Opinion
No. 59792-2-I.
April 7, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-19078-7, Gregory P. Canova, J., entered March 29, 2007.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Agid and Leach, JJ.
David Hick, a former King County Sheriff's Deputy, appeals from the trial court's entry of summary judgment against him in his wrongful discharge lawsuit against his former employer, King County. In addition to challenging various procedural rulings by the trial court, Hick contends that the trial court erred because there were genuine issues of material fact regarding both whether the county breached its collective bargaining agreement by firing him, and whether his discharge violated Washington's public policy. After reviewing the record and the trial court's rulings, we agree with the trial court that no genuine issue of material fact exists with respect to whether Hick's discharge was lawful. Accordingly, we affirm.
Facts
King County employed Hick as a sheriff's deputy from 1991 until it fired him on June 14, 2002. At all times during which King County employed Hick, it required that its sheriff's deputies be able to lawfully carry firearms and other weapons.
While serving as a deputy, Hick became romantically involved with Margita Dornay, a married attorney who worked as a contract prosecutor. Approximately a year after Hick and Dornay began their affair, Dornay petitioned the King County District Court for a protection order against Hick, alleging that he had repeatedly assaulted her and threatened to kill her, members of her family, and her pets. Dornay's petition sought to bar Hick from contacting her or her family and to bar him from possessing firearms. In response to the petition, the district court entered a temporary protection order against Hick that incorporated the limitations sought by Dornay. It then scheduled a hearing to determine whether a permanent protection order against Hick should be entered.
The district court subsequently held an eight-hour hearing to adjudicate Dornay's petition. Both Hick and Dornay were present and represented by counsel, testified on both direct and cross-examination, and presented witnesses and evidence. The district court specifically found Dornay's testimony to be "consistent and credible," while also finding that Hick was not credible and that there was "little reason to believe any of his testimony." The court also found that Hick's actions put Dornay in ongoing fear of physical harm and that he had threatened to kill her, members of her family, her family dog, and her horse. As a result, the district court entered a permanent protection order barring Hick from further contact with Dornay or with members of her family. The district court also specifically found that there was clear and convincing evidence that Hick had "threatened to use a firearm in a felony." Accordingly, pursuant to RCW 9.41.800, the district court permanently prohibited Hick from possessing firearms.
As relevant to Hick, RCW 9.41.800 provides:
(1) Any court when entering an order authorized under RCW 9A.46.080, 10.14.080, 10.99.040, 10.99.045, 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, 26.50.070, or 26.26.590 shall, upon a showing by clear and convincing evidence, that a party has: Used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or previously committed any offense that makes him or her ineligible to possess a firearm under the provisions of RCW 9.41.040:
(a) Require the party to surrender any firearm or other dangerous weapon;
(b) Require the party to surrender a concealed pistol license issued under RCW 9.41.070;
(c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon;
(d) Prohibit the party from obtaining or possessing a concealed pistol license.
Upon learning of the initial temporary protection order entered against Hick, King County had placed him on paid administrative leave and commenced an internal police investigation of his activities. The memorandum informing Hick of this decision stated that Hick would "remain on administrative leave until such time as the investigation is concluded." The memorandum further stated that the order suspending Hick would "remain in force pending a decision by the Sheriff."
When then-Sheriff Dave Reichert learned of the permanent protection order against Hick and Hick's resulting inability to carry a firearm, he informed
Hick by memorandum that Hick was being fired: I have received a copy of an Order for Protection (No. 317-002) from Issaquah District Court in which you are named as the respondent. This order is permanent and contains a prohibition against owning or possessing a firearm.
Because the court order prohibits you from carrying a firearm and because KCSO Sheriff's Deputy's [sic] are required to carry firearms, you cannot perform this essential function of the job and must be separated from the department, effective June 15, 2002.
The memorandum also scheduled a pre-termination hearing, which Hick attended with King County Police Officers Guild President Steve Eggert.
Prior to this hearing, Hick moved the district court to reconsider its protection order, arguing that the order would end his career as a police officer. The district court denied the motion in an oral ruling after the termination of Hick's employment became effective, stating that it was aware of the protection order's effect on Hick's career, but that Hick's threats to kill Dornay, her family, and her pets nonetheless provided "grounds to prohibit Mr. Hick from the possession of a firearm."
After being fired from his position with the sheriff's office, Hick appealed the final protection order to the King County Superior Court. Ultimately, the superior court affirmed the protection order, but concluded that a permanent order was inappropriate under the facts of the case. Accordingly, the superior court remanded the cause to the district court for entry of a date upon which the order would expire.
Hick then moved the superior court to reconsider this order. The basis for this motion for reconsideration was that Dornay had been subject to attorney discipline proceedings for making false statements under oath in Hick's divorce trial, during the pendency of which Dornay had still been in the midst of her love affair with Hick. Specifically, Dornay had been suspended from the practice of law for testifying that she had never seen Hick act "rageful," or "rant and rave," or "berate" her. Dornay later admitted that this testimony was false and that Hick had done all these things to her. See In re Disciplinary Proceeding Against Dornay, 160 Wn.2d 671, 677-78, 161 P.3d 333 (2007). According to Hick, Dornay's admission that she had falsely defended him in his divorce trial also called into question the credibility of her testimony before the district court that he had threatened to kill her.
The superior court apparently accepted this argument because it took judicial notice of the proceedings against Dornay, withdrew its affirmance of the protection order, and remanded the cause for reconsideration, while once again specifying that any order should be temporally limited. On remand, however, the district court once again affirmed the protection order and once again found the firearm restriction to be justified, albeit for a fixed period. Both Dornay and Hick appealed this order, but both voluntarily dismissed their appeals before the superior court could hear them. The protection order against Hick and its firearm prohibition continued in force until it expired by its own terms on February 17, 2005.
Several months afterward, Hick filed this action. In his pleadings, he set forth the theory that the sheriff's office had "instigated Margita Dornay's petition for an order of protection in May 2002, asked the District Court hearing that petition to prohibit Hick from carrying a firearm, and then used that prohibition as an excuse to fire Hick." According to Hick, the sheriff conspired to have Hick fired as retaliation for Hick bringing a lawsuit against the county in 1997. Hick submitted copious documentation to the trial court in support of this theory. However, the trial court struck most of these proposed exhibits on the basis that they would be inadmissible at trial and were irrelevant to the questions actually before the court. King County moved for summary judgment on those questions — namely, whether King County had discharged Hick for just cause (the standard required by its collective bargaining agreement) and whether King County had wrongfully discharged Hick. The trial court ruled in the county's favor on both issues. In reaching this result, it also made various procedural rulings favorable to King County.
Hick appeals.
Standard of Review
"We engage in a de novo review of a ruling granting summary judgment. Anderson v. Weslo, Inc., 79 Wn. App. 829, 833, 906 P.2d 336 (1995). Thus, we engage in the same inquiry as the trial court." Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151 P.3d 1038 (2007), rev. denied, No. 80215-7, 2008 Wash. Lexis 230 (Mar. 4, 2008). "Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. CR 56(c); Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991)." Green, 137 Wn. App. at 681. "All reasonable inferences from the evidence must be construed in favor of the nonmoving party. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979)." Green, 137 Wn. App. at 681.
In order to properly apply these standards, it is important to clarify at the outset that the trial court explicitly struck as irrelevant most of the documents that Hick alleges support the factual allegations that he recites in his briefing on appeal. Hick assigns error to the trial court striking these documents, but does not argue this assignment of error. Rather, he simply asserts that "the appellate court is charged with reviewing all of the evidence presented to the trial court on a motion for summary judgment, including evidence the trial court subsequently struck." Br. of Appellant at 4, n. 1 (citing Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)). According to Hick, his failure to address the propriety of the trial court's evidentiary rulings in his briefing is of no matter because de novo review automatically encompasses all evidentiary rulings leading up to summary judgment. Thus, Hick simply directs us to read his pleadings below, contending that no additional argument is required for this court to reject the trial court's evidentiary rulings. See Reply Br. of Appellant at 3, n. 2 (citing Folsom, 135 Wn.2d at 663; RAP 9.12).
Hick's characterization of the holding in Folsom is incorrect, however. Folsom does not stand for the proposition that the evidentiary rulings of the trial court are irrelevant for purposes of appellate review. Rather, Folsom states that "[t]he de novo standard of review is used by an appellate court" reviewing evidentiary rulings made by a trial court in conjunction with a summary judgment order. Folsom, 135 Wn.2d at 663. This does nothing to change the rule that appellants waive assignments of error that they fail to argue in their opening appellate brief. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Merely directing the appellate court — in a footnote — to read the pleadings presented to the trial court does not constitute the "argument" required to preserve an issue on appeal. Because Hick provides no basis for us to conclude that the trial court's evidentiary rulings were erroneous, we decline Hick's invitation to base our decision on materials that the trial court ruled were irrelevant to the issues on summary judgment. Thus, we review the same record as did the trial court in making its decision.
This holding is itself of dubious provenance. It appears to overrule, without significant explanation, a long line of cases holding that a trial court's evidentiary rulings on summary judgment — as at every other point in the trial process — are reviewed for abuse of discretion. See, e.g., King County Fire Prot. Dist. No. 16 v. Hous. Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994) (upon review of summary judgment order, "[a] ruling on a motion to strike is discretionary with the trial court"); McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706, 782 P.2d 1045 (1989) (identical evidentiary issue as in Folsom; abuse of discretion standard); Bernal v. Am. Honda Motor Co., 87 Wn.2d 406, 413, 553 P.2d 107 (1976) (same).
Collective Bargaining Agreement
Hick contends that the trial court improperly granted summary judgment on his claim that King County breached its collective bargaining agreement with the King County Police Officers Guild when it fired him. This is so, according to Hick, because the collective bargaining agreement requires both just cause for discharge and the employment of progressive discipline. Hick contends that there were genuine issues of material fact concerning both whether the county had just cause to fire him and whether the county employed the required progressive discipline in his case. Because the valid protection order entered against Hick removed his ability to perform the basic functions of his job and because Hick's discharge was based on this inability rather than for disciplinary reasons, we reject Hick's contentions.
The collective bargaining agreement between King County and the King County Police Officers Guild provides, in relevant part:
Just Cause Standard: No employee may be discharged, suspended without pay or disciplined in any way except for just cause. The County will employ the concept of progressive discipline.
Our Supreme Court has defined "just cause" in the employment termination context as "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power." Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 139, 769 P.2d 298 (1989). The Supreme Court has observed that "'[j]ust cause' is a term of art in labor law. . . . Whether there is just cause for discipline entails much more than a valid reason; it involves such elements as procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty." Civil Serv. Comm'n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 173, 969 P.2d 474 (1999). See also Kitsap County Deputy Sheriff's Guild v. Kitsap County, 140 Wn. App. 516, 519-20, 165 P.3d 1266 (2007) (laying out seven factors typically considered in determining whether just cause exists).
According to Hick, the trial court erred by entering summary judgment on his collective bargaining agreement claim because his submissions to the trial court raised triable issues of fact about whether there was just cause to fire him. According to Hick, his submissions — although largely ruled to be irrelevant by the trial court — in fact show that members of the King County Sheriff's Office effectively conspired with Dornay to have a protection order entered against him and thus to have him fired.
The central problem with this argument is that even if members of the King County Sheriff's Office staff did aid Dornay in securing her protection order against Hick, it does not change the fact that the protection order prevented Hick from performing his job. King County sheriff's deputies are indisputably required to carry firearms as a requirement of their employment. The order entered against Hick prevented him from carrying or owning a firearm or any other weapon. Although Hick attempts to collaterally attack the validity of the protection order, the substance of the order was repeatedly affirmed, albeit with a term of expiration imposed. Hick could not perform the basic functions of a sheriff's deputy until the order ultimately expired in 2005. This being the case, to hold that the collective bargaining agreement required King County to retain Hick on its payroll would be to conclude that the King County Sheriff's Office is barred from firing employees even if they are, for years, categorically unfit to serve. We decline to so hold.
Nor would the fact that county staff assisted Dornay serve to undermine the existence of the facts that provided the basis for the entry of the protection order — that Hick was violent toward Dornay and repeatedly threatened to kill her, her family, and her pets. Indeed, providing assistance to victims of domestic violence is precisely the type of activity that one would hope for and expect from a county sheriff's office.
Hick's final contention — that the collective bargaining agreement required King County to apply progressive discipline to Hick prior to terminating his employment — is similarly unconvincing. First, King County did not fire Hick for misconduct. It fired him because he was unable to perform his job due to the protection order entered against him. Thus, it is incorrect to apply the term "discipline" to Hick's discharge. Second, even if Hick's discharge had been for misconduct rather than incapacity, the language of the collective bargaining agreement itself does not require King County to apply a tiered system of discipline in every conceivable instance.
The trial court correctly concluded that no genuine issue of material fact exists with respect to whether King County violated the collective bargaining agreement. Accordingly, its entry of summary judgment on Hick's collective bargaining agreement claim was proper. We affirm.
Violation of Public Policy
Hick next contends that the trial court erred when it entered summary judgment against him on his claim that his discharge violated Washington's public policy. Hick contends that this is so because he can demonstrate sufficient facts showing that King County's actions contravened a clear mandate of that public policy. Hick fails to demonstrate in the first instance, however, that any clear public policy exists that barred his dismissal.
Generally, terminable-at-will employees may be fired without cause. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 935, 913 P.2d 377 (1996). Washington recognizes that terminable-at-will employees may assert a cause of action for wrongful discharge, however, "when an employer discharges an employee for reasons that contravene a clear mandate of public policy." Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P.3d 119 (2005). "The cause of action is also available to employees who are dischargeable only for cause (and who may be covered by a collective bargaining agreement)." Korslund, 156 Wn.2d at 178. "To satisfy the elements of the cause of action, the 'plaintiff must prove (1) the existence of a clear public policy . . . (2) that discouraging the conduct in which [he or she] engaged would jeopardize the public policy . . . and (3) that the public-policy-linked conduct caused the dismissal.'" Korslund, 156 Wn.2d at 178 (quoting Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002)). "Thus, to state a cause of action, the employee must plead and prove that a stated public policy, either legislatively or judicially recognized, may have been contravened." Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984).
Hick failed to sufficiently allege or to show facts demonstrating that his dismissal violated any of Washington's recognized public policies. He states that his dismissal was pretextual, insinuating that the actual cause of his discharge was retaliation by Sheriff Reichert for Hick's involvement in a lawsuit against King County. First, however, Hick failed to intelligibly articulate to the trial court the established public policy that his discharge allegedly violated. Thus, Hick failed to establish the first element of a claim for discharge in violation of public policy. Second, even had the documents that Hick submitted as purported support for his public policy claim not been properly struck by the trial court, those documents, when viewed in the light most favorable to Hick, would still fail to create a genuine issue of material fact about whether Hick's discharge was retaliatory in nature. Hick's discharge was explicitly due to the fact that a valid court order was entered against him that prevented him from performing the basic functions of his job. None of the exhibits proffered by Hick seriously call this fact into doubt, much less demonstrate that the entry of the district court's order was somehow engineered by King County as a pretext for firing Hick. Thus, even if Hick had met his burden of articulating the public policy element of his claim, he failed to establish a triable question of fact regarding whether the purported retaliatory conduct caused his dismissal. The trial court did not err by dismissing this claim.
Amendment of Complaint
Hick next contends that the trial court erred when it denied his motion to amend his complaint to include a claim that King County breached its promise to provide Hick with specific treatment in a specific circumstance. According to Hick, King County promised to retain Hick on administrative leave pending the outcome of its internal investigation into his misconduct, and that by firing him when the permanent protection order was entered against him, the county violated this promise. Because there was no legal basis for this claim and its maintenance would have been futile, we conclude that the trial court correctly denied Hick leave to amend his complaint.
The parties dispute the correct standard of review. Hick contends, without providing any authority for the proposition, that the trial court's denial of his motion to amend was an error of law, and thus should be reviewed de novo. Citing Shelton v. Azar, Inc., 90 Wn. App. 923, 928, 954 P.2d 352 (1998), King County responds that the well-established standard of review for trial court denials of leave to amend complaints is abuse of discretion. King County observes that numerous appellate opinions have applied this standard when the trial court's rationale for denying leave to amend is futility. See, e.g., Shelton, 90 Wn. App. at 928. See also Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154, 943 P.2d 1358 (1997); Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 374-75, 112 P.3d 522 (2005); Deschamps v. Mason County Sheriff's Office, 123 Wn. App. 551, 563, 96 P.3d 413 (2004). King County correctly contends that there is no reason whatsoever to apply a different standard here.
Breach of promise for specific treatment in a specific employment situation is a valid claim under Washington law. "The elements of this contract-based claim are: (1) a promise of specific treatment in a specific situation, (2) justifiable reliance on the promise by the employee, and (3) a breach of the promise by the employer." Korslund, 121 Wn. App. at 323 (citing Bulman v. Safeway, Inc., 144 Wn.2d 335, 340-41, 27 P.3d 1172 (2001)).
The trial court denied Hick leave to amend his complaint to include this claim because it found that he did "not assert legally viable claims." Hick articulated as the factual basis for his claim the statement in the initial sheriff's office memorandum that he would "remain on administrative leave until such time as the [internal police] investigation is concluded." But Hick lifts a single sentence from the memorandum, omitting the rest of the document. The memorandum itself continues on to provide that its terms would only "remain in force pending a decision by the Sheriff." Thus, Hick's own submissions to the trial court show that King County never actually promised to keep him on administrative leave for any set period, thus vitiating the first element of his asserted claim — the existence of a valid promise. He also provided no documentation that convincingly demonstrates that he forewent other employment on the basis of King County's statement, thus vitiating the second element of the claim, reliance. The trial court correctly concluded that, because of these failures, Hick's claim for breach of promise of specific treatment in a specific circumstance was futile. Accordingly, the trial court did not abuse its discretion when it denied Hick leave to amend his complaint to include the claim.
Collateral Estoppel
Hick next contends that the trial court erroneously applied the doctrine of collateral estoppel to preclude him from presenting evidence in his suit against King County that he had not, in fact, threatened to kill Dornay, her family, and her pets. Because Hick was party to a final judgment based solely on the ultimate factual finding that he threatened to use a weapon to kill Dornay, her family, and her pets, we conclude that the trial court's application of collateral estoppel to Hick's claims was correct.
Whether collateral estoppel applies to bar relitigation of an issue is reviewed de novo on appeal. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).
In order for a trial court to properly apply collateral estoppel, it must find that the party asserting the doctrine's applicability has shown that: (1) the issue decided in the prior adjudication is identical with the one presented in the subsequent adjudication; (2) the prior adjudication ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) application of the doctrine will not work an injustice. Hanson v. City of Snohomish, 121 Wn.2d 552, 561-62, 852 P.2d 295 (1993). "Collateral estoppel is concerned only with limiting the relitigation of factual issues. The rule has nothing to do with restricting arguments on pure issues of law." 14A Karl B. Tegland, Washington Practice: Civil Procedure § 35.33, at 479-80 (1st ed. 2003). "[C]ollateral estoppel extends only to 'ultimate facts', i.e., those facts directly at issue in the first controversy upon which the claim rests, and not to 'evidentiary facts' which are merely collateral to the original claim." McDaniels v. Carlson, 108 Wn.2d 299, 305, 738 P.2d 254 (1987) (citing Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L.Rev. 805, 833-34 (1985)).
Hick has attempted throughout the course of this litigation to insinuate that the protection order entered by the district court was flawed, invalid, or based on perjured testimony by Dornay. He has repeatedly brought into issue whether he made the threats that were the principal basis for the district court's entry of a valid and final judgment against him. The district court's determination that Hick made the threats was upheld in the face of his attempts to challenge it upon his motion for reconsideration, his appeal to the superior court, and on the cause's remand to the district court. The trial court in this action properly concluded that whether Hick made threats against Dornay was the ultimate factual issue decided by the district court in the district court's hearing on the protection order. Hick lost the right to further appeal the validity of the district court's resolution of this issue when he abandoned his appeal of that court's final order. Accordingly, the trial court properly applied collateral estoppel to preclude Hick's attempt to relitigate the issue.
Subpoena Duces Tecum
Hick's final contention is that the trial court abused its discretion when it quashed his subpoena directed to King County Deputy Prosecutor Mark Stockdale. Hick contends that, contrary to the ruling of the trial court, Stockdale's communications with King County were not protected by attorney-client privilege and the work product doctrine. According to Hick, this is so because Stockdale interviewed persons not party to this action, specifically Dornay and Hick's ex-wife, while acting on behalf of his client, King County. Hick's argument fundamentally misunderstands the scope of the work product protection.
This court's commissioner denied a motion by King County to dismiss this aspect of Hick's appeal because Hick failed to include the county's reply pleading on the motion to quash below. Because the reply pleading is not necessary in order to affirm the trial court's judgment on this issue, we need not address the commissioner's ruling.
An attorney's work toward gathering factual information on behalf of his client is protected from disclosure to the opposing party "unless the person requesting disclosure demonstrates substantial need and an inability, without undue hardship, to obtain the documents or items from another source." Limstrom v. Ladenburg, 136 Wn.2d 595, 611, 963 P.2d 869 (1998). Here, Hick sought to depose Stockdale precisely because Stockdale, while acting in his capacity as King County's attorney, obtained factual information from Dornay and Hick's ex-wife. This type of material — the fruits of interviews conducted by the opposing party's attorney — is precisely that to which the work product doctrine is intended to prevent access. Information from the people interviewed by this attorney could easily have been obtained by Hick simply through the mechanism of conducting depositions. There was no error. Affirmed.