Todd Newlun, Appellant/cross-respondent v. Rick Sucee, Respondents/cross-appellants ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TODD NEWLUN, and all other persons
similarly situated, No. 77403-4-I
Appellant/Cross Respondent, DIVISION ONE
V. UNPUBLISHED OPINION
RICK SUCEE, commander of the
Northwest Regional Drug Taskforce;
CRAIG JOHNSON, police officer for
the city of Bellingham; RICHARD
FRAKES, deputy sheriff for Whatcom
County; B.L. HANGER,TROOPER,
Washington State Patrol;
BELLINGHAM POLICE
DEPARTMENT, subdivision of the city
of Bellingham; WHATCOM COUNTY
SHERIFF'S OFFICE, a subdivision of
Whatcom County; and WASHINGTON
STATE PATROL, a subdivision of the
State of Washington,
Respondents/Cross Appellants. FILED: April 22, 2019
APPELWICK, C.J. — Newlun sued the Defendants for violation of the privacy
act, chapter 9.73 RCW. He appeals the defense jury verdict. Newlun argues that
the defendants are judicially estopped from taking a position in this case that is
inconsistent with their arguments in a prior criminal case against him. We reject
this argument and decline to consider judicial estoppel and privacy arguments that
this court rejected in Newlun's prior appeal. We affirm.
No. 77403-4-1/2
FACTS
Bellingham police received a tip from an informant that Todd Newlun was
illegally selling marijuana. Bellingham Master Patrol Officer Craig Johnson and
the Northwest Regional Drug Task Force set up a controlled buy. During the
planning stages of the operation, Officer Johnson and the Task Force decided that,
for officer safety purposes, they would utilize a wire to transmit conversations
during the controlled buy.
On March 16, 2011, Detective B.L. Hanger wore a wire that transmitted his
conversations to Officer Johnson. Newlun v. Sucee, No. 72642-1-1, slip op. at 2
(Wash. Ct. App. May 23, 2016)(unpublished), http://www.courts.wa.gov/opinions/
pdf/726421.pdf(Newlun I). Detective Hanger and the informant drove to the Valley
Village Mall, arriving at 1:30 p.m. Officer Johnson was parked nearby in an
undercover police vehicle. Newlun arrived and parked next to Detective Hanger
and the informant. Newlun and Detective Hanger rolled down their windows and
had a brief conversation, agreeing to meet at Newlun's home in Sudden Valley.
Newlun and Detective Hanger drove their cars to Newlun's home, and
Officer Johnson followed at a distance. Newlun and Detective Hanger parked in
front of the home, and Officer Johnson parked nearby. Newlun entered Officer
Hanger's vehicle and discussed the drug transaction for seven or eight minutes.
Officer Johnson was listening over the wire and providing updates to other officers
over a radio. Detective Hanger and the informant purchased marijuana and
hasheesh from Newlun, and then left.
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Newlun was arrested and charged. In the criminal proceeding, Newlun
moved to suppress evidence of the drug transaction that was gathered from the
transmitter. Newlun argued that the State violated RCW 9.73.210, which requires
that a police commander or ranking officer first give written authorization for a wire.
The State argued that it substantially complied with RCW 9.73.210 by obtaining
the verbal authorization of Lieutenant Rick Sucee. The trial court granted the
motion, finding that the failure to prepare a written authorization under RCW
9.73.210 required suppressing the testimony of participants in the transmitted
conversation and anyone who could hear the transmission. Newlun pleaded guilty
to a misdemeanor charge. Newlun 1, No. 72642-1-1, slip op. at 4.
Newlun then filed this action under chapter 9.73 RCW, claiming that his
privacy rights were violated by the electronic transmission of his private
conversations. Id. He named numerous defendants: Commander Rick Sucee of
the Northwest Regional Drug Task Force, Officer Craig Johnson, Whatcom County
Sheriff's Deputy Richard Frakes, Detective Hanger, the Washington State Patrol,
the Whatcom County Sheriff's Office, and the Bellingham Police Department
("Defendants"). Id. Newlun sought general damages under RCW 9.73.060 and
exemplary damages under RCW 9.73.230. Id.
Considering several summary judgment motions, the trial court dismissed
Newlun's claim for exemplary damages under RCW 9.73.230. Id. The trial court
denied the Defendants' motion for summary judgment on the grounds that the
transmitted conversation was not private, and therefore did not violate the privacy
act. Id. The parties appealed both orders. Id. at 5. On appeal, this court affirmed
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the dismissal of Newlun's claim for exemplary damages. Id. at 16-17. We also
held that the privacy of the transmitted conversation was a question of material
fact for the jury. See id. at 12. We rejected Newlun's argument that the Defendants
were "judicially estopped from arguing that the conversation is not private because
they claimed earlier that the remedy was liquidated damages, not exemplary
damages." Id. at 8 n.6.
On remand, Newlun again argued that "collateral estoppel and/or equitable
estoppel and/or judicial [estoppel]" prohibited the Defendants from arguing that the
transmitted conversation was not private. The trial court denied the motion.
The jury returned a verdict for the defense, finding that the Defendants did
not violate the privacy act. Newlun appeals the verdict.'
DISCUSSION
Newlun first argues that the Defendants are judicially estopped from arguing
that the transmitted conversations are not private. He contends that the first
appeal did not address or decide whether there was a contradiction between the
legal positions the Defendants maintained to defeat Newlun's claim for general and
exemplary damages.2
1 Defendant City of Bellingham cross appeals the trial court's denial of its
CR 50 motion for a judgment as a matter of law. Most of the other Defendants join
the cross appeal. They urge, however, that we not reach the cross appeal if we
affirm the verdict. Because we affirm, we do not reach the Defendants' cross
appeal.
2 The Defendants argue that we should decline to review this argument
because Newlun fails to apply the correct standard of review, cite to legal authority,
or cite to the record. We generally will "not consider arguments that are
unsupported by pertinent authority, references to the record, or meaningful
analysis." Cook v. Bratenq, 158 Wash. App. 777, 794, 262 P.3d 1228(2010)(citing
Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549
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"Judicial estoppel is an equitable doctrine that precludes a party from
asserting one position in a court proceeding and later seeking an advantage by
taking a clearly inconsistent position." Arkison v. Ethan Allen, Inc., 160 Wash. 2d 535,
538, 160 P.3d 13 (2007)(quoting Bartlev—Williams v. Kendall, 134 Wash. App. 95,
98, 138 P.3d 1103(2006)). Judicial estoppel focuses on three factors:(1) whether
a party's current position is inconsistent with an earlier position,(2) whether judicial
acceptance of an inconsistent position in the later proceeding will create the
perception that the party misled either the first or second court, and (3) whether
the party asserting the inconsistent position will obtain an unfair advantage or
impose an unfair detriment on the opposing party if not estopped. Miller v.
Campbell, 164 Wash. 2d 529, 539, 192 P.3d 352(2008).
As noted in Newlun I, we rejected the claim of judicial estoppel and that the
positions taken by the State were inconsistent:
Newlun argues that the [Defendants are] judicially estopped from
arguing that the conversation is not private because they claimed
earlier that the remedy was liquidated damages, not exemplary
damages. We disagree. Judicial estoppel precludes a party from
gaining an advantage by taking one position and then asserting an
inconsistent position in later proceedings. . . . The [Defendantrs
position that the conversations are not subject to the protections of
the fplrivacv falct is not inconsistent with seekino to limit the
damages that Newlun could recover if he were to prevail at trial.
Newlun I, slip op. at 8 n.6 (emphasis added). In his reply, Newlun argues that
"[t]he Court of Appeals was not aware of the City[ of Bellingham]'s motion [for
summary judgment] in November 2013 to impose judgment against themselves
(1992); State v. Elliott, 114 Wash. 2d 6, 15, 785 P.2d 440 (1990); State v. Camarillo,
54 Wash. App. 821, 829, 776 P.2d 176 (1989), aff'd, 115 Wash. 2d 60, 794 P.2d 850
(1990); RAP 10.3(a)). We address Newlun's argument despite any deficiency.
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for liquidated damages." But, Newlun I takes note of the November 2013 motion:
"The [Defendants] later moved for summary judgment on the basis that Newlun
had not proved any actual damages and was only entitled to liquidated damages.
The trial court denied this motion and the [Defendants] did not request that final
judgment be entered with respect to that order or that it be certified for appeal."
Newlun I, slip op. at 4 n.3. Even though the order on the November 2013 motion
was not designated for review, this court considered it when deciding that judicial
estoppel does not apply.
Newlun also argues that, as a matter of law, the Defendants violated the
privacy act. He claims:
This court's holding creates a template that where there is a first time
contact between the government agent and the target the anticipated
is not private unless the target induces the government agent to enter
his home and the conversation takes place there. The template
holding of [Newlun I] is that if the person is unknown to the police,
the police can intercept their conversation in the first time meeting
conducted for the purpose of enticing or enabling the target to
commit a criminal offense, if the conversation takes place inside a
van parked on secluded street.
Newlun relies on State v. Flora, 68 Wash. App. 802, 845 P.2d 1355 (1992).3
In Flora, the defendant recorded his arrest, which took place outside of his home
with a third party present. Id. at 804. The court held that this was not private for
the purposes of the privacy act. Id. at 808. The court clarified that "[d]etermining
whether a given matter is private requires a fact-specific inquiry." Flora, 69 Wn.
App. at 806. Only "[w]here the pertinent facts underlying the cause of action are
3 Newlun concedes that Flora "was not mentioned previously in the briefing
to this court." He nevertheless urges that we depart from our holding in Newlun 1
on the basis of authority that he did not cite in his last appeal on this issue.
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undisputed . . . the determination is one of law." Id.
Here, the transmitted conversation also took place outside of Newlun's
home, in a van, and in the parking lot of a busy shopping mall. While there is some
factual similarity to Flora, this court did not conclude in the earlier appeal that as a
matter of law the conversation was not private. It did not suggest the conversation
would be private only inside a home. Thus, our decision was not as broad as
Newlun claims. It did not expand what is not private for the purposes of the privacy
act. Instead, consistent with Flora, we held there was a question of fact for the
jury.
Under the law of the case doctrine, "once there is an appellate holding
enunciating a principle of law, that holding will be followed in subsequent stages
of the same litigation." Roberson v. Perez, 156 Wn.2d 33,41, 123 P.3d 844(2005).
While RAP 2.5(c)(2) provides that we may review the propriety of a prior appellate
decision, we do so only "where justice would best be served." Newlun makes no
argument that justice would be served by reviewing our holding in Newlun I. We
see no error in the previous decision which might indicate injustice. We therefore
decline to review this argument again.
We affirm.
WE CONCUR:
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