Dominique M. Keimbaye, V. Kimberly A. Exe ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DOMINIQUE KEIMBAYE,
No. 84503-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
KIMBERLY A. EXE,
Respondent.
DÍAZ, J. — A jury denied Dominique Keimbaye the economic damages he
sought following a motor vehicle collision with Kimberly Exe. Keimbaye now
asserts pro se that numerous erroneous decisions of the trial court precluded a fair
jury from considering relevant evidence supporting those damages. We disagree
and affirm.
I. BACKROUND
In June 2018, Exe rear-ended Keimbaye on Interstate 405. In June 2021,
Keimbaye sued Exe and represented himself at trial, where he sought to recover
economic damages for medical expenses and lost wages, as well as noneconomic
damages. Exe admitted fault for the underlying collision. The trial court instructed
the jury that the issue before it was “what damages, if any, to [Keimbaye] were
proximately caused by [Exe]’s negligence and what amount, if any, [Keimbaye]
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should recover.”
At trial, the only testimony Keimbaye presented in his case in chief was his
own. Keimbaye offered into evidence exhibit 8, which included a list of his claimed
medical expenses and lost wages. The trial court admitted a redacted version as
exhibit 15.
After Keimbaye rested his case, Exe moved for judgment as a matter of law
as to Keimbaye’s medical expenses. The trial court granted Exe’s motion,
reasoning that, because Keimbaye did not present any testimony from a medical
expert, he failed to meet his burden to prove a causal link between the collision
and his medical expenses. After the trial court so ruled, Exe decided not to call
her medical expert, Dr. Alan Brown.
Exe presented testimony from Peggy Simmard, a human resources
representative for Providence Health Services (Providence). Simmard testified
that, at the time of the underlying collision, Keimbaye was employed by Providence
but on administrative leave and, four days later, Providence terminated Keimbaye
for cause.
The jury awarded Keimbaye $20,000 in noneconomic damages and zero
dollars in economic damages. Keimbaye moved for a new trial, and the trial court
denied the motion. Keimbaye appeals.
II. ANALYSIS
Keimbaye, who continues to represent himself on appeal, makes 20
assignments of error. We hold pro se litigants to the same rules of procedure and
substantive law as we do licensed attorneys. Holder v. City of Vancouver, 136
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Wn. App. 104, 106, 147 P.3d 641 (2006). An appellant’s brief must contain
“argument in support of the issues presented for review, together with citations to
legal authority and references to relevant parts of the record.” RAP 10.3(a)(6).
Arguments unsupported by references to the record or citation to authority need
not be considered, nor do claims presented without meaningful analysis. Cowiche
Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992);
Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d
835 (2011). And, this court will not “comb the record with a view toward
constructing arguments” for a litigant. In re Estate of Lint, 135 Wn.2d 518, 532,
957 P.2d 755 (1998).
A number of Keimbaye’s arguments fail under the foregoing standards
because they are unsupported by citations to the record or by sufficient argument
and authority. For example, he makes generalized complaints about the trial
court’s handling of jury selection, its unidentified “evidentiary rulings,” alleged
“limitations” and “restrictions” on the presentation of his case, and the trial court’s
rulings on Exe’s objections during cross-examination. 1 But he does not articulate
how the trial court erred much less cite any authority requiring reversal. Thus, we
decline to consider those claims. Cowiche Canyon Conservancy, 118 Wn.2d at
809.
More specifically as to the court’s evidentiary rulings, Keimbaye correctly
points out that ER 402 states that all relevant evidence is admissible but he ignores
the part of ER 402 stating, “except as . . . otherwise provided . . . by these rules.”
1 Assignments of error 2-5, and 7.
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(Emphasis added.) And while he invokes the Sixth Amendment to the United
States Constitution, “[t]he rights arising under the Sixth Amendment are
inapplicable to civil cases.” Mason v. Mason, 19 Wn. App. 2d 803, 822, 497 P.3d
431 (2021). Passing treatment of an issue or lack of reasoned argument is
insufficient to merit judicial consideration. Brownfield v. City of Yakima, 178 Wn.
App. 850, 876, 316 P.3d 520 (2013).
Keimbaye also takes issue with the trial court’s “handling” of his pro se
status. 2 But Keimbaye does not point to any abuse of the trial court’s discretion to
manage its courtroom, and the record reveals that the court was rather
accommodating of Keimbaye, thoroughly explaining its rulings while being mindful
not to cross the line into improperly assisting him. See cf. Hickock-Knight v. Wal-
Mart Stores, Inc., 170 Wn. App. 279, 309 n.11, 284 P.3d 749 (2012) (“Trial courts
have wide discretion to manage their courtrooms and to conduct trials fairly,
expeditiously, and impartially.”); Edwards v. Le Duc, 157 Wn. App. 455, 464, 238
P.3d 1187 (2010) (trial court abused its discretion by denying defendant’s motion
for new trial where the court repeatedly assisted the pro se plaintiff during trial
rather than treating her as it would a lawyer). “It is not the responsibility of this
court to attempt to discern what it is appellant may have intended to assert that
might somehow have merit.” Port Susan Chapel of the Woods v. Port Susan
Camping Club, 50 Wn. App. 176, 188, 746 P.2d 816 (1987).
Keimbaye next asserts a number of (more specific) errors having to do with
the trial court’s exclusion of evidence that Exe was negligent and its decision not
2 Assignment of error 15.
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to give Keimbaye’s proposed jury instructions on the duty of ordinary care and
contributory negligence. 3 But even if the trial court erred, any error was at best
harmless given that Exe’s negligence was uncontested and not before the jury.
Accordingly, Keimbaye does not establish a basis for reversal. See Saleemi v.
Doctor’s Assocs., Inc., 176 Wn.2d 368, 381, 292 P.3d 108 (2013) (courts do not
reverse civil judgments for harmless error).
Keimbaye also challenges the trial court’s rulings about exhibit 8 and its
exclusion of other evidence of Keimbaye’s medical expenses. 4 The trial court
admitted a modified version of exhibit 8, excising its references to Keimbaye’s legal
costs (the exclusion of which Keimbaye does not challenge), and a personal loan
that Keimbaye claimed he used to pay his medical expenses. 5 To this end,
Keimbaye does not assign error to the trial court’s ruling granting Exe’s motion for
judgment as a matter of law as to causation, nor does he address or analyze the
standards under CR 50, which governs such motions. Without arguing—much
less showing—that the trial court erred by concluding that Keimbaye’s evidence
was insufficient to show the collision proximately caused his medical expenses,
Keimbaye cannot show it was error to exclude evidence of the amount of those
expenses. Thus, it was not an abuse of discretion to exclude this evidence. State
v. Nava, 177 Wn. App. 272, 289, 311 P.3d 83 (2013) (“Decisions involving
evidentiary issues lie largely within the sound discretion of the trial court and
3 Assignments of error 1, 8-10.
4 Assignments of error 6, 11-12, 14, 18-19.
5 Keimbaye argues that the trial court erred by sustaining objections to the
first two pages of exhibit 8. But although Exe initially objected to those pages, she
later withdrew her objections, and the trial court admitted those pages.
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ordinarily will not be reversed on appeal absent a showing of abuse of discretion.”).
In response, Keimbaye claims Dr. Brown would have confirmed the causal
connection and takes issue with the fact that Dr. Brown did not testify. 6 But
Keimbaye bore the burden to prove proximate cause, Little v. Countrywood
Homes, Inc., 132 Wn. App. 777, 780, 133 P.3d 944 (2006), and as the trial court
explained below, Keimbaye could have—but did not—call Dr. Brown in his case in
chief.
Keimbaye next suggests that the trial court was biased. 7 But the trial court
is presumed to perform its functions without bias or prejudice, State v. Leon, 133
Wn. App. 810, 813, 138 P.3d 159 (2006), and the citations to the record Keimbaye
provides do not reveal anything that would overcome this presumption. Keimbaye
claims further that the trial court failed to address “potential collaboration” between
Exe and Providence, 8 and when he raised this issue below, he argued that the
only reason Exe planned to call a witness from Providence was to “eliminate” his
wage loss claim. But he cites no authority for the proposition that this was unfair
or improper, as opposed to a legitimate defense strategy. 9 Thus, we decline to
consider those claims. Cowiche Canyon Conservancy, 118 Wn.2d at 809.
Finally, Keimbaye argues that the trial court misapplied RCW 4.76.030 by
6 Assignment of error 17.
7 Assignment of error 13.
8 Assignment of error 16.
9 In a July 25, 2023 submission to this court, Keimbaye requested that we
take additional evidence of alleged impropriety on the part of Exe’s counsel and
the trial court. But this court generally does not take evidence, and Keimbaye does
not address the factors in RAP 9.11(a) regarding the taking of additional evidence
on review. Keimbaye’s request is hereby denied.
6
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denying his motion for a new trial. 10 RCW 4.76.030 authorizes the court to order
a new trial if it “find[s] the damages awarded by a jury to be so excessive or
inadequate as unmistakably to indicate that the amount thereof must have been
the result of passion or prejudice.”
But Keimbaye did not rely on RCW 4.76.030 or argue passion or prejudice
below. Instead, his motion was based on CR 59(a)(7) (“there is no evidence or
reasonable inference from the evidence to justify the verdict or the decision”) and
CR 59(a)(9) (“substantial justice has not been done”). The thrust of his motion was
that he should get another opportunity to present testimony from his treating
physicians or from Dr. Brown. We will not consider Keimbaye’s statutory argument
for the first time on appeal. See Wingert v. Yellow Freight Sys., Inc., 146 Wn.2d
841, 853, 50 P.3d 256 (2002) (arguments not raised in the trial court generally will
not be considered on appeal).
Keimbaye also fails to show that the trial court abused its discretion by not
giving him a second chance to call known witnesses that he did not call the first
time. Cf. Henderson v. Thompson, 200 Wn.2d 417, 430, 518 P.3d 1011 (2022)
(“We review a trial court’s decision on a motion for a new trial for abuse of
discretion.”); 14A DOUGLAS J. ENDE, W ASHINGTON PRACTICE: CIVIL PROCEDURE
§ 22:25, at 29 (3d ed. 2018) (CR 59 motion “does not provide litigants with an
opportunity for a second bite at the apple.”).
10 Assignment of error 20.
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III. CONCLUSION
We affirm. 11
WE CONCUR:
11 Keimbaye has appended to his brief of appellant a “MOTION FOR
REVERSAL/REQUEST FOR ADDITUR,” but that motion is not properly before this
court and is hereby denied.
8