Opinion
Main Case 01-05127, Number:, Adversary A03-00237, Number:.
September 8, 2008
The plaintiffs Linda Bays and Kelly Case are suing the defendants Bastine, Wittstock, Hardy and the Spokane County Superior Court for the tort of outrage. This matter comes before the court upon motions for summary judgment relating to the tort of outrage filed by Linda Bays [AP #557], Kelly Case [AP #570] and the defendants Bastine, Wittstock, Hardy and Spokane County Superior Court. [AP #549].
PROCEDURAL HISTORY
Paul Bastine, individually and his marital community, were among the original defendants named in Linda Bays' "Complaint for Damages and for Injunctive Relief" filed in Stevens County Superior Court. [AP #1, pg 7-20]. Ms. Bays complained about Judge Paul Bastine's alleged misconduct while presiding over her dissolution case with David Bays. Her state court lawsuit was removed to bankruptcy court and became this adversary proceeding. [AP #1].
Linda Bays filed an amended complaint in this adversary proceeding. [AP #104]. This amended complaint added Kelly Case as a plaintiff, and Wittstock, Hardy and Spokane Superior Court as defendants. The new complaint included numerous causes of action against the original state defendants and the added other defendants.
Defendants Bastine, Wittstock, Hardy and Spokane County moved to dismiss the lawsuit for failure to state a claim. [AP #153]. This court granted this motion in part. The court remanded to Stevens County Superior Court plaintiffs' claims against defendants Bastine, Wittstock, Hardy and Spokane County, for civil rights violations, official misconduct, and for injunctive and declaratory relief. [AP #s 195, 193, 194 192; ¶ s 3, 5 10 respectively]. This court dismissed plaintiffs' claims for slander of title, Quiet Title, abuse of the bankruptcy laws, offset, malpractice and breach of contract. [AP #s 195, 193, 194 192; ¶ 4, 6 9 respectively]. The only cause of action against defendants Bastine, Wittstock, Hardy and Spokane County Superior Court that this court did not either dismiss or remand was for outrage, the cause of action currently before this court for summary judgment. [AP #s 195, 193, 194 192; ¶ 8 respectively].
On May 29, 2008, Linda Bays orally moved to dismiss her set off claims against David Hardy, Joe Wittstock, and Paul Bastine. This court entered an order granting that motion on May 30, 2008. [AP #633]. Also on May 29, 2008, Kelly Case orally moved to dismiss his set off claims against David Hardy and Joe Wittstock. This court entered an order granting that motion on May 30, 2008. [AP # 630]. The court notes that these set off claims had previously been dismissed with prejudice as to Joe Wittstock [AP #193 ¶ 7], David Hardy [AP #194 ¶ 7], and Paul Bastine [AP #195]. The May 30, 2008 set off orders are redundant, the claims of set off they refer to having been dismissed with prejudice on November 8, 2004.
On May 30, 2008, this court dismissed Kelly Case's claim for outrage against David Hardy and Joe Wittstock on Kelly Case's oral motion. [AP #631].
As a result of this procedural history, Linda Bays still has outrage causes of action against Paul Bastine, Joe Wittstock, David Hardy and Spokane County Superior Court. Kelly Case still has outrage causes of action against Paul Bastine and Spokane County Superior Court. It is these remaining outrage claims that are before the court for summary judgment. [AP #s 549, 557 and 570].
FACTS
I. LINDA BAYS OUTRAGE CLAIMS
A. Against Paul Bastine
Paul Bastine at all times relevant to the facts in the complaint was a Spokane County Superior Court judge. Pursuant to a procedure which Linda Bays challenged, Judge Bastine was assigned to sit as a visiting judge in Pend Oreille County Superior Court on the Bays dissolution case. Ms. Bays had appeared before Judge Bastine in the past. [AP #566 pgs. 13-14]. When he appeared as the judge in the dissolution case she was concerned about bias against her and unsuccessfully attempted to have him removed from hearing her dissolution case. [AP #566 pgs. 15-18]. Judge Bastine rejected her jurisdictional arguments [AP #566 pg 18] and allowed her lawyer to withdraw over her objection with trial date eminent. [AP #566 pg 19]. Despite letters from her doctors Judge Bastine denied her request for a continuance. [AP #566 pgs. 25-27]. Judge Bastine conducted the dissolution trial in her absence and without legal representation for Linda. He ruled in favor of David Bays on the contested issues of fact and conclusion of law and entered a decree which was very unfavorable to her. [AP #61 62]. Judge Bastine subsequently denied her post trial motions and the decree became final.
In this process, Ms. Bays alleges that Judge Bastine conspired with Joe Wittstock, his court reporter, to provide an inaccurate transcript of the proceeding and with David Hardy the Spokane County administrator to be assigned the case.
Ms. Bays relies on this conduct to support her claim of outrage against Judge Bastine.
B. Against Joe Wittstock
Joe Wittstock was the court reporter during Judge Bastine's handling of the Bays' dissolution case. Ms. Bays alleged that Mr. Wittstock conspired with Judge Bastine in altering the transcript of the court proceeding by omitting material that was favorable to Ms. Bays. [AP #566 pgs. 3-6]. Evidence of the alleged omitted material was filed with the Pend Oreille Superior Court on April 27, 2004. [AP #567 pgs. 10-22]. But that court apparently declined to correct the transcript. [AP #566 pg. 4].
Ms. Bays bases her outrage claim against Joe Wittstock on these allegations.
C. Against David Hardy
David Hardy is a Spokane County court administrator. He participated in assigning Judge Bastine as a visiting judge to hear the Bays dissolution in Pend Oreille Superior Court. Ms. Bays contends he had no authority to make this assignment. [AP #566 pgs. 1-3]. She contends this is part of a conspiracy against her.
Ms. Bays bases her outrage claim against David Hardy on these allegations.
D. Against Spokane County Superior Court
Ms. Bays bases her outrage claim against Spokane County on the fact that it employed Judge Bastine, Mr. Wittstock and Mr. Hardy and is allegedly liable for its employees' conduct.
II. KELLY CASE OUTRAGE CLAIMS
A. Against Paul Bastine
Judge Bastine's findings of facts, conclusion of law and decree in the dissolution case appear to adjudicate Kelly Case's rights in various parcels of property. Kelly Case was not a party to the Bays dissolution. Mr. Case challenged Judge Bastine's attempt to adjudicate Case's property interests as outrageous conduct. The balance of Mr. Case's complaints of outrage are based on the judge's conduct in dealing with his mother, Linda Bays, in the dissolution litigation.
B. Against Spokane County
Kelly Case's outrage claims against Spokane County are presumably based upon the fact the county employed Judge Bastine, Mr. Wittstock and Mr. Hardy at the time of the alleged torteous acts and are thus responsible for the acts of its employees.
DISCUSSION
I. LINDA BAYS VS. JUDGE BASTINE
A. Immunity
All Linda Bays' complaints against Paul Bastine arise out of his conduct as Superior Court Judge presiding over her dissolution case with David Bays. The actions complained of are all judicial in nature. Judge Bastine is entitled to absolute immunity from damages arising out of his judicial acts. Forrester v. White, 484 U.S. 219, at 225-226 (1988). As a result judicial immunity bars Linda Bays' claim of outrage against Judge Paul Bastine.
B. Claim Preclusion/Issue Preclusion
Even if Ms. Bays' claim of outrage against Judge Bastine was not barred by judicial immunity, she would be barred from asserting it under the doctrines of claim preclusion/issue preclusion.
Linda Bays bases her outrage claim against Judge Paul Bastine on the premise that he was wrong when he rejected her version of the facts and decided the dissolution case against her. It is also based on the premise that the decisions in the Bays v. Bays dissolution at the appellate levels were wrong. The fatal flaw with her argument is that Ms. Bays is bound by those decisions, as is this court. State v. Mullin-Coston, 152 Wash.2d 107 at 113 95 P.3d 321 at 324 (2004); In re Harmon, 250 F.3d 1240 at 1246 (9th Cir. 2001). [See also AP #515 at pg 3]. She is precluded from making that claim and this court is precluded from accepting it.
The issue presently before this court is not one of claim preclusion (res adjudicata). Rather it is one of issue preclusion (collateral estoppel). Linda Bays is suing Judge Bastine for outrage because he wrongfully ruled against her in the dissolution. The fundamental premise of her outrage claim against Judge Bastine is that the dissolution judgment is unjust, resulting in emotional distress, for which he is partly responsible.
Ms. Bays' collateral attack upon the dissolution decree necessarily implicates the doctrine of issue preclusion.
This court has discretion in regard to the application of issue preclusion. In re Lopez, 367 B.R. 99 at 107 (9th Cir. BAP 2007). The Full Faith and Credit Act ( 28 U.S.C. § 1738) requires that this court give state court judgments the same preclusion effect such judgment would enjoy under state law. In re Lopez, 367 B.R. at 106.
The elements of issue preclusion under Washington law were stated in the case of State v. Mullin-Coston, where the court said:
The party seeking to enforce the rule must show that:
"(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of [the] doctrine must not work an injustice."
152 Wash.2d 107, 114 95 P.3d 321, 324 (2004) (citing State v. Bryant, 146 Wash.2d 90, 98-99, 42 P.3d 1278 (2002)).
The court will analyze how these elements would apply to Linda Bays' claim of outrage against Judge Bastine.
1. Identical Issue
Linda Bays seeks to challenge the correctness of the final judgment entered in the dissolution. The issues are identical.
2. Final Judgment on the Merits
The decision in the dissolution court was appealed and affirmed. It is final.
3. Against a Party or Person in Privity
Linda Bays was a party in the dissolution case.
4. Work as Injustice
Linda Bays contends that the dissolution trial should have been continued because her medical condition kept her from attending and representing herself. She sought a continuance but that was denied and the trial proceeded in her absence. Post trial, she challenged the court's jurisdiction, its findings and its conclusions but these motions were denied as well. She appealed the trial court's judgment to the Court of Appeals which affirmed the decision. The Supreme Court denied review. During that process Ms. Bays either raised or had the opportunity to raise the same issues she complains of here.
Accordingly, it would not work an injustice to preclude Ms. Bays' challenge to the dissolution court's findings conclusions and decree as it relates to her claim of outrage against Judge Bastine.
C. Civil Conspiracy
Linda Bays has also alleged in support of her claim of outrage that Judge Bastine engaged in a conspiracy against her.
A recent statement of what is required to prove civil conspiracy is found in All Star Gas, Inc., Of Washington v. Bechard, 100 Wash.App. 732, 998 P.2d 367 (2000). The court ruled:
To establish a civil conspiracy, All Star must prove by clear, cogent, and convincing evidence that (1) two or more people combined to accomplish an unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and (2) the conspirators entered into an agreement to accomplish the conspiracy. Wilson v. State, 84 Wash.App. 332, 350-51, 929 P.2d 448 (1996), cert. denied, 522 U.S. 949, 118 S.Ct. 368, 139 L.Ed.2d 286 (1997). "Mere suspicion or commonality of interests is insufficient to prove a conspiracy." Id. "[When] the facts and circumstances relied upon to establish a conspiracy are as consistent with a lawful or honest purpose as with an unlawful undertaking, they are insufficient." Lewis Pacific Dairymen's Ass'n v. Turner, 50 Wash.2d 762, 772, 314 P.2d 625 (1957).
Ibid., 100 Wash.App. 740, 998 P.2d 372.
Ms. Bays claims that Judge Bastine conspired against her. The acts about which she complains, took place during the course of a hotly contested dissolution presided over by Judge Bastine.
Her allegations of conspiracy are conclusory and are not supported by evidence. She has not presented evidence of any agreement between Judge Bastine and any of the other alleged co-conspirators. Discussions over lunch or in the course of preparing and conducting litigation "are as consistent with a lawful or honest purpose as with an unlawful undertaking . . ." Ibid.
Even if Judge Bastine was not protected by judicial immunity, the evidence presented is insufficient to support a claim of conspiracy against Judge Bastine under even the preponderance standard much less the clear, cogent and convincing standard applicable in Washington.
D. Outrage
Washington only allows recovery for outrage in the absence of other tort remedies. Rice v. Janovich, 109 Wash.2d 48 at 62, 742 P.2d 1230 at 1239 (1987). The court has found that the evidence presented by Ms. Bays against Judge Bastine is insufficient to support claims of civil conspiracy. It remains to be seen whether the actions of Judge Bastine complained of by Ms. Bays would support a viable claim of outrage if he wasn't protected by judicial immunity.
"`[O]utrage' and `intentional infliction of emotional distress' are synonyms for the same tort. Kloepfel v. Bokor, 149 Wash.2d 192 at 194 FN1, 66 P.3d 630 at 631 FN1 (2003). As outlined by the Washington State Supreme Court:
The tort of outrage requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress. (Citations omitted).
Ibid, 149 Wash.2d at 196, 66 P.3d at 633.
Ms. Bays presented evidence that Judge Bastine had knowledge of Ms. Bays' mental and physical state. The plaintiffs' evidence on the second and third of these elements of the tort of outrage is at least arguable under the facts presently before the court. Accordingly, the court will focus on whether the conduct complained of here was "extreme and outrageous."
It is clear in Washington that the actions triggering a finding of outrage must be very unusual.
. . . It is the law of this state that liability can be found only where the conduct had been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community . . .
Woodward v. Steele, 32 Wash.App. 152, at 155-156, 646 P.2d 167, at 169-170 (1982).
Even if the conduct complained of is truly extreme and outrageous it still might be privileged.
. . . [T]he conduct although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he's done no more than insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.
Ibid, 32 Wash.App. at 155-156, 646 P.2d at 170 (1982).
It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.
Restatement (Second) of Torts, Section 46, Comment h.
All the complained-of activities took place in the context of the dissolution case. Those actions have been reviewed by the state appellate courts. This court has reviewed them as well. Judge Bastine's actions complained of here do not as a matter of law reach the threshold of outrageous behavior, "atrocious and intolerable in a civilized society." Even if Judge Bastine was not entitled to judicial immunity Ms. Bays has not made a prima facie case of outrage against Judge Bastine.
E. Conclusion: Linda Bays outrage claims against Judge Bastine
The actions complained to do not rise to the level of outrageous behavior. Even if they did, Judge Bastine is entitled to judicial immunity. As the United States Supreme Court stated in Forrester v. White, 484 U.S. 219 at 228 (1988):
Judicial immunity apparently originated in medieval times, as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error. See Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 Duke L.J. 879. More recently, this Court found that judicial immunity was "the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country." Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed 646 (1872). Besides protecting the finality of judgments or discouraging inappropriate collateral attacks, the Bradley Court concluded, judicial immunity also protected judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants. Id., at 348.
If Ms. Bays was aggrieved by Judge Bastine's conduct in her dissolution case, her remedy was to appeal that decision. She did and she lost. She can not now sue the judge for outrageous conduct. That is an impermissible collateral attack on the dissolution judgment.
II. OUTRAGE: LINDA BAYS VS. JOE WITTSTOCK
A. Immunity
Ms. Bays is suing Joe Wittstock for failure to provide an accurate transcript of the proceedings in her dissolution case. This appears to be a ministerial act and Mr. Wittstock is not entitled to quasi judicial immunity. Antoine v. Byers Anderson Inc, 508 U.S. 429 (1993).
B. Claim Preclusion/Issue Preclusion
Ms. Bays' claims against Mr. Wittstock are based on the premise that the Bays dissolution was wrongfully decided and that her appeal of that decision was hampered by Mr. Wittstock's inaccurate transcript.
As this court has concluded above, Ms. Bays is barred by the doctrine of claim preclusion from challenging the final judgment in the Bays dissolution.
This outrage cause of action against Mr. Wittstock is not the same claim, therefore it is not precluded under the doctrine of claim preclusion. The outrage cause of action against Wittstock is viable only if the Bays dissolution findings of fact, conclusions of law and decree were wrongfully decided. This is vital to Ms. Bays' claim of outrage. This challenge to the dissolution decree necessarily implicates the doctrine of issue preclusion.
This court has previously referred to the elements considered in application of the doctrine of issue preclusion in the State of Washington. State v. Mullin-Coston, 152 Wash.2d 107, 114 95 P.3d 321, 324 (2004).
See the discussion at page 6-9
The court will analyze how the elements apply to Linda Bays' claim of outrage against Mr. Wittstock.
1. Identical Issue
Linda Bays seeks to challenge the correctness of the final judgment entered in the dissolution. The issues are identical.
2. Final Judgment on the Merits
The decision in the dissolution court was appealed and affirmed. It is final.
3. Against a Party or Person In Privity
Linda Bays was a party in the dissolution case.
4. Work as Injustice
It appears that Linda Bays raised the issue of an inaccurate transcript before the state court. [AP #567 pg. 10-22]. It is not clear in the record how this was done procedurally. [AP #566 pg. 4]. But that attempt to supplement the record evidently failed. [AP #566 pg. 4]. The court concludes that the issue was at least raised with state court.
This court's review of the "Amendments to Verbatim Report of Proceedings dated August 15, 2002" [AP #567 pg. 10-22] which is the alleged omitted language for the court hearing, does not reveal anything which would be outcome determinative in the omitted materials.
The court concludes that it would not work an injustice to preclude Linda Bays from raising the issue of the correctness of the Bays judgment in support of her claim of outrage against Joe Wittstock.
C. Civil Conspiracy
Linda Bays has also alleged in support of her claim of outrage that Mr. Wittstock engaged in a conspiracy against her. This court has discussed in detail the elements required to prove civil conspiracy in Washington at pages 9 and 10 of this decision. Ms. Bays has failed to prove any of these elements in relation to her claim against Mr. Wittstock. Her allegations of conspiracy are conclusory and are not supported by evidence. Ms. Bays has not presented evidence of any agreement between Joe Wittstock, Judge Bastine, or any of the other defendants. Her allegation of errors in transcription of the August 15, 2002 hearing are as easily explained by negligence as by unlawful conspiracy. The evidence presented is insufficient to support a claim of conspiracy against Mr. Wittstock under even the preponderance standard much less the clear, cogent and convincing standard applicable in Washington.
D. Outrage
This court has discussed the elements of the tort of outrage in this opinion at pages 10 and 11. The actions of Mr. Wittstock complained of here by Ms. Bays do not as a matter of law reach the threshold of outrageous behavior "atrocious and intolerable in a civilized society.
E. Conclusion: Linda Bays' outrage claim vs. Wittstock
Ms. Bays has not made a prima facie case of outrage against Joe Wittstock.
III. LINDA BAYS V. DAVID HARDY
A. Immunity
Linda Bays bases her outrage claim against David Hardy on the allegation that he was responsible for assigning Judge Bastine to hear the Bays dissolution. Case assignment is essentially a judicial function. As such it is entitled to quasi-judicial immunity even if it is exercised by a nonjudicial officer. In re Castillo, 297 F.3d 940 at 947 (9th Cir. 2002); Forrester v. White. 484 U.S. 219 (1988). David Hardy is protected from Linda Bays' claim of outrage by quasi-judicial immunity.
B. Claim Preclusion/Issue Preclusion
The state courts have decided that Judge Bastine's assignment to hear the Bays dissolution was proper. In re Bays, 131 Wash.App 1032, 2006 WL 281143 (2006). Linda Bays is precluded from attacking that ruling by raising the issue of the correctness of that decision in her outrage claim against David Hardy.
C. Civil Conspiracy
Linda Bays has failed to provide evidence sufficient to make a prima facie case of conspiracy against David Hardy under even the preponderance of evidence standard, much less the clear cogent and convincing standard applicable in the state of Washington.
D. Outrage
The actions of David Hardy complained of here by Ms. Bays do not as a matter of law reach the threshold of outrageous behavior "atrocious and intolerable in a civilized society."
E. Conclusion: Linda Bays' Outrage Claim vs. Hardy
Ms. Bays has not made a prima facie case of outrage against David Hardy.
IV. OUTRAGE: LINDA BAYS VS. SPOKANE COUNTY
Linda Bays relies on the conduct of Judge Bastine, Joe Wittstock, and David Hardy to prove her claim of outrage against Spokane County. The court has found that none of these county employees are liable for outrage to Ms. Bays. Since they are not liable to Ms. Bays, neither is the County.
V. OUTRAGE: KELLY CASE VS. JUDGE BASTINE
A. Immunity
All of Judge Bastine's actions complained of by Kelly Case in support of his claim of outrage arise out of Judge Bastine's conduct as a judge in the Bays dissolution. Judge Bastine is immune from civil liability for conduct in a judicial capacity.Forrester vs. White, 484 U.S. 219 (1988).
B. Outrage
Even if Judge Bastine was not protected by judicial immunity, his actions in handling the Bays litigation were not outrageous.
VII OUTRAGE: KELLY CASE VS. SPOKANE COUNTY
Kelly Case has failed to prove a prima facie case of outrage.
CONCLUSION
Linda Bays has failed to make a prima facie case of outrage against Judge Paul Bastine, individually or his martial community.
Linda Bays has failed to make a prima facie case of outrage against Joe Wittstock, individually or his martial community.
Linda Bays has failed to make a prima facie case of outrage against David Hardy, individually or his marital community.
Linda Bays has failed to make a prima facie case of outrage against Spokane County.
Kelly Case failed to make a prima facie case of outrage against Judge Bastine, individually or his martial community.
Kelly Case failed to make a prima facie case of outrage against Spokane County.
Linda Bays' claims of outrage against Judge Paul Bastine, Joe Wittstock, David Hardy and Spokane County should be dismissed with prejudice. These defendants' motions for summary judgment should be granted and Linda Bays' motion for summary judgment denied.
Kelly Case's claims of outrage against Judge Paul Bastine and Spokane County should be dismissed with prejudice. These defendants' motions for summary judgment should be granted and Kelly Case's motion for summary judgment denied.
With this decision there are no remaining claims in this adversary proceeding against defendants Bastine, Wittstock, Hardy and Spokane County. The court directs final judgment on Linda Bays' and Kelly Case's claims against these defendants and finds that there is no just reason for delay pursuant to F.R. Bkrtcy. Proc. 7054, F.R. Civ. P 54(b).