                                                                               FILED
                                                                             FEB. 13,2014
                                                                     In the Office of the Clerk of Court
                                                                   W A State Court of Appeals, Division III
t

I

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l               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
J                                  DMSION THREE

I    TARI JANE ANDERSON,                          )
                                                  )         No. 29927-9-111
i                        Appellant,               )

I          v.
                                                  )
                                                  )

I
i
     JANE HESSION,
                                                  )
                                                  )
                                                  )
                                                            UNPUBLISHED OPINION

                         Respondent.              )

           FEARING, J. - Defendant Jane Hession, is the wife of Dennis Hession, a fonner

     mayor of the City of Spokane. On October 15,2007, as Jane and Dennis Hession walked

     to a mayoral debate, Janel brushed against a sign held by Tari Anderson, a protestor.

     Based on this contact, Anderson sued Jane for battery and negligence in small claims

     court. Dennis, a licensed attorney, defended the action against his wife. The small

     claims court found in favor of Jane Hession. Tari Anderson appealed to superior court

     and received a trial de novo on the record. The superior court also found in favor of Jane

     Hession.

I            1 Because the facts involve both Jane and Dennis Hession, we will refer to the
     parties often by first name. No disrespect is intended.
1
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No. 29927-9-II1
Anderson v. Hession

       On appeal to this court, Anderson raises three major contentions. First, Anderson

assigns error to Dennis Hession's participation at the small claims court hearing. Second,

Anderson assigns multiple errors to the conduct of her small claims court hearing itself.

Third, Anderson generally assigns error to the superior court's findings of fact and

conclusions oflaw. We affirm the lower courts.

                                         FACTS

       Tari Anderson and some of her neighbors gathered at the intersection of Sprague

Avenue and Lincoln Street in downtown Spokane to protest the decision of Dennis

Hession, then Mayor of Spokane, to transfer garbage collection from alleyways to

curbside. This protest preceded a debate between mayoral candidates Dennis Hession

and Mary Verner, taking place at the nearby Bing Crosby Theater. News crews were

present. The intersection was loud and crowded. Hession supporters stood kitty comer

on the southwest and northeast comers, while protesters stood on the southeast and

northwest comers.

      Dennis and Jane Hession approached the northwest comer of the intersection,

walking south on the west2 side of Lincoln Street towards Tari Anderson. Anderson

      2  The superior court found that the Hessions "were walking south on the east side
sidewalk of Lincoln Street." Clerk's Papers (CP) at 381. (emphasis added). But this
appears to be a scrivener's error. The superior court then found that the Hessions headed
"east into the crosswalk toward the northeast comer of the intersection." CP at 382. But
the Hessions could not head east into the crosswalk if they were already on the east side
of Lincoln Street.

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    No. 29927-9-III
    Anderson v. Hession

    stood at the northwest comer, her right arm in a sling due to previous injuries, holding a

    cardboard sign that read "evils of Hession, ignorance, arrogance, obstinacy,

    untruthfulness." Clerk's Papers (CP) at 65. The Hessions wished to cross the street to

    visit supporters on the northeast comer of the intersection, before continuing to the

    debate. Holding hands, the Hessions moved through the protesters, including Anderson,

    to enter the crosswalk. To make room between the protesters and a light pole, Jane

    extended her right arm as a buffer. In doing so, Jane made physical contact with Tari's

    sign.

I
i
            Based on this contact, Tari Anderson sued Jane Hession in small claims court for

    battery and negligence. The Honorable Judge Douglas Robinson presided. Tari claimed

    that Jane pushed her, causing her to lose her balance and rock back, exacerbating injuries

    to her right shoulder and right foot.

            The small claims court allowed Dennis Hession, a licensed Washington attorney,

    to defend the claim against his wife. The small claims court ruled that "the marital

    community is subject to any claim which might be found against Jane Hession so [the

    court finds] that [Dennis Hession] is a party in interest and may be present so he is

    essentially representing the marital community." CP at 21.

            At the small claims court hearing, Tari Anderson and the Hessions each testified

    and called multiple witnesses. The accounts varied. Most witnesses testified that Jane

    made contact with Anderson's sign, while Anderson maintained that Jane directly pushed

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No. 29927-9-111
Anderson v. Hession

her right shoulder. Some witnesses testified that Anderson moved towards Jane; others

testified that she moved away "to give the Hessions room to pass." CP at 69. Detective

Ricketts-who investigated whether the incident constituted a fourth degree assault-

testified to the results of his investigations. Specifically, Ricketts read statements from

multiple witnesses of the incident who were not present for the hearing. The small claims

court acknowledged that Tari had been injured, but concluded, "I don't think that it was

the force exerted by Jane Hession that caused [Tari] to lose [her] balance." CP at 125.

       Anderson appealed to superior court. The superior court read the small claims

court trial transcript and then afforded the parties an opportunity to argue the case. Like

the small claims court, the superior court concluded that Dennis Hession was a party in

interest and thus properly participated in the small claims hearing. The superior court

also agreed with the small claims court that Jane Hession did not cause Anderson's

injuries .. The superior court further concluded that Jane did not breach any duty to Tari;

Jane's actions were reasonable under the circumstances; and Jane did not intend to cause

harmful or offensive contact.

                                        ANALYSIS

                            Tari Anderson's appellate briefing

       Tad Anderson's brief and reply brief appear to assign error to every aspect of the

small claims court and superior court hearings. Many of her contentions are unsupported

by argument and lack citation to relevant legal authority. Frequently, Anderson cites to

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No. 29927-9-III
Anderson v. Hession

her own previous motions as authority and quotes her own testimony to support her

contentions. In reviewing her appeal, we have attempted to liberally parse her briefs to

identify specific errors to address. We wish to give fidelity to RAP 1.2: "These rules will

be liberally interpreted to promote justice and facilitate the decision of cases on the

merits." At the same time, a pro se litigant is not entitled to favoritism and must follow

the rules established by this court for an orderly appeal process.

       In general, "This court will not review a claimed error unless it is (1) included in

an assignment of error or clearly disclosed in the associated issue pertaining thereto, and

(2) supported by argument and citation to legal authority." BC Tire Corp. v. GTE

Directories Corp., 46 Wn. App. 351, 355, 730 P.2d 726 (1986) (citing Vern Sims Ford,

Inc. v. Hagel, 42 Wn. App. 675, 683, 713 P.2d 736 (1986), RAP 10.3(a)(5), 10.3(g».

"Whether or not a party sets forth assignments of error for each issue on appeal, this court

will reach the merits if the issues are reasonably clear from the brief, the opposing party

has not been prejudiced and this court has not been overly inconvenienced." State v.

Grimes, 92 Wn. App. 973, 978, 966 P.2d 394 (1998).

                        Dennis Hession's participation as attorney

       Tari Anderson first argues that the small claims court erred by allowing Dennis

Hession to participate at trial. Under RCW 12.40.080(1), "No attorney-at-law, legal

paraprofessional, nor any person other than the plaintiff and defendant, shall appear or

participate with the prosecution or defense of litigation in the small claims department

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No. 29927-9-111
Anderson v. Hession

without the consent of the judicial officer hearing the case."

       The small claims court permitted Dennis Hession to function as an attorney on the

basis that his property rights could be impacted by a judgment against his wife.

Anderson may assign error to the court's conclusions that the Hession's community

property could be implicated. We find no decision standing for the proposition that an

attorney may represent his or her spouse in small claims court, regardless of whether the

jurisdiction is a community property state, but indirect reasoning supports this

conclusion.

       Whether Tari Anderson's claims against Jane Hession could implicate the

Hession's community property is a mixed question of law and fact, which this court

reviews de novo .. Clayton v. Wilson, 168 Wn.2d 57, 62, 227 P.3d 278 (2010). In general,

'" [T]he community is not liable for the torts of [a spouse], unless the act constituting the

wrong either (1) results or is intended to result in a benefit to the community or (2) is

committed in the prosecution of the business of the community.'" Clayton, 168 Wn.2d at

63 (quoting LaFramboise v. Schmidt, 42 Wn.2d 198,200,254 P.2d 485 (1953)). Even if

a tort judgment is against one spouse alone, however, "the victim of a separate tort [may]

execute his or her judgment against the tortfeasor's interest in community real property in

the event that the tortfeasor's separate property and share of community personal

property are insufficient to satisfy the judgment." Keene v. Edie, 131 Wn.2d 822, 835,

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    No. 29927-9-111
    Anderson v. Hession

j   935 P.2d 588 (1997) (extending the holding in deElche v. Jacobsen, 95 Wn.2d 237,622

    P.2d 835 (1980)).

1          When Tari Anderson objected to Dennis Hession's participation at small claims
I
    court, the court responded:

           Well an attorney may represent himself in court and in this
           case you have cited Jane Hession as the defendant but in proper
           pleading it would be Jane Hession or and naming the husband or the
           marital community because the marital community is subject to any
           claim which might be found against Jane Hession so 1 am going to
           find that he is a party in interest and may be present so he is
           essentially representing the marital community.

           And again I do want to make it a point on the record
           that Jane Hession is the named-party defendant but any judgment
           against her would necessarily include the marital community and
           therefore 1 find that you are an interested party and may participate
           in this, not as an attorney, but as a proper party defendant.

    CP at 21, 50. In concluding that "the marital community is subject to any claim which

    might be found against Jane Hession," the small claims court impliedly found that Jane

    was either acting for the benefit of the community or prosecuting the business of the

    community when the incident occurred. We agree.

           The Hession's marital community could have been liable for Jane's actions under

    the second prong of LaFramboise-"committed in the prosecution of the business of the

    community." "We broadly construe LaFramboise's second prong." Clayton, 168 Wn.2d

    at 65. "'In this area the concept of 'business' is not narrow and the looseness of the test

    which the cases developed is better identified as requiring that the spouse be engaged in

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No. 29927-9-III
Anderson v. Hession

some community errand, affair, or business at the time of the tort to establish community

liability.'" Clayton, 168 Wn.2d at 65 (emphasis omitted) (quoting Harry M. Cross, The

Community Property Law (Revised 1985),61 WASH. L. REv. 13, 137 (1986)). Atthe

time of the incident, Jane was accompanying her husband to a debate where he would vie

for his continued employment as the Mayor of Spokane. Attending events in support of

your spouse's career is part of community business.

       Even if Dennis Hession's marital community would not be implicated by a

judgment against his wife, the small claims court held authority to allow Dennis to

function as an attorney for his wife. RCW 12.40.080(1) expressly grants a small claims

court to "consent" to an attorney appearing and participating in a trial. No decision

indicates the factors upon which the small claims court should base a decision as to

whether to consent. No decision indicates what standard of review we should apply

when reviewing whether consent was proper. The statute should be read to give wide

discretion to the small claims court, since the statute gives no guidance to the court when

determining whether to allow the attorney to appear. Since Dennis Hession's wife was

sued, there is sound reason to rule that the small claims court did not err.

       Assuming the small claims court committed error in allowing Dennis Hession to

participate as an attorney, we would find the error harmless. "[E]rror without prejudice is

not grounds for reversal." Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983).

Error is prejudicial ifit affects, or presumptively affects, the outcome of the trial. James

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No. 29927-9-III
Anderson v. Hession

S. Black & Co. v. P & R Co., 12 Wn. App. 533, 537, 530 P.2d 722 (1975). "To establish

prejudice, the moving party must show that some actual harm resulted from the

violation." Smith v. Orthopedics Int'l, Ltd., PS, 170 Wn.2d 659,672,244 P.3d 939

(2010). Tari Anderson has failed to show how Dennis Hession's participation in the

small claims hearing prejudicially affected its outcome.

                              The Small Claims Court hearing

       Tari Anderson assigns multiple errors to the small claims court hearing. Since the

superior court conducted a new trial, we could rule that any errors by the small claims

court are irrelevant. Nevertheless, the superior court did not entertain new evidence, but

limited itself to reviewing the small claims court trial transcript. In accord with CRLJ 72,

RCW 12.36.055 requires that "[t]he appeal from a small claims judgment or decision

shall be de novo upon the record of the case, as entered by the district court." Unlike a

"trial de novo," where a court conducts a "new trial on the entire case-that is, on both

questions of fact and issues of law-conducted as if there had been no trial in the first

instance,',3 a "trial de novo on the record" is limited to reading the trial transcript from

below. Goodman v. Bethel School Dist. No. 403,84 Wn.2d 120, 126-28,524 P.2d 918

(1974) (court does not use the phrase "trial de novo on the record"). Therefore, we

       3BLACK'S LA W DICTIONARY 1645 (9th ed. 2009).

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No. 29927~9~III
Anderson v. Hession

should consider errors asserted by Anderson as to the conduct of trial in the small claims

court.

         Tari Anderson first contends that the small claims court rendered the hearing too

formal by limiting her interaction with witnesses to asking questions. Anderson

specifically contends that the small claims court erred by requiring examination and

cross-examination of witnesses using questions, rendering the hearing formal in violation

of chapter 12.40 RCW. Anderson is correct that the small claims court required that the

parties ask questions:

                 The one rule I do enforce strenuously is the issue

         regarding examination and cross-examination. And the reason

         is that questions frequently devolve or end up in a discussion

         and sometimes going beyond that, an argument. You will be

         subject to questioning and also if Mrs. Hession testifies or

         presents any witnesses, you will be entitled to ask question

         [sic] of them, but it must be a question.

CP at 19.

         Tari Anderson correctly asserts that small claims court is to be informal. The

legislature intended, in creating the small claims department, to provide a forum where

litigants could obtain speedy, inexpensive and conclusive justice. State ex rei. McCool v.

Small Claims Ct. ofJefferson County Dist. Ct., 12 Wn. App. 799, 800, 532 P.2d 1191

(1975). "A formal pleading, other than the claim and notice, shall not be necessary to

define the issue between the parties. The hearing and disposition of the actions shall be

informal, with the sole object of dispensing speedy and quick justice between the

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   No. 29927-9-111
     Anderson v. Hession

     litigants." RCW 12.40.090. "The judge may infonnally consult witnesses or otherwise

     investigate the controversy between the parties and give judgment or make such orders as

     the judge may deem to be right, just, and equitable for the disposition of the controversy."

     RCW 12.40.080(3). It is not necessary to summon witnesses. RCW 12.40.080(2). There

     is no right to a jury trial. Wings ofthe World, Inc. v. Small Claims Ct., 97 Wn. App. 803,

     807-08,987 P.2d 642 (1999).

            While we acknowledge the infonnality of small claims hearings, this court

     "review[s] trial management decisions for abuse of discretion." State v. Jaime, 168

     Wn.2d 857, 865,233 P.3d 554 (2010). Despite requiring parties to ask witnesses

     questions, Judge Robinson kept the hearing informal, explaining what was occurring as it

     occurred-including the amount in controversy limit of$5,000, what evidence would be

     admitted, and how the hearing would proceed. The small claim court's imposition of

     some structure should not be considered an abuse of the court's discretion. Without

     fonnal questioning, witnesses could ramble aimlessly thereby prolonging the trial and

     causing confusion.

            Tari Anderson next contends the small claims court erred when allowing Dennis

     Hession to provide impeachment evidence against witness Henry Valder. When the rules

     of evidence apply, a trial court's decision to exclude or admit evidence is entitled to

     deference and "will be reversed only where the trial court has abused its discretion."

     State v. Lord, 161 Wn.2d 276, 294,165 PJd 1251 (2007). But ER 1101(c)(3) expressly

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     Anderson v. Hession

     exempts "small claims court" from applying the Rules of Evidence, "(other than with

     respect to privileges, the rape shield statute and ER 412)" [regarding a victim's prior

     sexual history]. Thus, the small claims court has even broader discretion for evidentiary

     matters. The small claims court recognized this role, stating "[n]ow the rules for

     evidence in the Small Claims Court are fairly relaxed. The idea is for me to get all of the

     evidence that is reasonably reliable and make the best decision that 1 can based on that

     evidence." CP at 19.

            In relevant part, Dennis Hession testified as follows:

           Henry Valder. Henry Valder is a-and 1 don't say this

           in a derogatory way. 1 say it by way of explanation. Henry Valder

           is a homeless person. Sometimes he has a residence and sometime

           he doesn't. And 1 say that because it gives you a little bit of

           perspective about the ability of the detective to locate and

           engage him. Henry and 1 have had our differences. He used to-

           when 1 was on the City Council and when 1 was the Council

           President, particularly the Council President running the Council,

           he was there every week, virtually every week, with his dog. And

           Henry has an opinion on everything. Henry also got in trouble

           with me for a couple of things. Two different occasions at least.

           One for his misbehavior in the chambers and at one point 1 actually

           banned him from the chambers, because he was so disruptive.

           He also on one occasion left the podium and came up to me in a

           threatening way, for which he again lost his privileges to come

           to City Council. So just by way of objectivity and willingness to

           say things that perhaps are not true, which we contend are not

           true; that provides a little bit of context.

     CP at 113. The putative purpose of Dennis Hession's testimony was either to show bias,

     inconsistencies, or both. This is appropriate impeachment evidence. The comment

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No. 29927-9-III
Anderson v. Hession

regarding Valder's housing status may have been inappropriate, but it served to explain

Valder's absence. Tari did not object to this testimony at the time. The small claims

court did not abuse its discretion when permitting the testimony.

       Tari Anderson also contends that the small claims court erred when it asked

Detective Ricketts questions about his opinion on ultimate issues. The exchange between

the small claims court and Ricketts went as follows:

              THE COURT: ... You concluded that there was contact.

      Based on your investigation, do you believe that Ms. Anderson was

      standing in the way that where Mrs. Hession was progressing

      -just walking on the sidewalk and without having to stepping

      around her, she was in her way or how did that go down?

             DETECTIVE RICKETTS: Tari Anderson was in the area
      where pedestrians travel. Ms. Hession was walking by and she did this
      with the palm of her hand.
              THE COURT: Okay.

             DETECTIVE RICKETTS: Like that.

             THE COURT: So she didn't go out of her way to take a couple

      of steps and shove her or shove the sign or?
             DETECTIVE RICKETTS: I don't have anything corroborating that;
      that indicates that she did that.

CP at 86. Ricketts also testified that based on his investigation he had concluded that

there was not probable cause to submit the case to prosecutors.

      Again, there is no discernible error. Even if we applied the Rules of Evidence, ER

704 would permit this line of questioning because the court did not ask Detective Ricketts

to draw legal conclusions. "Testimony in the form of an opinion or inferences otherwise

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Anderson v. Hession

admissible is not objectionable because it embraces an ultimate issue to be decided by the

trier of fact." ER 704.

       Tari Anderson next argues that the small claims court committed error by allowing

Dectective Ricketts to provide hearsay testimony. Ricketts testified at length to the

contents of his criminal investigation of whether Jane Hession assaulted or battered Tari

Anderson. Specifically, Ricketts recounted his interviews of Kathleen Binford, Jill Jolly,

and Patsy Dunn who each witnessed the incident and the involvement of Senior Deputy

Prosecuting Attorney Brian O'Brien who did not. Anderson argues for the admissibility

of Binford, Jolly, and Dunn's statements as excited utterances and present sense

impressions, but against the statements of Brian O'Brien. Explaining the contents of his

report, Ricketts stated, "Deputy Prosecuting Attorney Brian O'Brien had some input in it.

He agreed with the results of the investigation and no charges would be filed." CP at 64.

There was no other mention of O'Brien at the hearing and Detective Ricketts's report is

not in the appellate record.

       Under the Rules of Evidence, the O'Brien statement may have been inadmissible

hearsay. But given the informality of small claims hearings, Anderson's failure to object

to the statement at the hearing, and the exemption for small claims trials from the Rules

of Evidence, we find the court committed no error.

       Anderson next contends that the small claims court failed to consider notes from

her doctors regarding the cause of her injuries. The court admitted and reviewed these

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Anderson v. Hession

letters, but not for the purpose of showing causation. Because we affirm the court's

dismissal of Anderson's battery claim for lack of intent and her negligence claim for lack

of breach, we need not reach this issue.

                                 The Superior Court hearing

         Tari Anderson appears to contend that the superior court erred by entering

unsupported findings of fact and that, without those facts, its conclusions of law falter.

Specifically, Anderson may challenge the superior court's findings of fact that the

intersection was congested and the superior court's finding of fact that Jane Hession

merely "brushed up against the sign held by" her. CP at 382. Based on the invalidity of

these findings of fact, Anderson contends that the facts no longer support the conclusions

oflaw.

         In her briefs, Tari Anderson expresses general disagreement with the superior

court's findings and conclusions. "The Appellant refuses to acknowledge the 'Findings'

prepared by Counsel Dennis P. Hession of his incorrect arguments on the grounds of

which numerous purported facts that were unsupported by any evidences of record and

proposed conclusions oflaw that are unsupported by any decisional or statutory law."

Br. of Appellant at 2-3. Anderson's general assignment of error is insufficient to satisfy

RAP 10.3(g). As explained in State v. Roggenkamp, 115 Wn. App. 927, 943, 64 P.3d 92

(2003) (footnotes omitted):

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No. 29927-9-111
Anderson v. Hession

               RAP 1O.3(g) requires a separate assignment of error for each finding
       of fact a party contends was improperly made and a reference to the finding
       by number. "A general assignment of error to the 'findings of fact,' ... is
       insufficient under the rule." Because the assignments of error to the court's
       findings of fact do not comply with RAP 10.3(g), the trial court's findings
       become the established facts of the case.

Thus to the extent Anderson fails to assign error to specific findings, we will not review

those findings.

       Anderson assigns some errors specifically. She assigns error to the small claims

court's finding that the intersection was "congested" and the superior court's finding that

Jane Hession brushed against Anderson's sign as opposed to pushing her.

       "Where the trial court has weighed the evidence, appellate review is limited to

determining whether the trial court's findings of fact are supported by substantial

evidence, and if so, whether the findings support the conclusions of law and the

judgment." SAC Downtown Ltd. P'ship v. Kahn, 123 Wn.2d 197,202, 867 P.2d 605

(1994) (citing Tacoma v. State, 117 Wn.2d 348,361,816 P.2d 7 (1991)). A finding of

fact will not be disturbed if there is substantial evidence to support it. Thorndike v.

Hesperian Orchards, Inc., 54 Wn.2d 570,343 P.2d 183 (1959). Substantial evidence is

"evidence sufficient to persuade a fair-minded person of the finding's truth or

correctness." Crystal Mountain, Inc. v. Dep't ofRevenue, 173 Wn. App. 925, 931,295

P.3d 1216 (2013) (citing Hegwine v. Longview Fibre Co., Inc., 162 Wn.2d 340, 352-53,

172 P.3d 688 (2007)). This court defers to the finder of fact on issues regarding witness

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No. 29927-9-111
Anderson v. Hession

credibility and the weight of conflicting evidence. Burnside v. Simpson Paper Co., 123

Wn.2d 93, 108,864 P.2d 937 (1994).

       Substantial evidence coming from numerous witnesses supported both findings of

the lower courts. Kathleen Binford testified "Jane Hession gave Tari a push. She stated

that the push was like someone brushing someone out of the way." CP at 68-69. Binford

further testified:

       that Jane Hession used her right arm-she stated it was more like a nudge,
       not a push as though she was trying to push someone down. She then
       stated it was not like nudging-it was more like she was pushing Tad out
       of her way, like she wanted her space. She stated that she doesn't believe
       that Jane Hession was trying to knock Tad down.

CP at 69. Patsy Dunn testified that "Jane Hession only used her arm to get Tari Anderson

out of her way. She stated that Tad Anderson was in the personal space of Jane

Hession." CP at 73. Binford and Dunn's testimony support the finding Jane brushed

against, instead of pushed, Tad. When Detective Ricketts "asked Tari Anderson if Jane

Hession hit her stomach or hit the sign," Anderson "stated she hit the sign." CP at 60.

This testimony supports the finding that Jane made contact with the sign first. Taken

together, this evidence is sufficient to persuade a fair minded person that Jane Hession

did not push Tad Anderson but "moved her forearm into position and brushed up against

the sign held by" her. CP at 382.

       Anderson next contends that the superior court erred when it dismissed her battery

and negligence claims. This court reviews the superior court's conclusions of law de

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Anderson v. Hession

novo for whether they are supported by the findings of fact. In re Washington Builders

Benefit Trust, 173 Wn. App. 34,65,293 P.3d 1206 (2013). Assignments of error to

conclusions of law "do not bring up for review the facts found, upon which the

conclusions are based." Becwar v. Bear, 41 Wn.2d 37,38,246 P.2d 1110 (1952).

       "A battery is '[a] harmful or offensive contact with a person, resulting from an act

intended to cause the plaintiff or a third person to suffer such a contact, or apprehension

that such a contact is imminent.'" McKinney v. City o/Tukwila, 103 Wn. App. 391,408,

13 P.3d 631 (2000) (quoting W. Page Keeton et aI., PROSSER AND KEETON ON TORTS § 9,

at 39 (5th ed.1984)). For there to be intent to cause harmful or offensive contact, '''the

act must be done for the purpose of causing the contact or apprehension or with

knowledge on the part of the actor that such contact or apprehension is substantially

certain to be produced.'" Garratt v. Dailey, 46 Wn.2d 197,201,279 P.2d 1091 (1955)

(quoting RESTATEMENT (FIRST) OF TORTS, § 13 cmt. d (1934)).

       The superior court concluded that Jane Hession did not intend to cause harmful or

offensive contact. Instead, the superior court found that Jane "brushed up against" Tari

Anderson. The superior court also found that Jane's movement was "'reasonably

necessary to allow [the Hessions] to pass by." CP at 382. Brushing up against someone

does not give rise to a battery, unless the contact was sexual. See, e.g., Jones v. Spherion

Atlantic Enter., 493 F. App'x 6, 11 (lith Cir. 2012) ("Hinton's alleged physical contact

with Jones, by brushing against her, did not constitute battery pursuant to Florida

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No. 29927-9-III
Anderson v. Hession

common law" when the contact was accidental and the plaintiff did not consider the

contact to be sexual.)

       "A cause of action for negligence requires the plaintiff to establish (1) the

existence ofa duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a

proximate cause between the breach and the injury." Tincani v. Inland Empire

Zoological Soc'y, 124 Wn.2d 121,127-28,875 P.2d 621 (1994). The superior court

dismissed Anderson's negligence claim because (1) Jane Hession did not breach any duty

and (2) the contact between the parties was not the proximate cause ofTari Anderson's

injuries.

       "Duty is the duty to exercise ordinary care, or, alternatively phrased, the duty to

exercise such care as a reasonable person would exercise under the same or similar

circumstances. Breach is the failure to exercise ordinary care, or alternatively phrased,

the failure to exercise such care as a reasonable person would exercise under the same or

similar circumstances. Breach is also called 'negligence. '" Mathis v. Ammons, 84 Wn.

App. 411, 416, 928 P.2d 431 (1996) (footnotes omitted). The superior court ruled there

was no breach. The superior court found that Jane Hession's actions were reasonable

under the circumstances. "The acts of the Respondent were merely defensive, protecting

herself and her husband from the intrusion by the Appellant and only to such a degree

reasonably necessary to allow them to pass by." CP at 382. Specifically, Jane was

reasonable in putting her arm out in order to pass because Tari Anderson had impeded the

                                             19

No. 29927-9-III
Anderson v. Hession

Hessions' ability to enter the crosswalk. These findings support the conclusion that Jane

Hession did not fail to exercise such care as a reasonable person would exercise under

like or similar circumstances.

                                 Motion to supplement record

       On August 30, 2013, Tari Anderson moved to supplement the record.

Specifically, Anderson asked this court to accept as part of the appellate record a

December 20,2007 medical record from Dr. Roger Hanson. 4 By clerk's ruling, this court

denied the August 30, 2013 motion to supplement the record on September 10,2013. On

September 30, 2013, Tari Anderson moved to modify the September 10,2013 ruling

pursuant to RAP 17.7.

      The medical records concern any damages sustained by Tari Anderson. Thus,

they hold no relevance to the issues decided by this court. Therefore, we deny the motion

to supplement as moot.

                                      CONCLUSION

      We affirm all small claims court and superior court rulings.

      4  We do not know if Anderson also seeks, by her motion to modify, to include, as
part of the court of appeals record, an August 29,2013 letter from Scott Knutson.
Assuming she does, our ruling would remain the same.

                                             20

                                                                                f
    No. 29927-9-111
    Anderson v. Hession

          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.

                                                           Fearing, J.
    WE CONCUR:

    ~
    Korsmo, C.J.
                   Cd                                      Brown, J.

1

                                               21


                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-7773
ANTHONY LEE KING,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                      (CR-93-40, CA-98-297)

                      Submitted: April 27, 2001

                       Decided: May 23, 2001

     Before WIDENER, LUTTIG, and KING, Circuit Judges.

Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.

                            COUNSEL

Anthony Lee King, Appellant Pro Se. Mary Hannah Lauck, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                        UNITED STATES v. KING
                               OPINION

PER CURIAM:

   Anthony Lee King appeals the denial of his petition for collateral
review under 28 U.S.C.A. § 2255 (West Supp. 2000). He raises two
issues on appeal: (1) whether counsel was ineffective for failing to
object to or to raise on appeal the alleged constructive amendment of
the indictment; and (2) whether counsel was ineffective for failing to
notify him of the disposition of his direct criminal appeal in this court
in time to petition the Supreme Court for a writ of certiorari. We
review King’s ineffective assistance of counsel claims de novo. Bec-
ton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990). We find King’s
first issue to be without merit and therefore deny a certificate of
appealability and dismiss the appeal as to that claim. Because we con-
clude that there is a genuine issue of material fact as to King’s second
issue, we grant a certificate of appealability, vacate the district court’s
order and remand for further proceedings as to that claim.

   King was convicted of five counts of possession of "listed chemi-
cals," having reasonable cause to believe the chemicals would be used
to manufacture methamphetamine, a controlled substance, in violation
of 21 U.S.C. § 841(d) (West 1994). We affirmed King’s convictions
and sentence on direct appeal. See United States v. King, 1997 WL
161669 (4th Cir. Apr. 8, 1997) (No. 96-4395) (unpublished).

   We have reviewed King’s constructive amendment claim and find
no constructive amendment occurred. See, e.g., See United States v.
Randall, 171 F.3d 195, 209 (4th Cir. 1999). King was convicted of
the same crime charged by the grand jury. See, e.g., United States v.
Floresca, 38 F.3d 706, 710 (4th Cir. 1994). Finding no error in this
respect, we conclude King’s allegations of ineffective assistance in
regard to constructive amendment of the indictment are meritless. See
Strickland v. Washington, 466 U.S. 668 (1984). We therefore deny a
certificate of appealability and dismiss the appeal as to this claim.

   We find King has made a substantial showing of the denial of a
constitutional right, however, as to whether counsel was ineffective
in failing to notify him of the adverse disposition of his criminal
appeal. See 28 U.S.C.A. § 2253 (West Supp. 2000). If an indigent
                         UNITED STATES v. KING                            3
defendant wishes to petition for a writ of certiorari of a judgment
affirming a criminal conviction, a court-appointed lawyer must repre-
sent him in filing the petition. Wilkins v. United States, 441 U.S. 468,
469 (1979); Proffitt v. United States, 549 F.2d 910, 912 (4th Cir.
1976) (remanding § 2255 claim alleging failure to advise of right to
petition for certiorari). This Court’s Internal Operating Procedure
("I.O.P.") 46.3 and Plan in Implementation of the Criminal Justice
Act of 1964 require appointed counsel to inform clients in writing of
the right to petition for certiorari and to file a petition if so requested.

   King contends in his sworn pleading that his appointed appellate
attorney did not inform him of the disposition of his criminal appeal.
King provided a copy of a letter received from authorities at a federal
correctional facility denying his request for a legal locker because he
had no case pending on appeal. This letter, which King alleges was
the first notification he received concerning the disposition of his
criminal appeal, was dated more than ninety days following the issu-
ance of our opinion. King also attached copies of his correspondence
with this Court, indicating his prompt inquiry thereafter into the dis-
position of his appeal, and of this Court’s response, indicating counsel
was required to assist him in petitioning for a writ of certiorari.

   Because King’s counsel died prior to King’s filing his habeas peti-
tion, King’s sworn assertion that he was not informed of the disposi-
tion of his appeal or if his right to petition the Supreme Court for a
writ of certiorari is uncontroverted. The Government acknowledges it
has no firsthand information from King’s counsel concerning whether
he informed King of the disposition of his appeal. Neither has the
Government obtained the attorney’s case file in King’s case. The
Government responded below that King’s counsel performed ade-
quately in other stages of the proceedings, but acknowledges that if
King’s allegation is true, a hearing is warranted. The Government also
admits, however, that it has not attempted to obtain King’s case file
from the executrix of his attorney’s estate.

   The district court did not make a finding on the genuine issue of
material fact as to whether defense counsel adequately informed King
concerning the disposition of his appeal and his right to seek certio-
rari. We conclude that if counsel did not advise King of the disposi-
tion of his criminal appeal in this court and of the opportunity to seek
4                        UNITED STATES v. KING
a writ of certiorari from the Supreme Court, counsel would be ineffec-
tive under both prongs of Strickland v. Washington, 466 U.S. 668
(1984).

   The record before us, however, is inadequate to resolve the factual
issue of whether counsel informed King of the disposition of his
appeal and his right to petition the Supreme Court for further review.
The district court should resolve this factual issue in the first instance.
We therefore grant a certificate of appealability on this issue, vacate
the district court’s disposition of this claim, and remand to the district
court for further proceedings. If the district court concludes on
remand that King received ineffective assistance in this respect, King
may then move in this court for our recall and re-issuance of the man-
date in his criminal appeal, United States v. King, No. 96-4395, and
for appointment of counsel to assist him with any petition for writ of
certiorari he may wish to file in the Supreme Court in that case.

   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

    DISMISSED IN PART, VACATED IN PART, AND REMANDED


430 So.2d 949 (1983)
Julius Horace DIXON, Appellant,
v.
The STATE of Florida, Appellee.
No. 82-1205.
District Court of Appeal of Florida, Third District.
April 26, 1983.
Rehearing Denied May 25, 1983.
*950 Bennett H. Brummer, Public Defender and Entin, Schwartz, Dion & Scalfani, North Miami Beach, and Spencer Levine, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Scott A. Silver and Diane Leeds, Asst. Attys. Gen., for appellee.
Before HENDRY, HUBBART and NESBITT, JJ.
NESBITT, Judge.
The defendant appeals his conviction for trespass of a structure occupied by a human being. We reverse and remand for a new trial.
The defendant first argues that the prosecutor's statement, "I submit to you if these police officers had anything to say about the innocence of the defendant they could have and would have been called by the defendant," in response to the defense's comment on the state's lack of evidence, was impermissible. Because we find that the prosecutor's comment may have led the jury to believe that the defendant had the burden of proving his innocence, the defendant is entitled to a new trial. Compare Wright v. State, 363 So.2d 617 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 471 (Fla. 1979); Gilbert v. State, 362 So.2d 405 (Fla. 1st DCA 1978); Young v. State, 280 So.2d 13 (Fla. 2d DCA 1973) with Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980), pet. for review denied, 397 So.2d 778 (Fla. 1981); Weeks v. State, 363 So.2d 176 (Fla. 4th DCA 1978), Shapiro v. State, 345 So.2d 361 (Fla. 3d DCA), cert. denied, 353 So.2d 678 (Fla. 1977); Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975), dismissed, 330 So.2d 725 (Fla. 1976) (the state may comment on the failure of the defense to call a witness whom the defendant claimed was favorable to his case) and Buckrem v. State, 355 So.2d 111 (Fla. 1978); Daughtrey v. State, 325 So.2d 456 (Fla. 1st DCA), cert. denied, 336 So.2d 600 (Fla. 1976).
Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975) (the state was permitted to comment on the defense's failure to produce alibi witnesses).
The defendant next contends that the trial court erroneously admitted, as evidence of collateral crimes, testimony to the effect that the defendant had on twenty to fifty occasions attempted to obtain money from the victim. Because there was a difference between the previous acts, in which the victim voluntarily gave money to the defendant, and the crime charged, in which the defendant allegedly threatened the victim with a gun, we can only conclude that the evidence was introduced for the improper purpose of highlighting the defendant's bad character. This being in violation of Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), we reverse on this point as well. See also Phillips v. State, 350 So.2d 837 (Fla. 1st DCA 1977); Harris v. State, 183 So.2d 291 (Fla. 2d DCA 1966).
Because of this disposition, we need not reach the other contentions raised by the defendant.
Reversed and remanded for a new trial.


                          STATE OF MICHIGAN

                             COURT OF APPEALS

PAMPA LANES, INC.,                                            UNPUBLISHED
                                                              October 19, 2017
              Petitioner-Appellant,

v                                                             No. 334152
                                                              Tax Tribunal
CITY OF WARREN,                                               LC No. 2014-002721

              Respondent-Appellee.

Before: TALBOT, C.J., and O’CONNELL and O’BRIEN, JJ.

TALBOT, C.J. (concurring).

       I concur in the result only.

                                                       /s/ Michael J. Talbot

                                          -1-


647 F.2d 173
U. S.v.Brockway
79-1388
UNITED STATES COURT OF APPEALS Ninth Circuit
3/23/81

1
C.D.Cal.

2
AFFIRMED IN PART; REVERSED AND REMANDED IN PART


785 So.2d 597 (2001)
THE PALMS, 2100 Ocean Blvd., Ltd., and Plaza Properties Group, Inc., Appellants,
v.
MAGIL CONSTRUCTION FLORIDA, INC., Appellee.
No. 3D00-3132.
District Court of Appeal of Florida, Third District.
April 18, 2001.
Rehearing and Certification Denied May 30, 2001.
Greenberg Traurig, P.A., and Michael A. Hornreich and Elliot H. Scherker and Brenda K. Supple, Miami, for appellants.
Weiss Serota Helfman Pastoriza & Guedes, P.A. and Joseph H, Serota and Joseph Serota, Miami; Robert D. Hertzberg, Miami, for appellee.
Before COPE, FLETCHER and SORONDO, JJ.
COPE, J.
The question before us is whether the 2000 amendment to section 489.128, Florida Statutes, is retroactive. We conclude that it is not.
In April 1997 the appellant owner entered into a construction contract with the appellee contractor. At that time, the relevant version of section 489.128, Florida Statutes, provided:
Contracts performed by unlicensed contractors unenforceable.As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his license, the provisions of this section shall no longer apply.
§ 489.128, Fla.Stat. (1995).
The appellee contractor applied for licensure prior to executing the construction contract. Owing to a processing error, or insufficient filing fee, no license was issued.
The owner terminated the construction contract and the contractor brought suit. While the suit was pending, the legislature amended the statute to delete the second sentence of the above-quoted statute. Ch.2000-372, § 35, Laws of Fla.
The owner contends that the effect of the 2000 amendment is to eliminate a contractor's right to cure its unlicensed status. The owner argues that since the contractor never cured its unlicensed status, it is now prohibited from doing so. The owner says *598 that the contractor is now barred from seeking any relief in its action for breach of contract.
Based on this analysis, the owner moved to stay the parties' pending arbitration. The trial court denied the motion and the owner has appealed.
For present purposes we assume, without deciding, that the owner's analysis of the amended statute is correct. We therefore assume that the amended statute precludes a contractor from curing its unlicensed status. So construed, the effect of the amendment is to remove the contractor's previously existing right to cure.
If that is the effect of the amendment, then it worked a change in the substantive rights of contractors. Since that is a substantive change in law, the 2000 amendment does not operate retroactively. Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994); Hotelera Naco, Inc. v. Chinea, 708 So.2d 961 (Fla. 3d DCA 1998). We entirely agree with Judge Muir in the denial of the motion to stay arbitration.
Affirmed.


34 So.3d 741 (2008)
EX PARTE KENNY DEWAYNE JACKSON
No. 1071412 (CR-06-2118).
Supreme Court of Alabama.
August 8, 2008.
Decision of the Supreme Court of Alabama Without Published Opinion Cert. denied.


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/05/2019 09:07 AM CDT

                                                        - 492 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  STATE v. SAVAGE
                                                  Cite as 302 Neb. 492

                                        State of Nebraska, appellee, v.
                                        Courtney J. Savage, appellant.
                                                    ___ N.W.2d ___

                                         Filed March 15, 2019.    No. S-17-1166.

                                              supplemental opinion

                  Appeal from the District Court for Lancaster County: Susan
               I. Strong, Judge. Supplemental opinion: Former opinion modi-
               fied. Motion for rehearing overruled.
                    Darik J. Von Loh, of Hernandez Frantz, Von Loh, appellant.
                  Douglas J. Peterson, Attorney General, and Austin N. Relph
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               Papik, and Freudenberg, JJ.
                  Per Curiam.
                  This case is before us on a motion for rehearing filed by the
               appellant, Courtney J. Savage, concerning our opinion in State
               v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018). We overrule
               the motion, but we modify the opinion as follows:
                  In the subsection “(a) Authentication,” after the fourth
               sentence of the fourth paragraph, we insert the following
               language:
                    As for Savage’s contention that the State did not properly
                    authenticate messages sent to him by others, we again
                    disagree. The State was required only to introduce testi-
                    mony sufficient to establish that the evidence was what
                              - 493 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. SAVAGE
                        Cite as 302 Neb. 492

     the State claimed it to be. The State did not claim that
     messages sent by others were anything more than mes-
     sages sent to Savage’s cell phone. See State v. Elseman,
     287 Neb. 134, 841 N.W.2d 225 (2014).
Savage, 301 Neb. at 885, 920 N.W.2d at 703.
  In subsection “(b) Hearsay,” following the second to the last
paragraph, we insert the following paragraph:
        We also reject Savage’s argument that text messages
     sent to his cell phone by unidentified individuals contained
     inadmissible hearsay. Hearsay is “a statement, other than
     one made by the declarant while testifying at the trial or
     hearing, offered in evidence to prove the truth of the mat-
     ter asserted.” Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
     Messages sent to Savage’s cell phone were not offered
     for the truth of the matters asserted. They were offered to
     prove that the statements were made.
Savage, 301 Neb. at 887, 920 N.W.2d at 704.
  The remainder of the opinion shall remain unmodified.
	Former opinion modified.
	Motion for rehearing overruled.


              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. WR-85,165-01

                         EX PARTE ROY EUGENE USSERY, Applicant

                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 955938-A IN THE 184TH DISTRICT COURT
                              FROM HARRIS COUNTY

        Per curiam.

                                            OPINION

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of failure to comply

with sex offender registration requirements and sentenced to two years’ imprisonment. He did not

appeal his conviction.

        Applicant contends that his plea was involuntary, his counsel was ineffective, and his

conviction was illegal because he was prosecuted and sentenced for a third degree felony when the

offense was really a state jail felony.
                                                                               2

       Both the State and the trial court agree that Applicant is entitled to relief. Ex parte Huerta,

692 S.W.2d 681 (Tex. Crim. App. 1985). We agree.

       Relief is granted. The judgment in Cause No. 955938 in the 184th District Court of Harris

County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to

answer the charges as set out in the indictment. The trial court shall issue any necessary bench

warrant within 10 days after the mandate of this Court issues.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: June 22, 2016
Do not publish


                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

3-28-2008

USA v. Mitchell
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2174

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Mitchell" (2008). 2008 Decisions. Paper 1364.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1364

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-45                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   ___________

                                   No. 07-2174
                                   ___________

                        UNITED STATES OF AMERICA

                                         v.

                           DAVID W. MITCHELL,
                                          Appellant
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                        (D.C. Crim. No. 04-cr-00007-1J)
                   District Judge: Honorable Kim R. Gibson
                  ____________________________________

         Submitted for Possible Summary Action Pursuant to Third Circuit
                            LAR 27.4 and I.O.P. 10.6
                                November 8, 2007

             Before: BARRY, CHAGARES and ROTH, Circuit Judges

                          (Opinion filed March 28, 2008)
                                    _________

                                     OPINION
                                    _________

PER CURIAM

    David Mitchell appeals the District Court’s order denying his motion filed

                                         1
pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. On April 28, 2005,

the District Court for the Western District of Pennsylvania sentenced Mitchell to ninety-

six months in prison based on his plea of guilty to burglary of a federal firearms licensee.

On January 31, 2007, Mitchell filed a Rule 35(a) motion. The District Court denied the

motion as untimely, and Mitchell filed a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291. Under Rule 35(a), the District Court

“may correct a sentence that resulted from arithmetical, technical, or other clear error”

within seven days after sentencing. Mitchell filed his Rule 35(a) motion nearly two years

after sentencing. Thus, we agree with the District Court that the motion was untimely.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.

                                              2