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Dalton v. State8/25/2005
In this appeal, the appellants vigorously dispute the trial court's findings and, accordingly, ask us to reverse its order granting the respondents' CR 60(b) motion for relief from judgment. The trial court chose to believe a declarant who testified that her written statement had been changed after she signed it. There was other evidence that indicated otherwise. But, as the court has often stated, 'an appellate tribunal is not permitted to weigh the evidence or the credibility of the witnesses.' Vermette v. Andersen, 16 Wn. App. 466, 470, 558 P.2d 258 (1976). We have no role of assessing credibility and weighing evidence; that role belongs to the trial court. Therefore, we affirm the court's conclusion that the respondents are entitled to relief under CR 60(b)(4).
The declaration in question was filed by the appellants following a defense verdict in the trial of the appellants' claim of wrongful death of their son, four-year-old Dirk Dalton, who died of injuries from beatings he received at the hands of a foster parent. Dirk's parents, Casey Dalton and James Hines (the Daltons) sued the doctors who treated Dirk in the days before his death, alleging the doctors were negligent because they failed to recognize his injuries were the result of abuse. The Daltons also sued Spectrum Emergency Care, the agency that had placed one of the doctors in her emergency room position.
After entry of the adverse jury verdict, the Daltons unsuccessfully moved for a new trial, based in part upon the declaration of Starla Beckley. It is this declaration, which Ms. Beckley now repudiates, that is the subject of this appeal.
In that declaration, Ms. Beckley stated that juror Donald Polumsky had told her during jury selection that he believed the mother was an opportunist seeking to profit from her child's death. The juror filed an opposing declaration that asserted no bias had entered into jury deliberations, but he did not directly deny that he had made that statement to Ms. Beckley. On appeal from the trial court's denial of the motion for a new trial, this court reversed and held the seating of a juror who concealed his bias denied the Daltons their right to a fair and impartial jury. Dalton v. State, 115 Wn. App. 703, 63 P.3d 847 (2003).
When Ms. Beckley read about the appellate decision in her newspaper, she contacted the doctors' attorneys and denied making the statement. Thereafter, the trial court held a hearing to consider the defendants' motion for CR 60(b)(4) relief. At that hearing, Ms. Beckley and the Daltons' attorneys testified. Three attorneys testified that Ms. Beckley had made the statement in their presence. Despite this testimony, the trial court found that the declaration had been altered by one of the Daltons' attorneys, after Ms. Beckley signed it. For that reason, the court struck the declaration from the record.
The Daltons appeal. They contend the doctors' CR 60(b)(4) motion was untimely and the doctors waived any challenge to Ms. Beckley's declaration. They also contend the trial court's finding that Ms. Beckley was credible is not supported by the evidence, and the court erred when it ruled the testimony of James Grow's character witnesses was irrelevant. This court stayed the mandate in the earlier appeal pending the outcome of this second appeal.
The parties agree that Ms. Beckley gave the declaration in the following context: Shortly after the adverse jury verdict in the Daltons' lawsuit, plaintiff Casey Dalton went to Ms. Beckley's place of business to have her older son's hearing aid serviced. At that time, Ms. Beckley told Ms. Dalton that a juror had made statements to her that raised questions in her mind about the j
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