Kurt Prasse, V. Dr. Marnee Milner

• Court: Court of Appeals of Washington
• Decided: January 23, 2023
• Docket: 83920-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KURT PRASSÉ, in pro se, No. 83920-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION DR. MARNEE MILNER, DBA MILNER EVALUATION AND CONSULTATION SERVICES INC.,

Respondent.

PER CURIAM — Kurt Prassé appeals the trial court’s dismissal of his claims

against Dr. Marnee Milner, the parenting evaluator/investigator appointed by the

Whatcom County Superior Court in a separate family law proceeding. Finding no

error, we affirm.

I

In April 2019, the Whatcom County Superior Court appointed Milner to

“conduct a complete parenting evaluation” of Prassé in connection with

establishing a parenting plan for E.P., the child Prassé shares with his former

spouse, Sally Von Erffa. In May 2019, the Whatcom County Superior Court

entered an additional order further specifying the scope of Milner’s appointment

and adding an evaluation of Von Erffa. That order directed Milner “to investigate

and file a report” on “[a]ll issues related to making a parenting plan for [E.P.],” No. 83920-9-I/2

including Prassé’s criminal history, “[d]omestic violence of [Prassé],” mental

health issues of Prassé and Von Erffa, Prassé’s physical health, and “[a]ny other

issues discovered that could affect the safety of [E.P.]”1

Milner performed an evaluation and issued her report in December 2019.

She recommended among other things that Von Erffa have sole decision-making

authority with regard to E.P., that E.P. reside primarily with Von Erffa, and that

Prassé’s time with E.P. consist initially of two hours of supervised visitation per

week.

In November 2021, Prassé initiated the instant lawsuit against Milner in

King County Superior Court, alleging the following claims related to Milner’s

conduct in connection with her evaluation: (1) breach of contract, (2) fraud in the

inducement, (3) libel, (4) breach of fiduciary duties, (5) breach of the covenant of

good faith and fair dealing, (6) negligence, (7) malpractice, (8) practicing

medicine without a license, and (9) negligent infliction of emotional distress.

In February 2022, Milner filed a motion to dismiss Prassé’s claims. Milner

argued both that (1) she was entitled to quasi-judicial immunity and (2) Prassé’s

complaint failed to state a claim on which relief could be granted.

In March, the trial court held a hearing on Milner’s motion. At the outset of

the hearing, the court observed that Prassé had filed a motion for default but had

not properly noted it. The court explained to Prassé, who appeared pro se,

“[T]hat’s why you don’t have a ruling on that.”

After the hearing, the trial court granted Milner’s motion and dismissed

1 Bold face omitted.

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Prassé’s claims with prejudice. Prassé appeals. 2

II

A

Milner moved for dismissal under CR 12(b)(6). Dismissal under that rule

is appropriate “if ‘it appears beyond doubt that the plaintiff cannot prove any set

of facts which would justify recovery.’ ” Didlake v. State, 186 Wn. App. 417, 422,

345 P.3d 43 (2015) (quoting Tenore v. AT&T Wireless Servs., 136 Wn.2d 322,

329-30, 962 P.2d 104 (1998)). “If the trial court considered matters outside the

pleadings” in deciding a CR 12(b)(6) motion, “the reviewing court treats [the]

motion as a motion for summary judgment under CR 56(c).” Id.

Here, the trial court considered matters outside the pleadings: Its order

granting Milner’s motion indicates it was “familiar with the records and files in this

matter” and also reviewed, among other documents, Milner’s attorney’s

declaration and the exhibits attached thereto, as well as exhibits that Prassé

attached to his response to Milner’s motion. Accordingly, we treat Prassé’s

appeal from the dismissal of his claims as an appeal from a summary judgment

order.

We review summary judgment orders de novo, and “[w]e may affirm on

any basis supported by the record.” Bavand v. OneWest Bank, 196 Wn. App.

813, 825, 385 P.3d 233 (2016). “[S]ummary judgment is appropriate where there

is ‘no genuine issue as to any material fact and . . . the moving party is entitled to

a judgment as a matter of law.’ ” Elcon Constr., Inc. v. E. Wash. Univ., 174

2 Milner has moved to dismiss Prassé’s appeal based on Prassé’s failure to file his

opening brief in a timely manner. The motion is hereby denied.

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Wn.2d 157, 164, 273 P.3d 965 (second alteration in original) (quoting CR 56(c)).

B

Prassé contends the trial court erred by summarily dismissing his claims.

Milner counters that she was entitled to quasi-judicial immunity therefrom, and

thus, dismissal was proper. We agree with Milner.

Reddy v. Karr, 102 Wn. App. 742, 9 P.3d 927 (2000), is instructive.

There, a court commissioner appointed an evaluator “to do an investigation and

prepare an evaluation to assist the court in determining who should be the child’s

primary residential parent.” Id. at 749. After the evaluator recommended that the

father be designated the primary residential parent, the mother sued the

evaluator, claiming damages resulting from the evaluator’s negligence. Id. at

746-47.

The trial court summarily dismissed the mother’s claims, and we affirmed

on the basis of quasi-judicial immunity. Id. at 747, 753. In doing so, we

explained that “[t]he doctrine of exemption of judicial and quasi-judicial officers is

founded upon a sound public policy . . . for the protection of the public, and to

ensure active and independent action by individuals charged with fashioning

judicial determinations.” Id. at 748. In furtherance of this policy, quasi-judicial

immunity “ ‘attaches to persons . . . who perform functions that are so

comparable to those performed by judges that it is felt they should share the

judge’s absolute immunity while carrying out those functions.’ ” Id. (quoting

Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 99, 829 P.2d 746

(1992)). We held in Reddy that quasi-judicial immunity attached to family court

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evaluators, who “assist the court to develop such orders as the court deems

necessary to resolve parenting controversies.” 102 Wn. App. at 749. We

observed that such evaluators “act as an arm of the court” when conducting

court-ordered investigations that judges cannot themselves independently

perform. Id. at 749-50. We also noted that such evaluators “d[o] not have any

independent decision-making authority over the parties” and in the end, the court

remained “solely responsible” for fashioning a parenting plan. Id. at 750.

Here, as in Reddy, a court appointed Milner to perform an independent

investigation and evaluation for the court’s use in finding facts and adopting a

parenting plan. As in Reddy, Milner had no independent decision-making

authority over the parties and “had no capacity” to effect any of her

recommendations—that responsibility was solely the family court’s. 102 Wn.

App. at 750. As an investigator performing a court-ordered evaluation to assist

the court in establishing a parenting plan for E.P., Milner acted as an arm of the

court entitled to quasi-judicial immunity from liability for her acts taken to

complete her evaluation. Accordingly, the trial court did not err by summarily

dismissing Prassé’s claims against Milner. Cf. Janaszak v. State, 173 Wn. App.

703, 712, 297 P.3d 723 (2013) (immunity from suit “is not merely a defense to

liability but ‘an entitlement not to stand trial or face the other burdens of

litigation’ ” (internal quotation marks omitted) (quoting Feis v. King County

Sheriff’s Dep’t, 165 Wn. App. 525, 538, 267 P.3d 1022 (2011))).

Prassé disagrees and argues that Reddy is unpersuasive because it was

decided “over 20 years ago, in a situation where, contrary to the current case, the

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court found it necessary to appoint an investigator to carry on the work of the

family court.” (Underlining omitted.) He points out that here, he and Von Erffa

initiated Milner’s appointment. But while Prassé and Von Erffa may have initiated

the appointment, it is undisputed that the court ordered it. And in doing so, the

court expressly found that “it is in the best interest of [E.P.] to appoint a parenting

evaluator/investigator.” Prassé’s attempt to distinguish Reddy fails.

Prassé next contends that Milner is not entitled to immunity because

Prassé formed a contractual relationship with her before she was appointed by

the court; he also asserts that Milner fraudulently induced that contractual

relationship. But Prassé cites no authority for the proposition that the existence

of a prior contract has any bearing on Milner’s immunity from claims that even

Prassé acknowledges arise from her conduct in connection with a court-ordered

evaluation. 3 Furthermore, even if the existence of a prior contract were material,

Prassé’s assertions that a fraudulently induced contract existed are not

supported by citations to the record or any discussion of the relevant legal

elements. Prassé’s conclusory assertions do not warrant reversal. See Holland

v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (“Passing

treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration.”).

Prassé also relies on Gustafson v. Mazer, 113 Wn. App. 770, 54 P.3d 743

(2002), to argue that Milner was not entitled to immunity. But Gustafson was not

3 For example, Prassé asserts that his complaint was addressed to “issues with the entire

process: the evaluation process, the findings and [Milner’s] recommendations (the final REPORT . . . ).”

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a quasi-judicial immunity case; instead it analyzed only witness immunity for a

testifying expert whose involvement “[t]he superior court was unaware of.”4 113

Wn. App. at 773. Gustafson does not require reversal.

Finally, Prassé makes a number of policy-based arguments against quasi-

judicial immunity. But his arguments are largely premised on his assertions that

Milner violated the law, “clearly did not” use a reasonable degree of care, and

engaged in wrongdoing—conclusory assertions that Prassé fails to support with

citations to the record. Furthermore, as explained in Reddy, quasi-judicial

immunity itself serves “a sound public policy” of ensuring the independence of

judicial and quasi-judicial officers. 102 Wn. App. at 748.

Prassé’s arguments against quasi-judicial immunity fail.

III

Prassé advances a number of additional arguments for reversal apart from

his arguments that quasi-judicial immunity does not apply. None are persuasive.

First, Prassé argues the trial court erred by considering Milner’s motion to

dismiss without first considering Prassé’s motion for default. But the record

reflects that the trial court did not consider Prassé’s motion because Prassé did

not properly note it. Prassé does not acknowledge this, much less establish that

the trial court erred by proceeding as it did under the circumstances.

Second, Prassé contends the trial court erred inasmuch as it did not make

any findings of fact or conclusions of law in connection with its dismissal of

Prassé’s complaint. This contention fails because “[f]indings of fact and

4 Prassé’s policy-based arguments against applying witness immunity, which rely in large

part on non-binding out-of-state authorities, are also unpersuasive.

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conclusions of law are not necessary . . . [o]n decisions of motions under rules 12

or 56.” CR 52(a)(5)(B).

Third, Prassé argues that the trial court’s order “was based on improper

procedure” because in her 25-page motion below, “[a]rgument in support of

dismissal under CR 12(B)(6) is made on 1 or 2 pages at most,” and Milner made

arguments at the hearing “not pertaining to the cause for dismissal named in her

Motion.” But Milner’s motion below plainly sought dismissal on the alternate

bases of (1) quasi-judicial immunity and (2) the insufficiency of the allegations in

Prassé’s complaint. Prassé does not establish that reversal is required based on

the number of pages or amount of time at oral argument Milner chose to devote

to each argument.

Fourth, Prassé contends that to the extent the trial court dismissed his

complaint on the basis that it failed to state a claim, reversal is required because

that dismissal “rest[ed] entirely on the false allegation that there was no

contractual relationship between the parties,” an allegation that Prassé claims

“has been refuted.” But Prassé provides no analysis to support this claim. He

fails to address the elements of a contractual relationship, much less point to

evidence in the record to establish a genuine issue of material fact as to those

elements. See RAP 10.3(a)(6) (providing that the argument section of a brief

must contain “references to relevant parts of the record”); In re Estate of Lint, 135

Wn.2d 518, 532, 957 P.2d 755 (1998) (court will not assume obligation to comb

the record for evidence to support a party’s arguments). And as discussed, he

cites no authority for the proposition that the existence of a contract vitiates

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Milner’s quasi-judicial immunity for claims related to a court-ordered evaluation.

Finally, Prassé attempts to incorporate by reference “additional

arguments” from his briefing in the trial court. But “trial court briefs cannot be

incorporated into appellate briefs by reference.” Holland, 90 Wn. App. at 538.

We do not consider Prassé’s additional arguments.

We affirm.

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