author: Verellen, J.

text:
    Andrew W. HAMBLIN, Respondent-Cross Appellant, v. Luis CASTILLO GARCIA, Respondent,
    National General Insurance Company, Appellant-Cross Respondent.
    No. 78144-8-I consolidated with No. 78205-3-I
    Court of Appeals of Washington, Division 1.
    FILED: May 28, 2019
    Brent William Beecher, Hackett Beecher & Hart, 601 Union St. Ste. 2600, Seattle, WA, 98101-2302, Clifford J. Wilson, Smith Freed Eberhard PC, 111 Sw. 5th Ave. Ste. 4300, Portland, OR, 97204-3639, Thomas James Moore, Lehmbecker Law, 400 108th Ave. Ne. Ste. 500, Bellevue, WA, 98004-5575, Counsel for Respondent
    Rick J. Wathen, Cole/Wathen/Leid/Hall, P.C., 303 Battery St., Seattle, WA, 98121-1419, Counsel for Appellant/Cross-Respondent
    Andrew James Kinstler, Lauren Parris Watts, Michelle Su, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, Counsel for Respondent/Cross-Appellant
    Andrew James Kinstler, Lauren Parris Watts, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, Rick J. Wathen, Cole/Wathen/Leid/Hall, P.C., 303 Battery St., Seattle, WA, 98121-1419, Counsel for Other Parties
    PUBLISHED OPINION
   Verellen, J.

¶ 1 Generally, insureds may pursue emotional distress damages resulting from their insurer's bad faith conduct. But if the insured assigns all bad faith claims as part of a covenant judgment settlement agreement with the injured plaintiff, equitable principles do not permit a guaranteed fixed percentage allocation of any global settlement to compensate the insured for their emotional distress. Such a guarantee risks invading the funds reasonably intended to compensate the injured plaintiff. Because Andrew Hamblin's settlement with insured tortfeasor Luis Castillo Garcia effectively guaranteed Castillo Garcia a minimum 10 percent recovery from any global settlement reached on the bad faith claim he assigned to Hamblin, that portion of the settlement agreement was not reasonable.

¶ 2 When the court entered judgment based on Hamblin's settlement with Castillo Garcia, it set the postjudgment interest rate at 6.5 percent. Because settlement agreements are contracts, the court should have applied RCW 4.56.110(1) to set the interest at the settlement's agreed rate of 12 percent.

¶ 3 Therefore, we affirm in part, reverse in part, and remand.

FACTS

¶ 4 On a Saturday morning in early 2016, Luis Castillo Garcia drove with a blood-alcohol level over .18, lost control of his vehicle, and crashed into a car driven by Andrew Hamblin. Hamblin was 19. He was attending community college and working at a grocery store. A physically active and healthy young man, Hamblin's plan was to study blacksmithing. The accident left Hamblin with bilateral thoracic outlet syndrome, posttraumatic stress disorder, and anxiety. As a result, Hamblin stopped driving, stopped attending community college, and stopped working. He had two surgeries to address the thoracic outlet syndrome, although some symptoms remain unresolved.

¶ 5 Castillo Garcia was insured by National General Insurance Company. Hamblin initially offered to settle with National General for policy limits of $ 100,000, but National General counteroffered $ 21,000. Hamblin refused. After Hamblin filed suit against Castillo Garcia, National General appointed two attorneys to represent him. As Hamblin's medical expenses and lost earnings increased, his requested settlement amount grew to $ 2 million. Because Castillo Garcia's attorneys found themselves "in a difficult position," they used a defense attorney list-serve to find an attorney with no relationship to National General to counsel Castillo Garcia.

¶ 6 After attorney Brent Beecher began assisting Castillo Garcia in early August of 2017, Hamblin and Castillo Garcia reached a covenant judgment settlement agreement providing that Castillo Garcia stipulate to a $ 1.5 million judgment and assign all claims against National General to Hamblin in exchange for Hamblin agreeing not to enforce an excess judgment "against any of Castillo Garcia's assets other than his rights against his insurer." The settlement also requires that any subsequent suit brought by Hamblin against National General on the assigned bad faith claims include a request for damages to compensate Castillo Garcia for emotional distress resulting from the insurer's alleged bad faith. In addition, Hamblin has the discretion to enter a global settlement with National General, but Castillo Garcia is entitled to 10 percent of the settlement amount if Hamblin agrees to the settlement without Castillo Garcia's express consent. The parties reached their settlement agreement and notified National General of the agreement's terms.

¶ 7 After receiving notice, National General intervened. A few months later, the court conducted a reasonableness hearing, considered arguments from the parties, and heard live testimony. The court found the settlement was reasonable and entered a covenant judgment against Castillo Garcia with a postjudgment interest rate of 6.5 percent.

¶ 8 National General appeals the finding of reasonableness and entry of judgment. Hamblin appeals only the postjudgment interest rate.

ANALYSIS

¶ 9 Insurers have a duty to act in good faith as fiduciaries of their insured. If an insurer acts in bad faith and fails to settle a claim against the insured, the insured may have a bad faith tort claim against his insurer. The insured may assign his bad faith claim to the injured party in exchange for an agreement not to execute on any asset of the insured except the insured's claims against the insurer. If the amount of the settlement is reasonable, then entry of a covenant judgment based on the settlement sets the amount of the judgment as the presumptive recovery on the bad faith claim.

¶ 10 We review reasonableness determinations made under RCW 4.22.060 for an abuse of discretion. A court abuses its discretion where its decision rests on untenable grounds, was made for untenable reasons, or applies an incorrect legal standard. Reasonableness hearings require factual determinations, which will be disturbed only if unsupported by substantial evidence. Unchallenged findings of fact are verities on appeal.

I. Whether The Settlement Amount Was Reasonable

¶ 11 A court must consider the nine factors in Chaussee v. Maryland Casualty Company to determine if a settlement is reasonable:

"(1) [T]he releasing party's damages; (2) the merits of the releasing party's liability theory; (3) the merits of the released party's defense theory; (4) the released party's relative fault; (5) the risks and expenses of continued litigation; (6) the released party's ability to pay; (7) any evidence of bad faith, collusion, or fraud; (8) the extent of the releasing party's investigation and preparation; and (9) the interests of the parties not being released."[ ]

No single factor controls, and the trial court considers each case individually. The settling parties have the burden to prove the proposed settlement's reasonableness. Once proven, the burden shifts to the party arguing the settlement resulted from collusion or fraud.

¶ 12 First, National General argues the court erred by not properly addressing four of the nine Chaussee factors. But the court expressly stated it considered all nine factors. The court was not required to explain how it applied each factor. "Absent some showing that an incorrect standard may have been applied, we do not review a trial court's reasonableness determination for a sufficient explanation, but for substantial evidence." The court's findings of fact have not been adequately challenged and are verities on appeal. Because National General fails to show the court applied an incorrect legal standard, the court did not abuse its discretion in how it addressed the Chaussee factors.

¶ 13 Second, National General contends the court abused its discretion by considering Castillo Garcia's intoxication as part of its reasonableness determination because he already admitted liability. The court explained the proposed $ 1.5 million settlement appeared to be a reasonable amount based, in part, "on the evidence before the Court and the Court's experience" and because "[d]runk drivers are not popular with juries."

¶ 14 Evidence is relevant where it has "any tendency" to make the existence of any material fact more or less probable. Even minimally relevant evidence is admissible. In this case, Castillo Garcia's intoxication arguably is related to Hamblin's theory that he suffers posttraumatic stress disorder regarding drunk drivers. It is also probative of the released party's ability to pay, one of the Chaussee factors. The bankruptcy code prohibits discharge of any debt resulting from personal injuries caused by the debtor's drunk driving. Because the court must consider all nine factors and evidence of intoxication is relevant to the "ability to pay" factor, the court did not abuse its discretion.

¶ 15 National General argues, however, Hamblin and Castillo Garcia's negotiations constitute collusion as a matter of law. National General relies heavily on Water's Edge Homeowners Association v. Water's Edge Associates to argue Hamblin and Castillo Garcia colluded. The Water's Edge court held a settlement between an insured and an injured plaintiff was unreasonable because the attorneys' behavior and the resultant settlement amount reflected collusive conduct and bad faith. For example, the plaintiff's attorney ghost-wrote a letter for the insured to send to its insurer. The settlement also contained several unusual conditions, such as using damages from the assigned claims to refund the insureds for settlement money they already paid to the plaintiff and making the settlement binding regardless of the court's reasonableness determination. National General fails to show those unusual, collusive circumstances are present here. The court did not abuse its discretion by finding the settlement amount reasonable and negotiated without collusion or bad faith.

II. Whether The Settlement's Structure Was Reasonable

¶ 16 Although the court concluded the settlement amount was reasonable, it expressed "grave concerns" about the agreement's "extremely distasteful" structure. Those concerns are well founded. RCW 4.22.060 authorizes a proceeding in equity to determine the reasonableness of a proposed settlement. The agreement's global settlement provision violates the equitable maxim "[a] person is not permitted to profit by his own wrong at the expense of another." Because the entry of a reasonable covenant judgment sets the presumptive damages in an action alleging the insurer's bad faith and those damages compensate the injured party for the insured's tortious acts, the settlement underlying the covenant judgment must be structured to avoid unjustly enriching either insured or insurer.

¶ 17 It is well established that damages personal to the insured, such as emotional distress, are one component of an insured's damages for the tort of bad faith. It is also well established that in a covenant judgment settlement agreement, an insured may assign his bad faith claims against his insurer. But where the settlement agreement underlying a covenant judgment includes a minimum percentage payment to the insured from any global settlement between the insurer and the tort victim, a court must consider the potential impact upon the compensation of the victim for the insured's wrongful conduct.

¶ 18 This settlement includes Castillo Garcia's assignment of all his bad faith claims against National General. Hamblin would control any bad faith litigation, but Castillo Garcia retained a role for himself during settlement negotiations despite his total assignment. If Castillo Garcia does not consent to Hamblin's global settlement with National General, then Hamblin must pay 10 percent of the global settlement amount to Castillo Garcia. This effectively guarantees Castillo Garcia 10 percent of the total amount of any global settlement, unless he approves a settlement that pays him less.

¶ 19 We share the trial court's concern that this settlement structure is troubling. Castillo Garcia's guaranteed payment may invade funds intended to compensate Hamblin for his full damages by reallocating a guaranteed 10 percent to Castillo Garcia, regardless of the amount of any true emotional distress damages he suffered. As the first Chaussee factor, a court must consider the releasing party's damages when considering a settlement's reasonableness. And the court has broad discretion when weighing the Chaussee factors. But it runs counter to established equitable principles to approve a settlement that intentionally undervalues the injured party's damages by reallocating them to the insured tortfeasor. It risks conferring a benefit on tortfeasor Castillo Garcia for his wrongdoing at the expense of injured party, Hamblin. Because the global settlement provision impermissibly undercuts the first Chaussee factor and violates equitable principles, it is not reasonable.

III. Whether The Postjudgment Interest Rate Was Correct

¶ 20 Hamblin argues the court applied RCW 4.56.110 incorrectly when it set the postjudgment interest rate at 6.5 percent. We review claimed errors of law de novo. RCW 4.56.110 governs the interest rate for judgments. RCW 4.56.110(1) provides that judgments based on a contract accrue interest at the rate specified in the contract. RCW 4.56.110(3)(b) provides that judgments based on a private person's tortious conduct accrue interest at two percentage points above the prime rate on the first business day of the month preceding the day the court entered judgment.

¶ 21 Settlement agreements are contracts. "Once parties have agreed to settle a tort claim, the foundation for the judgment is their written contract, not the underlying allegations of tortious conduct." Specifically, a settlement agreement providing for a covenant judgment with a specified interest rate supports entering postjudgment interest at the contract rate, not the interest rate applicable to the underlying tort claim.

¶ 22 Here, the settlement agreement requires that Castillo Garcia stipulate to "a judgment ... in the form attached hereto as Appendix A." The attached form provides for a 12 percent interest rate in emboldened capital letters. The court relied, however, on the tort statute, RCW 4.56.110(3)(b), to set the postjudgment interest rate. The court explained, "[T]he contract did not bind National General and liability against [it] is based on bad faith. This is the equitable resolution of the dispute."

¶ 23 But the court entered judgment based on a contract between Hamblin and Castillo Garcia. By entering judgment based on the contract, the court found a valid agreement existed between the parties. The judgment was based on that agreement regardless of the underlying tort. The settlement is not based on compensation for National General's bad faith because neither Hamblin nor Castillo Garcia had filed or prevailed in a claim against National General.

¶ 24 Because this covenant judgment was based on a contract, RCW 4.56.110(1) controlled. Accordingly, it requires that the court set the postjudgment interest rate at 12 percent, as specified in the settlement agreement.

CONCLUSION

¶ 25 Substantial evidence supports the court's conclusion that the settlement amount of $ 1.5 million is reasonable under the Chaussee factors. But the global settlement provision risks invading and reducing Hamblin's just compensation by 10 percent to unjustly enrich the tortfeasor. At oral argument, both parties confirmed they are bound by the severability clause of the settlement agreement, which authorizes the trial court to modify the settlement agreement by striking an offending provision and affirming the reasonableness of the settlement agreement as modified. Additionally, the postjudgment interest rate must reflect the agreed rate.

¶ 26 Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

WE CONCUR:

Hazelrigg-Hernandez, J.

Andrus, J.

      Clerk's Papers (CP) at 968.

      CP at 80, 960.

      Tank v. State Farm Fire & Cas. Co., 105 Wash.2d 381, 385, 715 P.2d 1133 (1986) ("The business of insurance is one affected by the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honesty and equity in all insurance matters.") (quoting RCW 48.01.030 ).

      Mut. of Enumclaw Ins. Co. v. Myong Suk Day, 197 Wash. App. 753, 756, 393 P.3d 786 (2017).

      Besel v. Viking Ins. Co. of Wis., 146 Wash.2d 730, 738, 49 P.3d 887 (2002) ; Day, 197 Wash. App. at 756-57, 393 P.3d 786.

      Bird v. Best Plumbing Grp., LLC, 175 Wash.2d 756, 774, 287 P.3d 551 (2012).

      Kreidler v. Cascade Nat'l Ins. Co., 179 Wash. App. 851, 866, 321 P.3d 281 (2014) (quoting Gillett v. Conner, 132 Wash. App. 818, 822, 133 P.3d 960 (2006) ).

      Bird, 175 Wash.2d at 775, 287 P.3d 551.

      Robel v. Roundup Corp., 148 Wash.2d 35, 42, 59 P.3d 611 (2002).

      60 Wash. App. 504, 803 P.2d 1339 (1991).

      Bird, 175 Wash.2d at 766, 287 P.3d 551 (quoting Mut. of Enumclaw Ins. Co. v. T&G Constr., Inc., 165 Wash.2d 255, 264, 199 P.3d 376 (2008) ) (alteration in original).

      Id. (quoting Chaussee, 60 Wash. App. at 504, 803 P.2d 1339 ).

      Id. at 774, 287 P.3d 551 (citing Chaussee, 60 Wash. App. at 510, 803 P.2d 1339 ).

      Water's Edge Homeowners Ass'n v. Water's Edge Assocs., 152 Wash. App. 572, 578, 216 P.3d 1110 (2009) (citing Besel, 146 Wash.2d at 738, 49 P.3d 887 ).

      Hidalgo v. Barker, 176 Wash. App. 527, 548, 309 P.3d 687 (2013) ; see Bird, 175 Wash.2d at 766, 287 P.3d 551 (courts have discretion in weighing the factors).

      Hidalgo, 176 Wash. App. at 548, 309 P.3d 687 (citing Water's Edge, 152 Wash. App. at 585, 216 P.3d 1110 ).

      National General assigns error to "certain factual determinations" made by the trial court. Appellant's Br. at 2. Because National General does not specify which findings of fact are unsupported by substantial evidence, we treat all factual findings as verities. Robel, 148 Wash.2d at 42, 59 P.3d 611 ; see RAP 10.3(g) (requiring "[a] separate assignment of error" for each allegedly unsupported finding).

      CP at 968.

      ER 401.

      Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wash. App. 702, 729, 315 P.3d 1143 (2013) (citing Kappelman v. Lutz, 167 Wash.2d 1, 9, 217 P.3d 286 (2009) ).

      11 U.S.C. § 523(a)(9).

      National General contends the evidence, even if relevant, is unduly prejudicial. Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." ER 403. The Rules of Evidence favor admitting relevant evidence, so the party opposing admission bears the burden of establishing undue prejudice. Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash.2d 183, 190, 883 P.2d 313 (1994). Because the court was required to consider Castillo Garcia's ability to pay and his intoxication was highly probative of that factor, we cannot say the court abused its discretion in considering it. See Colley v. Peacehealth, 177 Wash. App. 717, 732-33, 312 P.3d 989 (2013) (holding that evidence of past alcohol abuse did not outweigh probative value of central issues in the case).

      152 Wash. App. 572, 216 P.3d 1110 (2009).

      Id. at 596-99, 216 P.3d 1110.

      Id. at 595, 216 P.3d 1110.

      Among other unconvincing constructions of the evidence, National General alleges Beecher identified it as Castillo Garcia's "opponent" with a position "contra" Castillo Garcia's and aligned himself with Hamblin. But these selective quotes merely show an attorney upholding his duties of loyalty and communication under the Rules of Professional Conduct. See RPC 1.4 (requiring prompt communications); RPC 1.7 (prohibiting concurrent conflicts of interest). In accordance with RPC 1.7, Beecher asked his firm to run a conflicts check when first approached about representing Castillo Garcia, and he identified the insurer as an "opponent." CP at 757. And Beecher followed RPC 1.4 when writing an e-mail in Spanish to Castillo Garcia's girlfriend so she could update him about ongoing settlement negotiations, particularly the settlement amount and Castillo Garcia assigning his rights against, or "contra," National General. CP at 762. National General also complains Beecher wrote that he "did not want to 'upset the apple cart at the reasonableness hearing.' " Appellant's Br. at 6 (citing CP at 763). Beecher used that phrase when writing an e-mail to Castillo Garcia's insurer-assigned counsel and to Hamblin's counsel while expressing his concern that failure to arrive at a successful, reasonable settlement could leave his client personally exposed to liability. CP at 763. National General's various examples of Beecher's supposed bad faith and collusion actually reflect, as National General's counsel noted, "that Mr. Beecher is doing a great job of protecting his client from a personal liability." Report of Proceedings (Nov. 1, 2017) at 24.

      CP at 969.

      Bird, 175 Wash.2d at 770, 287 P.3d 551.

      Restatement (First) of Restitution § 3 (1937).

      See, e.g., Coventry Assocs. v. Am. States Ins. Co., 136 Wash.2d 269, 284, 961 P.2d 933 (1998) ("Because actionable bad faith is a tort, a plaintiff should not be limited to the economic damages within the contemplation of the parties at the time the contract was made."); Day, 197 Wash. App. at 767 n.37, 393 P.3d 786 ("[A]n insured is entitled to those damages personal to the insured that resulted from the insurer's bad faith, such as emotional distress damages."); Miller v. Kenny, 180 Wash. App. 772, 802, 325 P.3d 278 (2014) (A bad faith claimant can seek damages for "loss of interest, attorney fees and costs, financial penalties for delayed payments, and emotional distress, anxiety, and fear.").

      Bird, 175 Wash.2d at 766, 287 P.3d 551 (RCW 4.22.060 applies to reasonableness hearings on covenant judgments).

      See id. (courts must consider all nine Chaussee factors, including the award of damages to the injured, releasing party).

      Id. at 766, 287 P.3d 551.

      Id. at 766, 774, 287 P.3d 551.

      Because Castillo Garcia alleges National General caused his emotional distress damages, making Hamblin pay those damages out of his award would also confer an improper benefit on the insurer. See Restatement (First) of Restitution § 1, cmt. b (1937) (A person "confers a benefit not only where he adds to the property of another, but also where he saves the other from expense or loss.").

      The settlement also requires that if the bad faith claims go to trial, Hamblin must seek emotional distress damages based on Castillo Garcia's experiences, request a line item on the jury verdict sheet for emotional distress damages, and transfer any recovered emotional distress damages to Castillo Garcia. Because the reasonableness of this separate provision to recover emotional distress damages for the benefit of Castillo Garcia has not been specifically briefed or meaningfully argued by the parties, we decline to address it.

      Meadow Valley Owners Ass'n v. St. Paul Fire & Marine Ins. Co., 137 Wash. App. 810, 816, 156 P.3d 240 (2007).

      If the contract does not specify the rate, then the default rate is usually 12 percent. RCW 4.56.110(5) ; see RCW 19.52.020(1).

      Jackson v, Fenix Underground, Inc., 142 Wash. App. 141, 146, 173 P.3d 977 (2007).

      Id.

      Id.

      CP at 80 (italics omitted).

      CP at 970.

      Jackson, 142 Wash. App. at 147, 173 P.3d 977.

      Id. at 146, 173 P.3d 977.


source: Caselaw Access Project

author: Lawrence-Berrey, C.J.

license: Public Domain

text:
    STATE of Washington, Appellant, v. Edward L. JEGLUM, Respondent.
    No. 35841-1-III
    Court of Appeals of Washington, Division 3.
    FILED MAY 21, 2019
    Andrew Bryan Van Winkle, Chelan County Prosecutor's Office, 401 Washington St., Wenatchee, WA, 98801-2899, for Appellant.
    PUBLISHED OPINION
   Lawrence-Berrey, C.J.

¶1 Edward Jeglum violated a condition of his cash bail by failing to appear at multiple court hearings. The State requested forfeiture of the cash bail. The trial court reserved ruling on the request. Eventually, Mr. Jeglum pleaded guilty and was sentenced. More than one year later, the trial court denied the State's request. In denying the State's request, the trial court construed existing law as preventing forfeiture of cash bail once an accused reappears in court.

¶2 The question before us is whether the trial court abused its discretion by misconstruing existing law. We conclude it did. We hold that if an accused has violated a condition of cash bail, a trial court has discretion to forfeit cash bail even after the accused reappears in court and even after entry of the judgment and sentence.

¶3 We reverse and remand this matter to the trial court for it to exercise its discretion to determine whether to forfeit Mr. Jeglum's cash bail and, if so, the appropriate amount.

FACTS

¶4 On February 10, 2015, the State charged Edward Jeglum with felony stalking and two misdemeanor counts of violation of a no-contact order. The trial court set bail at $ 100,000. Mr. Jeglum posted $ 100,000 cash bail and was warned that failure to appear in court would result in the immediate forfeiture of the bail money.

¶5 On August 31, the trial court signed an order modifying Mr. Jeglum's release conditions to allow him to travel to Arizona in November to attend scheduled medical appointments. The order provided that further requests for out-of-state travel would require prior court approval.

¶6 On November 30, Mr. Jeglum appeared in court and the court reset his trial readiness hearing to January 20, 2016, and his trial date to February 9, 2016. Mr. Jeglum failed to appear for his January readiness hearing.

¶7 On February 17, 2016, the trial court held a hearing to discuss Mr. Jeglum's absence. At the hearing, defense counsel submitted a letter ostensibly signed by a nurse practitioner and a physician stating that Mr. Jeglum was currently residing in a licensed assisted living home and that travel was not recommended. Defense counsel told the court he had been in contact with the doctor, and the doctor was Mr. Jeglum's primary care physician.

¶8 Later, when the State called the telephone number on the letter, the State learned that the number was for a storage unit company. The State requested a warrant and bail forfeiture. The trial court reserved ruling on the State's requests and scheduled a hearing for March 3, for Mr. Jeglum to provide more specific information. The trial court ordered that Mr. Jeglum's doctor be available by telephone to testify at the hearing.

¶9 Mr. Jeglum sent a facsimile to the court an hour before the March hearing. Mr. Jeglum confirmed his knowledge of the hearing, but asserted that the doctor who had earlier signed the letter was not his doctor, the doctor had never spoken to him or examined him, and he did not consent to releasing any patient healthcare information. The facsimile made it clear that Mr. Jeglum had committed a fraud on the court.

¶10 The trial court granted the State's request for a warrant, but again reserved ruling on the State's request for bail forfeiture. A bail bondsman for Mr. Jeglum's other pending felony matters flew to Arizona, took Mr. Jeglum into custody, and surrendered him to the Chelan County jail.

¶11 On March 14, the State once again requested bail forfeiture. The trial court reserved ruling on the State's request, but substantially increased bail.

¶12 Mr. Jeglum soon after pleaded guilty and the parties recommended one month in jail. The trial court refused to accept the recommendation and sentenced Mr. Jeglum to nine months in jail. The court explained, "Frankly, Mr. Jeglum, I feel like you have made a mockery of the legal system. You have dragged out these legal proceedings beyond a point that I would have thought would have been possible." Report of Proceedings (3/3/16, 3/14/16, 3/22/16, 1/18/18) (RP) at 57. Once again the court reserved ruling on the State's bail forfeiture request. It directed defense counsel to set a hearing so it could hear from both parties and consider costs incurred by the bondsman in retrieving Mr. Jeglum.

¶13 Before the trial court could hear the forfeiture request, Mr. Jeglum filed a declaration of candidacy against the judge. The judge disqualified herself from Mr. Jeglum's case. The State eventually succeeded in removing Mr. Jeglum from the ballot on the basis that he failed to meet the legal requirements to serve as a judge.

¶14 In January 2018, a successor judge heard arguments on the State's bail forfeiture request. The court ordered the cash bail to be returned to Mr. Jeglum, citing State v. Paul as the controlling case. The court reasoned,

So I think the Court has the discretion to forfeit all or a portion of that cash bail at any time, after [a defendant] fails to appear, but before he shows back up, and has the case resolved.
Once he's shown up-and in this case, he did, eventually-and was sentenced-irregardless of why he showed up, he was here-then I don't believe this Court has any discretion, but must refund the bail money to the defendant.
....
... I don't think I have discretion, at this point. I did, up until the time he appeared in court. But, once he appeared, I don't believe the Court has any-any discretion.

RP at 74, 81. The trial court stayed the order 30 days to permit the State to appeal, which it did.

ANALYSIS

¶15 The State argues the trial court had discretion to forfeit the cash bail and asks this court to remand with instructions for the trial court to exercise its discretion.

Standard of review

¶16 The decision whether to forfeit bail is reviewed for an abuse of discretion. State v. Banuelos , 91 Wash. App. 860, 861-62, 960 P.2d 952 (1998) ; In re Marriage of Bralley , 70 Wash. App. 646, 651, 855 P.2d 1174 (1993) ; State v. Molina , 8 Wash. App. 551, 552, 507 P.2d 909 (1973). "An abuse of discretion occurs only when the decision of the court is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' " State v. McCormick , 166 Wash.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel.Carroll v. Junker , 79 Wash.2d 12, 26, 482 P.2d 775 (1971) ). A trial court's decision is based on untenable reasons when it is based on the wrong legal standard. State v. Sisouvanh , 175 Wash.2d 607, 623, 290 P.3d 942 (2012).

¶17 The State argues the trial court abused its discretion by misconstruing Paul . We agree and take this opportunity to clarify the law of cash bail.

1. Cash bail is forfeitable if the accused fails to appear or otherwise violates a condition of release

¶18 At the outset, we note there is no constitutional or statutory authority governing forfeiture of cash bail. Article I, section 20 of the Washington State Constitution requires that all criminal defendants "be bailable by sufficient sureties." However, that provision only applies to bail posted by third parties, not cash bail posted by the defendant. State v. Barton , 181 Wash.2d 148, 156, 331 P.3d 50 (2014). Barton explains:

" 'The underlying legal theories behind bail bonds and cash bail are different; in bail bonds the law looks to the surety to guarantee the defendant's appearance, while in cash bail the law looks to the money already in the hands of the state to insure defendant's appearance.' "

Id. (quoting Bralley , 70 Wash. App. at 653, 855 P.2d 1174 ) (quoting 8 C.J.S. Bail § 88, at 109 (1988) ). In Bralley , we held that RCW 10.19.090, which governs forfeiture of bail bonds, does not apply to cash bail posted by the subject of the bail. Bralley , 70 Wash. App. at 654, 855 P.2d 1174.

¶19 CrR 3.2(o), however, applies to cash bail; that rule provides:

If the accused has been released on the accused's own recognizance, on bail, or has deposited money instead thereof, and does not appear when the accused's personal appearance is necessary or violated conditions of release, the court, in addition to the forfeiture of the recognizance, or of the money deposited, may direct the clerk to issue a bench warrant for the accused's arrest.

This provision authorizes a trial court to forfeit cash bail whenever an accused fails to appear in court or otherwise violates a condition of release. But it does not answer the questions presented here-whether forfeiture of cash bail is permitted after the accused reappears in court or after entry of judgment and sentence.

2. Cash bail is forfeitable even after the accused appears back in court and even after entry of judgment and sentence

¶20 In Paul , Anita Paul was convicted of first degree theft of public assistance and ordered to pay restitution. Paul , 95 Wash. App. at 776, 976 P.2d 1272. She failed to make payments, and she was arrested and charged with failure to make restitution payments and failing to report to her community corrections officer. Id. at 776-77, 976 P.2d 1272. The trial court set bail at $ 2,500, and her parents posted cash bail. Id. at 777, 976 P.2d 1272. Proceedings continued, and Ms. Paul always appeared at the hearings. Id. Yet, because she had trouble making her restitution payments, the trial court forfeited the cash bail. Id. It stated, " 'The bail is forfeited for restitution. I can forfeit it. It doesn't matter whose it is.' " Id.

¶21 We disagreed with the trial court and held that cash bail could not be forfeited when the accused has satisfied the bail conditions. Id. at 777-79, 976 P.2d 1272. We explained, "If the [accused] does not appear, the cash bail is forfeited. If the [accused] is subsequently apprehended, the court has the discretion to vacate the bail for forfeiture or not." Id . at 778, 976 P.2d 1272 (citing Bralley , 70 Wash. App. at 651, 855 P.2d 1174 ). Using unartful language, we also explained, "When the accused appears, the conditions of the bail have been fulfilled, and the court must give the money back." Id. (citing State v. Ransom , 34 Wash. App. 819, 822-24, 664 P.2d 521 (1983) ). Given our earlier explanation of cash bail and the fact that Ms. Paul had attended all of her court hearings, the preceding quote should not be construed as applying to accused persons who have missed one or more court hearings. Thus construed, Paul does not preclude the trial court from forfeiting Mr. Jeglum's cash bail.

¶22 In Ransom , Mr. Ransom posted $ 10,000 in cash bail in his pending first degree robbery case. Ransom , 34 Wash. App. at 820, 664 P.2d 521. Mr. Ransom's mother and brother supplied the funds. Id. Mr. Ransom appeared for trial and was found guilty. Id. The court sentenced Mr. Ransom to a term of not more than 10 years' imprisonment and remanded Mr. Ransom to the custody of the State. Id. The deputy prosecutor called for a deputy, but before one arrived, Mr. Ransom fled. Id. at 821, 664 P.2d 521. The trial court subsequently ordered forfeiture of the $ 10,000 cash bail. Id. We reversed the trial court's order. Id. at 825, 664 P.2d 521. We held that the cash bail was exonerated once the trial court entered its judgment and sentence. Id. at 823-24, 664 P.2d 521. And because Mr. Ransom had complied with the conditions of his cash bail prior to its exoneration, the trial court lacked authority to forfeit it. Id. at 824-25, 664 P.2d 521.

¶23 Paul and Ransom are distinguishable from the case now before us. In those cases, the accused persons did not violate the conditions of their cash bail. Here, Mr. Jeglum did. Not only did Mr. Jeglum fail to appear for court hearings, he perpetrated a fraud on the court by affirmatively misrepresenting he was unable to attend court because of his medical condition.

¶24 Moreover, the State requested forfeiture of the cash bail before Mr. Jeglum was apprehended and returned, again prior to his plea, and again at the plea and sentence hearing. The trial court reserved ruling on the State's multiple requests mostly because it wished to give Mr. Jeglum an opportunity to rebut the State's factual and legal arguments. Were we to conclude that these multiple delays for Mr. Jeglum's benefit somehow deprived the trial court of its authority to forfeit cash bail, our conclusion would inequitably benefit a wrongdoer.

¶25 We conclude that the trial court had authority to forfeit Mr. Jeglum's cash bail even after he reappeared in court and even after entry of the judgment and sentence. The trial court misconstrued Paul and, in so doing, abused its discretion. We remand this matter to the trial court for it to exercise its discretion to determine whether to forfeit Mr. Jeglum's cash bail and, if so, the appropriate amount.

¶26 Reversed and remanded.

WE CONCUR:

Siddoway, J.

Pennell, J.

      95 Wash. App. 775, 976 P.2d 1272 (1999).


author: Siddoway, J. Fearing, J. (concurring)

text:
    Duane YOUNG, an individual, and all those similarly situated, Appellant, v. TOYOTA MOTOR SALES, U.S.A., a California corporation, Respondent.
    No. 35842-9-III
    Court of Appeals of Washington, Division 3.
    FILED MAY 23, 2019
    PUBLISHED OPINION
   Siddoway, J.

¶1 Duane Young's negligent misrepresentation and Consumer Protection Act (CPA) claims against Toyota Motor Sales were dismissed following a bench trial. He appeals dismissal of the CPA claim, challenging the trial court's legal conclusions. Because the trial court's factual findings support its conclusion that Mr. Young failed to carry his burden of proof on at least two elements of his claim, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In December 2013, several months after purchasing a 2014 model year Toyota Tacoma truck from a dealer in Burlington, Washington, Duane Young received a letter from Toyota. The letter stated it had recently come to Toyota's attention that the Monroney label on the vehicle he purchased might have indicated that an outside temperature gauge was included in the vehicle's rearview mirror. As the letter disclosed, that feature was not available on any 2014 model Tacoma. The letter apologized for the mistake and any confusion it might have caused. It offered to compensate Mr. Young with a cash reimbursement of $ 100.

¶3 In January 2014, Mr. Young communicated with a customer service representative for Toyota named Jeffrey Moore, expressing his dissatisfaction with the reimbursement offer. By the end of January, Mr. Moore had offered to install a rearview mirror with an outside temperature gauge as an aftermarket part, but because it would not be factory-installed, the three-year 36,000 mile warranty on many of the truck's other parts would not apply. Still dissatisfied, Mr. Young contacted an attorney, after which Toyota offered to pay him $ 500 to resolve his complaints. He declined the offer.

¶4 Arbitration proceedings with Toyota led to an award of a buyback by Toyota for over $ 27,000. Mr. Young rejected the buyback because he thought he could sell the truck for more. He was right; he eventually sold the truck for $ 30,500.

¶5 In May 2015, Mr. Young filed the lawsuit below. He sought to pursue it as a class action and asserted claims of common law fraud, negligent misrepresentation, and for violation of the CPA. The trial court denied class certification.

¶6 Toyota moved for summary judgment on all of Mr. Young's claims; he responded with a cross motion for summary judgment on his CPA claim. In ruling on the motions, the trial court dismissed the fraud claim but declined to grant either party's motions on the negligent misrepresentation and CPA claims, which proceeded to a bench trial.

Trial

¶7 At the bench trial, Mr. Young testified that the outdoor temperature gauge was an important feature to him and he was misled into believing it would be included in the limited package by a Monroney label and by the "Build-a-Tacoma" feature on Toyota's website. The "Build-a-Tacoma" feature enables a consumer to select the features of the truck he or she is interested in purchasing.

¶8 In the defense case, Toyota called as a witness its distribution pricing administrator, who testified that in early September 2013, an audit of the Monroney label for the 2014 model Tacoma with the limited package revealed that it erroneously identified the truck's rearview mirror as including an outside temperature gauge. The 2013 model Tacoma had included such a temperature gauge, but it had been removed from the limited package for the 2014 model. Toyota presented evidence that in pricing the 2014 limited package the cost of that feature was removed, so purchasers of the limited package never paid for it. It also presented evidence that the cost of the feature was $ 10.

¶9 The pricing administrator testified that the date on which Toyota first started wholesaling 2014 model Tacomas to dealers was September 4, 2013, so catching the error in the early September audit enabled it to substitute correct labels on most of the 2014 limited package models before they were shipped to dealers. In mid-October 2013, however, Toyota employees realized there might be vehicles in the field that had been shipped with incorrect Monroney labels. The pricing administrator testified that on October 22, 2013, she notified field offices of the possibility of incorrect labels, and that corrected labels would be available to print at their field offices the next day. The e-mail directed the field office to send the corrected Monroney labels to dealers in their region.

¶10 The general manager for Toyota's Customer Experience Center testified that she learned in late October 2013 that incorrect information about the temperature gauge had been entered into the "Build-a-Tacoma" program on Toyota's website. She testified that the "Build-a-Tacoma" website information was corrected in early November 2013.

¶11 Toyota presented evidence that a total of 59 2014 model Tacomas with the limited package were sold in the state of Washington, and only three were sold before Toyota realized there was a mistake with the Monroney label. Of the remaining 56 trucks, 41 were sold after January 30, 2014 (roughly three months after the mistake had been corrected) and 31 were sold after May 1, 2014 (roughly six months after the mistake had been corrected).

¶12 Toyota's witnesses testified that letters like the one Mr. Young received in December 2013 were sent to 147 individuals that it identified as the only consumers who possibly purchased the limited package after seeing misleading information. There was no evidence presented that anyone other than Mr. Young claimed to have been misled.

¶13 At the conclusion of the bench trial, the court took the matter under advisement, issuing a lengthy and detailed memorandum decision three months later. It found "at least seven areas" where it "question[ed] Mr. Young's credibility." Clerk's Papers (CP) at 411. It concluded that Mr. Young had not proved either of his two remaining claims and directed Toyota's counsel to prepare formal findings and conclusions.

¶14 The findings and conclusions thereafter presented and entered incorporated all of the factual findings articulated in the court's memorandum decision. They concluded that Mr. Young failed to carry his burden of proving multiple elements of both of his claims. Mr. Young appeals.

ANALYSIS

¶15 Following a bench trial, appellate review is limited to determining whether substantial evidence supports the trial court's findings of fact and, if so, whether the findings support the conclusions of law. State v. Stevenson , 128 Wash. App. 179, 193, 114 P.3d 699 (2005). "Substantial evidence" is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise. Id. We defer to the trial court's determinations of the weight and credibility of the evidence. Mueller v. Wells , 185 Wash.2d 1, 9, 367 P.3d 580 (2016).

¶16 Unchallenged findings are verities on appeal, see id. , and Mr. Young does not dispute the trial court's extensive findings. "Thus, the only question is if the unchallenged facts support the trial court's conclusions of law." Id. Mr. Young's appeal challenges only the trial court's dismissal of his CPA claim.

¶17 In a private cause of action, the CPA requires a plaintiff to prove five elements: "(1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person's business or property, and (5) causation." Panag v. Farmers Ins. Co. of Wash. , 166 Wash.2d 27, 37, 204 P.3d 885 (2009) ; see also Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co. , 105 Wash.2d 778, 780, 719 P.2d 531 (1986). "Failure to satisfy even one of the elements is fatal to a CPA claim." Sorrel v. Eagle Healthcare, Inc. , 110 Wn. App. 290, 298, 38 P.3d 1024 (2002). The trial court concluded that Mr. Young's proof of the CPA claim fell short of his burden in five respects. It is sufficient on appeal for us to address whether he proved the first and fifth elements of the claim.

Element One: An unfair or deceptive act or practice

¶18 The CPA does not define "unfair or deceptive act or practice." "To show a party has engaged in an unfair or deceptive act or practice a 'plaintiff need not show that the act in question was intended to deceive, but that the alleged act had the capacity to deceive a substantial portion of the public.' " Sing v. John L. Scott, Inc. , 134 Wash.2d 24, 30, 948 P.2d 816, (1997) (quoting Hangman Ridge , 105 Wash.2d at 785, 719 P.2d 531 ). "Implicit in the definition of 'deceptive' is the understanding that the actor misrepresented something of material importance." Hiner v. Bridgestone/Firestone, Inc. , 91 Wash. App. 722, 730, 959 P.2d 1158 (1998) (emphasis omitted), rev'd in part on other grounds , 138 Wash.2d 248, 978 P.2d 505 (1999). "Deception exists, 'if there is a representation, omission or practice that is likely to mislead' a reasonable consumer." Panag , 166 Wash.2d at 50, 204 P.3d 885 (quoting Sw. Sunsites, Inc. v. Fed. Trade Comm'n , 785 F.2d 1431, 1435 (9th Cir. 1986) ).

¶19 The "material importance" and "reasonable consumer" standards are consistent with decisions of federal courts and final orders of the Federal Trade Commission (FTC) interpreting provisions of the Federal Trade Commission Act dealing with the same or similar matters, as intended by the Washington Legislature. See RCW 19.86.920. In a 1983 report to a congressional committee on the FTC's enforcement policy against deceptive acts or practices, the FTC provided its view of the meaning of "deceptive acts or practices" under both sections 5 and 12 of the FTC Act. See Cliffdale Assocs ., 103 F.T.C. 110, app. at 174-84 (1984) (Letter from James C. Miller III, FTC Chairman, to the Honorable John D. Dingell, Chairman, U.S. House Comm. on Energy & Commerce (October 14, 1983)). Courts have summarized the Commission's view as prohibiting practices that are "likely to mislead consumers acting reasonably under the circumstances ... in a way that is material." Fed. Trade Comm'n v. Cyberspace.com LLC , 453 F.3d 1196, 1199 (9th Cir. 2006) (citing Fed. Trade Comm'n v. Gill , 265 F.3d 944, 950 (9th Cir. 2001) ) (citing, in turn, Fed. Trade Comm'n v. Pantron I Corp. , 33 F.3d 1088, 1095 (9th Cir. 1994) ); Corder v. Ford Motor Co. , 285 F. App'x 226, 228 (6th Cir. 2008) ; and see Kraft, Inc. v. Fed. Trade Comm'n , 970 F.2d 311, 314 (7th Cir. 1992) ; Cliffdale Assocs. , 103 F.T.C. 110, at 164-66.

¶20 The FTC has summarized its approach to the requirement of materiality as follows:

The basic question is whether the act or practice is likely to affect the consumer's conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary.

Cliffdale Assocs. , 103 F.T.C. 110, app. at 175-76.

¶21 "A claim under the Washington CPA may be predicated upon a per se violation of statute, an act or practice that has the capacity to deceive substantial portions of the public, or an unfair or deceptive act or practice not regulated by statute but in violation of public interest." Klem v. Wash. Mut. Bank , 176 Wash.2d 771, 787, 295 P.3d 1179 (2013). Mr. Young primarily contends that Toyota's "false advertising" had the capacity to deceive a substantial portion of the public. Appellant's Br. at 3. He argues alternatively that it was per se unfair or deceptive conduct under chapter 46.70 RCW, which regulates automobile manufacturers and dealers. Id.

¶22 Capacity to deceive substantial portions of the public. The court found that "there is no question that there was a mistake both in Toyota's online Build-a-Tacoma feature, and possibly in as many as 147 Monroney labels for 2014 Tacomas with a limited package that were shipped around the United States." CP at 408. But it found that Mr. Young failed to demonstrate that Toyota's mistake was a matter of material importance and therefore deceptive, or that it had the capacity to deceive a substantial portion of the public.

¶23 We need address only materiality to affirm the court's conclusion that Mr. Young failed to prove a deceptive act or practice. The trial court's unchallenged finding was that the temperature gauge represented $ 10 in value, as compared to the $ 7,525 cost of the 2014 model limited package. It also made the unchallenged finding that because the temperature gauge was never intended to be a feature of the limited package, it was not included in pricing the package, so no purchaser of the package ever paid for it. This unchallenged evidence establishes that Toyota's error was financially immaterial.

¶24 Mr. Young did not present credible evidence that Toyota's error was material for any nonfinancial reason. Having weighed Mr. Young's credibility, the court rejected his assertion that he, personally, was induced by the mistake to buy the limited package. Mr. Young presented no evidence that the mistake would have been material to others.

¶25 A similar failure to present evidence caused this court to affirm summary judgment dismissal of a CPA claim in Brummett v. Wash.'s Lottery , 171 Wash. App. 664, 676, 288 P.3d 48 (2012). Mr. Brummett sued the Washington Lottery and its outside advertising agency, contending (among other claims) that the agency's false advertisement that tickets being offered in a special raffle were "going fast" violated the CPA. Id. at 672, 288 P.3d 48. He alleged that the advertisements would have induced the public to purchase tickets, but as this court observed, "[H]e did not, however, support this assertion with evidence that he would produce if he defeated summary judgment and went to trial." Id. at 676, 288 P.3d 48. In affirming dismissal of his CPA claim, this court stated that the agency's " 'going fast' statements could not be categorized as misrepresenting something of material importance." Id. at 678, 288 P.3d 48.

¶26 The trial court's findings support its conclusion that Mr. Young failed to prove Toyota's error was of material importance, and thereby failed to prove it was deceptive.

¶27 Per se unfair or deceptive conduct. Alternatively, Mr. Young argues that the trial court erred in concluding that he failed to prove a per se violation, based on Toyota's alleged violation of chapter 46.70 RCW. Shortly after Hangman Ridge was decided, the legislature declared that "[a]ny violation of [chapter 46.70] is deemed to affect the public interest and constitutes a violation of chapter 19.86 RCW." LAWS OF 1986, ch. 241, § 23, codified at RCW 46.70.310. Demonstration of a violation of the chapter therefore satisfies the first two elements of a CPA claim.

¶28 Mr. Young relies specifically on RCW 46.70.180(1). It provides that it is unlawful to disseminate in any manner "any statement or representation with regard to the sale, lease, or financing of a vehicle which is false, deceptive, or misleading," "including" a list of five actionable statements or misrepresentations, all of which deal with sale, lease, or financing terms. The trial court construed the language "with regard to the sale, lease, or financing of a vehicle" as language of limitation and concluded that Toyota's temperature gauge error was not a statement or representation dealing with sale, lease, or financing terms. Mr. Young argues that this construes the provision too narrowly.

¶29 The language relied on by the court and the maxim of ejusdem generis as applied to the five nonexclusive examples provide support for the trial court's construction of RCW 46.70.180(1). But we need not construe the statute because we hold that a materiality requirement inheres in the provision, just as it inheres in the CPA and in sections 5 and 12 of the FTC Act. We can affirm a trial court judgment on any basis within the pleadings and proof. Gosney v. Fireman's Fund Ins. Co. , 3 Wash. App. 2d 828, 877, 419 P.3d 447, review denied , 191 Wash.2d 1017, 426 P.3d 748 (2018) (citing Wendle v. Farrow , 102 Wash.2d 380, 382, 686 P.2d 480 (1984) ).

¶30 Provisions of chapter 46.70 RCW support this construction. Its declaration of purpose states that the chapter was enacted "in order to prevent frauds, impositions, and other abuses upon its citizens and to protect and preserve the investments and properties of the citizens of this state." RCW 46.70.005. Immaterial errors are not frauds, impositions, or abuses. And RCW 46.70.220 provides that the chapter "shall be considered in conjunction with chapter[ ] ... 19.86," with the powers and duties of the State as they may appear in that chapter "shall apply against all persons subject to this chapter."

¶31 As earlier discussed, Toyota's mistake was found to be financially immaterial because purchasers of the limited package were never charged for the $ 10 temperature gauge. We will not presume that a $ 10 part for which the consumer was not charged was material to purchase of the $ 7,525 model 2014 limited package. The trial court found that Mr. Young presented no credible evidence that the temperature gauge error was material to him, and no evidence whatsoever that it was material to other consumers.

¶32 Here again, because Mr. Young failed to prove Toyota's error was of material importance, he failed to prove that it constituted a violation of RCW 46.70.180(1).

Element Five: Causation

¶33 A CPA plaintiff may only recover for injury to his or her business or property that was proximately caused by a defendant's unfair or deceptive practices. Panag , 166 Wash.2d at 63-64, 204 P.3d 885. The injury "need not be great" and no monetary damages need be proven. Mason v. Mortg. America, Inc. , 114 Wash.2d 842, 854, 792 P.2d 142 (1990).

¶34 The causation element is satisfied if the plaintiff demonstrates that a misrepresentation of fact led him to choose the defendant's product. Mayer v. Sto Industries, Inc. , 123 Wash. App. 443, 458, 98 P.3d 116 (2004), aff'd in part, rev'd in part on other grounds , 156 Wash.2d 677, 132 P.3d 115 (2006). In his reply brief, Mr. Young argues that this was the nature of his injury. But after weighing the evidence, the court "c[ould] not conclude, more probably than not, that Mr. Young's reliance on a mistaken website is the proximate cause of his decision to purchase the Toyota Tacoma Limited Package, and, therefore, caused him damages." CP at 419. Factual findings of the trial court that support this conclusion are unchallenged. We do not reweigh the evidence or determine credibility.

¶35 During the bench trial, Mr. Young argued that investigative expenses he incurred also qualify as recoverable injury. Expenses incurred to pursue a CPA claim do not constitute injury, although an injury to business or property that is proximately caused by the deceptive act itself is compensable. Panag , 166 Wash.2d at 62, 204 P.3d 885 (comparing Demopolis v. Galvin , 57 Wash. App. 47, 786 P.2d 804 (1990) (litigation expenses incurred to institute CPA counterclaim does not constitute injury), with Sign-O-Lite Signs, Inc. v. DeLaurenti Florists , 64 Wash. App. 553, 825 P.2d 714 (1992) (loss of business profits resulting from time spent embroiled in disputing improper payment demand constitutes injury)).

¶36 The trial court made an unchallenged finding that Mr. Young did not do anything about the missing temperature gauge until he received the December 2013 letter from Toyota notifying him of its mistake and offering a $ 100 cash reimbursement. A further unchallenged finding was that the conduct the court found credible "[was] much more consistent with someone who learned that Toyota had made a mistake and wanted to take advantage of it, than someone who relied upon that item in good faith." CP at 415. Based on the trial court's findings, which are supported by the evidence, the investigation performed by Mr. Young was proximately caused by his receipt of Toyota's truthful December 2013 letter, not by its earlier mistake.

¶37 Mr. Young's failure to prove any injury to business or property proximately caused by Toyota's mistake provided an additional basis for the trial court's dismissal of his CPA claim.

¶38 Affirmed.

I CONCUR:

Lawrence-Berrey, C.J.

Fearing, J. (concurring)

¶39 I write separately to express some disagreement with the majority opinion.

¶40 The majority attaches a requirement of materiality to element one of a Consumer Protection Act claim, chapter 19.86 RCW, the element of an unfair or deceptive act or practice. I question the validity of appending an element of materiality to this first component of a Consumer Protection Act suit. Nevertheless, I assume, consistent with the majority opinion, that the Washington Supreme Court, based on federal law, will add the materiality component to the unfair or deceptive act or practice element, at least to a claim not involving a per se violation of the act.

¶41 The majority adds a materiality requirement to the unfair or deceptive act or practice element based on this court's decisions in Brummett v. Washington's Lottery, 171 Wash. App. 664,676, 288 P.3d 48 (2012) and Hiner v. Bridgestone/Firestone, Inc., 91 Wash. App. 722,730, 959 P.2d 1158 (1998), rev'd in part on other grounds, 138 Wash.2d 248, 978 P.2d 505 (1999). The Brummett court cited Stephens v. Omni Insurance Co., 138 Wash. App. 151, 166, 159 P.3d 10 (2007), aff'd, sub nom. Panag v. Farmers Insurance Co. of Washington, 166 Wash.2d 27, 204 P.3d 885 (2009) for the proposition that implicit in whether an act is "deceptive" is the understanding that the actor misrepresented something of material importance. James Brummett asserted a Consumer Protection Act claim against the advertising firm Cole & Weber, not against the government agency administering the state lottery. This court summarily dismissed one allegation based on the Consumer Protection Act against the advertising agency not because of any misrepresentation lacking materiality but because Cole & Weber did not create the alleged false advertisement aired by the lottery. Without any analysis, this court summarily affirmed the second allegation of a false advertisement because of lack of materiality. Stephens v. Omni Insurance Co., 138 Wash. App. at 166, 159 P.3d 10 cited Hiner v. Bridgestone/Firestone, Inc., 91 Wash. App. at 730, 959 P.2d 1158, for the rule that implicit in the term "deceptive" is the understanding that the actor misrepresented something of material importance. Nevertheless, the Stephens court did not base its decision on a lack of materiality.

¶42 Hiner v. Bridgestone/Firestone, Inc., 91 Wash. App. at 730, 959 P.2d 1158 cites Potter v. Wilbur-Ellis, 62 Wash. App. 318,327, 814 P.2d 670 (1991) for the proposition that implicit in the definition of "deceptive" is the understanding that the actor misrepresented something of material importance. The Hiner court did not base its decision on the lack of materiality.

¶43 In Potter v. Wilbur-Ellis, this court held that a seller of goods may commit an unfair or deceptive act or practice when failing to disclose a material fact that renders the goods less desirable. Potter involved the nondisclosure of a feature of the product, not an affirmative representation. A nondisclosure of information creates significantly different concerns and questions than an affirmative misrepresentation, since the seller of a product has no obligation to disclose numerous features or facts concerning the product.

¶44 I agree with the majority that Washington State often looks to federal law when construing the Consumer Protection Act. RCW 19.86.290. I further agree with the majority that federal law consistently and materially imposes the concept of materiality to the notion of an unfair or deceptive act or practice. Federal Trade Commission v. Cyberspace.com LLC, 453 F.3d 1196, 1199 (9th Cir. 2006) ; Kraft, Inc. v. Federal Trade Commission, 970 F.2d 311,314 (7th Cir. 1992) ; Cliffdale Associates, 103 F.T.C. 110, 164-66 (1984). Thus, I would expect our state Supreme Court to follow the federal courts and add materiality to either the first element of a Consumer Protection Act action or add a sixth element to the consumer's claim.

¶45 I question whether the courts should graft a constituent of materiality to the element of unfair or deceptive act or practice. The words "unfair" or "deceptive" do not necessarily connote important, relevant, or material statements or conduct. Some people cannot help themselves from repeatedly acting and speaking deceptively even when their conduct and speech lacks materiality.

¶46 As noted by the majority, in addition to showing a material unfair or deceptive act or practice to establish the first element of the Consumer Protection Act action, the claimant may fulfill the first element by showing per se unfair or deceptive conduct.

Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986). The claimant may establish a per se act by proving a violation of a statutory scheme declared by the legislature to affect the public interest. Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wash.2d at 780, 719 P.2d 531. One such legislative enactment is the auto dealers practices act, chapter 46.70 RCW. RCW 46.70.310.

¶47 RCW 46.70.180, a portion of the auto dealers practices act, reads in relevant part:

Each of the following acts or practices is unlawful:
(1) To cause or permit to be advertised, printed, displayed, published, distributed, broadcasted, televised, or disseminated in any manner whatsoever, any statement or representation with regard to the sale, lease, or financing of a vehicle which is false, deceptive, or misleading, including but not limited to the following:
...
(2)(a)(i) To incorporate within the terms of any purchase and sale or lease agreement any statement or representation with regard to the sale, lease, or financing of a vehicle which is false, deceptive, or misleading, including but not limited to terms that include as an added cost to the selling price or capitalized cost of a vehicle an amount for licensing or transfer of title of that vehicle which is not actually due to the state, unless such amount has in fact been paid by the dealer prior to such sale.

None of the language in RCW 46.70.180 requires that a false statement by an auto dealer be material to be actionable. I compliment Toyota Motor Sales for its conduct after misrepresenting the presence of a temperature gauge on the rearview mirror. Nevertheless, I conclude that Toyota Motor Sales violated the statute and committed a per se violation of the Consumer Protection Act by placing the false statement in its Monroney label and its website.

¶48 A lack of materiality will generally preclude recovery under the Consumer Protection Act because of the act's fourth and fifth elements of injury and causation. If the absence of materiality always prevents a finding of injury or causation, my concurrence lacks any practical importance. But then adding materiality as an element also serves no function.

¶49 Although I cannot fathom any occasion, there may be an occasion or two when immateriality will not otherwise preclude fulfillment of causation and damages. Thus, I disagree with creating an aftermarket "materiality" accessory to the unfair or deceptive act or practice element. In Duane Young's appeal, I would affirm the trial court's dismissal of Young's Consumer Protection Act cause of action based on findings supported by substantial evidence that any misrepresentation and, in turn, any unfair or deceptive act or practice by Toyota Motor Sales did not cause Young any damage.

I CONCUR:

      Washington's Consumer Protection Act is codified at chapter 19.86 RCW.

      "A Monroney label, or a window sticker ... is a label that is required in the United States to be displayed on all new vehicles, and it includes certain official information; for example, standard equipment, optional equipment, crash test ratings, fuel economy info., and a manufacturer's suggested retail price." Report of Proceedings at 251.

      Employees also discovered that the limited package had been described as having a postage-stamp size monitor for its backup camera in the rearview mirror. The monitor had been moved to the dashboard and enlarged. Mr. Young concedes that this was an improvement.

      We recognize that Mr. Young's request for relief in his briefing to this court is for an unqualified reversal. His assignments of error and legal argument fail to address his negligent misrepresentation claim, however. We will not review its dismissal. See RAP 10.3(a)(4) and (6) (required content of an opening brief).

      RCW 19.86.920 declares that the purpose of the CPA "is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition" and declares "the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts and final orders of the federal trade commission interpreting the various federal statutes dealing with the same or similar matters."

      15 U.S.C. §§ 45, 52.

      Materiality was relevant to two of Mr. Brummett's claims: a fraud claim and the CPA claim. The immateriality of the "going fast" statements was discussed first in connection with his fraud claim, see Brummett , 171 Wash. App. at 675-76, 288 P.3d 48, with a reference back when the court held that for CPA purposes, the statements did not misrepresent something of material importance.

      The trial court also relied on the fact that a claim under RCW 46.70.180(1) -which has a one-year statute of limitations-would be time-barred, and on a couple of federal district court decisions holding that it therefore could not be the basis of a per se CPA claim. The only precedential Washington decision addressing the issue came to the opposite conclusion. Walker v. Wenatchee Valley Truck & Auto Outlet, Inc. , 155 Wash. App. 199, 209-10, 229 P.3d 871 (2010) (a per se CPA claim is governed by the CPA's own four-year statute of limitations).


author: Siddoway, J.

text:
    In the MATTER OF the Postsentence Review of Leanne Marie HARDY.
    No. 36086-5-III
    Court of Appeals of Washington, Division 3.
    FILED MAY 23, 2019
    Mandy Lynn Rose, Attorney General of Washington, 1125 Washington St. Se, Po Box 40116, Olympia, WA, 98504-0116, for Petitioner.
    Walter Gordon Edgar, Douglas County Prosecutor's Office, Po Box 360, Waterville, WA, 98858-0360, Andrea Burkhart, Two Arrows, PLLC, 8220 W. Gage Blvd. #789, Kennewick, WA, 99336, for Respondent.
    PUBLISHED OPINION
   Siddoway, J.

¶1 The Department of Corrections (DOC) petitions pursuant to RCW 9.94A.585(7) for review of the drug offender sentencing alternative (DOSA) imposed on Leanne Marie Hardy as a result of her March 2018 conviction of three counts, two of which the DOC contends were DOSA-ineligible, having standard sentence ranges less than one year.

¶2 The petition requires us to construe RCW 9.94A.660 and to re-examine an assumption made in this court's 2007 decision in State v. Smith , 142 Wash. App. 122, 173 P.3d 973 (2007). We reject Smith 's assumption that an offense-based evaluation of DOSA eligibility being used by the DOC was correct. We construe eligibility for DOSA as offender-based, not offense-based, and identify how RCW 9.94A.660(1)(d) and (f) should be applied to the sentencing of multiple current offenses consistent with the purposes of those provisions.

¶3 We conclude that Ms. Hardy's DOSA sentence is valid and deny the DOC's petition.

FACTS AND PROCEDURAL BACKGROUND

¶4 Leanne Hardy pleaded guilty to two counts of unlawful possession of a controlled substance (methamphetamine and heroin) and one count of bail jumping. She had an offender score of 5. We reproduce the "Sentencing Data" section of her judgment and sentence, which sets forth the standard range sentences for the three offenses under RCW 9.94A.510 and former RCW 9.94A.517 (2015). Counts I and III are the controlled substance offenses and count II is the bail jumping count:

Count Offender Seriousness Standard Plus Total Standard Maximum No. Score Level Range (not Enhancement Range (including Term including enhancements) enhancements) I 5 I 6+ to 12 months none 6+ to 12 months 5 years II 5 III 17-22 months none 17-22 months 5 years III 5 I 6+ to 12 months none 5+ to 12 months 5 years

Postsentence Pet., Ex. 1, at 2.

¶5 The Douglas County Superior Court granted a residential DOSA, waiving imposition of a standard range sentence and requiring Ms. Hardy to serve 24 months in community custody, on the condition that she enter and remain in residential chemical dependency treatment certified under chapter 70.96A RCW for 3 to 6 months.

¶6 Upon receiving Ms. Hardy's judgment and sentence, DOC personnel concluded that because counts I and III had a standard range of 6+ to 12 months, they were not DOSA eligible. After unsuccessfully trying to resolve the issue at the trial court level, the DOC timely filed this petition in accordance with RCW 9.94A.585(7) and RAP 16.18. Since Ms. Hardy is indigent, we appointed counsel to represent her. RAP 16.18(c).

ANALYSIS

¶7 At issue is the purely legal issue of whether the sentencing court exceeded its statutory sentencing authority when it granted Ms. Hardy a DOSA sentence. RCW 9.94A.585(7) (limiting our review to "errors of law"). We review the issue de novo. State v. Murray , 118 Wash. App. 518, 521, 77 P.3d 1188 (2003). The parties' dispute implicates issues of statutory construction, which we also review de novo. In re Det. of Williams , 147 Wash.2d 476, 486, 55 P.3d 597 (2002).

¶8 The parties' dispute also requires us to consider the application of this court's decision in Smith. In July 2006, when Beau Smith was being sentenced at the same hearing for offenses charged in two criminal cases, he asked the court to impose a DOSA in both. 142 Wash. App. at 125, 173 P.3d 973. The trial court asked defense counsel to find out how the DOC would treat Mr. Smith's sentences if the court sentenced him to 57 months' confinement in one case but granted a prison-based DOSA of 25 months/25months in the other, to run concurrently. Id . Counsel reported back that he was told

if the Court passes sentence as described, the [sic] Mr. Smith would serve the 57 months on the first case (minus good time), and the 25 month in-custody portion of the second case, concurrent, for a total in-custody period of 57 months minus good time. Upon release, Mr. Smith would serve the 25 month out-of-custody portion of the DOSA. In short, the 57 months in custody would not "eat up" the out of custody portion of the DOSA. The chemical dependency treatment that is a mandatory portion of the DOSA would be completed while the offender is in custody.

Id. (alteration in original).

¶9 The court ultimately imposed a shorter non-DOSA sentence in one case (43 months rather than 57) and concurrent prison-based DOSAs of 25 months/25 months and 9 months/9 months in the second. Id. at 126, 173 P.3d 973. Defense counsel objected to the fact that Mr. Smith would finish serving the in-custody portion of his DOSA sentence in 25 months, but would then have to complete his 43-month non-DOSA sentence before being released to serve the 25-month community custody portion of his DOSA sentences. He argued that this was a de facto consecutive sentence.

¶10 On appeal, Mr. Smith contended that the DOSA and non-DOSA sentences in a multiple current offense setting created an illegal hybrid sentence. In an effort to dissuade the court from reaching that conclusion, the State argued that it was common for defendants to receive a DOSA sentence in combination with a non-DOSA sentence, providing as an example, drug prosecutions in which possession of a large amount of one controlled substance makes that count DOSA-ineligible, yet a charge of possessing a small amount of another controlled substance would be DOSA-eligible. "The State warn[ed] that 'if such sentences were unlawful, every time a defendant is statutorily eligible for a DOSA on a current offense, but not another, a sentencing court could not lawfully order a DOSA for the eligible offense.' " Id. at 128, 173 P.3d 973 (quoting the State's brief).

¶11 Importantly, this court was not asked to decide in Smith whether the DOC and the State were correct about the operation of the DOSA statute. It assumed they were. But it held, "even if Smith's sentence is consistent with the DOSA statute, it is still a hybrid sentence in violation of RCW 9.94A.589(3)," which provides for concurrent sentencing or consecutive sentencing, but not a hybrid model. Id. at 128-29, 173 P.3d 973.

¶12 The DOC's petition in this case argues, consistent with the State's position in Smith , that courts "impose sentences on a per-count basis" and that eligibility for DOSA "is per-offense." Postsentence Pet. at 5, 7. It argues that Ms. Hardy's two controlled substance violations fail an eligibility criterion appearing at RCW 9.94A.660(1)(f), that "[t]he end of the standard sentence range for the current offense is greater than one year." It argues that because Ms. Hardy was not eligible for DOSA sentencing for the controlled substance counts, we should "remand either for resentencing or to grant a DOSA only for the DOSA-eligible offenses." Id. at 1. The State and Ms. Hardy respond with textual and policy arguments asking us to construe the DOSA provisions as taking a different, offender-based approach.

I. REASONABLY READ, ELIGIBILITY FOR DOSA SENTENCING IS OFFENDER-BASED, NOT OFFENSE-BASED

¶13 Our fundamental objective in construing a statute is to ascertain and carry out the legislature's intent, and if a statute's meaning is plain on its face, we give effect to that plain meaning as an expression of legislative intent. Dep't of Ecology v. Campbell & Gwinn , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). "Plain meaning" analysis does not mean that we view a statutory provision in isolation, however; instead, "meaning is discerned from all that the [l]egislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Id. at 11, 43 P.3d 4. If the statute remains susceptible to more than one reasonable interpretation, it is deemed ambiguous and this court "may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent." Christensen v. Ellsworth , 162 Wash.2d 365, 373, 173 P.3d 228 (2007).

¶14 A frequently repeated maxim of statutory construction is that "statutes should receive a sensible construction to effect the legislative intent and, if possible, to avoid unjust and absurd consequences." State v. Vela , 100 Wash.2d 636, 641, 673 P.2d 185 (1983).

¶15 The DOC rightly contends that the SRA's general approach in multiple current offense sentencing is to impose offense-based sentence lengths, not an offender-based sentence length. The "Sentencing Data" section of Ms. Hardy's judgment and sentence sets forth the standard range for each of her offenses. Had she received a standard range sentence, the court would have selected a sentence for each of her offenses within the applicable range. RCW 9.94A.530(1). She would have three sentences, not one, and her total period of confinement would be the result of applying RCW 9.94A.589, which would run the three sentences concurrently.

¶16 But RCW 9.94A.660 contains language suggesting a different approach when the sentencing alternative is applied. It provides, "An offender is eligible for the special drug offender sentencing alternative" if eligibility criteria are met, not that "an offense is eligible." RCW 9.94A.660(1) (emphasis added). Most of the eligibility criteria are offender-based:

(1) An offender is eligible for the special drug offender sentencing alternative if:
(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4) ;
(b) The offender is convicted of a felony that is not a felony driving while under the influence of intoxicating liquor or any drug under RCW 46.61.502(6) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6) ;
(c) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States;
(d) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance;
(e) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence;
(f) The end of the standard sentence range for the current offense is greater than one year; and
(g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.

RCW 9.94A.660(1)(a)-(g) (emphasis added). This is a strong textual basis for applying an offender-based approach in determining whether the sentencing alternative is an option.

¶17 The principal concern DOC expresses about the trial court's offender-based approach is that a court could waive standard range sentences for DOSA-ineligible crimes simply because they were sentenced alongside a DOSA-eligible crime. But this would not happen if RCW 9.94A.660 is based on offender-based eligibility rather than offense-based eligibility. If the offender is not eligible, then no DOSA sentence could be imposed on any current offense.

¶18 The textual issue remaining, if we read RCW 9.94A.660 as offender-based rather than offense-based, is how to construe subsections (1)(d) and (1)(f), which speak in singular terms of "the offense" and "the current offense." We conclude that each should be read in a manner consistent with its purpose.

¶19 The purpose of subsection (1)(d) is to limit DOSA eligibility in the case of the controlled substance violations it addresses to violations that involve only a small quantify of the particular controlled substance. Notwithstanding the State's position in Smith , eligibility should depend on all of an offender's current controlled substance violations involving only small quantities.

¶20 We find no legislative history that clearly identifies the purpose of subsection (1)(f), which conditions eligibility on a standard range greater than one year. It is distinguishable from the other eligibility criteria, most of which are indicators of a lower risk offender. For the first decade of the sentencing alternative's existence, a minimum length for an offender's sentence-a sign of a higher -risk offender-was not even identified as one of the "eligibility" criteria for the alternative. LAWS OF 1995, ch. 108, § 3 (originally codified at former RCW 9.94A.120(6)(a) (1995); later recodified pursuant to Laws of 2001, ch. 10, § 6, at RCW 9.94A.660(1) ). A minimum length of the standard range was not identified as part of the "eligibility" criteria until October 1, 2005. LAWS OF 2005, ch. 460, § 1(e) (codified at former RCW 9.94A.660(1)(e) (2005)).

¶21 A minimum sentence was always required for the sentencing alternative to be available, but that requirement appeared in a separate statutory section. That section provided that the sentencing alternative could not be imposed unless (1) an eligible offender, (2) had a standard range of a certain minimum length, and (3) the offender and the community would benefit from use of the alternative. Originally, the minimum length was a standard range whose midpoint was greater than one year. LAWS OF 1995, ch. 108, § 3, codified at former RCW 9.94A.129(6)(b) (1995). Legislation effective in July 1999 changed the minimum, requiring that the standard range itself be greater than one year. LAWS OF 1999, ch. 197, § 4, codified at former RCW 9.94A.120(6)(b) (1999). The final bill report for the 1999 legislation may shed light on the reason for requiring a minimum sentence of a year: it discusses the fact that offenders sentenced to less than a year are eligible for other alternatives to total confinement. FINAL B. REP. ON ENGROSSED SECOND SUBSTITUTE H.B. 1006, at 3, 56th Leg. Reg. Sess. (Wash. 1999).

¶22 Another possible reason for requiring an offender to have a standard range sentence of a minimum length might be to limit prison-based DOSAs (the only type originally available) to sentences long enough to afford a beneficial amount of treatment. Or it might be because there is less of a cost benefit to state and local government of providing treatment when an offender will be confined for a shorter period of time. These rationales are supported by the legislature's directive to the sentencing guidelines commission, in originally creating the sentencing alternative, to deliver findings on the savings in state resources from implementing the drug offender options and the effectiveness of drug treatment services. LAWS OF 1995, ch. 108, § 5.

¶23 Under any of these rationales, if an offender has at least one sentence whose standard sentence range will be greater than one year, the purpose of the provision will be served by treating the offender as eligible for the sentencing alternative.

¶24 An additional reason for rejecting the DOC's construction of subsection (1)(f) as disqualifying someone in Ms. Hardy's situation is that it leads to absurd results. If all three of her offenses had the same 17 to 22 month standard range as did her bail jumping charge, she would be eligible for a DOSA sentence. It makes no sense that she would be ineligible because two of her offenses (the drug offenses demonstrating her need for treatment) are considered less serious for purposes of arriving at the applicable sentencing range.

¶25 RCW 9.94A.660(1) leads with the concept of "offender" eligibility, which we find to be more revealing of legislative intent than the fact that subsections (1)(d) and ( 1)(f) speak of a single offense. "The DOSA program is an attempt to provide treatment for some offenders judged likely to benefit from it." State v. Grayson , 154 Wash.2d 333, 337, 111 P.3d 1183 (2005). Read as a whole, offender-based eligibility, applying subsections (1)(d) and (1)(f) in the manner we identify as consistent with their purpose, is the sensible construction that effects legislative intent and avoids unjust and absurd consequences.

¶26 Ms. Hardy also points out that if, after applying rules of statutory construction, we found subsections (1)(d) and (1)(f) to create ambiguity, the rule of lenity would apply and require us to interpret the statute in her favor, absent legislative intent to the contrary. City of Seattle v. Winebrenner , 167 Wash.2d 451, 462, 219 P.3d 686 (2009).

¶27 The petition is denied.

WE CONCUR:

Lawrence-Berrey, C.J.

Fearing, J.

      Effective July 1, 2018-four months after Ms. Hardy's sentence was imposed-the standard range sentence for the controlled substance violations, given her offender score of 5, became 6+ to 18 months. The revised end of the sentence range would have avoided the issue presented in the petition for postsentence review.

      Smith 's holding that the sentence imposed was an illegal hybrid sentence has been criticized as overlooking former RCW 9.94A.625(3) (now codified as RCW 9.94A.171 ), which tolls any period of community custody during any period that the offender is in confinement for any reason. 13B Seth A. Fine, Washington Practice: Criminal Law With Sentencing Forms (2018-19 Suppl. Pamphlet) § 3709, at 233 n.32. A request that Division One hold Smith to have been wrongly decided on this basis was rejected in 2009, however. State v. Bowers , noted at 152 Wash. App. 1055 (2009) ; see GR 14.1 (unpublished decisions have no precedential value, are not binding on any court, and may be relied on only for their persuasive value).

      It is not clear how the trial court could impose a DOSA sentence for the bail jumping count and standard range sentences for the controlled substance counts without imposing what Smith holds to be an illegal hybrid sentence.

      Sentencing Reform Act of 1981, ch. 9.94A RCW.

      Postsentence Pet. at 8. The DOC did not file a reply. See RAP 16.18(c) (permitting a reply brief).


text:
    STATE of Washington, Respondent, v. Michael E. CONNORS Jr., Appellant.
    No. 35718-0-III
    Court of Appeals of Washington, Division 3.
    FILED MAY 30, 2019
    Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.
    Brian Clayton O'Brien, Spokane Co. Pros. Atty., Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent
    PUBLISHED OPINION
    Pennell, A.C.J.
    ¶1 Michael Connors appeals his conviction for attempting to elude a police vehicle. He claims the State presented insufficient evidence that he had been pursued by a police officer "in uniform." We disagree with this contention and affirm.
   FACTS

¶2 Mr. Connors was driving a stolen car when he failed to respond to a signal to stop issued from a police vehicle. Instead of stopping, Mr. Connors sped away to an apartment complex. He then abandoned the stolen car and fled on foot until he was apprehended by the pursuing officer. The officer described his own attire at the time of the incident as including

a black external vest carrier, so it actually goes over normal clothes, has all my normal duty gear, I just carry it on a vest in front of me instead of on a belt. It has a Spokane Police badge on the front; it's a patch. And then it has clear block reflective letters across the back that say police. Then I wear a drop-down style holster and it has a shiny silver Spokane Police badge on the front of my leg.

Report of Proceedings (RP) (Nov. 13, 2017) at 86.

¶3 Mr. Connors was charged with, and convicted of, attempting to elude a police vehicle and possession of a stolen motor vehicle. He appeals his eluding conviction.

ANALYSIS

¶4 A conviction for attempting to elude a police vehicle requires the State to prove, beyond a reasonable doubt, that the defendant was signaled to stop by a uniformed police officer. State v. Hudson , 85 Wash. App. 401, 403, 932 P.2d 714 (1997) ; State v. Fussell , 84 Wash. App. 126, 127, 925 P.2d 642 (1996). The pertinent language of the eluding statute is as follows:

Any driver of a motor vehicle who willfully fails or refuses to immediately bring his or her vehicle to a stop and who drives his or her vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.

RCW 46.61.024(1) (emphasis added).

¶5 Mr. Connors argues the State's evidence was insufficient to meet this standard because the officer who signaled Mr. Connors to stop was predominantly dressed in "normal clothes," accompanied by a police vest and badges. Br. of Appellant at 1, 4; RP (Nov. 13, 2017) at 86. The merits of Mr. Connors's argument turns not on the nature of the State's proof (the facts are uncontested), but on the meaning of the word "uniform." This is a matter of statutory interpretation, which we review de novo. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9, 43 P.3d 4 (2002).

¶6 When interpreting statutory text, our fundamental goal is to discern legislative intent. In re Marriage of Schneider , 173 Wash.2d 353, 363, 268 P.3d 215 (2011). When a statute does not define a term, courts will give the term " 'its plain and ordinary meaning unless a contrary legislative intent is indicated.' " State v. Jones , 172 Wash.2d 236, 242, 257 P.3d 616 (2011) (quoting Ravenscroft v. Wash. Water Power Co. , 136 Wash.2d 911, 920-21, 969 P.2d 75 (1998) ). Generally, courts derive the plain meaning from context as well as related statutes. State v. Barnes , 189 Wash.2d 492, 495-96, 403 P.3d 72 (2017). But a standard English dictionary may also be employed to determine the plain meaning of an undefined term. Id . at 496, 403 P.3d 72 (citing State v. Fuentes , 183 Wash.2d 149, 160, 352 P.3d 152 (2015) ).

¶7 Because the term "uniform" is not defined by RCW 46.61.024, we look to the dictionary for assistance. A "uniform" is defined as a "dress of a distinctive design or fashion adopted by or prescribed for members of a particular group ... and serving as a means of identification," and "a garment or outfit of a widely copied style or prescribed design." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2498 (1993). In the context of the eluding statute, this definition appears to contemplate that the signaling or pursuing officer is wearing department-issued clothing that clearly communicates the officer's official status to members of the general public.

¶8 The clothing described during Mr. Connors's trial readily meets the ordinary definition of a "uniform." The vest worn by the officer was specific to the Spokane Police Department. It served to notify the public that the officer was an official member of the police department. The fact that the officer wore "normal clothes" under his police vest does not mean he was not wearing a uniform. Some uniforms are comprehensive from head to toe. Others are not. See, e.g. , People v. Estrella , 31 Cal. App. 4th 716, 724, 37 Cal. Rptr. 2d 383 (1995) (marked police vest constituted distinctive police uniform). The eluding statute makes no preference. So long as an officer deploying the signal to stop is attired in a distinctive garment that clearly identifies him as a member of law enforcement, the statutory requirement of a "uniform" is met.

CONCLUSION

¶9 The judgment of conviction is affirmed.

WE CONCUR:

Siddoway, J.

Fearing, J.