The Court of Appeals of the RICHARD D. JOHNSON, Court Administrator/Clerk State of Washington DIVISION I One Union Square 600 University Street Seattle, WA 98101-4170 (206) 464-7750 TDD: (206) 587-5505 May 18, 2017 Lincoln Charles Beauregard Connelly Law Offices 2301 N 30th St Tacoma, WA 98403-3322 lincolnb@connelly-law.com Dean Standish Perkins, JR Dean Standish Perkins & Assoc 119 First Ave S Ste 310 Seattle, WA 98104 dean@deanstandishperkins.com Lafcadio H Darling Holmes Weddle & Barcott, P.C. 999 3rd Ave Ste 2600 Seattle, WA 98104-4011 ldarling@hwb-law.com Michael David Helgren McNaul Ebel Nawrot Et Al 600 University St Ste 2700 Seattle, WA 98101-3143 mhelgren@mcnaul.com Matthew J. Campos McNaul Ebel Nawrot & Helgren PLLC 600 University St Ste 2700 Seattle, WA 98101-3143 mcampos@mcnaul.com CASE #: 76571-0-I Melissa Eckstrom, Respondent v. Sigurd Hansen, Petitioner Counsel: The following notation ruling by Commissioner Mary Neel of the Court was entered on May 18, 2017, regarding Petitioner's Motion for Discretionary Review: Plaintiff/respondent Melissa Eckstrom filed a complaint for personal injuries against her father, Sigurd Hansen, based on allegations that he sexually abused her long ago. Mr. Hansen filed a motion to dismiss based on res judicata and/or collateral estoppel. The trial court denied the motion to dismiss and thereafter certified the matter for discretionary review under RAP 2.3(b)(4). The certification is well taken, and review is granted. Melissa Eckstrom, born in 1988, is the daughter of Lisa Eckstrom and Sigurd Hansen. The parents were married in the fall of 1987 and separated about a month later. The primary focus of the 1992 dissolution trial was the issue of whether Mr. Hansen had sexually abused his daughter during visits. Page 1 of 4 76571-0-I Page 2 of 4 Lisa vigorously asserted that he had done so. Sigurd denied the allegations. The court appointed a guardian ad litem (GAL) to represent Ms. Eckstrom. There were multiple experts involved, including physicians, a social worker/therapist, and a child psychiatrist independently appointed to determine if the abuse occurred. The opinions of the experts conflicted, but the GAL, psychiatrist, and others reported that the probability the abuse occurred was extremely low. The trial court heard all the evidence and determined that Mr. Hansen did not sexually abuse his daughter. (The court also rejected allegations that the paternal grandparents abused Ms. Eckstrom). After some supervised efforts to reunite Ms. Eckstrom and Mr. Hansen, the efforts ended, and in late 1993 Mr. Hansen relinquished his parental rights. Ms. Eckstrom and Mr. Hansen did not have contact until 2010, when Ms. Eckstrom contacted Mr. Hansen and met with him along with a social worker. Ms. Eckstrom asked Mr. Hansen for money. They had some discussions, but reached no agreement. Ms. Eckstrom filed a personal injury complaint against Mr. Hansen based on allegations that he sexually abused her more than 25 years ago, when she was two years old. Mr. Hansen moved to dismiss the complaint based on res judicata and/or collateral estoppel. Res judicata is a doctrine of claim preclusion. It bars relitigation of a claim that has been determined by a final judgment. Res judicata applies where the subsequent action involves (1) the same subject matter, (2) the same cause of action, (3) the same persons or parties, and (4) the same quality of persons for or against whom the decision is made as did a prior adjudication. Collateral estoppel is a doctrine of issue preclusion. It bars relitigation of issues of ultimate fact that have been determined by a final judgment. Collateral estoppel requires that (1) the identical issue was decided in the prior adjudication, (2) the prior adjudication resulted in a final judgment on the merits, (3) collateral estoppel is asserted against the same party or a party in privity with the same party to the prior adjudication, and (4) precluding relitigation of the issue will not work an injustice. (citations omitted). Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730-31, 254 P.3d 818 (2011); City of Arlington v. Hearings Bd., 164 Wn.2d 768, 791-92, 193 P.3d 1077 (2008) (resurrecting the same claim in a subsequent action is barred by res judicata; when a subsequent action is on a different claim yet depends on the issues determined in the prior action, relitigation of those issues is barred by collateral estoppel). The doctrines promote judicial economy and serve to prevent inconvenience or harassment of parties; principles of finality, repose and resources are also implicated. Christensen v. Grant County Hospital Dist. No. 1, 152 Wn.2d 299, 306-07, 96 P.3d 957 (2004). The party against whom the doctrines are asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding. Christensen, 152 Wn.2d at 307. Mr. Hansen argued that each element of res judicata and collateral estoppel are met, including: the identical, fundamental issue – whether he sexually abused his daughter – was resolved in the dissolution; the issue was resolved in his favor and resulted in a final determination that the alleged abuse did not occur; Ms. Eckstrom’s interests received a full and fair hearing; her interests were represented by her GAL and the independently appointed child psychiatrist, as well as her mother; her statements about the alleged abuse were admitted through other witnesses without redaction or cross examination; and it would be an injustice to allow her to bring these claims more than twenty five years later, where some of the witnesses and evidence may no longer be available. 76571-0-I Page 3 of 4 Ms. Eckstrom argued that several elements are not met, including: she was not a named party in the prior action and was not in privity with her mother; she had no ability to control the prior litigation; her current personal injury action is different than the dissolution, and the standard of proof may be different (although she has not identified the applicable standards); and she has a right to have a jury hear her case. She argued that much of the evidence remains available and that there is new evidence not previously presented, her flashback memories of the abuse. Ms. Eckstrom also raised the public policy set out in the statute of limitations for actions based on childhood sexual abuse, which allows alleged victims an opportunity to bring their claims, sometimes long after the abuse, where they previously did not connect the abuse with resulting harm. See RCW 4.16.340. C.J.C. v. Corp. of the Catholic Bishop of Yakima, 138 Wn.2d 699, 712, 985 P.2d 262 (1999) (legislature’s primary concern in enacting special statute of limitations was to provide a broad avenue of redress for victims of childhood sexual abuse who too often were left without a remedy under previous statutes of limitation); Miller v. Campbell, 137 Wn. App. 762, 773, 155 P.3d 154 (2007) (the legislature has found that child sexual abuse, by its nature, may render the victim unable to understand or connect the abuse and the full extent of resulting emotional harm until many years later; for that reason the statute of limitations is closely intertwined with the equities of applying judicial estoppel; plaintiff’s assertion of childhood sexual abuse claim in 2003 is not clearly inconsistent with his failure to mention a claim based on the abuse in his 1998 bankruptcy schedule of assets). Mr. Hansen argued that the statute of limitations has no application here, where professionals thoroughly assessed whether the alleged abuse occurred, and the trial court weighed all the evidence and affirmatively determined that no abuse occurred. He argues that the statute of limitations is designed to ensure childhood sexual assault victims have their day in court, not to foster relitigation of previously disproved claims. The trial court denied Mr. Hansen’s motion to dismiss, based at least in part on the policy of the statute of limitations. Thereafter, over Ms. Eckstrom’s objection, the court certified the matter for discretionary review under RAP 2.3(b)(4) and stayed the litigation pending review by this court. The court took note of a recent unpublished case raised by Ms. Eckstrom, K.C. v. Johnson, No. 48029-8-II 197 Wn. App. 1083 (February 28, 2017) (in negligence action brought by K.C. and L.M. against DSHS, hospital and two professionals for allegedly failing to prevent sexual abuse, court affirmed trial court’s denial of summary judgment motion requesting dismissal of K.C.’s claims as collaterally estopped, affirmed trial court’s denial of summary judgment motion requesting dismissal of L.M.’s claims under the statute of limitations, and reversed trial court’s summary judgment ruling precluding defendant statute of limitations affirmative defense). The trial court noted: The court received the opinion in K.C. . . . and finds that it is not applicable to the case at bar given that the present case involves a prior legal proceeding (full trial) as opposed to a prior court ruling which was not a final determination. The K.C. . . . case does reference the strongly worded legislative intent of RCW 4.16.340(1)(c) which this court has expressly acknowledged in denying [Mr. Hansen’s] motion to dismiss. Mr. Hansen seeks discretionary review under RAP 2.3(b)(1), obvious error that renders further proceedings useless; (b)(2), probable error that substantially alters the status quo or substantially limits his freedom to act; and (b)(4), the superior court has certified that the order involves a controlling question of law as to which there is a substantial ground for a difference of opinion and that immediate 76571-0-I Page 4 of 4 review may materially advance the ultimate termination of the litigation. RAP 2.3(b)(2) is inapplicable here. And because I conclude that the trial court’s certification under (b)(4) is well taken, I need not address (b)(1). Mr. Hansen argues, among other things, that review is warranted to address at least two controlling issues of law: whether the trial court erred in relying in part on the public policy of the statute of limitations, where Mr. Hansen has not moved to dismiss based on RCW 4.16.340, and it is undisputed that the key issue in this litigation – whether the alleged abuse occurred – is identical to the fundamental question in the prior litigation more than twenty five years ago, which was resolved in Mr. Hansen’s favor; and whether Ms. Eckstrom was a party or in privity with a party for purposes of collateral estoppel, where as a very young child she was represented by a GAL, the court appointed an independent professional to investigate whether the abuse occurred, and her mother vigorously litigated the issue on her behalf. Given the age of the claims, the short delay to allow for interlocutory review and for a determination of whether the claims are legally barred will not impose a significant hurdle. The trial court’s certification for discretionary review is well taken. Therefore, it is ORDERED that discretionary review is granted, and the clerk will set a perfection schedule. Sincerely, Richard D. Johnson Court Administrator/Clerk law c: Hon. Suzanne Parisien King County Superior Court Clerk