Melissa Eckstrom v. Sigurd Hansen

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COURT OF APPEALS DWI
STATE OF WASHINGTON
2018 JUL 30 t41 8: 31
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MELISSA ECKSTROM, )
) No. 76571-0-1
Respondent, )
) DIVISION ONE
v. )
)
SIGURD HANSEN, ) PUBLISHED OPINION
)
Petitioner. ) FILED: July 30, 2018
)
BECKER, J. — Respondent Melissa Eckstrom has filed a personal injury
claim against her father, petitioner Sigurd Hansen, alleging that he sexually
molested her when she was two years old. At the time of the alleged abuse,
Eckstrom's parents had just been through an acrimonious marriage and divorce.
Eckstrom's mother accused Hansen of molesting the child, and the court was
called on to decide whether Hansen should be allowed to continue having
residential time with her. After a full trial in March 1992, the court found that
Hansen had not abused Eckstrom. Hansen asserts that the 1992 finding of no
abuse estops Eckstrom from litigating the present claim. Because Eckstrom was
not a party to the 1992 proceedings, the trial court properly denied Hansen's
motion to dismiss.
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FACTS
Eckstrom's parents married in 1987 and separated about a month later.
Eckstrom was born in 1988. The marriage was dissolved by decree in 1989.
Under the parenting plan, Eckstrom resided primarily with her mother. Hansen, a
commercial fisherman who spent several months per year in Alaska, exercised
his right to residential time when he was in town. Then, in 1990, the mother
began to accuse Hansen of molesting the child. Although Hansen denied
wrongdoing, his residential contact with his daughter was suspended by
temporary order.
Eckstrom was assessed by a number of professionals during the ensuing
investigation. Sometimes she made statements that indicated Hansen had
molested her. In other interviews, she denied that he had touched her
inappropriately. A court-appointed psychiatrist concluded there was no
convincing evidence to support the allegations of sexual abuse. A guardian ad
litem appointed for Eckstrom filed a report stating his opinion that Hansen had
not abused Eckstrom and recommending that his visitation with her be
reinstated.
A trial occurred in 1992 on Hansen's motion to resume residential contact
with Eckstrom. The court made a finding that Hansen had not abused his
daughter. The court provided for gradual reinstatement of his residential time
with her, under therapeutic supervision intended to overcome the estrangement
that had developed and to promote a close parent-child relationship.
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Efforts to reunite father and daughter were unsuccessful. In 1993,
Hansen relinquished his parental rights. Eckstrom's mother assumed sole
custody and control of the child.
Eckstrom grew up having no contact with Hansen. In 2010, she reached
out to Hansen and told him that she was planning to go to law school. She
asked Hansen to give her money for tuition and other expenses, which she
estimated as more than $250,000. Hansen told her that he would first want to
get to know her better. They attended a joint counseling session. They had no
further contact thereafter. Eckstrom went to law school and is now a practicing
attorney.
This suit began in May 2016, when Eckstrom filed a complaint against
Hansen seeking damages for child rape and molestation. Eckstrom claimed to
have memories of Hansen's abuse and said that she was prepared to testify
about her experience. Hansen denied liability and asserted the defenses of res
judicata and collateral estoppel. He moved for dismissal in July 2016 on the
ground that the 1992 finding of no abuse precluded Eckstrom's suit. The trial
court denied the motion but granted Hansen's request for a certification under
RAP 2.3(b)(4). This court granted discretionary review.'
1 Hansen attached to his opening brief an appendix containing relevant
documents filed in the earlier superior court action. These documents, originally
filed under seal, were unsealed by the superior court in the present action of
Eckstrom v. Hansen. Although the documents are not part of the record in this
current case, the court was aware of their contents. See, e.g., Clerk's Papers at
285 n.2. We grant Hansen's request to take judicial notice that these documents
are, in fact, documents that were filed with the King County Superior Court in the
earlier proceedings. That fact, supported by a copy of the court's docket, is not
subject to reasonable dispute. ER 201(b)(2).
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ANALYSIS
Res judicata and collateral estoppel are kindred doctrines designed to
prevent repetitive litigation. Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 395,
429 P.2d 207(1967). Whether an action is precluded by res judicata or collateral
estoppel is reviewed de novo. Enslev v. Pitcher, 152 Wn. App. 891, 899, 222
P.3d 99(2009), review denied, 168 Wn.2d 1028 (2010); Christensen v. Grant
County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957(2004).
We have little difficulty concluding that res judicata does not apply here.
One of the requirements of res judicata is that the two suits involve the same
cause of action. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254
P.3d 818 (2011). These two suits do not. The suit between the parents
addressed Hansen's right to have residential time with his daughter, whereas
Eckstrom now raises a claim for personal injury damages.
The closer question is the application of collateral estoppel, also known as
issue preclusion. Pederson v. Potter, 103 Wn. App. 62, 69, 11 P.3d 833(2000),
review denied, 143 Wn.2d 1006 (2001). Collateral estoppel prevents relitigation
of a particular issue in a later proceeding involving the same parties, even if the
later proceeding involves a different claim or cause of action. Pederson, 103 Wn.
App. at 69. The requirements of collateral estoppel are: (1) the identical issue
was decided in the prior action;(2) the prior action resulted in a final judgment on
the merits;(3)the party to be estopped was a party or in privity with a party in the
earlier proceeding; and (4) precluding relitigation of the issue will not work an
injustice. Williams, 171 Wn.2d at 731. When the elements of collateral estoppel
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are met, the doctrine serves to prevent inconvenience or harassment of parties
and provides for finality in adjudications. Christensen, 152 Wn.2d at 306-07.
The factual issue to be decided in Eckstrom's personal injury claim is
whether Hansen sexually abused Eckstrom during the same time period as
alleged in the 1992 proceeding. In the parenting plan trial in 1992, the trial court
was presented with the identical issue and decided Hansen did not sexually
abuse Eckstrom. The result was final judgment on the merits permitting Hansen
to resume residential contact with his young daughter. Because the first two
elements of collateral estoppel are satisfied, we must consider the third: whether
Eckstrom, the party to be estopped, was a party or in privity with a party in the
earlier proceeding.
Eckstrom was not a named party to the earlier action. The caption of the
case was "In Re the Marriage of Lisa Dawn Hansen, Petitioner, and Sigurd J.
Hansen, Respondent." Hansen argues that his daughter was nonetheless
"effectively a party" because a guardian ad litem was appointed for her.
Hansen cites Guardianship of Robinson, 9 Wn.2d 525, 536, 115 P.2d 734(1941). Robinson exemplifies the general principle that a minor represented by a
guardian in an action is bound by the resulting judgment. RESTATEMENT
(SECOND)OF JUDGMENTS § 41 (1982).
Robinson was an estate dispute. The George Washington Foundation,
serving as guardian of the persons of three minors, petitioned for removal of
Robert Terhune, who was then serving as guardian of their estates. Robinson, 9
Wn.2d at 534. The trial court dismissed the petition, and the foundation
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appealed. The foundation argued that the trial court should have removed
Terhune because Terhune had allegedly filed a false final account overstating
the cash on hand when he took over from his predecessor, who had resigned.
At the earlier hearing on the final account, the foundation did not choose
to appear though it had notice. The minors were personally served with notice of
the hearing on the final account. A guardian ad litem was appointed "to appear
and represent their interests" at the hearing. Robinson, 9 Wn.2d at 528-29, 536.
The final account was approved, and no appeal was taken. Robinson, 9 Wn.2d
at 529.
The Supreme Court ruled that the claim of false reporting was no longer
available in the second proceeding as a ground for removing Terhune because it
could and should have been litigated at the earlier hearing on the final account.
Robinson, 9 Wn.2d at 536. The minors were held to be bound by the previous
order approving the final account. Robinson, 9 Wn.2d at 536.
Hansen argues that under Robinson, whenever a guardian ad litem is
appointed to protect a minor's interests, the minor is bound by the rulings of the
court and cannot relitigate the issues resolved by those rulings. Robinson does
not support stating the law so broadly. The effect of the appointment of a
guardian ad litem depends on the type of case and the authority given.
The Marriage of Hansen case, King County Superior Court cause number
87-3-09135-3, was a domestic relations matter. The order appointing a guardian
ad litem for Eckstrom in 1990 provided that the guardian ad litem "shall conduct a
reasonable investigation of the circumstances of the child in relation to Parenting
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Plan matters and shall, in that capacity, represent the best interests of the minor
child."2 The order did not authorize the guardian ad litem to receive service of
process for Eckstrom or to assert claims and counterclaims on her behalf.
Nothing in the terms of the order of appointment authorized the guardian ad litem
to act for Eckstrom so as to make her "effectively a party" as Hansen contends.
Even if the guardian ad litem had concluded that Hansen abused Eckstrom, he
did not have the authority to pursue a personal injury claim on her behalf. The
guardian ad litem was appointed to represent Eckstrom's interests only in
connection with the pending decision on whether her father should be allowed to
have residential time with her. This concern is immaterial to the present suit.
In addition, we find no authority permitting collateral estoppel to operate
against a minor who is represented by a guardian ad litem in an earlier
proceeding when the minor's interests in the second proceeding are not the
same as in the first proceeding. In Robinson, the foundation was asserting the
minors' interest in having their assets handled honestly. The exact same interest
was at stake at the earlier hearing on the final account. Here, the interest now
asserted by Eckstrom is to receive monetary compensation for the damages she
has allegedly suffered as the result of Hansen's conduct. This is different from
the Marriage of Hansen matter, where her interest was in being protected from
sexual abuse, not in receiving compensation.
2 Clerk's Papers at 113-14.
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We conclude that the appointment of the guardian ad !item did not make
Eckstrom a "party" to the dispute between her parents for purposes of collateral
estoppel.
Hansen next contends that Eckstrom, if not a party, was in privity with her
mother, who was a named party to the adjudication in Marriage of Hansen.
Privity denotes a mutual or successive relationship to the same right or property.
McDaniels V. Carlson, 108 Wn.2d 299, 306, 738 P.2d 254(1987). Eckstrom's
mother was pursuing her right as a parent to protect her child from abuse.
Eckstrom did not have that same right. As a child, she had to depend on others
to protect her. And Eckstrom did not succeed to her mother's rights as a parent.
Eckstrom is pursuing her own distinct right as an adult to sue for personal injury
damages. The requirement for privity in collateral estoppel is "strict." McDaniels,
108 Wn.2d at 306. We conclude Eckstrom was not in privity with her mother.
The fourth requirement of collateral estoppel is that precluding relitigation
of the issue will not work an injustice on the party against whom the doctrine is to
be applied. McDaniels, 108 Wn.2d at 303. Washington's case law on the
injustice element "is most firmly rooted in procedural unfairness." Thompson v.
Dep't of Licensing, 138 Wn.2d 783, 795, 982 P.2d 601 (1999). It would be
procedurally unfair to Eckstrom to bind her to the outcome of an earlier
proceeding that occurred when she was unrepresented by anyone with the
power to act for her in litigation. At the time, she was too young to testify, too
young to understand the nature of the legal proceeding, and too young to be
aware of her right to pursue a tort claim.
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As noted by the trial court, the injustice of precluding Eckstrom from
bringing her own suit is underscored by the public policy of RCW 4.16.340(1).
The statute provides "a broad and generous application of the discovery rule to
civil actions for injuries caused by childhood sexual abuse." C.J.C. v. Corp. of
the Catholic Bishop of Yakima, 138 Wn.2d 699, 712, 985 P.2d 262(1999). It
recognizes that victims may for many years "repress the meaning of the abuse or
be unable to connect the abuse to any injury." C.J.C. 138 Wn.2d at 712-13.
We conclude Eckstrom is not collaterally estopped by the earlier finding
that Hansen did not abuse her. She is entitled to her own day in court to try to
prove that he did. We affirm the trial court decision allowing her suit to go
forward.
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WE CONCUR:
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