Beckman v. DSHS
Counsel of Record: (Name and Address) (If court-appointed, so indicate.)
COUNSEL FOR AMICUS CURIAE COUNSEL FOR OTHER PARTY
KAROL TEGLAND: CAPPS:
Karl B. Tegland Steven Bert Frank
Treece Richdale Malone & Frank and Rosen
Corning Inc Ps Suite 1201 Hoge Bldg.
PO Box 12189 705 Second Ave.
Mill Creek, WA. 98082-0189 Seattle, WA. 98104-1711
COUNSEL FOR APPELLANTS:
Loretta M. Lamb Howard Mark Goodfriend
Assistant Attorney General Edwards Sieh Smith & Goodfriend P.s.
Aty Gen's Office 701 5th Ave Ste 7170
900 4th Ave Ste 2000 Seattle, WA. 98104
Seattle, WA. 98164-1012
Michael E. Tardif Troy Nelson
Asst Atty Gen - Dl&I Andrew Nelson
PO Box 40126 1300 Winfield Avenue
Olympia, WA. 98504-0126 Bremerton, WA. 98310
COUNSEL FOR RESPONDENTS:
Charles Kenneth Wiggins David P. Moody
Attorney At Law Gordon Thomas Honeywell
241 Madison Ave N Malanca Peterson & Daheim
Bainbridge Is, WA. 98110 600 Univ St Ste 2101
Seattle, WA. 98101
Kenneth Wendell Masters John Richard Creatura
Wiggins Law Ofc. Gordon & Thomas Law Firm
241 Madison Ave N P.O. Box 1157
Bainbridge Is, WA. 98110 Tacoma, WA. 98401
Stephanie Bloomfield
Gordon, Thomas, Honeywell
PO Box 1157
Tacoma, WA. 98401
CASE #: 25982-6-II
September 12, 2000
Court of Appeals Division II
State of Washington
DAMON R. BECKMAN, by and No. 25982-6-II
through his legal guardian
David L. Beckman; DAVID L.
BECKMAN; JUDITH L. BECKMAN; and
WILLIAM G. COALTER, by and
through his legal guardian,
Marjorie Coalter, and ERIC C.
BUSCH, by and through his legal
guardian, Joseph Busch,
ORDER TO PUBLISH
ORDER DENYING APPELLANTS'
Respondents, MOTION TO EXTEND TIME TO
FILE NOTICE OF APPEAL AND
GRANTING RESPONDENTS' MOTION
TO DISMISS APPEAL
v.
STATE OF WASHINGTON, DEPARTMENT
OF SOCIAL AND HEALTH SERVICES,
including but not limited to,
Division of Developmental
Disabilities, Adult Protective
Services and ResidentialCare
Services;ELIZABETH STREMEL,
individually and in her
official capacity acting under
color of state law; MARTHA
GOODLOE, individually and in
her official capacity acting
under color of state law; KAREN
KAUFFMAN, individually and in
her official capacity acting
under color of state law,
Appellants.
THIS MATTER having come before the court on the motion of moving
party, Attorney William R. Hickman, to publish the court's Order Denying
Appellants' Motion to Extend Time to File Notice of Appeal and Granting
Respondents' Motion to Dismiss Appeal, which was filed on August 21, 2000,
and the court having considered the motion, it is hereby
ORDERED that the Order Denying Appellants' Motion to Extend Time to
File Notice of Appeal and Granting Respondents' Motion to Dismiss Appeal is
hereby published and filed for public record.
DATED this day of September, 2000.
ARMSTRONG, C.J.
BRIDGEWATER, J.
HUNT, J.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAMON R. BECKMAN, by and No. 25982-6-II
through his legal guardian
David L. Beckman; DAVID L.
BECKMAN; JUDITH L. BECKMAN; and
WILLIAM G. COALTER, by and
through his legal guardian,
Marjorie Coalter, and ERIC C.
BUSCH, by and through his legal
guardian, Joseph Busch,
ORDER DENYING APPELLANTS'
Respondents, MOTION TO EXTEND TIME TO
FILE NOTICE OF APPEAL AND
GRANTING RESPONDENTS' MOTION
TO DISMISS APPEAL
v.
STATE OF WASHINGTON, DEPARTMENT
OF SOCIAL AND HEALTH SERVICES,
including but not limited to,
Division of Developmental
Disabilities, Adult Protective
Services and ResidentialCare
Services;ELIZABETH STREMEL,
individually and in her
official capacity acting under
color of state law; MARTHA
GOODLOE, individually and in
her official capacity acting
under color of state law; KAREN
KAUFFMAN, individually and in
her official capacity acting
under color of state law,
Appellants.
BACKGROUND
Damon Beckman, William Coalter, and Eric Busch (Plaintiffs) are
developmentally disabled adults who claim they suffered injuries while
living in a state-licensed adult care facility. They sued the State of
Washington, Department of Social and Health Services, its caseworker-
employees, and the operator of the facility. On March 23, 2000, a jury
awarded them $17.76 million in damages, including substantial punitive
damages.
Sometime before April 4, 2000, Plaintiffs' counsel spoke to the trial
judge's assistant to schedule a time for presentation of the judgment
documents for each Plaintiff. The hearing was scheduled for April 14,
2000.
On April 4, 2000, Plaintiffs' counsel sent a confirming letter to the
trial court judge with a copy to "Opposing Counsel." At the same time,
Plaintiffs' counsel prepared a "Note for Motion Docket," with proposed
judgment attached for each Plaintiff's case and with each addressed to
"Janet L. Capps, Loretta M. Lamb" at the Attorney General's Office in
Seattle. See CR 54(f). All of these documents were sent by courier to the
Attorney General's Office and all bear a "Received" filing stamp of April
4, 2000, from the Attorney General's Office.
No one from the Attorney General's Office appeared at the April 14
hearing. The trial court entered the judgments, and they were filed on the
same day. However, neither the court nor Plaintiffs' counsel sent
conformed copies of the final judgment documents to the Attorney General's
Office.
On May 24, Plaintiffs' counsel wrote the Attorney General's Office,
asking that the State pay the judgments. The next day, 10 days late, the
State filed a Notice of Appeal. At the same time, the State moved to allow
the late filing; Plaintiffs responded with a motion to dismiss the appeal.
The State contends CR 5(a) and RAP 18.8 allow such a late filing under
the circumstances presented here. They do not.
DISCUSSION
I. CR 5(a)
CR 5(a) describes the documents that a party must serve:
{E}very order required by its terms to be served, every pleading subsequent
to the original complaint unless the court otherwise orders because of
numerous defendants, every paper relating to discovery required to be
served upon a party unless the court otherwise orders, every written motion
other than one which may be heard ex parte, and every written notice,
appearance, demand, offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of the parties.
(Emphasis added.)
The State asks us to broadly construe the language of CR 5(a) and hold that
the rule requires service of conformed copies of the final judgment on the
non-prevailing party.1 The State argues that because it was not served
with conformed copies of the final judgment, its appeal is timely.
However, the language of CR 5 and the related civil rules are plain. CR
5(a) does not require service of conformed copies of the final judgment.
Here, the terms "pleading" and "similar paper" do not include final
judgments. A final judgment is not a "pleading" requiring service under CR
5(a). CR 7(a) defines "pleadings," and that definition does not include
judgments. See also Tiffin v. Hendricks, 44 Wn.2d 837, 843, 271
P.2d 683 (1954).2 Rather, the civil rules treat judgments differently than
pleadings. Compare CR 7-16 (pleadings or motions), with CR 54-63
(judgments).
A final judgment is not a "similar paper." Even assuming ambiguity in
CR 5(a), the rule of statutory construction ejusdem generis dictates this
conclusion. That rule provides that general terms, when used in
conjunction with specific terms, should be deemed to incorporate only those
things similar in nature or "comparable to" the specific terms. John H.
Sellen Constr. Co. v. Department of Revenue, 87 Wn.2d 878, 883-84, 558 P.2d
1342 (1976); Davis v. State ex rel. Department of Licensing, 137 Wn.2d 957,
970, 977 P.2d 554 (1999); Port of Seattle v. Department of Revenue, 101 Wn.
App. 106, 113, 1 P.3d 607 (2000). In CR 5(a), the generic phrase "similar
paper" must be read in conjunction with the terms "every written notice,
appearance, demand, offer of judgment, designation of record on appeal."
Only those "papers" that are "comparable to" written notice, appearance,
demand, offer of judgment, or designation of record on appeal fall within
the category of "similar paper." The specifically listed "papers" in CR
5(a) are documents prepared by a party that generally state a party's claim
or allegation. On the other hand, a final judgment, although it may be
drafted by a party, is the formal record of a jury's verdict or judge's
decision. A judgment does not state a party's claim or allegation. It is
not, therefore, a "similar paper" as that phrase is used in CR 5(a).3
This reading of CR 5(a) is strengthened by reference to the rules
regarding actual filing of the judgment. RAP 5.2(a) requires that notice
of appeal be filed within 30 days of entry of the judgment in the trial
court. CR 58 states that a judgment is "entered" when it is delivered to
the clerk for filing. See Malott v. Randall, 83 Wn.2d 259, 517 P.2d 605
(1974). Requiring service of the judgment before the start of the running
of the 30-day appeal period would effectively amend CR 58 and RAP 5.2(a) to
require both the filing of the judgment with the clerk and service of
conformed copies of the judgment before the 30 days begin to run. This is
not what the rules say, nor what the rules contemplate.
Finally, CR 54(f) provides in part: "No order or judgment shall be
signed or entered until opposing counsel have been given 5 days' notice of
presentation and served with a copy of the proposed order or judgment . . . .
" Thus, the rule specific to judgments requires only that the proposed
judgment, not a conformed copy of the entered judgment, be served on
opposing counsel.
The plain meaning of CR 5(a) is clear; its terms do not require
service of conformed copies of the final entered judgment on the non-
prevailing party. CR 5(a) does not afford the State the relief it seeks.
II. RAP 18.8
In contrast to the liberal application we generally give the Rules of
Appellate Procedure (RAP), RAP 18.8 expressly requires a narrow
application:
The appellate court will only in extraordinary circumstances and to prevent
a gross miscarriage of justice extend the time within which a party must
file a notice of appeal . . . . The appellate court will ordinarily hold
that the desirability of finality of decisions outweighs the privilege of a
litigant to obtain an extension of time under this section. . . .
(Emphasis added.)
The phrase "extraordinary circumstances" was defined in Reichelt v.
Raymark Indus., Inc., 52 Wn. App. 763, 765, 764 P.2d 653 (1988). There,
the Court of Appeals refused to extend the time for filing a notice of
appeal that was filed, as here, 10 days late. The appellant argued that
"extraordinary circumstances" existed because one of the two trial
attorneys left the firm during the 30 days following entry of judgment, and
the firm's appellate attorney had an unusually heavy work load. The court
rejected the argument and summarized the cases allowing late filings:
In each case, the defective filings were upheld due to "extraordinary
circumstances," i.e., circumstances wherein the filing, despite reasonable
diligence, was defective due to excusable error or circumstances beyond the
party's control. In such a case, the lost opportunity to appeal would
constitute a gross miscarriage of justice because of the appellant's
reasonably diligent conduct. RAP 18.8(b).
Reichelt, 52 Wn. App. at 765-66; see also Shumway v. Payne, 136 Wn.2d 383,
394-97, 964 P.2d 349 (1998) (reiterating and reemphasizing stringent
standard of RAP 18.8(b) noted in Reichelt); Schaefco, Inc. v. Columbia
River Gorge Comm'n, 121 Wn.2d 366, 849 P.2d 1225 (1993)4;
Pybas v. Paolino, 73 Wn. App. 393, 401, 869 P.2d 427 (1994).5 The court
found the lack of prejudice to the respondent irrelevant and noted that the
prejudice of granting an extension of time would be "to the appellate
system and to litigants generally, who are entitled to an end to their day
in court." Reichelt, 52 Wn. App. at 766 n.2.
The State first contends "extraordinary circumstances" are present
here because Plaintiffs' counsel failed to give it notice that the
judgments had been entered. However, as noted above, Plaintiffs' counsel
gave the State notice of presentation of the proposed judgments. See CR
52(c). This was all Plaintiffs' counsel was required to do; the State was
then obligated to monitor the actual entry of the judgments. Plaintiffs'
counsel was not legally obligated to bring the State's mistake, if any, to
the State's attention. Thus, Plaintiffs' failure to give the State notice
beyond that required by CR 52(c) does not demonstrate "extraordinary
circumstances."
The State next contends that Janet Capps' intentional failure to
protect the State's interests amounts to "extraordinary circumstances."
However, in her declaration, Capps states that she has "no recollection" of
the notice documents and asserts that she did not "knowingly, intentionally
or recklessly fail to act" on the same. Further, there is no reasonable
inference from the evidence before this court that Capps acted
"intentionally" by ignoring the notice documents
or failing to bring them to the attention of others. Rather, at best, the
evidence was that Capps was not "reasonably diligent" in ensuring that the
documents were timely routed to the responsible attorneys in the Attorney
General's Office. Negligence, or the lack of "reasonable diligence," does
not amount to "extraordinary circumstances." Shumway, 136 Wn.2d 383;
Reichelt, 52 Wn. App. 763; One 1977 Blue Ford Pick-Up Truck, 447 A.2d 1226.
Thus, Capps' conduct does not demonstrate "extraordinary circumstances."
But even if Capps intentionally failed to respond to the April 14
notice, this would not constitute "extraordinary circumstances." Capps'
conduct impaired the State's timely filing of an appeal only because the
Attorney General's Office lacked any reasonable procedure for calendaring
hearings. The State's own internal investigation, which it asked us to
consider, details the problems: The attorneys individually managed and
calendared their own cases; the office had no central system for
calendaring hearings;6 the staff was inexperienced and lacked training;
there was no coordination between the responsible attorneys and no system
for "catching" administrative errors such as the one here. As noted in One
1977 Blue Ford Pick-Up Truck:
We find nothing in the nature of an event or circumstance so extraordinary
in this case as to excuse the neglect of appellant's counsel to provide
suitable office procedures to cause the judgment to be brought to counsel's
attention once it was delivered into the custody and control of counsel's
office. It is incumbent upon any attorney to institute internal office
procedures sufficient to assure that judgments are properly dealt with once
they are delivered into the custody of office personnel subject to the
control of counsel. The failure to take necessary steps, to that end, even
during periods of unusual circumstances in an attorney's office, is not an
acceptable excuse for any resulting failure to obtain personal knowledge of
the entry of judgment on the part of counsel. . . .
447 A.2d at 1231. This language aptly describes the problem here. The
Attorney General's office lacked office management procedures that could
have prevented what occurred here.
The State was not "reasonably diligent" in attempting to file a timely
appeal. Reichelt, 52 Wn. App. at 765-66. It fails to demonstrate
"extraordinary circumstances" and "a gross miscarriage of justice" that
would allow this court to overlook the late filing. RAP 18.8. Therefore,
"the desirability of finality of decisions outweighs the privilege of a
litigant to obtain an extension of time." The State's motion to extend
time to file its notice of appeal is DENIED, and Respondents' motion to
dismiss the appeal is GRANTED.
IT IS SO ORDERED.
DATED this day of , 2000.
ARMSTRONG, C.J.
BRIDGEWATER, J.
HUNT, J.
1 We construe court rules in accord with their purpose "as though they were
drafted by the Legislature." Nevers v. Fireside, Inc., 133 Wn.2d 804, 809,
947 P.2d 721 (1997) (citation omitted). And we interpret court rules by
reference to rules of statutory construction. State v. Greenwood, 120
Wn.2d 585, 592, 845 P.2d 971 (1993) (citation omitted); Heaney v. Seattle
Mun. Ct., 35 Wn. App. 150, 154, 665 P.2d 918 (1983), review denied, 101
Wn.2d 1004 (1994) (citing 3 J. Sands Sutherland, Statutory Construction
sec. 67.10 (4th ed. 1974)).
2 "The term 'pleadings' has a technical and well-defined meaning.
Pleadings are written allegations of what is affirmed on one side, or
denied on the other, disclosing to the court or jury having to try the
cause the real matter in dispute between the parties." Tiffin, 44 Wn.2d at
843 (quoting Black's Law Dictionary (4th ed.) 1312).
3 The civil rules do provide for notice of the proposed findings, which are
generated by the prevailing party. Notice of presentation of findings of
fact and conclusions of law, including copies of the proposed findings and
conclusions, must be served on the opposing party five days before their
presentation to the court. CR 54(f). Plaintiffs' counsel provided such
notice here.
4 In Schaefco, 121 Wn.2d at 368, the court said:
Schaefco has not provided sufficient excuse for its failure to file a
timely notice of appeal, nor has it demonstrated sound reasons to abandon
the preference for finality.
We recognize that Schaefco raises many important issues . . . . However,
it would be improper to consider these questions given the procedural
failures of this case. See RAP 18.8(b); RAP 18.9(b) . . . . Schaefco's
appeal is dismissed.
5 In Pybas the court stated:
RAP 18.8(b), by limiting the extension of time to file a notice of appeal
to those cases involving "extraordinary circumstances and to prevent a
gross miscarriage of justice," expresses a public policy preference for the
finality of judicial decisions over the competing policy of reaching the
merits in every case.
See also State v. One 1977 Blue Ford Pick-Up Truck, 447 A.2d 1226 (Me.
1982) (State's negligent office procedures, which resulted in late filing
of appeal of adverse civil judgment, were insufficient grounds upon which
to allow a late filing).
6 The independent investigator concluded that "{t}o the extent notices for
court hearings are served on the office, they should be automatically
calendared by someone independently assigned the task."