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From the Desk of Gordon C. Klug:
States have gone to great lengths to preserve the rules of evidence and to respect a party’s right to be heard. The right to be heard may apply even after a party dies by suicide. In this case, the Washington State Appellate Court examined a rare set of facts to determine if the suicide of a party-opponent, after the close of a case, barred the admissibility of that party’s statements as hearsay in a later proceeding.
The Washington Appellate Court concluded that post trial statements made by a party to a case before his death are a “statement by a party opponent”; which is an exception to the hearsay rule.
Hor v. City of Seattle, No.80835-4 (Wash. App. Aug. 23, 2021).
This case involved a motor vehicle accident and a police chase. The pursued vehicle ultimately crashed into a brick wall leaving the passenger of the car, Channary Ho (“Plaintiff”), a quadriplegic. Plaintiff filed suit against Omar Tammam, the driver of the vehicle she was riding in, and the two officers of the Seattle Police Department (“SPD”) involved in the incident. Before trial, the City of Seattle (“City”) and the two officers moved to remove the officers from the caption of the case based on the City’s vicarious liability, which completely indemnified the officers. The officers’ liability hinged on whether they engaged in a pursuit of the vehicle being driven by co-defendant Tammam. At trial, the City and officers denied that the officers engaged in a pursuit. Plaintiff’s counsel questioned Officer Grant, one of the officers involved in the chase, about the issue at trial. Ultimately, the jury found that the officers did not pursue co-defendant Tammam and that the City was not liable for the injuries to Plaintiff. Additionally, the jury awarded Plaintiff $17.4 million against Defendant Omar Tammam.
In April 2017, after the close of the case, Officer Grant died by suicide. In May 2017, The Tacoma News Tribune published an article about Officer Grant’s suicide titled “Suicidal Lakewood Police Officer Brooded Over His Testimony in Lawsuit, Colleagues Say.” Plaintiff learned that, following the outcome of the trial, Officer Grant confided to several other officers that he did not remember when he turned on his patrol lights during his chase of Mr. Tammam’s vehicle. The City’s attorneys told Officer Grant to say that he turned them on at a certain point while chasing Mr. Tammam. Additionally, Officer Grant said that he felt that the City’s attorneys pressured him to testify about details he couldn’t remember.
After learning this new information, Plaintiff’s counsel sought relief from the judgment that the City and officers were not liable. To support their request for relief, Plaintiff submitted declarations from officers with SPD regarding Officer Grant’s statements to them. Plaintiff filed a motion for an order to show cause why relief from judgment should not be granted based on misconduct of a party under Washington’s Civil Rules of Procedure. The City argued that the Appellate Court should not admit Officer Grant’s post-trial statements into evidence because they were hearsay and did not fall within an exception to the rule against hearsay. Plaintiff contended that the Appellate Court should admit Officer Grant’s statements to show misconduct by Officer Grant and the City as they were non-hearsay as they were a statement made by a party-opponent. Plaintiff also argued that if Officer Grant’s statements were hearsay, then they should be admitted because they fell within an exception to the rule against hearsay as they were statements against the City and Officer Grant’s pecuniary and penal interest. The trial court found that the statements were inadmissible under either of Plaintiff’s theories. Plaintiff appealed and argued that the trial court erred in excluding statements Officer Grant made to others about his alleged perjury before his death.
When reviewing interpretations of an evidence rule, the court first looks to see if the trial court properly interpreted the rule. Next, the court looks to see how the rule was applied. Admissibility of evidence is within the trial court’s broad discretion and will not be reversed on appeal absent a showing of manifest abuse of discretion. Discretion is abused if it is based on untenable grounds or for untenable reasons.
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 matter asserted. A statement is not hearsay if it was made by a party-opponent and the statement is offered against a party’s pecuniary interest. The statement must be the party’s own statement, or it must be a statement made in a representative capacity.
On appeal, a trial court’s disposition of a motion to vacate will not be disturbed unless it clearly appears that the trial court abused its discretion. A trial court may vacate a judgment that was procured by fraud, misrepresentation, or misconduct. The fraudulent conduct or misrepresentation must cause the entry of the judgment such that the losing party was prevented from fully and fairly presenting its case or defenses. Perjury alone does not necessarily rise to the level of fraud required to vacate a judgment. The perjury must be of “controlling importance” as to the issue of liability to warrant vacation of judgment. Perjury is just one way fraud, misrepresentation, or other misconduct might occur to give rise to relief from a judgment.
The issue before the Appellate Court was whether, due to his suicide, Officer Grant’s post-trial statements qualified as those of a party-opponent so that the statements could be admitted into evidence to determine whether Plaintiff is entitled to relief from judgment.
The Appellate Court looked at In re Estate of Miller to find guidance on the issue. In Miller, the Washington Appellate Court held that the death of a party-opponent does not affect the admissibility of that party’s statement. Relying on Miller, the Appellate Court in this case found that the death of Officer Grant, who was a party-opponent, did not bar the admission of his statements as hearsay. Since the death of a party-opponent does not block the admission of their statements as hearsay, the Appellate Court found the trial court misapplied the law and, therefore abused its discretion by ruling that the statements of Officer Grant were inadmissible hearsay.
Next, the Appellate Court looked at whether the trial court abused its discretion by not granting Plaintiff relief from judgment. The trial court looked only at perjury to determine whether there should be relief from judgment in favor of the City and their police officers. The Appellate Court held that the trial judge erred by focusing solely on perjury to determine whether Plaintiff showed that she was entitled to relief from judgment. The Appellate Court opined that the statements by Officer Grant were admissible as an exception to the hearsay rule. They then reversed and remanded the case back to the trial court for further proceedings.
The Big Picture:
The outcome of this case is important for several reasons. First, parties to cases must be aware of what they say about a case even after the conclusion of a trial. Second, the holding is broad in that statements of both living and deceased parties may be introduced as evidence after the close of litigation in a hearing for relief from a judgment. In this case “words heard from beyond the grave” were admissible for the trial court to determine whether or not to set aside a defense judgment in favor of the City and two of its police officers.
Perhaps one other take away from this case was the conduct of the attorneys who represented the City and its police officers. In their zeal to defend their clients, the City’s attorneys allegedly pressured key liability witnesses to commit perjury. Although not addressed by the Appellate Court in their opinion, the fact that a seasoned attorney may have crossed the line of zealous advocacy may have played a role in the Appellate Court’s decision. More times than not, attorneys in a litigated case have many opportunities to “brow beat” key witnesses to testifying in a manner that is favorable to their client. The Appellate Court realized this possibility and that may have also factored into its final decision.