K.R.M. v. Eastmont School District No. 206

• Court: Court of Appeals of Washington
• Decided: April 27, 2023
• Docket: 39123-0
• Status: Unpublished

Opinion

FILED APRIL 27, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

K.R.M., a minor child; and GEOFF ) No. 39123-0-III McKINNEY and CHRISTA TOLAN, in ) their capacity as the parents and legal ) guardians of K.R.M., ) ) Respondents, ) UNPUBLISHED OPINION ) v. ) ) EASTMONT SCHOOL DISTRICT NO. 206, ) ) Petitioner. )

PENNELL, J. — We review a trial court order granting a motion to change venue

from Douglas County to King County. Trial courts have broad discretion to grant venue

change requests. Although reasonable minds might differ regarding the merits of the

motion, we defer to the trial court’s ruling. The order is therefore affirmed.

FACTS

In the spring of 2014, nine-year-old K.R.M. was a student in the Eastmont School

District (Eastmont), located in Douglas County. K.R.M. was injured while using her

school’s playground equipment and in 2015 her parents filed suit on her behalf

(collectively K.R.M.). The suit was initiated in Douglas County Superior Court. No. 39123-0-III K.R.M. v. Eastmont Sch. Dist. No. 206

Starting in late 2017, various trial dates were set and then subsequently

rescheduled. K.R.M. unilaterally moved for the first trial continuance, and later stipulated

with Eastmont to a second continuance. On March 2, 2020, the court filed a notice

scheduling trial for March 1, 2021. However, the COVID-19 pandemic upended the trial

court’s scheduling plans. Eastmont moved unilaterally on January 22, 2021, to continue

the March 1 trial date. K.R.M. filed its own motion for continuance one week later.

The court granted a continuance and set a new trial date for November 8, 2021.

On August 10, 2021, the court on its own initiative issued an order striking the

November 8 trial date. The reason for the order was apparently the continuing impact of

the COVID-19 pandemic and a significant backlog of criminal cases.

For the first six months of 2022, K.R.M. made multiple attempts to get the case

scheduled for trial in Douglas County. Court administration repeatedly reported that civil

jury trial dates were not being set.

On July 13, 2022, K.R.M. filed a motion to change venue to King County.

According to a declaration filed by one of K.R.M.’s attorneys, King County Superior

Court was reporting the ability to schedule civil jury trials within 10 months of a

requested setting. The attorney also declared they had successfully received trial dates

in King County for other cases and cited specific examples.

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Eastmont opposed K.R.M.’s motion, arguing K.R.M. had not cited a valid basis for

changing venue. Eastmont suggested during argument of the motion that K.R.M. was

engaging in improper forum shopping. Eastmont also challenged K.R.M.’s representation

that King County would be able to provide a civil jury trial date.

The trial court held a hearing on K.R.M.’s motion and ultimately granted the

change in venue. The court referenced during oral argument: (1) Douglas County’s

significant felony case backlog, (2) the age of K.R.M.’s case, (3) the presence of two

expert witnesses in King County, (4) defense counsel’s presence in King County, and

(5) King County’s ability to conduct voir dire by Zoom, as reasons to change venue.

In November 2022, we granted Eastmont’s request for discretionary review of

the trial court’s venue order and set this review for accelerated disposition pursuant to

RAP 18.12. K.R.M. has supplemented the record on review to include an order from the

King County Superior Court setting this case for trial commencing August 7, 2023.

ANALYSIS

A trial court’s change of venue decision is governed by RCW 4.12.030, of which

subsection (3) of the statute permits trial courts to “change the place of trial when it

appears by affidavit, or other satisfactory proof . . . [t]hat the convenience of witnesses or

the ends of justice would be forwarded by the change.” We review a trial court’s decision

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on a motion to change venue for abuse of discretion. State v. Clark, 143 Wn.2d 731, 756,

24 P.3d 1006 (2001).

Basis for transfer

Eastmont argues the trial court lacked a legal basis for changing venue. While

RCW 4.12.030(3) allows for a change of venue based on the “ends of justice,” Eastmont

points out that there are no published decisions recognizing a court’s authority to change

venue based on a county’s capacity to process jury trials.

We agree with Eastmont that past cases have not addressed circumstances like the

one here. Most cases applying RCW 4.12.030(3) focus on the “convenience of witnesses”

aspect of the statute. Russell v. Marenakos Logging Co., 61 Wn.2d 761, 766, 380 P.2d

744 (1963); Hickey v. City of Bellingham, 90 Wn. App. 711, 719, 953 P.2d 822 (1998);

L.M. v. Hamilton, 200 Wn. App. 535, 559, 402 P.3d 870 (2017), aff’d, 193 Wn.2d 113,

436 P.3d 803 (2019). As pointed out by Eastmont, the vast majority of witnesses in this

case are connected to Chelan and Douglas counties. Witness convenience alone would

not justify moving the case to King County.

But the lack of support from established case law does not end our analysis. The

intense pressure placed on trial courts by the COVID-19 pandemic was unprecedented.

Health protocols made jury trials difficult, if not impossible, in many Washington

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counties throughout much of 2020 and 2021. Over the past 18 months, court operations

have begun to normalize. But there remains a backlog of untried cases. Our Board of

Judicial Administration’s Court Recovery Task Force has stated that working through this

backlog represents the court system’s “largest unmet need.” RE-IMAGINING OUR COURTS:

PANDEMIC RESPONSE AND RECOVERY LEADS COURTS INTO THE FUTURE, at 23 (June

2022), https://www.courts.wa.gov/content/publicUpload/Court%20Recovery%20Task

%20Force/Court%20Recovery%20Task%20Force%20Report%202022.pdf.

COVID-19’s impact on the justice system has varied by county. Some jurisdictions

were able to facilitate jury trials outside of regular courthouses at large venues such as

fairgrounds, convention centers, and armories that allowed for social distancing. See

id. at 21. King County was at the forefront of innovating solutions to the COVID-19

pandemic and began holding trials by the social networking platform, Zoom. King County

Court shifts to virtual trials, potentially changing future of courtrooms, KOMO NEWS

(March 3, 2021, 11:58 p.m. PST), available at https://komonews.com/news/local/king-

county-superior-court-shifts-to-virtual-trials-chips-away-at-massive-case-backlog. As

reflected in this case, King County’s practice of holding Zoom trials continues to this day.

Washington courts are not limited to changing venue based on witness

convenience. RCW 4.12.020(3) also allows a change of venue when necessitated by

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“the ends of justice.” The COVID-19 pandemic has forced trial courts to work creatively

and collaboratively in order to meet the ends of justice. A change of venue is an option

that can and should be available when a court deems it necessary to facilitate access to

justice and resolution of the parties’ case.

Decades ago, the Washington Supreme Court in Russell commented that “the mills

of justice grind with equal fineness in every county of the state.” 61 Wn.2d at 764-65.

But Russell recognized that this general rule does not apply in “rare instances.” Id. The

qualified language used by the court in Russell provides room for a trial court to use a

change of venue motion to facilitate access to justice when faced with rare circumstances,

such as the impact of a global pandemic.

Contrary to Eastmont’s protestations, the decision of Division Two of this court in

Hatley v. Saberhagen Holdings, Inc. does not compel a different conclusion. 118 Wn.

App. 485, 488-89, 76 P.3d 255 (2003). Hatley involved a defense motion to change venue

in an asbestos case from Pierce County to King County. Id. at 487. According to the

defense, “King County’s asbestos litigation procedures were more thorough and included

a number of concessions and compromises between the parties that are not binding in

Pierce County.” Id. Hatley held that King County’s purportedly “sophisticated” asbestos

procedures did not supply a “proper basis for a venue choice.” Id. at 490.

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Unlike Hatley, this case does not involve a change of venue predicated a claim of

subject matter expertise. K.R.M.’s venue request was based solely on the capacity to hold

a trial. Given the unprecedented pressure on the judicial system caused by the COVID-19

pandemic, the trial court had an adequate legal basis for granting K.R.M.’s motion to

change venue.

Evidence supporting transfer

Eastmont argues that even if King County’s ability to accommodate civil jury trials

was a valid consideration under RCW 4.12.030(3), the record here failed to substantiate

this factual claim. We disagree.

A party seeking a change of venue must justify their request “by affidavit, or other

satisfactory proof.” RCW 4.12.030. Here, K.R.M.’s attorney filed a declaration stating

that, according to the King County Superior Court administrator’s office, it would be able

to schedule a civil jury trial within 10 months. The declaration also provided concrete

examples of other civil jury trials that had been held in King County after the onset of

COVID-19. Given counsel’s sworn representations and the trial court’s knowledge of its

own current inability to set a civil case for a jury trial, the trial court had sufficient

evidence that a change of venue to King County would facilitate the parties’ interests in

resolving this case by jury trial.

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Balancing prejudice

Eastmont also argues that the trial court did not adequately weigh the prejudice

that would be caused by a change of venue. Specifically, Eastmont asserts the trial court

did not account for the hardship to the school district of bringing nearly all its witnesses

170 miles from Douglas County to King County in order to try the case.

The record does not support K.R.M.’s criticism of the trial court’s analysis.

The record on review shows the trial court understood many of the parties’ witnesses

resided in Chelan or Douglas counties. Nevertheless, the court concluded this hardship

was outweighed by the need to schedule a trial date in the foreseeable future.

Eastmont suggests that moving the trial to King County will impair its ability to

provide educational services for its students. This claim was not raised before the trial

court. Nor is there any evidence in this regard in the record on review. The trial court

could not abuse its discretion in failing to take into account factual claims that were not

part of the record before it.

The trial court did not abuse its discretion for failing to consider the parties’

competing interests.

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Adequacy of findings

Eastmont also argues that the trial court did not adequately set forth its

reasoning for transferring this action from Douglas County to King County. Eastmont

likely failed to preserve this argument pursuant to RAP 2.5(a) when it declined to request

revisions to the proposed order presented to the court. See Rep. of Proc. (Jul. 26, 2022)

at 16 (Upon considering the trial court’s proposed order, Eastmont’s counsel stated,

“[i]t’s very brief. So, I tried hard to find something wrong with it, but I couldn’t find

anything.”). Regardless, the trial court’s oral statements adequately reveal the basis for

its decision.

The record on review reflects that during oral argument the trial court discussed

various factors for and against transfer. The court considered the location of the parties,

witnesses, and counsel. The court also noted Douglas County’s criminal case backlog,

King County’s ability to conduct voir dire via Zoom, and how long K.R.M. had been

waiting to receive a trial date. Eastmont fails to cite any authority suggesting the court’s

weighing of these factors on the record needed to be memorialized in writing. The court’s

oral findings were therefore adequate.

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Relative fault

Finally, Eastmont raises a waiver argument, claiming K.R.M. forfeited the right to

request a change of venue by previously requesting continuances in her case. Eastmont

cites no legal authority in support of this claim. Where no authority is cited, we assume

none exists. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193

(1962).

By independently moving for a continuance in 2018, K.R.M. did not waive a

request for relief based on the later unanticipated impact of the COVID-19 pandemic.

Furthermore, nothing in the record suggests K.R.M. did not genuinely try to obtain a trial

date in Douglas County. K.R.M. filed her lawsuit in Douglas County. After the court

struck the March 2021 trial date, K.R.M. requested the court set trial in Douglas County

for a date in the second half of 2021. See Clerk’s Papers at 126 (requesting “trial some

time between July 10, 2021 and December 31, 2021”) After the court on its own initiative

struck the November 2021 trial date, counsel for K.R.M. contacted the court administrator

approximately 10 times, attempting to schedule a trial date during 2022. The record is

undisputed that Douglas County was unable to accommodate a civil trial in 2022. It was

only after the repeated failure to obtain a trial date from Douglas County that K.R.M.

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filed a motion to change venue. We reject Eastmont’s unsupported argument that K.R.M.

waived her right to request a change of venue.

CONCLUSION

The order granting K.R.M.’s motion to change venue is affirmed.

A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Pennell, J.

WE CONCUR:

Siddoway, J.

Lawrence-Berrey, A.C.J.