IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GARY DAVID FLANZER, No. 87581-7-I
Appellant/Cross-Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
ELADIO FLORES,
Respondent/Cross-Appellant.
BUI, J. — Gary Flanzer petitioned to have his marriage to Eladio Flores dissolved. While the petition was pending, Flanzer petitioned for a domestic violence protection order (DVPO) against Flores. Then in October 2022, Flanzer filed tort claims against Flores, alleging intimate partner abuse during the marriage. Their marriage dissolved in September 2023. In November 2024, the tort case proceeded to a jury trial, and the jury rendered verdicts in favor of Flores. Flanzer appealed, contending the trial court erred by excluding domestic violence history during their marriage. Flores cross-appealed the denial of his motion for judgment as a matter of law, contending the tort claims were previously litigated in the DVPO matter. Finding no error, we affirm.
FACTS
Gary Flanzer and Eladio Flores began dating in 2006 and married in 2013.
In 2021, Flores filed a petition for dissolution, and the parties’ marriage was subsequently dissolved on September 12, 2023.
While the dissolution was pending, a court commissioner granted Flanzer’s petition for a DVPO restraining Flores. 1 Flores moved for revision of the commissioner’s order, and superior court judge granted revision and vacated the DVPO, ruling Flanzer failed to prove by a preponderance of the evidence Flores committed the acts alleged in the petition. In making its determination, the trial court considered Flores’ denial of Flanzer’s allegations and the submitted declarations from witnesses describing interactions they had with Flanzer and Flores.
Upon the completion of the DVPO matter, on October 27, 2022, Flanzer sued Flores for negligent infliction of emotional distress and assault and battery, 2 arising from an “extended pattern of domestic violence that occurred prior to and throughout the marriage between” the parties. The complaint alleged the following specific incidents:
February 2015: Flores punched Flanzer in the face March 2015: Flores sexually abused, resulting in Flanzer having hernia surgery March 2018: Flores forced Flanzer to sleep on the floor after his urinary catheter surgery June 2020: Flores threatened to remove Flanzer from Flores’ health insurance Summer 2020: Flores squeezed Flanzer’s penis and testicles, causing significant pain December 2020: Flores turned off the heat in their shared condominium shortly after Flanzer had eye cataract surgery February 2021: Flores told Flanzer that he and another man would rape Flanzer February 2021: Flores punched Flanzer on the cheek and took his cell
1 The facts about the DVPO proceeding are from the unpublished decision Flanzer v.
Flores, No. 82896-7-I (Wash. Ct. App. Oct. 3, 2022) (unpublished), https://www.courts.wa.gov/ opinions/pdf/828967.pdf. We cite the unpublished opinion for its factual history.
2 The complaint also contained intentional infliction of emotional distress and false
imprisonment claims. The claims were later replaced by the negligent infliction of emotional distress and assault and battery claims.
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phone In preparation for a jury trial, Flores moved in limine (MIL), to exclude all allegations of prior intimate partner violence outside the statute of limitations. 3 The trial court reserved ruling on Flores’ MIL 1 and set a hearing for argument on November 13, 2024.
At the hearing, the trial court asked Flanzer to proffer evidence of intimate partner violence occurring prior to the statute of limitations for the tort claims. Flanzer offered four specific instances, three incidents within the statute of limitations for all tort claims, and one incident in 2018 outside of the statute of limitations, where Flores allegedly forced Flanzer to sleep on the floor after Flanzer underwent a urinary catheter procedure.
The trial court excluded the 2018 catheter incident, concluding that the risk of unfair prejudice outweighed the probative value of the incident to form context for understanding incidents that could have occurred within the statute of limitations.
During trial, Flanzer called medical professionals as expert witnesses. Dr.
Andrew Saxon, a psychiatrist, reviewed Flanzer’s medical records and evaluated him in February 2024, testified that Flanzer had multiple medical diagnoses, including hydrocele, a testicular condition typically caused by trauma directly inflicted to the testicles. When asked how Flanzer described the relationship with Flores, Dr. Saxon stated that in 2013, Flores began to perpetrate sexual violence
3 The parties agreed the statute of limitations for the assault and battery claim was October 27, 2019, and October 27, 2020, for the negligent infliction of emotional distress claim.
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against Flanzer. Flores’ objection was sustained and the trial court instructed the jury to disregard Dr. Saxon’s response.
On cross-examination of Dr. Saxon, Flores also objected to Dr. Saxon’s testimony of “I recall that the history is that your client repeatedly squeezed, twisted and. . . .” After a sidebar with counsels, the trial court instructed the jury to disregard Dr. Saxon’s answer.
During the lunch recess, out of the presence of the jury, the trial court revisited the sidebar on the record, telling counsels it would allow Flanzer’s experts to testify about instances of intimate partner violence, however, it would give a “verbal limiting instruction” that the testimony would not be considered for its truth that the events occurred but as a basis for the expert’s opinion. Neither party requested the court give a limiting instruction.
After the lunch recess, testimony continued with other experts, including Sara Gorcos, a clinical social worker who treated Flanzer from 2021 to 2023. Gorcos testified she had provided therapy to Flanzer for various issues, including, for “the recovery and processing of trauma related to abuse.” When asked what Flanzer told her about his trauma history, Gorcos testified that he said he “had experienced physical and sexual abuse by his spouse” which started at the beginning of their marriage. Flores objected, and the trial court told the jury to disregard the testimony.
After Gorcos’ testimony, two more experts, Elizabeth Shevins, and Dr.
Tracee Parker, took the stand. Shevins, a psychiatric nurse practitioner, provided medication management and therapeutic support to Flanzer. Shevins testified
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that Flanzer’s symptoms were consistent with a person who experienced intimate partner violence, and that he continued to exhibit post-traumatic stress disorder (PTSD) symptomology. When asked about her understanding of Flanzer’s past trauma history before Flanzer became her client, she responded “[s]o he reported a history of physical and sexual and emotional abuse and---yeah, from his ex-husband.” Flores objected and the trial court instructed the jury to disregard Shevin’s response.
Flanzer’s last expert witness, Dr. Tracee Parker, worked as a licensed psychologist. Flores objected to Dr. Parker’s testimony, arguing that she could not offer expert opinion about the domestic violence issues specific to the parties because she had never met Flanzer nor reviewed his medical records. Flanzer argued her testimony was admissible because she was an expert in domestic violence issues and could form an opinion, based on her review of Flanzer’s pleadings. The opinion she would give was that Flanzer was a survivor of domestic violence and Flores was a batterer. The trial court ruled Parker could testify, and the court would instruct the jury they may consider her testimony “only as it relates to the topic of ‘what is domestic violence” and “disregard any testimony that was based on [Flanzer’s] complaint.”
After Flanzer rested his case, Flores moved for judgment as a matter of law, arguing the issues litigated in this case were already litigated in the 2021 DVPO case. The trial court denied the motion. Flores presented his case and called 5 witnesses to testify about their interactions with the parties and the witnesses’ perceptions of the relationship.
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The jury reached verdicts in favor of Flores on all claims. The jury did not award a monetary judgment.
Flanzer appealed. Flores cross-appealed the trial court’s order denying his motion for judgment as a matter of law.
ANALYSIS
History of Domestic Violence Flanzer contends that the trial court made erroneous evidentiary rulings, to exclude almost all intimate partner violence history, in limine and on objections at trial, prejudicing his case. Flores responds that Flanzer identified only four instances of intimate partner violence and the trial court’s rulings were consistent with Flanzer’s proffered evidence in limine and were applied at trial. We address the arguments in turn.
A. Motion in limine rulings Flanzer argues that the trial court erroneously prohibited “nearly all evidence of intimate-partner violence” because it misunderstood the parties’ motions and arguments presented during the hearing. He also asserts that the trial court erred in excluding the evidence of the 2018 incident under ER 403. We disagree.
Evidentiary rulings are reviewed for abuse of discretion. Gilmore v.
Jefferson County Pub. Transp. Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018). Abuse of discretion exists when a trial court’s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons, such as
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the misinterpretation of a statute. Atkerson v. State, 4 Wn.3d 307, 318, 562 P.3d 1256 (2025).
“ ‘The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.’ ” State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984) (quoting State v. Evans, 96 Wn.2d 119, 123, 634 P.2d 845 (1981), 649 P.2d 633 (1982)). It follows that a party should clearly and specifically offer, on the record, any prior bad acts it seeks to admit, outside the presence of the jury. This allows the trial court the ability to determine the proper purpose for admitting or excluding ER 404(b) evidence and ensures an adequate record for meaningful appellate review.
At the hearing for argument on Flores’ MIL 1, the trial court told Flanzer’s counsel
I need to hear an offer of proof from plaintiff about what evidence you’re seeking to admit, testimony that you’re seeking to elicit about, you know—about, you know, alleged acts that occurred prior to—
or that would—or outside the statute of limitation.
Flanzer’s counsel responded by listing four incidents, occurring in March 2018, summer 2020, October 2020, and December 24, 2020 and asserted the incidents that occurred outside of the statute of limitations gave “context to the abuse that occurred inside the statute of limitations.” The trial court then parsed through each of the four incidents to determine whether each occurred within the statute of limitations for the tort claims. All fell within the statute of limitations except for the March 2018 catheter incident. The trial court asked Flanzer’s counsel to
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confirm “that is the one that’s outside the statute of limitations,” and counsel responded “ [y]es, Your Honor.”
Flanzer argues the four incidents were highlighted as “specific examples”
and that “the jury [would] understand that by the time of the events inside the limitations period” is presented, they would have a better understanding of the history of prior intimate violence in the relationship. We are not persuaded, given that Flores’ MIL 1 asked to the court to preclude the mention of “any” claimed acts outside of the statute of limitations. With that clear wording, and the trial court twice confirming that the 2018 catheter incident was the only incident outside of the statute of limitations, Flanzer’s argument the four incidents were chosen as “specific examples” is not well-taken.
Next, we turn to the 2018 catheter incident that Flanzer did proffer at the hearing, but the trial court excluded it under ER 403. Flanzer argues the 2018 catheter incident, which occurred outside the statute of limitations, provided context for the central issue of whether assault and battery occurred during the statute of limitations. We review evidentiary rulings for abuse of discretion. Gilmore, 190 Wn.2d at 494.
Under ER 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. ER 403. The ability of the danger of unfair prejudice to substantially outweigh the probative force of evidence is “ ‘quite slim’ ” where the evidence is undeniably probative of a central issue in the case. Carson v. Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994) (quoting U.S. v. 0.161
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Acres of Land, 837 F.2d 1036 (11th Cir. 1988)). The trial court is in the best position to guard against any such prejudice by appropriately limiting the actual testimony at trial or through an appropriate jury instruction. Atkerson, 4 Wn.3d at 319.
During the offer of proof hearing, the trial court repeatedly asked Flanzer’s counsel to give “a specific offer of proof as to why the Court should allow in evidence prior to the statute of limitations [and] how it actually provides context.” The trial court pressed counsel to explain “how is it that a jury simply cannot understand the significance of it unless it hears other evidence from outside the statute of limitations?” The trial court affirmed it was not hearing from counsel “what the testimony is going to be within the statute of limitations that requires the jury to hear evidence from outside the statute of limitations in order to understand the significance of what occurred.” Flanzer’s counsel responded that it would help the jury understand the “[c]ontext [] that even the slightest contact in a moment could put someone in imminent apprehension of harmful or offensive conduct.”
From the record, the trial court was not persuaded of the probative value of the catheter evidence, which was the only proffered incident outside of the statute of limitations. The court’s ruling is not untenable.
Thus, the record belies any notion of Flanzer’s contention that the trial court or any party was mistaken or misunderstood what was being argued at the hearing on the motion in limine. At no point during the hearing did Flanzer clarify
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he intended to present instances beyond the four he proffered. On this record, the trial court did not abuse its discretion.
B. Evidentiary rulings at trial Flanzer asserts the trial court erred by not allowing his experts to testify about intimate partner violence to give the jury an understanding of the reasons for their expert opinions. He also asserts the trial court errored by prohibiting his testimony about intimate partner violence.
We take each contention in turn to determine whether the trial court abused its discretion in its evidentiary rulings at trial.
Flanzer contends that Dr. Saxon, Gorcos, and nurse Shevins were not able to explain why Flanzer experienced the symptomology consistent with his medical diagnoses and his experience with trauma because of the trial court’s ruling prohibiting intimate partner violence. We disagree, because these experts did testify about intimate partner violence and Flanzer’s trauma history.
For example, Dr. Saxon testified that Flanzer had hydrocele, which was a condition typically caused by direct trauma to the testicles. Dr. Saxon also explained the basis for diagnosing Flanzer with PTSD was from an evaluation he conducted and the medical records from Harborview Abuse and Trauma Center from August 19, 2021. Dr. Saxon highlighted people who have experienced and suffered from sexual assault have PTSD. Dr. Saxon also testified to the general state of Flanzer’s marriage to Flores, stating
“because of the experiences that occurred in the marriage, that adversely affected Mr. Flanzer’s self-conception, his identity, and the way he handled relationships. And because in his experience the relationship with [Flores] had turned into a situation which was damaging to him, he
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[Flanzer] really lost his trust in people.
Dr. Saxon also explained how Flanzer’s PTSD diagnosis impacted his future. He stated that for Flanzer, PTSD will most likely be a permanent condition, which has the potential to cause adverse health conditions, such as early dementia, high blood pressure, cardiovascular disease, and Alzheimer’s.
Further, clinical social worker Gorcos testified about the history of trauma experienced by Flanzer. She stated that in 2021, Flanzer “reported . . . that he . . . experienced domestic violence in his relationship with his husband . . . and was looking for support around processing and making sense of what he’d experienced as well as getting emotional support around [his dissolution and DVPO] proceedings . . . .” She went on to describe a series of tests she administered to Flanzer, and Flanzer had a “relatively high score” in severity of PTSD symptoms. Gorcos noted Flanzer’s symptoms, startle responses and avoidance, were reported to be in-line with recent abuse—manifesting as “intrusive thoughts” and actively trying to avoid or not think about “his experiences and his traumatic symptoms.” While Gorcos’ testimony may not have touched on specific incidents of intimate partner violence, Gorcos was permitted to testify generally that Flanzer, prior to coming to see her in 2021, had experienced intimate partner violence which correlated to his PTSD symptoms.
Finally, contrary to Flanzer’s assertion, the testimony of psychiatric nurse practitioner Shevins, was similarly not limited. Shevins testified that she provided medication management and therapy to Flanzer for his anxiety and trauma. While Shevins’ response that Flanzer reported to her “a history of physical and sexual and emotional abuse from [Flores]” was sustained after Flores objected
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and the jury was instructed to not consider the stricken testimony, Shevins was able to opine that Flanzer exhibited symptoms consistent with survivors of intimate partner violence.
Critically, after the conclusion of Dr. Saxon’s testimony, the trial court told counsels the experts would be allowed to testify to incidents outside of the statute of limitations with a limiting instruction that the testimony would not be considered for its truth, but as a basis for the expert’s opinion. Flanzer declined the court’s offer of a limiting instruction. Flanzer now argues because the jury had already been instructed by the trial court to disregard Dr. Saxon’s testimony that Flores, beginning in 2013, inflicted sexual violence against Flanzer, it would be confusing for the jury to receive the limiting instruction telling them they now could consider expert testimony pursuant to that limited purpose. This assertion is unavailing, because if Flanzer’s complaint is his experts were prevented from testifying and relying on trauma history to base their opinions, which the record shows they did testify to some trauma history, then the limiting instruction would provide clarification, not create confusion.
Given this record, the experts were allowed to give testimony as to the history of intimate partner violence in the relationship as bases for their opinions. And even if the trauma history evidence admitted was still too limited, the trial court was willing to admit additional evidence with a limiting instruction, yet Flanzer denied that offer. Thus, the trial court’s evidentiary rulings were based on tenable grounds.
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Finally, Flanzer asserts that during his direct testimony, the trial court erred when it sustained Flores’ objection and struck Flanzer’s testimony that Flores began hurting him sexually beginning in 2014, and in the summer of 2020, Flores sexually assaulted Flanzer, grabbing Flanzer’s testicles. We disagree, because both instances occurred outside of the statute of limitations and, importantly, neither instance were proffered by Flanzer at the motion in limine hearing. Thus, the trial court had tenable reasons for its ruling.
C. Challenge under ER 404(b)
Flanzer contends the trial court erred by not addressing ER 404(b) before excluding prior instances of intimate partner violence perpetrated by Flores between 2014 and 2021. We disagree.
Evidence of a person’s character is not admissible to prove action in conformity therewith, ER 404(a), but evidence of prior bad acts may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, identity, or absence of mistake or accident. ER 404(b). “When a trial court admits bad acts evidence, it must first identify the purpose for which the evidence is to be admitted.” Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 444, 191 P.3d 879 (2008) (citing State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984)). “The court must then, on the record, balance the probative value of the evidence against its potential for prejudice. Without such a record, effective appellate review is precluded.” Brundridge, 164 Wn.2d at 444-45 (citing Jackson, 102 Wn.2d at 693-94).
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Flanzer did not cite ER 404(b) at the offer of proof hearing, nor did he brief a full ER 404(b) analysis in his response to Flores’ motion in limine. Thus, Flanzer waived his right to appeal the exclusion of evidence on this basis. RAP 2.5(a). Collateral Estoppel At trial, Flores raised the issue of collateral estoppel in his motion for judgment as a matter of law (JMOL). On cross-appeal, Flores argues the trial court erred in denying his motion for JMOL because the evidence presented in the parties’ previous DVPO matter was the same evidence presented in this case. We disagree.
We review whether collateral estoppel applies to bar relitigation of an issue de novo. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).
Flores cannot establish the elements of collateral estoppel. The party seeking application of the collateral estoppel doctrine must establish (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. Christensen, 152 Wn.2d at 307. “Because all four elements must be proved, the proponent’s failure to establish any one element is fatal to the proponent’s claim.” Lemond v.
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Dept. of Licensing, 143 Wn. App. 797, 805, 180 P.3d 829 (2008). Flores’ collateral estoppel claim fails the first element.
Collateral estoppel bars litigation of an issue only in situations when the issue presented in the second proceeding is identical in all respects to an issue decided in the prior proceeding. Reeves v. Mason County, 22 Wn. App. 2d 99, 111, 509 P.3d 859 (2022) (citing Standlee v. Smith, 83 Wn.2d 405, 408, 518 P.2d 721 (1974)). The controlling facts and applicable legal rules must remain unchanged. Reeves, 22 Wn. App. 2d at 111-12 (citing Standlee, 83 Wn.2d at 408). Collateral estoppel does not apply when a substantial difference in applicable legal standards differentiates otherwise identical issues even though the factual setting of both suits is the same. Reeves, 22 Wn. App. 2d at 112 (citing Cloud v. Summers, 98 Wn. App. 724, 730, 991 P.2d 1169 (1999)).
Flanzer’s DVPO petition was governed under the former domestic violence statute Chapter 26.50 RCW. Former RCW 26.50.030 (2021) repealed by LAWS OF 2021 ch. 215 § 170 authorized a victim of domestic violence to petition the court for an order of protection. The petitioner must allege “the existence of domestic violence” and provide an affidavit “under oath stating the specific facts and circumstances from which relief is sought.” Former RCW 26.50.030(1). “Domestic violence” means, as relevant here, “[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, [or] sexual assault . . . of one intimate partner by another intimate partner” Former RCW 26.50.010(3), (7) (2021) repealed by LAWS OF 2021 ch. 215 § 170.
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Flanzer’s complaint alleged damages for negligent infliction of emotional distress, and assault and battery. The court’s jury instructions defined assault and battery elements as:
(1) The person acts with intent to cause a harmful or offensive contact with the person or an imminent apprehension of such a contact; and
(2) The contact or imminent apprehension of such contact is a proximate cause of injury.
And defined negligent infliction of emotional distress as:
(1) Has a legal duty not to inflict emotional distress on that person;
(2) Breaches that legal duty not to inflict emotional distress on that person by behaving in unreasonably dangerous or offensive conduct;
(3) Proximately causes that person to experience damages from the emotional distress; and
(4) The actions cause objectively verifiable symptoms (i.e. objective symptomology)
The former domestic violence statute requires a different legal standard
from both the legal standards set forth in this matter for assault and battery and negligent infliction of emotional distress. The former domestic violence statute does not require a showing of proximate causation of injury, emotional distress, or damages, nor does it require a showing of verifiable symptoms. See Former RCW 26.50.030(1) (2021) (The petitioner must allege “the existence of domestic violence” and provide an affidavit “under oath stating the specific facts and circumstances from which relief is sought.”). Because negligent infliction of emotional distress and assault and battery require different legal standards than DVPOs, the issues were not the same. Flores’ collateral estoppel claim fails.
We affirm.
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WE CONCUR: