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Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 24221-8-III
Title of Case: Bernadette Womack, et al v. Rusty Von Rardon, et al
File Date: 05/25/2006
SOURCE OF APPEAL
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Appeal from Superior Court of Spokane County
Docket No: 03-2-07057-7
Judgment or order under review
Date filed: 05/16/2005
Judge signing: Hon. Jerome J Leveque
JUDGES
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Authored by Stephen M Brown
Concurring: John A. Schultheis
Kenneth H. Kato
COUNSEL OF RECORD
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Counsel for Appellant(s)
Adam Phillip Karp
Attorney at Law
114 W Magnolia St Ste 425
Bellingham, WA 98225-4354
Counsel for Respondent(s)
Bonnie Mustain Rardon (Appearing Pro Se)
8821 E. Boone
Spokane Valley, WA 99212
Jayson L Anderson (Appearing Pro Se)
7007 E. Carlisle Ave.
Spokane Valley, WA 99212
Counsel for Minor(s)
Rusty Von Rardon (Appearing Pro Se)
305 E. Providence Ave., #2
Spokane, WA 99207-1871
Amicus Curiae on behalf of Animal Legal Defense Fund
David Michael Kerwin
Purcell & Adams, PLLC
7127 196th St SW Ste 201
Lynnwood, WA 98036-5046
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BERNADETTE WOMACK, a single ) No. 24221-8-III
woman; and BERNADETTE WOMACK a )
Fiduciary, Personal )
Representative, and Special ) Division Three
Guardian over the Sentient )
Being and Equitable Estate of ) PUBLISHED OPINION
MAX WOMACK, deceased feline and )
property sui generis; and STATE )
OF WASHINGTON as parens patriae )
for MAX WOMACK ex rel. )
BERNADETTE WOMACK, )
)
Appellant, )
)
v. )
)
RUSTY VON RARDON, a Minor, and )
Temporary Constructive Trustee )
over MAX WOMACK; JASON ROBERT )
BRUMBACK, a Minor, and )
Temporary Constructive Trustee )
over MAX WOMACK; BONNIE MUSTAIN )
RARDON A/K/A BONNIE MUSTAIN and )
JOHN DOE RARDON, husband and )
wife, and the marital community )
composed thereof; DONALD G. )
BRUMBACK and SUSAN L. BRUMBACK, )
parents to JASON BRUMBACK, )
husband and wife, and the )
marital community composed )
thereof; and Does 1-10; and )
JAYSON L. ANDERSON, Temporary )
Constructive Trustee over MAX )
WOMACK, )
)
Respondents.
BROWN, J.--Bernadette Womack received a $5,000 general damages award
for emotional distress in a default judgment against Rusty Rardon, his
parents, and Jayson Anderson due to the malicious burning of her cat, Max,
and her son's harassment. Ms. Womack appeals unopposed, contending the
trial court improperly measured her damages and dismissed her private
nuisance, outrage, and statutory waste claims. The Animal Legal Defense
Fund, Amicus, joins in the measure of damages claim. We affirm except for
the judgment interest rate and, in doing so, hold a new action and remedy
for malicious injury to a pet exists in Washington State.
FACTS
Late on July 20, 2003, Rusty Rardon, Jason Brumback and Jayson Anderson
took Max from Ms. Womack's front porch to a nearby school and using
gasoline set him on fire. Max suffered first, second, and third degree
burns. The cat was soon euthanized. In juvenile court Rusty and Jason
were ordered to pay restitution for animal cruelty to a Spokane animal care
organization. Both boys were ordered to have no contact with the Womacks,
but violated that order.
Ms. Womack sued Rusty, Jason, and their parents, for 16 liability
claims with alternatives (see footnote one for claims surviving summary
judgments). Ms. Womack alleged emotional distress because of Max's abuse
and her son's harassment by Rusty and Jason. Ms. Womack sought economic,
non-economic, and special damages for each claim except for statutory waste
where she claimed 'treble intrinsic' damages, costs, and attorney fees.
Clerk's Papers (CP) at 216. The prayer for relief on each claim specified,
'subject to proof and modification at trial.' CP at 216-17.
The Rardons defaulted. The Brumbacks successfully asked for summary
dismissal for nine of the 16 claims including private nuisance, statutory
waste, and outrage.1 Later, the Brumbacks settled and were dismissed with
prejudice. Later still, Mr. Anderson's role was discovered and he was
added as a defendant in a second amended complaint. Finally, Mr. Anderson
defaulted.
In February 2005, the trial court rejected Ms. Womack's proposed default
papers, writing 'I am not in a position to enter a Judgment, or Findings of
Fact and Conclusions of Law that run contrary to my previous orders
relating to causes of action for which relief cannot be granted.' CP at
239. The court set a March date to determine 'if the relief requested,
i.e., the damages have supporting documentation.' Id. We do not know what
occurred on the March date set by the court.
In May 2005, the court entered a document entitled 'Findings of Fact and
Conclusions of Law and Judgment Summary.' CP at 253. The court adopted
'by reference' certain paragraphs of the second amended, but unverified,
complaint to establish jurisdiction, parties, venue, and general
allegations.2 Id. The document does not specify the claims supporting
liability, but the court found in 'Other' findings the events resulted in
Ms. Womack's suffering 'feelings of guilt, loss and grief, causing her
sleepless nights and depressive periods.' CP at 254. Further the court
found Ms. Womack temporarily required medication partly due to the
described events.
The court concluded Ms. Womack's 'claims for unliquidated damages were
subject to an evidentiary hearing which included the plaintiff's testimony
on April 27, 2005.' CP at 254. The court partly reasoned, '{a}lthough Max
was a beloved family pet providing comfort and companionship to the Womack
family, market value can be established for similarly situated two-year-old
tomcats who also provide similar comfort and companionship to their
owners.' Id. The court concluded Ms. Womack's 'unliquidated claims for
damages' included statutory attorney fees and costs and set amounts not
disputed here. CP at 255. Finally, the court concluded Ms. Womack's
'claims for unliquidated damages' based on the '{v}alue of Max and
Bernadette Womack's emotional distress, {were} $5,000.00.' Id.
The judgment summary restated the statutory attorney fees and costs, then
specified 'Unliquidated Damages{:} $5,000.00.' CP at 255. Without
explanation, post-judgment interest was set at 3.198 percent. Ms. Womack's
appeal is unopposed.
ANALYSIS
A. Summary Judgments
The issue is whether the trial court erred in granting summary judgment
dismissal of Ms. Womack's private nuisance, tort outrage, and statutory
waste claims.
We review summary judgment orders de novo, engaging in the same
inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450, 458,
13 P.3d 1065 (2000). Summary judgment is proper if, viewing all facts and
reasonable inferences in the light most favorable to the nonmoving party,
no genuine material fact issue exists and the movant is entitled to
judgment as a matter of law. CR 56(c); Ellis, 142 Wn.2d at 458.
It is the appellant's responsibility to provide the necessary record.
Allemeier v. Univ. of Wash., 42 Wn. App. 465, 472-73, 712 P.2d 306 (1985);
RAP 9.2(b). The failure to provide a necessary record undermines our means
to properly review the alleged errors. In this unopposed appeal, we are
limited by the record before us.
First, we analyze Ms. Womack's private nuisance claim. 'Nuisance is
'a substantial and unreasonable interference with the use and enjoyment of
land.'' Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005)
(quoting 1 William H. Rodgers, Environmental Law sec. 2.2, at 33 (1986)).
RCW 7.48.120 defines nuisance as 'unlawfully doing an act, or omitting to
perform a duty, which act or omission either annoys, injures or endangers
the comfort, repose, health or safety of others . . . or in any way renders
other persons insecure in life, or in the use of property.' 'A nuisance
'which affects equally the rights of an entire community or neighborhood'
is a public nuisance.' Grundy, 155 Wn.2d at 6-7 (quoting RCW 7.48.130).
All other nuisances are private. RCW 7.48.150.
To be actionable, the nuisance must be ''injurious to health or indecent or
offensive to the senses, or an obstruction to the free use of property, so
as to essentially interfere with the comfortable enjoyment of the life and
property.'' Grundy, 155 Wn.2d at 7 (quoting RCW 7.48.010). 'Such action
must be brought by any person whose property is . . . injuriously affected
or whose personal enjoyment is lessened by the nuisance.' RCW 7.48.020.
Here, Ms. Womack suffered a loss, but not a loss related to land or
property fixed to the land. No appellate court has applied nuisance to the
death of an animal. Cases in Washington involving an animal and nuisance
are situations where the animal is the nuisance. At best, an Oregon court
held an animal injuring or killing another animal is a nuisance. Lockett
v. Hill, 51 P.3d 5, 8 (Or. 2002). Our facts are dissimilar to Lockett.
Considering all, the trial court did not err in dismissing the nuisance
claim.
Next, we turn to the outrage claim. The tort of outrage requires
proof of three elements: (1) extreme and outrageous conduct, (2)
intentional or reckless infliction of emotional distress, and (3)
plaintiff's resulting actual severe emotional distress. Kloepfel v. Bokor,
149 Wn.2d 192, 195, 66 P.3d 630 (2003) (citing Reid v. Pierce County, 136
Wn.2d 195, 202, 961 P.2d 333 (1998)). Intentional infliction of emotional
distress claims must be predicated on behavior ''so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.'' Kloepfel, 149 Wn.2d at 196 (quoting Grimsby v.
Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).
The summary judgment required Ms. Womack to establish she suffered severe
emotional distress and the defendants intended, rather than negligently
brought about that distress. The required emotional distress 'must be more
than 'transient and trivial emotional distress' which is 'a part of the
price of living among people.'' Kloepfel, 149 Wn.2d at 198 (quoting
Restatement (Second) of Torts sec. 46 cmt. J).
What happened to Max was deplorable, but the record does not sufficiently
establish the required intent or the necessary severity. Moreover, the
trial court, after an evidentiary hearing not before us, did find liability
among the remaining liability theories. We are not persuaded the damages
awarded would differ under a different liability theory except for treble
damages in the case of statutory waste. While distressing, the trial court
could have decided the harm was not intended or was not sufficiently
severe. Thus, the court did not err in dismissing the outrage claim.
Finally, Ms. Womack contends statutory waste under RCW 4.24.630 is
apt. We disagree. Plainly, the statute requires a showing the defendant
'wrongfully' injured 'personal property or improvements to real estate on
the land.' RCW 4.24.630(1). Ms. Womack asserts the language 'personal
property' can be read independent in its sentence. However, the statute
inclusively reads, 'personal property . . . on the land.' In other words,
the personal property must be attached to the real property in order for
the statute to apply. See Colwell v. Etzell, 119 Wn. App. 432, 438, 81
P.3d 895 (2003) (RCW 4.24.630(1) 'is precisely and unambiguously worded').
Since a cat is free to roam and is not attached to real property, RCW
4.24.630 does not apply. Accordingly, the trial court did not err in
dismissing this claim.
B. Measure of Damages
The next issue is whether the trial court erred in measuring damages.
Ms. Womack contends the court incorrectly considered Max's fair market
value. Ms. Womack and Amicus argue Max's intrinsic value, his value to Ms.
Womack, is the measure of damages, an argument we note is off-point to the
legal issue involved.
The court awarded Ms. Womack $5,000 in 'unliquidated damages' for
'{v}alue of Max and Bernadette Womack's emotional distress.' CP at 255.
Ms. Womack sought economic, non-economic, and special damages for her
remaining claims. It is unclear how the court divided the $5,000 or what
occurred at the evidentiary hearing. The term 'unliquidated' appears inapt
because generally that term is used when deciding prejudgment interest
issues. The court may have intended to say 'unsegregated' rather than
unliquidated. The court may have intended to combine Ms. Womack's distress
over Max's suffering with the distress she felt over her son's harassment.
The court may have recognized the limited fair market value for a pet like
Max. We decline to speculate, and as noted above and reasoned below, it
matters not.
The court's failure to enter more specific findings as to material
facts is equivalent to a finding against Ms. Womack, who has the burden of
proof. Pacesetter Real Estate, Inc. v. Fasules, 53 Wn. App. 463, 475, 767
P.2d 961 (1989). In any case, damages questions are usually discretionary
and therefore for the trier of fact, so long as damages fall within the
range of relevant evidence. Rorvig v. Douglas, 123 Wn.2d 854, 861, 873
P.2d 492 (1994). Generally the appropriate measure of damages for a given
cause of action is a question of law, reviewed de novo. Fisher Props.,
Inc. v. Arden-Mayfair, Inc., 106 Wn.2d 826, 843, 726 P.2d 8 (1986). Here,
the remaining causes of action sound in negligence, trespass to chattel,
conversion, and negligent infliction of emotional distress. Ms. Womack's
arguments for damages miss the point.
Division Two of this court affirmed a summary dismissal of a negligent
infliction of emotional distress claim because the theory has not been
extended to pet injuries. Pickford v. Masion, 124 Wn. App. 257, 262-63, 98
P.3d 1232 (2004). The Pickford court observed, 'damages are recoverable
for the actual or intrinsic value of lost property but not for sentimental
value.' Pickford, 124 Wn. App. at 263 (citing Mieske v. Bartell Drug Co.,
92 Wn.2d 40, 45-46, 593 P.2d 1308 (1979)). See also Dillon v. O'Connor, 68
Wn.2d 184, 186-87, 412 P.2d 126 (1966) (negligence judgment reversed where
jury was instructed to consider more than the 'fair market value' of a dog
run over by a car). Notably, the Pickford court left open whether
malicious injury to an animal may be the cause of emotional distress
damages in Washington because their facts, like the Dillon facts, raised
solely negligent injury. Pickford, 124 Wn. App. at 261.
Here, the facts are distinguishable from those found in Dillon and Pickford
because more than negligence is at issue. This evidence supports the
implicit finding of malicious injury to Ms. Womack's pet. The incorporated
general allegations include sufficient facts to find both malicious conduct
toward Ms. Womack's pet and her resulting emotional distress, if not
outrageous conduct as analyzed above.
For the first time in Washington, we hold malicious injury to a pet can
support a claim for, and be considered a factor in measuring a person's
emotional distress damages. The damages are consistent with actual and
intrinsic value concepts as found in Pickford because, depending upon the
particular case facts, harm may be caused to a person's emotional well-
being by malicious injury to that person's pet as personal property. We do
not interpret the trial court's final reference to value as limiting the
measure of damages to pet fair market value. Thus, we reject Ms. Womack's
contrary contention and supportive arguments. The trial court's award for
emotional distress damages is akin to a general award for pain and
suffering. The court is not required to explain its weighing process or
segregate the particular factors it considers so long as the award is
reasonably within the range of evidence. It is.
In sum, the trial court properly considered the malicious harm to Max
combined with Ms. Womack's distress over her son's harassment when deciding
general emotional distress damages. Therefore, the trial court did not err
in considering: 'Value of Max and Bernadette Womack's emotional distress.'
CP at 255.
C. Interest Rate
The issue is whether the trial court erred in setting post-judgment
interest at 3.198 percent. Ms. Womack contends the interest rate should
have been 5.125 percent, two points above the average bill rate for 26-week
treasury bills.
Post-judgment interest, unlike prejudgment interest, is mandatory
under RCW 4.56.110. Judgments founded on tortious conduct,
shall bear interest from the date of entry at two percentage points above
the equivalent coupon issue yield, as published by the board of governors
of the federal reserve system, of the average bill rate for twenty-six week
treasury bills as determined at the first bill market auction conducted
during the calendar month immediately preceding the date of entry.
RCW 4.56.110(3). No explanation is given for how the court arrived at
3.198 percent. In April, the month preceding judgment, the average coupon
equivalent yield from the first auction of 26-week treasury bills was 3.125
percent. Washington State Bar News, May 2005.3 Accordingly, the mandatory
post-judgment rate should be 5.125 percent, not 3.198 percent. We remand
for correction of the interest rate. Ms. Womack does not qualify for
attorney fees under RAP 18.1(b).
Affirmed, except as to the interest rate.
Brown, J.
WE CONCUR:
Schultheis, A.C.J.
Kato, J.
1 The other claims dismissed were simple negligence (alternative to
reckless and intentional conduct claims with Max as victim), loss of
companionship, wrongful death, pre-death pain and suffering, breach of
fiduciary duty, and interference with fundamental interests. The surviving
claims were: simple negligence (alternative to reckless and intentional
conduct claims with Ms. Womack as victim), gross negligence, trespass to
chattels, conversion, statutory vicarious liability (for parents),
negligent supervision (for parents), and negligent infliction of emotional
distress.
2 We disapprove of incorporating findings by reference. See CR 52(a);
Peoples Nat'l Bank v. Birney's Enters., Inc., 54 Wn. App. 668, 669-70, 775
P.2d 466 (1989).
3 http://www.wsba.org/media/publications/barnews/2005/maydefault.htm
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