Elsadig Ahmed v. Glacier Fish Company, Llc ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ^
ELSADIG AHMED, an individual, CD
No. 73032-1-1 *» ^r1-^
Appellant,
DIVISION ONE „ §<^3
v.
UNPUBLISHED OPINION^* ?S
co g^
GLACIER FISH COMPANY, LLC, a
Washington business entity,
FILED: March 7, 2016
Respondent.
Appelwick, J. — Ahmed was injured while working for Glacier Fish
Company, his former employer. Ahmed sued Glacier alleging violations of the
Jones Act, 46 U.S.C. § 30104. The trial court dismissed Ahmed's lawsuit. We
affirm.
FACTS
Elsadig Ahmed immigrated to the United States from Darfur, Sudan. In
2010, Ahmed went to Alaska to work for Glacier Fish Company. In June 2010,
Ahmed was working as a fish processor on one of Glacier's vessels.
On June 23, 2010, while the vessel was docked, Ahmed was working in the
vessel's freezer hold where boxes of processed fish are stacked and stored before
they are unloaded at the dock. After working several hours in the freezer, Ahmed
complained to the shift supervisor about pain and numbness in his fingers. The
No. 73032-1/2
supervisor told Ahmed to go see the ship's medical officer. The medical officer,
Jeff Ivie, examined Ahmed's hands, observed blood circulation in his fingers, and
saw no signs of frost bite. Ivie gave Ahmed ibuprofen for pain and inflammation.
And, he instructed Ahmed not to work in the freezer and instead to work on the
pier. But, according to Ahmed, after working several hours on the pier, Marcus
Vercruysse, the new shift supervisor, ordered Ahmed to return to the freezer.
On June 30, 2010, Ahmed again complained about his hands to a different
medic. The complaint was recorded in the ship's medical log and the complaint
was reported to two supervisors.
On July 16, 2010, again while the vessel was docked, Ahmed made a third
complaint about his hands. Ivie drove Ahmed to a clinic. The clinic diagnosed
Ahmed with " 'frostbite to fingertips.'" Ahmed did not return to the vessel for the
rest of the 2010 season. But, he continued to seek treatment for his hands. Ahmed
visited U.S. Healthworks in Seattle. On October 13, 2010, the treating physician
informed Ahmed that he could return to work.
Ahmed then worked for Glacier in 2011 and 2012 as a candler, removing
bones and other defects from fish on an assembly line. Next, Ahmed worked at a
shipyard in June 2012. As a result ofthis work, Ahmed began to suffer from carpal
tunnel syndrome in both wrists. Glacier paid for Ahmed's carpal tunnel medical
treatments, and Ahmed reached maximum cure for the syndrome.
On June 19, 2013, Ahmed filed a lawsuit against Glacier for his injuries,
alleging negligence and unseaworthiness under the Jones Act and general
No. 73032-1/3
maritime law. On December 8, 2014, the matter proceeded to a bench trial. At
trial, Ahmed testified and called five other witnesses. Due to a lack of evidence,
the trial court dismissed Ahmed's unseaworthiness claim after the conclusion of
his case. Glacier then called seven witnesses to testify.
On December 29, 2014, the trial court entered findings of fact, conclusions
of law, and an order dismissing Ahmed's remaining negligence claim under the
Jones Act. The trial court concluded that Ahmed did not carry his burden of proving
that Glacier acted negligently.
On January 27, 2015, Ahmed filed a notice of appeal. His notice of appeal
noted that he, "seeks review by the designated appellate court of Findings of Fact."
In Section A of his notice of appeal, Ahmed listed the witnesses who testified at
trial. Section B was entitled "Findings of Fact" and read, "2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 13, 14." Section C was entitled "conclusions of law" and read, "1,2, 3, 4, 5, 6,
7, 8, 9." Ahmed also attached a signed document that read as follows:
1. My lawyer was not representing me well in front of the court[.]
2. [M]y lawyer refused to call all the witnesses I work with in the
freezer hold only one and did not call him to come in the court.
3. [M]y lawyer did not provide me a translator and used defendant's
interpreter.
4. My lawyer called Jeff Ivie as a witness and never was Itold about
him. I only saw his name on the court decision as my witness.
5. I still have problem for frostbites on my fingers and carpal tunnel
pain and numbness.
No. 73032-1/4
DISCUSSION
Ahmed's opening brief to this court is a verbatim copy of his trial brief
submitted below. While Ahmed's opening brief makes arguments and provides
legal authority supporting his negligence allegations against Glacier, it does not
identify any errors made by the trial court in reaching its decision. RAP 10.3(a)(4)
states that an appellant's brief should contain a separate concise statement of
each error a party contends was made by the trial court, together with the issues
pertaining to the assignments of error. And, RAP 10.3(g) requires an appellant to
make a separate assignment of error for each finding of fact he or she contends
was improperly made with references to the finding by number. This court will only
review a claimed error, which is included in an assignment of error or disclosed in
the associated issue, jd. But, in appropriate circumstances, this court will waive
technical violations of RAP 10.3(g) where the appellant's brief makes the nature of
the challenge clear and includes the challenged findings in the text. Harris v. Urell,
133 Wn. App. 130, 137, 135 P.3d 530 (2006).
Here, Ahmed identified findings of fact by number in his notice of appeal,
but he did not indicate why he was challenging those findings. And, there are no
assignments of error in either his opening brief or his reply brief. Ahmed does,
however, appear to challenge one finding of fact and a related conclusion of law in
his reply brief. Specifically, Ahmed challenges the trial court's finding that he failed
to prove that Vercruysse ordered him to go back to the freezer after Ivie had
instructed him not to work there. And, he challenges the trial court's conclusion of
No. 73032-1/5
law that Glacier did not act negligently under the Jones Act with respect to any
preinjury training or post-injury practices.
In a bench trial where the court has weighed the evidence, this court's
review is limited to determining whether substantial evidence supports the trial
court's findings of fact and whether the findings of fact support the trial court's
conclusions of law.1 Day v. Santorsola, 118 Wn. App. 746, 755, 76 P.2d 1190(2003). The unchallenged findings of fact are verities on appeal. Moreman v.
Butcher, 126 Wn.2d 36, 39, 891 P.2d 725 (1995).
Both parties admitted evidence at trial about the encounter between Ahmed
and Vercruysse. At trial, Ahmed testified that after Ivie instructed him to work on
the pier instead of in the freezer, Vercruysse, a supervisor who had just come on
shift, ordered Ahmed to return to the freezer. In support of his assertion, Ahmed
submitted the deposition testimony of Yatte Dioumassy, another processor on the
vessel. At trial, Vercruysse testified for Glacier. Vercruysse testified that he never
told Ahmed that he needed to go back into the freezer hold after he had been
medicallyexamined. He further testified that when one of the mates or the captains
makes an assessment that a person should not perform a particular job, he does
1 An issue raised and argued for the first time in a reply brief is too late to
warrant consideration. Cowiche Canyon Conservancy v. Boslev, 118Wn.2d801,
809, 828 P.2d 549 (1992). But, it is in the discretion of an appellate court to decide
an issue regardless of which brief addresses it. Bovd v. Davis, 127 Wn.2d 256,
265, 897 P.2d 1239 (1995). We choose to exercise our discretion and consider
Ahmed's challenge to the finding of fact and conclusion of law noted in his reply
brief.
No. 73032-1/6
not defy their orders. And, Wes Tabaka, at the time a "freezer boss"2 on Glacier's
ship, testified that he did not recall working with Ahmed in the freezer hold, but
remembered working with him out on the docks.
After reviewing this evidence, the trial court noted that Dioumassy's
deposition testimony stated that Dioumassy saw Ahmed in the freezer and that
Ahmed said the foreman asked him to go there.3 Notwithstanding this testimony,
the trial court found that Dioumassy's deposition testimony lacked specificity as to
the date and time of when Dioumassy saw Ahmed in the freezer hold such that his
testimony did not necessarily rebut Vercruysse's account. Consequently, the trial
court found that Ahmed did not meet his burden of proof on that issue.
On appeal, Ahmed again relies on Dioumassy's testimony. And, Ahmed
contends that if the attorneys had specifically asked Dioumassy about the date
and time of his encounter with Ahmed in the freezer, Dioumassy would have been
able to answer, confirming Ahmed's account of the events. To the extent Ahmed
is arguing that the trial court's finding is unsupported by substantial evidence
because Dioumassy's deposition testimony calls Vercuysse's testimony into
question, we cannot review that argument. See Morse v. Antonellis, 149 Wn.2d
572, 574, 70 P.3d 125 (2003) (noting that credibility determinations are solely for
the trier of fact and cannot be reviewed on appeal).
2A freezer boss makes sure that everything is running smoothly so that the
factory can keep running efficiently. Freezer bosses go through additional safety
training and have responsibilities regarding overseeing the crew's safety.
3 Excerpts of Dioumassy's deposition are in the record, but the portion of
the deposition referenced by the trial court—page 20—is not in the record.
No. 73032-1/7
Vercuysse testified that he did not order Ahmed to return to the freezer.
Tabaka testified that he did not work with Ahmed in the freezer. Apparently, the
trial court was unpersuaded that this testimony was not credible. We conclude
that substantial evidence supports the trial court's finding of fact that Ahmed failed
to prove that Vercuysse ordered him to return to the freezer after he was treated
by Ivie.4 And, to the extent Ahmed is arguing that his attorney was ineffective by
not asking Dioumassy the appropriate follow-up questions during his deposition,
this lawsuit is not the appropriate forum to raise the efficacy of his legal
representation.
Ahmed does not explicitly cite or challenge other specific findings of fact or
conclusions of law, and the nature of his arguments based on other findings or
conclusions is not clear from his briefs. As such, his other arguments are not
properly before us. See RAP 10.3(g); Harris, 133 Wn. App. at 138 (technical
violations of RAP 10.3(g) may be waved where the brief makes the nature of the
challenge clear and included challenged findings in text). But, even if we were to
consider Ahmed's other arguments, and those issues attached to Ahmed's notice
of appeal, they constitute challenges to the efficacy of his legal representation—
4 Ahmed also challenges the trial court's conclusion of law that Glacier did
not act negligently under the Jones Act with respect to any preinjury training or
post injury practices. He argues that Yatte's deposition disproves that conclusion.
But, our review of conclusions of law is limited to whether the findings of fact
support the conclusion. Here, Ahmed does not argue that the conclusion of law is
unsupported by the factual findings. And, to the extent that he argues Yatte's
deposition undercuts the factual findings supporting the trial court's conclusion, his
argument lacks the proper specificity for our review. See RAP 10.3(a)(6) (stating
that argument must be supported with references to relevant parts of the record).
No. 73032-1/8
not challenges to the actions of the trial court in his case against Glacier.
Therefore, those issues are not properly raised before this court.
But, Ahmed makes two arguments framed as challenges to his legal
representation that could also relate to an error made by the trial court. First,
Ahmed asserts that he did not have an adequate translator at trial and that he had
difficulty understanding the translators. Secondly, he notes that he did not have
the benefit of a jury trial. Because inadequate interpreter services and the wrongful
denial of a jury demand have the capability of resulting from an erroneous decision
of the trial court, in an abundance of caution, we will consider those two issues.5
First, Ahmed argues that he did not have an adequate interpreter for trial.
He claims both that he did not have an interpreter for the entire trial as he should
have and that he was unable to understand the interpreter that was provided to
him.
It is the declared policy of this state under RCW 2.43.010
to secure the rights, constitutional or otherwise, of persons who,
because of a non-English speaking cultural background, are unable
to readily understand or communicate in the English language, and
who consequently cannot be fully protected in legal proceedings
unless qualified interpreters are available to assist them.
"Non-English speaking person" means any person involved in a legal proceeding
who cannot readily speak or understand the English language. RCW 2.43.020(4).
5 Ahmed argued that he did not have a proper interpreter in the arguments
attached to his notice of appeal. But, he first noted that he did not have the benefit
of a jury trial in his reply brief. An issue raised and argued for the first time in a
reply brief is generally too late to warrant consideration. Cowiche Canyon, 118
Wn.2d at 809. But, we exercise our discretion and consider Ahmed's argument to
confirm that any errors regarding the jury demand made in Ahmed's case are not
attributable to the trial court. See Boyd, 127 Wn.2d at 265.
8
No. 73032-1/9
The right to an interpreter in the civil context is not as well established as in the
criminal context. But, because the statute on its face applies to any non-English
speaking person involved in a "legal proceeding," we apply to the civil setting the
same basic right to an interpreter and standard of review for the trial court's
decision whether to appoint one. ]a\; see, e.g., In re Marriage of Olson, 69 Wn.
App. 621, 624, 850 P.2d 527 (1993) (noting that the appointment of an interpreter
in a civil dissolution matter is within the discretion of the trial court and finding that
a hearing-impaired party was not entitled to an interpreter because his need for
one was not made apparent to the trial judge and his impairment was
accommodated to the extent required).
Here, prior to trial beginning, Ahmed's attorney informed the trial court that
Ahmed would require an Arabic interpreter. The trial court then stated to counsel,
"Your client, Mr. Ahmed, is not requiring that an interpreter be present the entire
trial, just when he's testifying." Ahmed's attorney clarified that the court's
understanding was correct. The trial court noted, "I just don't want any issues
coming back later on that [Ahmed] didn't have a fair hearing." Ahmed's counsel
replied that Ahmed would not need an interpreter for the majority of his testimony
and that the interpreter was necessary for only technical issues that Ahmed could
not understand or articulate. The court then stated, "I just don't want any issues
coming back later on saying that, you know, we requested an interpreter should
have been present the whole proceedings, when it's hard to get one." Neither
No. 73032-1/10
party objected at that point or noted interest in having an interpreter throughout the
entire proceeding.
Ahmed was the first witness to testify at trial. An interpreter was present
during Ahmed's testimony. Ahmed began his testimony on direct examination by
speaking in English. After several minutes of testimony, the court told Ahmed's
attorney that he should begin using the interpreter, because Ahmed began using
technical terms. The interpreter clarified that he would interpret everything from
that point onward during Ahmed's testimony. Still, Ahmed attempted to use
English and the court had to encourage Ahmed to speak in Arabic. At one point,
counsel for Glacier noted that both Ahmed and the interpreter were both speaking
English and that counsel was able to understand Ahmed. Later, the court again
advised Ahmed's attorney that Ahmed should use the interpreter. After Ahmed
testified, the interpreter was present in the courtroom during Ivie's testimony. But,
he was dismissed because he was not needed. Later, Ahmed returned to testify
on rebuttal. Ahmed's counsel noted that, "He feels comfortable doing it given the
subject matter without [an] interpreter."
Based on this record, there is no evidence that Ahmed requested
interpretation services and that the request for an interpreter was denied. In fact,
the trial court encouraged Ahmed to use the interpreter and he resisted. Moreover,
based on this record, it is not evident that Ahmed is considered a "non-English
speaking person" requiring an interpreter under the statute. RCW 2.43.020(4).
10
No. 73032-1/11
Therefore, we conclude that any potential error regarding a lack of interpretation
services at trial is not attributable to the trial court's abuse of discretion.
Ahmed also notes that he did not have a jury trial, implying that he wanted
a jury trial. Ahmed's original complaint included a jury demand. On November 6,
2014, Glacier filed a jury demand. Glacier noted that it had not filed a jury demand
up until that point, because it relied on Ahmed's request for a jury demand in his
initial complaint. Glacier stated that it learned from Ahmed on November 6 that he
failed to pay the jury fee and that he no longer wanted a jury trial. Therefore,
Glacier attempted to pay the jury fee and demanded a trial by jury. On November
12, 2014, Ahmed filed a motion to strike an untimely jury demand, arguing that
Glacier waived its right to a jury trial under CR 38 and King County Local Civil Rule
(KCLCR) 38.
CR 38(b) outlines how a party must make a demand for a jury. The rule
provides that the party must serve upon the other party a demand in writing, by
filing the demand with the clerk, and by paying the jury fee required by law. Id
CR 38(d) states that the failure of a party to serve a demand as required by the
rule and to pay the jury fee constitutes a waiver by the party of trial by jury. KCLCR
38 provides that the demand for a jury must be contained in a separate document
and that the demand must be filed and served no later than the final date to change
trial designated in the case schedule.
Here, the amended case schedule specified that the last date for filing the
jury demand was August 25, 2014. No separate document containing a jury
11
No. 73032-1/12
demand was filed nor was the jury fee paid before that date. Based on this
information, on November 20, 2014, the trial court struck the jury demand and
concluded that the case would be a bench trial. On this record, it is clear both that
Ahmed's counsel actively sought a bench trial instead of a jury trial and that the
trial court properly concluded that the parties had waived their rights to a jury trial.
Therefore, if there is any error attributable to the trial proceeding as a bench trial,
the error is not as a result of an action taken by the trial court.
Finally, in response to Ahmed's opening brief, Glacier argues that the issues
Ahmed raises on appeal are frivolous. Glacier cites to RAP 18.9(a) and notes that
an appellate court may on its own initiative order a party who files a frivolous appeal
to pay terms or compensatory damages to any party harmed by its actions. Glacier
argues that Ahmed's appeal is frivolous, because Ahmed only critiques his legal
representation and restates the fact that he is injured without referencing Glacier's
negligence. Glacier also argues that the appeal is frivolous, because Ahmed's
opening brief provides no support of the issues for review, no citations to legal
authority supporting that the trial court erred in its factual findings or misapplied the
law, and makes no reference to relevant parts of the record proving such errors.
Under RAP 18.9(a), we may award sanctions, such as a grant of attorney
fees and costs to an opposing party, when a party brings a frivolous appeal.
Granville Condo. Homeowners Ass'n v. Kuehner. 177 Wn. App. 543, 557, 312 P.3d
702 (2013). Even assuming Ahmed's appeal is frivolous, we must then decide
12
No. 73032-1/13
whether to exercise our discretion to award fees to Glacier. See RAP 18.9(a). We
decline to do so.
We affirm.
VQjUMgQ.
13