IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHANNARY HOR, individually, ) No. 80835-4-I ) Appellant/Cross- ) DIVISION ONE Respondent, ) ) PUBLISHED OPINION v. ) ) CITY OF SEATTLE, a Washington ) Municipal Corporation, and OMAR ) TAMMAM, ) ) Respondent/Cross- ) Appellant. ) )
HAZELRIGG, J. — Channary Hor was seriously injured in a vehicle accident
involving officers from the Seattle Police Department. Hor filed suit against the
driver of the vehicle she was riding in, the City of Seattle, and the individual officers
present at the time of the incident. After trial, the jury found the driver solely liable
and only awarded damages as to him. One of the key issues at trial was whether
the officers were in pursuit of the vehicle, which both officers denied.
Following trial, one of the officers committed suicide and a local news article
attributed it to the officer’s feelings of remorse over the accuracy of his trial
testimony. Based on statements from individuals the officer had spoken with about
his testimony, Hor brought a motion for relief from judgment under CR 60(b)(4).
The defendants objected and argued the statements Hor sought to admit were No. 80835-4-I/2
inadmissible hearsay. The trial court agreed, denying the admission of the
evidence and the CR 60(b)(4) motion. Hor appeals arguing the evidence was
admissible under ER 801(d)(2)(i) or ER 804(b)(3), and that the trial court erred in
denying her CR 60(b)(4) motion. We agree that the evidence is admissible, and
because the record does not demonstrate that the broad spectrum of CR 60(b)(4)
bases were considered, we reverse and remand.
FACTS
Channary Hor was rendered quadriplegic as the result of a motor vehicle
crash after an encounter with Seattle police. Hor filed suit against Omar Tammam,
the driver of the vehicle she was in. She also included as defendants the individual
Seattle Police Department (SPD) officers involved in the incident and the City of
Seattle (City). Prior to trial, the City and officers filed an unopposed motion to
remove the officers from the caption of the case based on the City’s vicarious
liability, which completely indemnified the officers for any fault that might be
attributed to them. Hor did not oppose the motion based on the mutual
understanding that the officers remained parties to the case.
One of the fundamental disputes at trial was whether the officers had
engaged in a pursuit of the vehicle Hor was riding in, which the City and officers
strenuously denied. Officer Arron Grant was the second officer to respond to the
initial contact with Tammam, but the first to depart the scene after Tammam’s
vehicle. At trial, Grant provided testimony that he was not engaged in a technical
pursuit, but Hor attacked his credibility on this matter. There was also expert
evidence from both sides on the issue of how the crash occurred. The jury
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awarded Hor $17.4 million against Tammam and found the City not liable; the
superior court entered a judgment in the City’s favor. Hor appealed on multiple
grounds and a panel of this court affirmed the judgment in an unpublished opinion.1
Grant committed suicide in April 2017. In May 2017, an article was
published by the Tacoma News Tribune entitled “Suicidal Lakewood Police Officer
Brooded over His Testimony in Lawsuit, Colleagues Say.” Hor learned of Grant’s
allegedly inconsistent testimony from the news article. Through counsel, Hor
contacted officers to whom Grant had spoken about his trial testimony and
obtained their declarations. The statements in question are as follows:
[1. The Declaration of Anders Estes (former Lakewood Police
sergeant):]
I recall Officer Grant shared with me the following: He basically told me that he had responded to help another officer. At some point during that call, a car ended up leaving the scene. He went in pursuit of that car. He definitely used the word “pursuit” in the technical sense of the word. He chased the car. The car ended up wrecking. Because of that wreck, there was a large civil suit against the City of Seattle. He said that when he got subpoenaed, he had to go talk to two attorneys who worked for the City of Seattle. Those attorneys asked him a lot of questions about the pursuit. One question he had trouble with was when he turned his lights on. He told me how long ago it was and that he did not remember. He said the attorneys really pressed him about when he turned his lights on. He could not tell them. They kept giving him different reference points. They finally said: “Let’s go out there.” They loaded him in a car and took him out to the scene. Once they were at the scene, they pointed at different places and said: Did you turn your lights on here or here? He said he did not remember. He could not remember. Finally, they gave him a reference point and instructed him you need to say you turned your lights on here. He told me he was uncomfortable with that. He came back to the department and spoke to people about it in the department. He said there were a number of people who said they had faced the same situation with prosecutors or attorneys. He said
1Hor v. City of Seattle, No. 70761-2-I (Wash. Ct. App. Aug. 3, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/707612.pdf.
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these people he talked to told him to just tell the truth, if he didn’t remember he didn’t remember. But, he said he really felt like he was under pressure. So when it finally came time to testify, he went up and testified to what the attorneys told him to testify to, which he knew was not the truth. Once he had done that, he said that he felt bad. He said he felt he had betrayed the badge or something like that. So he went to the then Chief Farrar and Assistant Chief Zaro and told them what he had done. He said they told him “Don’t worry about it.”
[2. The declaration of Michael Wulff (Lakewood Police officer):]
In discussing the event that took place while he was an SPD officer, Officer Grant told me that he was a secondary car involved in an injury incident. Officer Grant told me that he and another officer had contacted a vehicle in a park. He told me that the vehicle had fled and was followed by another officer. Officer Grant stated that the attorneys for the City of Seattle told him to testify that he and the other officer involved were not pursuing any vehicle and were not in pursuit; that no Seattle officers were in pursuit of the fleeing vehicle when it crashed; and that Officer Grant did not have his emergency lights activated.
He stated the event happened a long time ago and that he couldn’t remember many details. He did not remember details about where or when his lights were activated. He could remember certain details about the initial car stop, the car fleeing, going after the fleeing car and following it, and seeing it wrecked around a corner. Officer Grant also stated that he felt pressured by the attorneys for the City to testify to observations or details that would assist the City’s case, but that he couldn’t because he didn’t remember or was not even present for some [sic] them. It was apparent from his actions and tone during this conversation that he was nervous and not looking forward to his testimony.
[3. Testimony from a deposition of Michael Zaro (Lakewood Police chief) taken for Shadow v. City of Lakewood:2]
[Examination by Defense Counsel] Q[:] Did Arron Grant come to you and say that he had given false testimony in a case where he was asked to testify? A[:] That he believed so, yes. Q[:] Okay. And he believed he was dishonest because he told—or strike that. What did Arron Grant believe he was—his testimony was dishonest?
2 Pierce County Superior Court No. 16-2-08405-8.
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A[:] About? Q[:] Yeah. Yeah, why did he think he had been dishonest? [Plaintiff’s Counsel]: Object to the form of the question, but you can answer it if you know. [Zaro]: The way he portrayed it to me was that he was in a deposition or a discussion with attorneys representing Seattle, and one of the points—one of the questions was where he turned his lights off in a pursuit, related to a civil suit that was going on. And he said it was in one location. They said, [c]ould it have been here? And they went back and forth and he finally agreed that it could have been here and testified to that but still believed it could have been—or still believed it was here, but he said it could have been in this other location. [Defense Counsel:] So how did you guide him with regard to his concerns about dishonesty in that instance? A[:] I told him that—well, Chief Farrar and I both told him that was— that, you know, he got browbeat by a civil attorney into agreeing that, you know, something, could have happened here, that’s not uncommon, and that it wasn’t for him to worry about to the extent that he was worrying.
Hor retained new counsel after gathering this information. Counsel sought
permission from the appellate court before seeking relief from judgment in the
superior court. In superior court, Hor filed a motion for an order to show cause
why relief from judgment should not be granted based on misconduct of a party
under CR 60(b)(4) and (11). The court granted Hor’s motion and set a show cause
hearing. The trial court also granted a stipulated order to substitute Grant’s estate
as party to the case.
The City and Adam Thorp, the other SPD officer involved, objected to the
proffered evidence of Grant’s post trial statements, arguing that relief from
judgment should not be granted. The administrator of Grant’s estate joined the
response from the City and Thorp. Hor responded by arguing that Grant’s
statements were non hearsay as statements by a party opponent under ER
801(d)(2)(i). Hor argued in the alternative that the statements were an exception
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to hearsay exclusion under ER 804(b)(3) as statements against both Grant’s
pecuniary and penal interests. Following oral argument at the show cause hearing,
the trial court ruled the statements were inadmissible under either of Hor’s
proffered theories. This evidentiary issue was dispositive and the court denied the
motion for relief from judgment. The court also denied Hor’s request for further
discovery. Hor now appeals to this court, after denial of her petition for direct
review by the Supreme Court.
ANALYSIS
I. Admissibility of Grant’s Post Trial Statements
Hor first argues that the court erred in excluding statements Grant
purportedly made to others prior to his death about his alleged perjury in the trial.
At the trial court, Hor asserted that the statements were admissible as non hearsay
under ER 801(d)(2)(i) as a statement of party opponent, or in the alternative as an
exception to hearsay under ER 804(b)(3), statement against interest.
This court reviews interpretation of an evidence rule de novo. Diaz v. State,
175 Wn.2d 457, 462, 285 P.3d 873 (2012). Once a reviewing court has determined
that the trial court properly interpreted an evidence rule, the standard of review
shifts for the question of how the rule was applied. “Admissibility of evidence is
within the broad discretion of the trial court and will not be reversed on appeal
absent a showing of manifest abuse of discretion.” In re Parentage of J.H., 112
Wn. App. 486, 495, 49 P.3d 154 (2002). “Discretion is abused if it is based on
untenable grounds or for untenable reasons.” Id. ER 102 states:
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These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
While ER 102 does not directly address the hearsay questions before us, this rule
serves as a guiding principle for our review of evidentiary rulings. See State v.
Butler, 53 Wn. App. 214, 223, 766 P.2d 505 (1989); see also Bengtsson v.
Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 106 n.8, 469 P.3d 339 (2020).
ER 801(d)(2)(i) states in relevant parts: “(d) Statements Which Are Not
Hearsay. A statement is not hearsay if . . . (2) Admission by Party-Opponent. The
statement is offered against a party and is (i) the party’s own statement, in either
an individual or a representative capacity.” Washington case law on ER
801(d)(2)(i) under the particular posture presented here is not extensively
developed.
The issue before us is whether, due to his death, Grant’s statements still
constitute those of a party-opponent for purposes of ER 801(d). Hor first argues
that the statement is admissible based on numerous cases decided prior to
Washington’s adoption of the Federal Rules of Evidence in 1979. See Plath v.
Mullins, 87 Wash. 403, 151 P. 811 (1915); Loundry v. Lillie, 149 Wash. 316, 270
P. 1029 (1928). These cases do not guide our inquiry as they focus on common
law evidentiary rules that no longer represent our starting point since the adoption
of formal evidentiary rules. Further, federal courts are split on this issue and
neither party offers compelling argument as to why we should follow one side of
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that split over the other.3 We are, however, properly guided in our analysis by state
precedent.
There are two Washington cases identified by the parties as helping to
illuminate the issue. Erickson v. Robert F. Keer, MD, PS involved a medical
malpractice action brought by the son, husband, and estate of a patient who had
committed suicide. 125 Wn.2d 183, 185, 883 P.2d 313 (1994). The defendant
doctors sought to introduce statements by the deceased to a friend that her
husband was abusive, was tight with money, and should be the prime suspect if
anything happened to her. Id. at 192. The trial court originally admitted the
statements, this court reversed, and the Supreme Court affirmed the Court of
Appeals. Id. The Supreme Court stated, “Mrs. Erickson’s statements were not an
admission of a party-opponent as to the wrongful death action brought by Andrew
and Craig Erickson in their individual capacities.”4 Id. However, the court then
“decline[d] to rule on the estate’s cause of action because no objection was made
or preserved on its behalf.” Id.
This court’s opinion in the first phase of the appeal process provided similar
language: “Mrs. Erickson’s statements to Delaurenti are not admissions against
the interest of the claim for damages recoverable by her estate, and thus are not
admissible under ER 801(d)(2).” Erickson v. Robert F. Kerr, MD, PS, 69 Wn. App.
891, 902, 851 P.2d 703 (1993), rev’d in part on other grounds, 125 Wn.2d 183. In
Erickson, the testimony was being offered to prove damages, which distinguishes
3See Huff v. White Motor Corp., 609 F.2d 286 (7th Cir. 1979); Estate of Shafer v. Comm’r, 749 F.2d 1216 (6th Cir. 1984); In re Cornfield, 365 F. Supp. 2d 271 (N.Y. E.D. 2004). 4 The decedent’s husband and son, respectively.
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it from the facts of the case before us. Erickson’s statements would have been
used by the defense for mitigation as to an award for damages in favor of the
husband by attempting to prove the marriage was less than ideal and could have
thereby justified a smaller award. In Erickson, the court acknowledged the
decedent’s testimony was not going to have bearing against the estate, since it
went to the calculation of damages for the husband as to quality of the marriage.
Id. at 903.
The parties also separately address In re Estate of Miller, 134 Wn. App.
885, 143 P.3d 315 (2006). Miller involved an estate dispute as to whether
payments made to the deceased were loans or a gift. Id. at 888–89. Division
Three’s analysis of the statements made by the deceased includes a direct quote
from the Washington Practice series on evidence, which states, “‘The death of a
party-opponent does not affect the admissibility of that party’s admissions under
Rule 801, but under some circumstances the admissions may be barred by the
dead man statute.’” Id. at 895 (quoting 5B KARL B. TEGLAND, W ASHINGTON
PRACTICE: EVIDENCE LAW AND PRACTICE § 801.34, at 336 (4th ed. 1999)). The court
then held that “[t]he deceased is a party to this lawsuit and his admissions are not
inadmissible hearsay pursuant to ER 801(d)(2).” Id.
In the case before us, the trial court was disinclined to rely on Miller
because, as the City pointed out in its argument, that opinion primarily quotes the
4th edition of the Washington Practice series on evidence from 1999. Subsequent
updates abandon the analysis adopted in Miller, instead stating:
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Prior to the adoption of the Federal Rules of Evidence and their state counterparts, a statement by a person in privity with a party was considered an admission by party-opponent, and such statements were often admissible on that theory. The drafters of the current rules, however, deliberately chose to change the law in this regard, and statements by persons in privity with a party are no longer admissible as admissions by a party-opponent.
5B KARL B. TEGLAND, WASHINGTON PRACTICE EVIDENCE LAW AND PRACTICE: § 801.51
(6th ed. 2016) (footnote omitted). While much of the parties’ briefing on appeal
centers on this shift between versions of the practice series, this argument misses
the mark. Miller is a published opinion, and as such it is elevated above secondary
sources in the established hierarchy of legal authority. Miller has not been
overruled; thus, for purposes of ER 801(d)(2), the death of a party-opponent does
not bar the admissibility of their statements as non hearsay under the evidentiary
rule.
Miller is binding case law in our state. “[T]rial courts are bound by published
decisions of the Court of Appeals.” In re Marriage of Snider, 6 Wn. App. 2d 310,
315, 430 P.3d 726 (2018); RCW 2.06.040. Here, though the trial court was
presented with two alternatives, each discussed above, it is clear that Miller
controls. Based on this misapplication of the law, the trial court abused its
discretion by ruling that the declarations provided by Hor were inadmissible as
statements of a party opponent. Because we have identified that the statements
were admissible under this rule, we need not reach Hor’s alternate argument that
they were also admissible as statements against interest under ER 804(b)(3).
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II. Relief from Judgment
“On appeal, a trial court’s disposition of a motion to vacate will not be
disturbed unless it clearly appears that it abused its discretion.” Lindgren v.
Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990). “Abuse of discretion means
that the trial court exercised its discretion on untenable grounds or for untenable
reasons, or that the discretionary act was manifestly unreasonable.” Id. We are
unpersuaded by Hor’s argument on appeal that this court should apply a less
deferential standard of review because the judge who ruled on the CR 60(b)(4)
motion was not the same judge who heard the trial. Neither are we moved by the
assertion of the parties at oral argument that this court could, or should, rule on the
merits of the CR 60(b)(4) motion.
Under CR 60(b)(4), a trial court may vacate a judgment entered that was
procured by fraud, misrepresentation, or misconduct. “The rule is aimed at
judgments unfairly obtained, not factually incorrect judgments.” Sutey v. T26
Corp., 13 Wn. App. 2d 737, 756, 466 P.3d 1096 (2020). “[T]he fraudulent conduct
or misrepresentation must cause the entry of the judgment such that the losing
party was prevented from fully and fairly presenting its case or defense.” Lindgren,
58 Wn. App. at 596 (emphasis omitted). The party attacking the judgment under
CR 60(b)(4) “must establish the fraud, misrepresentation, or other misconduct by
clear and convincing evidence.” Id. Further, perjury alone does not necessarily
rise to the level of fraud to warrant a vacation of judgment. Doss v. Schuller, 47
Wn.2d 520, 526, 288 P.2d 475 (1955). Even then, the perjury must be of
“controlling importance” as to the determination of liability. Id.
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However, it was error to solely focus on perjury in ruling on whether Hor met
her burden under the CR 60(b)(4) standard. Perjury is just one means by which
“fraud, misrepresentation, or other misconduct” might occur. See In re Marriage
of Maddix, 41 Wn. App. 248, 252–53, 703 P.2d 1062 (1985); CR 60(b)(4). Further,
such misconduct or misrepresentation need not be intentional, but may merely be
careless. See Peoples State Bank v. Hickey, 55 Wn. App. 367, 371, 777 P.2d
1056 (1989) (“The effect is the same whether the misrepresentation was innocent,
the result of carelessness, or deliberate.”). The statements here are admissible,
and if deemed to be credible, they could rise to the level of misconduct of an
adverse party under CR 60(b)(4).
The court indicated that it denied the motion for relief from judgment based
on the fact that, absent Grant’s excluded post trial statements, Hor had no
evidence to meet the standard for a CR 60 motion. The court’s oral ruling
expressly stated “I don’t think [the statements are] sufficient to establish perjury by
clear and convincing evidence.” Because it is unclear from the record whether the
correct standard was applied, specifically whether the full spectrum of “fraud,
misrepresentation or other misconduct” under CR 60(b)(4) was considered, and in
light of our reversal of the trial court’s ruling on the admissibility of those
statements, we reverse and remand for the court to consider the CR 60 standards
anew. It may, at its discretion, order further discovery to provide a more
comprehensive record upon which to base its ruling.
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Reversed and remanded for proceedings consistent with this opinion.
WE CONCUR:
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