No. 26827-2-II.The Court of Appeals of Washington, Division Two.
Filed: October 25, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 002300601, Hon. H. C. Wickham, December 29, 2000, Judgment or order under review.
Counsel for Appellant(s), Norman W. Cohen, Law Office of Norman W. Cohen, 3511 S.W. Alaska St, Seattle, WA 98126-2730.
Counsel for Respondent(s), Aaron K. Owada, Williams Kastner
Gibbs Pllc, 1301 a St. Ste 900, Tacoma, WA 98402-4200.
J. DEAN MORGAN, J.
James West appeals the issuance of a domestic violence protection order. We reverse. Susan Case and James West work in the same office. They had a romantic relationship from March 1999 to November 1999. They agreed to keep their relationship a secret. When Case ended the relationship, West `begged [Case] to give him another chance[.]’[1]
Case responded that the `relationship was over.’[2] Over the next few months, they exchanged about 25 e-mails, most written by West. On November 12, 1999, West e-mailed Case the following message:
It hurts to loose (sic) someone you love, because you loved them to (sic) much. Difficult to accept. I know I screwed up. I think communication, and the long distance thing had an awful lot to do with it. That created my . . . apprehensions with red flags all the time. I hope you know it never had anything to do with who you talk to. I am not that insecure, I am not that . . . anyway, that was not it at all. Yes, I screwed up there.
In our last conversation I asked you some questions about me, you said you could not answer. That bothered me. I asked if you knew I would love you, care for you, and be faithful to you as long as we were together. You said you did not know that, no one knows that about anyone. I took that personally, though it was not meant that way, I am sure. But I do know myself, and most that know me, understand that. I am sorry you do not have that impression of me. We had talked about getting older, getting fat, getting sick . . . and that I consider that, and knew none of that would make me want to ever leave you. I do that in relationships, to see if I really love them. If I really want to be committed to them. I come from a long line of love, everyone in my family before me has celebrated 50 yr. wedding anniversaries. All my brothers have long term marriages. We work extremely hard at relationships, and treat each other with respect and caring to keep those relationships going. When I make promises, or commitments, I keep them Susan. I know you do not care, but it is something that has been bothering me. Just had to say it I guess. It bothers me to have anyone, most importantly you, think less of me. I hope to put this all behind me now, sadly.[3]
Case responded by asking West not to contact her `unless it is professionally necessary.’[4] West then replied, `So then it does not matter what I tell anyone[.]’[5] A few minutes later, West again replied, this time as follows:
You have no reason to hurt me like that. It makes me want to do the same.
There was no reason for that. I told you I was done, but you had to do that. No reason. I could say a lot . . . to you . . . and you know it. I did not. Now you have decided to hurt me more . . . for what reason . . . Other than you do not care for others feelings ??? See, now you have me doing it back . . . You know I could go on and on . . . Please apologize and I will be done forever.[6]
West e-mailed Case again, saying that he was `waiting for [his] apology.’[7] As far as the record shows, Case did not respond to these e-mails.
On January 31, 2000, West e-mailed Case, `There are a lot of questions I keep dodging at work about you.’[8] He asked, `Is there still a reason to keep our previous mistake a secret?’[9] Case responded that `[a]nything that occurred outside the workplace is private and should be kept private[,]’ in part because they had to deal with each other professionally.[10]
On February 1, 2000, West sent Case at least three e-mails within a 15-minute time span.[11] He stated in the first:
No, we do not have to deal with each other on a professional manner. You elected to come into my workplace. Something you promised you would never do. It is a situation that has to be dealt with. The more upset I get, the harder it is for me to keep things to myself. You can either deal with it, or not.
You have a lot of lessons to be learned Susan. None of which anyone can teach you. But the first is that you will be treated, as you treat others. You have hurt me, and refuse to deal with that by moving into my workplace. That is a mistake. You expect me to deal with it on my own. I will do that. Just do not be suprised (sic) at the outcome. I also hope this is the end of this matter.
It was not welcome for you to come into my workplace, especially after what you did to me. You are not welcome at all, but I tried my hardest to support you. And this is the response I get. I tried to work with the situation.
End of all agreements and secrets[.][12]
He stated in the second:
I will think for 24 hours, and talk to some people. But I do not need this stress in my office. I did nothing to deserve it, and frankly, deserve a little more respect and support from you. To be talked to like that is not helping matters.[13]
He stated in the third:
I expect you to no longer address me in the office, ask me any questions, or talk to any of my friends or consultants. I need those safety glasses today as a matter of fact. I will try to not say another word about you, or support those said. There are at least two in Tacoma that know about our relationship, long before you ever came there. Crystal probably has figured it out . . . and continues to ask questions. I used to worry about it getting out. Not my problem anymore I guess. Working together on it would have been so much easier. But, being friends with you seems to be impossible. Your choice I guess. Does not make someone want to help you, that’s for sure. Goodbye[.] [14]
On February 8, 2000, Case petitioned for a domestic violence protection order under RCW 26.50.030. She alleged that West had committed the following acts of domestic violence:
02/01/00, sent e-mails to my home address stating threats regarding workplace. I reported it to my employer They felt it was of threatening nature they are conducting an internal investigation.
November 1999, by e-mail phone threatened to ruin my reputation with the dept. He said that `He didn’t know yet what to tell people about me.’ When I asked if he was threatening me, he said `yes.’
Both times I asked him by e-mail not to ever contact me again unless it was absolutely necessary professionally. He didn’t abide by either one.[15]
On February 8, 2000, the court entered a temporary restraining order. It was not served on West until March 15, 2000.
On March 29, 2000, West and Case both appeared in court for a hearing on whether the temporary order should be made permanent. At West’s request, the hearing was continued to April 26. On that date, however, both West and his attorney failed to appear. The court reset the hearing for June 14, 2000.
On June 14, 2000, the court commenced an evidentiary hearing. Case testified that she `felt threatened’ by the multiple e-mails.[16] She was still testifying when time ran out, so the court ordered that the hearing continue on July 26, 2000.
On July 26, 2000, Case finished testifying. West then called his daughter and himself. His daughter testified that Case said `she could handle herself against anyone’ and `she wasn’t afraid of anyone.’[17] West was testifying when time ran out, so the court ordered that the hearing continue on August 9, 2000.
On August 9, 2000, both West and his attorney failed to appear. `[B]ased on the record and [West’s and his attorney’s] nonappearance[,]’[18] the court found that West `committed domestic violence as defined in RCW 26.50.010‘[19] and granted the requested protection order. The court did not enter written findings of fact at that time.
On August 21, 2000, West moved for reconsideration.[20] On November 2, 2000, the court denied the motion because it was (1) not timely filed and (2) failed to allege grounds for reconsideration. On November 29, 2000, the court entered findings of fact and conclusions of law and awarded attorney fees to Case. On December 29, 2000, West filed this appeal.
The main issue is whether the evidence is sufficient to support the court’s issuance of a protection order under RCW 26.50.[21] West contends that the `only `threat’ allegedly made was a `threat’ to reveal a relationship between two people at work.’[22] Case asserts that the protection order was properly granted because Case `felt threatened by [West’s] stalking actions.’[23] In analyzing these contentions, we must take the evidence in the light most favorable to Case.[24] RCW 26.50.030
permits a victim of domestic violence to petition for a protection order. RCW 26.50.010 provides in part that domestic violence includes `stalking as defined in RCW 9A.46.110[,]’ and RCW 9A.46.110 provides that a person engages in `stalking’ if
(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and
(c) The stalker either:
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.[25]
Although the issue is close, we agree with West that the evidence is insufficient to support a finding that he intended to injure Case’s person or property. He claimed in his e-mails that he was disappointed with her and that he was emotionally distressed. He did not directly threaten harm to her or her property. Any inference that he intended to harm her or her property would have to be based on his statements that she had hurt him, that he was getting `more upset,’ that she had `a lot of lessons to be learned[,]’ and she should `not be suprised (sic) at the outcome.’ These statements are ambiguous at best, and in our view not sufficient to support a reasonable inference that on a more-probable-than-not basis he intended to harm her or her property. We might agree with her if the situation had escalated more than it did, but we cannot based only on what appears here. Accordingly, we hold that the evidence is insufficient to support the judgment; that the judgment must be reversed; and that the case must be dismissed.
West’s remaining arguments need not be reached. Neither side shall receive fees or costs on appeal. We reverse with directions to dismiss.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., BRIDGEWATER, J.