram reads this language in isolation.

¶45 When RCW 26.50.110(1)(a) is read with RCW 26.52.020, it becomes apparent that the question of whether a foreign order is valid requires an examination of legal issues, such as jurisdiction. See Pruczinski v. Ashby , 185 Wash.2d 492, 374 P.3d 102 (2016). As acknowledged in Miller , the validity of a court order "normally turn[s] on questions of law," and "[q]uestions of law are for the court, not the jury, to resolve." 156 Wash.2d at 31, 123 P.3d 827.

¶46 Ingram argues that Miller does not apply because it addresses domestic (Washington) protection orders and, unlike the clause addressing foreign protection orders, the plain language of RCW 26.50.110 does not require proof that domestic protection orders are valid. Although Miller is not directly on point, it is still instructive.

¶47 Miller not only acknowledged that the validity of an order involved legal issues, it also stated that the question of a protection order's validity was a threshold matter related to the admissibility of the order. 156 Wash.2d at 31, 123 P.3d 827. The Miller court stated,

The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged. Orders that are not applicable to the crime should not be admitted. If no order is admissible, the charge should be dismissed.

156 Wash.2d at 31, 123 P.3d 827 (footnote omitted). Although Miller addressed Washington State (domestic) protection orders, the relationship between a protection order's validity and its admissibility does not depend on whether the protection order is domestic or foreign. Thus, before the trial court can admit the foreign protection order, it must first determine its validity, and it would be redundant to also require a jury to also make this finding. Additionally, it would lead to an absurd result if the question of the validity of a protection order is a question of law under some circumstances but not others.

¶48 The potential redundancy combined with the fact that determining the validity of an order is generally a legal question and our need to avoid an absurd result leads us to conclude that the validity of the foreign protection order is not an essential element that the jury must decide. Because the validity of the Oregon order was not an element of the offense, the trial court did not err when it ruled on the validity of the order.

¶49 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Worswick, P.J.

Melnick, J.

      A "foreign protection order" is an order or injunction "issued by a court of another state, territory, or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or any United States military tribunal, or a tribal court, in a civil or criminal action." RCW 26.52.010(3).

      The legislature amended this statute in 2017. Laws of 2017, ch. 230 § 9. Because the 2017 amendments did not alter the language at issue here, we cite to the current version of the statute.

      RAP 10.10.

      We refer to Tiffany Ingram by her first name for clarity. We intend no disrespect.

      The Honorable James Rulli signed this order.

      The Honorable Daniel Stahnke presided over this hearing.

      Based on the information in the appellate record, this was the first hearing following the December 5 hearing.

      Judge Stahnke presided over this hearing.

      The Honorable J. Scott Collier presided over this hearing.

      Judge Stahnke presided over this hearing.

      Judge Stahnke entered this order and presided over the trial.

      Ingram also presents several constitutional arguments related to his bail. Because we exercise our discretion and conclude that the trial court erred on nonconstitutional grounds, we do not address Ingram's constitutional arguments. State v. Smith , 104 Wash.2d 497, 505, 707 P.2d 1306 (1985) ("A court will not reach a constitutional issue if it can decide the case on nonconstitutional grounds.").

      CrR 3.2 was amended in 2017. The amendment did not affect subsections (a), (c), or (e), so we cite to the current version of the rule.

      See e.g. CrR 3.6(b) (expressly requiring trial court to enter written findings of fact and conclusions of law if evidentiary hearing is conducted); JuCR 7.11(c), (d) (expressly requiring juvenile court to state its findings of fact and enter its decision on the record, and to enter written findings and conclusions in a case that is appealed); CR 54(2)(b) (expressly requiring written findings on CR 54 order).

      Ingram suggests that the trial court's comments at the initial bail hearing regarding Tiffany's allegations that Ingram had recently held a gun to her head demonstrates that the trial court imposed bail based solely on safety concerns. But this argument overlooks the trial court's statement on the record during the December 28 hearing.
      Also referring to the trial court's reference to Tiffany's allegations, Ingram argues that it was improper and unconstitutional for the court "to rely on the nature of a charge or unproven allegations as the primary or sole basis for determining issues of pretrial release." Br. of Appellant at 32-33. The trial court's remarks at the December 28 hearing clarified that it was not solely relying on Tiffany's assertions when it imposed bail and that the court in fact considered other factors. Because the record shows that the court was not relying only on this allegation, Ingram's assertion that such sole reliance was error fails.

      Subsections (4) and (5) set out the circumstances that elevate the offense from a gross misdemeanor to a felony. See RCW 26.50.110(4), (5).

      In his assignments of error, Ingram also asserts that the charging information and jury instructions were inadequate because they did not include the validity of the Oregon order as an element. Because we hold that the validity of the Oregon order was not an element, these arguments also fail.
      Additionally, in his argument, Ingram questions the validity of the Oregon order. Although this discussion could imply that Ingram is challenging the trial court's ruling that the Oregon order was valid, he does not raise this claim in his assignments of error or issue statements and he ties this discussion to his assertion that validity of the Oregon order was an element of the offense. Accordingly, we limit our analysis to whether the validity of the Oregon order was an element of the offense. See Eichler v. Yakima Valley Transp. Co. , 83 Wash.2d 1, 6, 514 P.2d 1387 (1973) ("Arguments that are not supported by specific assignments of error will not be considered.") (citing Rutter v. Rutter , 59 Wash.2d 781, 370 P.2d 862 (1962) ).