RCW9A.82 Elements - 2007 Wash App LEXIS 214

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NOTE: WA - RICO claim elements needing to be plead

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GEORGE FREEMAN, and on behalf of the Estate ofSELMA FREEMAN CLARK,

Deceased, Appellant, v. GWENDOLYN M. YOUNG, FLORENCE (a/k/a "Sally") E.EVANS, TIM BOZE, PACIFIC NORTHWEST TITLE COMPANY OF SPOKANE,

RONALD THOMAS, NATIONAL CITY MORTGAGE, DONNA R. BERROTE-

RAN,Respondents.

No. 23716-8-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

2007 Wash. App. LEXIS 214

February 8, 2007, Filed

NOTICE: [*1] RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUB-LISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

SUBSEQUENT HISTORY: Reported at Freeman v. Young, 137 Wn. App. 1008, 2007 Wash. App. LEXIS 751 (2007)

PRIOR HISTORY: Superior Court County: SPOKANE. Docket No(s): 04-2-01906-5. Judge signing: MICHAEL P.PRICE. Date filed: December 21, 2004.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant pro se beneficiary challenged a decision from the Superior Court in SpokaneCounty (Washington), which entered judgment in favor of respondent attorney in fact by dismissing a case alleging

fraud, breach of fiduciary duty, misrepresentation, failure to exercise reasonable care and diligence, and violations ofthe Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.S. 1961-1968.

OVERVIEW: Prior to her mother's death, the attorney in fact executed a statutory warranty deed, which conveyed themother's property. The proceeds of the sale was allegedly used to pay off outstanding debts. No money was left for the

beneficiary. Thereafter, the beneficiary filed an action against the attorney in fact, which alleged several causes of ac-tion. The complaint was dismissed for failure to state a claim, and this appeal followed. In affirming, the appellate courtdetermined that the beneficiary's due process rights under Wash. Const. art. I, 3 and U.S. Const. amend. XIV, 1 werenot violated when the complaint was dismissed without notifying him of the deficiencies therein; the trial court did nothave the duty to assist him in drafting a claim upon which relief could have been granted. Next, the beneficiary did notdiscuss the RICO elements in his complaint. Fraud had to be pled with particularity under Wash. Super. Ct. Civ. R.9(b). None of the elements of such were included in the complaint. Finally, the allegedly error about the standard of

proof was meritless since the application of such was not necessary when it was determined that fraud was insufficiently

pled.

OUTCOME: The decision was affirmed.

CORE TERMS: standard of proof, pro se, accounting, falsity, attorney in fact, fraud claims, causes of actions, assign-ments of error, failed to state, addressing, ignorance, mortgage, deprived, durable, dismissal order, heading

LexisNexis(R) Headnotes

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims


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Page 22007 Wash. App. LEXIS 214, *

Civil Procedure > Appeals > Standards of Review > General Overview[HN1] When reviewing a Wash. Super. Ct. Civ. R. 12(b)(6) dismissal, an appellate court accepts the truth of the factualallegations of the complaint. Dismissal under Rule 12(b)(6) is appropriate in those cases where the plaintiff cannot

prove any set of facts, consistent with the complaint that would entitle the plaintiff to relief. Rule 12(b)(6) motionsshould be granted only sparingly and with care. Any hypothetical situation conceivably raised by the complaint defeats

a Rule 12(b)(6) motion if it is legally sufficient to support the plaintiff's claim.

Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection[HN2] Due process protects individuals against the deprivation of life, liberty, or property. U.S. Const. amend. XIV, 1; Wash. Const. art. I, 3. The threshold question in any due process challenge is whether the challenger has been de-

prived of a protected interest in life, liberty or property.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State ClaimsCivil Procedure > Pleading & Practice > Pleadings > Complaints > RequirementsCivil Procedure > Parties > Self-Representation > Pleading Standards

Legal Ethics > JudicialConduct[HN3] A pro se litigant is held to the same standard as an attorney. A plaintiff must state a claim upon which relief may

be granted. Wash. Super. Ct. Civ. R. 8(a). If the plaintiff fails to do so, a defendant may move under Wash. Super. Ct.Civ. R. 12(b)(6) for dismissal in the interest of fairness and judicial economy. The trial court is not required to assist alitigant in complying with the court rules, whether the litigant is pro se or an attorney. Such assistance would be unfairto the other party and would be contrary to Wash. Code Jud. Conduct Canon 3, requiring judges to perform the duties oftheir offices impartially and diligently.

Criminal Law & Procedure > Criminal Offenses > Racketeering > Racketeer Influenced & Corrupt Organizations >

Elements[HN4] The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.S. 1961-1968, was enacted tocombat organized crime. Several states, including Washington, have enacted similar provisions. Wash. Rev. Code ch.9A.82. RICO claim elements are (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (pre-dicate acts) (5) causing injury to the plaintiff's business or property. 18 U.S.C.S. 1964(c), 1962(c).

Civil Procedure > Pleading & Practice > Pleadings > Heightened Pleading Requirements > FraudClaims[HN5] Wash. Super. Ct. Civ. R. 9(b) requires a plaintiff averring fraud to set forth the circumstances constituting fraud

with particularity. The well-established elements of fraud are: (1) A representation of an existing fact, (2) its materiality,(3) its falsity, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on

by the person to whom it is made, (6) ignorance of its falsity on the part of the person to whom it is made, (7) the latter'sreliance on the truth of the representation, (8) his right to rely upon it, and (9) his consequent damage.

Civil Procedure > Pleading & Practice > Pleadings > Heightened Pleading Requirements > FraudClaims[HN6] The complaining party must plead both the elements and circumstances of fraudulent conduct.

COUNSEL: For Appellant(s): George Freeman, Pro Se.

For Respondent(s): Chad Harrison Freebourn, Attorney at Law, Spokane, WA; Joseph G. Nolan, Attorney at Law, Seat-tle, WA; Susan J. Robinson of Robinson Tait PS, Seattle, WA; Donna R. Berroteran, Pro Se.

JUDGES: Written by: STEPHEN M. BROWN. Concurred by: DENNIS J. SWEENEY & JOHN A. SCHULTHEIS.

OPINION BY: STEPHEN M. BROWN

OPINION

BROWN, J.--George Freeman, pro se, sued his half-sister, Gwendolyn M. Young, for her conduct as attorney in factunder a durable power of attorney (POA) executed by their aging mother, Selma Freeman-Clark. Mr. Freeman amendedhis complaint to add Florence E. Evans, Ms. Young's roommate; Pacific Northwest Title Company, Ms. Freeman-Clark's escrow company involved with a home sale under the POA; Tim Boze, Pacific Northwest's president; NationalCity Mortgage, the mortgage company for the buyers; Ronald Thomas, National City's branch manager; and Donna R.


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Berroteran, a Notary Public who notarized the POA. For ease of discussion, we refer to the added defendants as theadded parties to distinguish them from Ms. Young. The trial court dismissed Mr. Freeman's complaint under CR12(b)(6) [*2] for failure to state a claim upon which relief could be granted. Still pro se, Mr. Freeman appealed. Hecontends the court denied him due process, erred in not accepting his Racketeer Influenced and Corrupt OrganizationsAct (RICO) claims, erred in dismissing his fraud claims, and applied the wrong standard of proof. Finding no error, we

affirm.FACTS

On April 16, 1997, Ms. Freeman-Clark executed a durable POA, appointing Ms. Young her attorney in fact. Accordingto the record, Ms. Young took care of her mother's day-to-day affairs for some 20 years before her mother passed awayin November 2003. On August 27, 2003, Ms. Young executed a statutory warranty deed, conveying Ms. Freeman-Clark's home to Rick and Judi LaRock for $45,000. The net proceeds less $200 cash was placed in a bank account byMs. Young. According to Ms. Young, the money was used to pay off her mother's outstanding debts. No money wasleft for the beneficiaries of Ms. Freeman-Clark's will, including Mr. Freeman.

On April 28, 2 004, Mr. Freeman sued Ms. Young, alleging, among other things, fraud. In an amended complaint, Mr.Freeman added the parties noted above, and alleged additional causes of actions for breach [*3] of fiduciary duty, mi-srepresentation, failure to exercise reasonable care and diligence, and failure of accounting amounting to a RICO viola-tion. Ms. Young successfully asked for CR 12(b)(6) dismissal of all claims.

Mr. Freeman appealed.

ANALYSIS

The issue is whether the trial court erred in granting a CR 12(b)(6) dismissal of all Mr. Freeman's claims against Ms.Young and the added parties.

[HN1] When reviewing a CR 12(b)(6) dismissal, we accept the truth of the factual allegations of the complaint. Woo-drome v. Benton County, 56 Wn. App. 400, 403, 783 P.2d 1102 (1989). Dismissal under CR 12(b)(6) is appropriate inthose cases where the plaintiff cannot prove any set of facts, consistent with the complaint that would entitle the plain-tiff to relief.Bravo v. The Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995). CR 12(b)(6) motions should begranted only "'sparingly and with care.'"Id. (quotingHaberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120,744 P.2d 1032, 750 P.2d 254 (1987)). "'[A]ny hypothetical situation [*4] conceivably raised by the complaint defeats aCR 12(b)(6) motion if it is legally sufficient to support the plaintiff's claim.'"Bravo, 125 Wn.2d at 750 (quotingHalvor-

son v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978)).Mr. Freeman contends the court erred in granting a CR 12(b)(6) dismissal because the court violated his due processrights by not notifying him of his complaint's deficiencies and then allowing him to correct them, not addressing hisRICO violation claim, not finding sufficient facts existed to establish fraud, and applying the wrong standard of proof.We analyze solely the issues related to Mr. Freeman's assignments of error and disregard unrelated arguments. See RAP10.3(a)(4) (requiring a separate concise statement of each error a party contends the court made, along with the issues

pertaining to the assignments of error).

Due Process. [HN2] "Due process protects individuals against the deprivation of life, liberty, or property." U.S.CONST. amend. XIV, 1; WASH. CONST. art. I, 3. "'The threshold question in any due process challenge is wheth-er the challenger[*5] has been deprived of a protected interest in life, liberty or property.'"In re Pers. Restraint ofWoods, 154 Wn.2d 400, 411, 114 P.3d 607 (2005) (quotingIn re Pers. Restraint of Cashaw, 123 Wn.2d 138, 143, 866P.2d 8 (1994)). Mr. Freeman has failed to show how his life, liberty, or property has been deprived.

[HN3] A pro se litigant is held to the same standard as an attorney. Westberg v. All-Purpose Structures Inc., 86 Wn.App. 405, 411, 936 P.2d 1175 (1997). A plaintiff must state a claim upon which relief may be granted. CR 8(a). If the

plaintiff fails to do so, a defendant may move under CR 12(b)(6) for dismissal in the interest of fairness and judicialeconomy. The trial court is not required to assist a litigant in complying with the court rules, whether the litigant is prose or an attorney. Such assistance would be unfair to the other party and would be contrary to Canon 3 of the Code ofJudicial Conduct, requiring judges to perform the duties of their offices impartially and diligently.

Accordingly, the trial court was not required to assist Mr. Freeman in drafting [*6] a claim upon which relief could begranted. Furthermore, the court was not required, on its own motion, to allow Mr. Freeman to amend his complaint forthe third time. We find no deficiency in the notice and opportunity to be heard on the CR 12(b)(6) motion and are not


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persuaded that any fair trial principle has been breached. Accordingly, we reject Mr. Freeman's due process failure ar-guments.

RICO. In Mr. Freeman's amended complaint, and under the heading "Failure of Accounting," he alleged RICO viola-tions. Clerk's Papers (CP) at 58. In its dismissal order, the court found Mr. Freeman's complaint failed "to state anyclaim . . . upon which relief can be granted." CP at 203 (emphasis added). The court listed several of Mr. Freeman's

claims, but the RICO claim was not listed. On appeal, he argues the court erred by not addressing this claim. But basedon the dismissal order language, the court considered all of Mr. Freeman's allegations in his complaint and found none

justified relief.

Moreover, [HN4] RICO (18 U.S.C. 1961-1968) was enacted to combat organized crime. Winchester v. Stein, 135Wn.2d 835, 849, 959 P.2d 1077 (1998). [*7] Several states, including Washington, have enacted similar provisions. Seechapter 9A.82 RCW (Washington Criminal Profiteering Act). RICO claim elements are (1) conduct (2) of an enter-

prise (3) through a pattern (4) of racketeering activity (predicate acts) (5) causing injury to the plaintiff's business orproperty. 18 U.S.C. 1964(c), 1962(c).

Mr. Freeman does not discuss any RICO claim elements in his complaint; instead he merely placed his RICO argumentunder the heading of a different cause of action. Thus, Mr. Freeman fails to fix a claim upon which relief could begranted. Therefore, the trial court correctly determined the claim was deficient.

Fraud. Mr. Freeman contends "[t]he trial court erred in finding no fraud." Appellant's Br. at 5. First, the court did notweigh the evidence and decided no fraud existed. Rather the court dismissed this claim under CR 9(b) and CR 12(b)(6).The court concluded fraud was not properly alleged. [HN5] CR 9(b) requires a plaintiff averring fraud to set forth "thecircumstances constituting fraud . . . with particularity." The [*8] well-established elements of fraud are: "(1) A repre-sentation of an existing fact, (2) its materiality, (3) its falsity, (4) the speaker's knowledge of its falsity or ignorance ofits truth, (5) his intent that it should be acted on by the person to whom it is made, (6) ignorance of its falsity on the partof the person to whom it is made, (7) the latter's reliance on the truth of the representation, (8) his r ight to rely upon it,[and] (9) his consequent damage." Kirkham v. Smith, 106 Wn. App. 177, 183, 23 P.3d 10 (2001).

Here, Mr. Freeman fails to mention any fraud element in his trial pleadings. [HN6] "The complaining party must pleadboth the elements and circumstances of fraudulent conduct."Haberman, 109 Wn.2d at 165 (citing 3A L. Orland, Wash.Prac. 129 (3d ed. 1980)). Because Mr. Freeman failed to do so, the trial court did not err in dismissing his fraud claim.

Standard of Proof. Mr. Freeman contends the trial court erred by applying an incorrect standard of proof for fraud.Fraud must be proved by clear and convincing evidence.Bang Nguyen v. Dep't of Health, 144 Wn.2d 516, 527, 29 P.3d

689 (2001), cert. denied, 535 U.S. 904 (2002). [*9] But the court did not apply any standard of proof when it foundfraud was not sufficiently pleaded. Thus, Mr. Freeman's arguments are off mark.

In sum, Mr. Freeman failed to state any claim upon which relief could be granted. At best, the complaint concerned arequest for Ms. Young to account for the care of Ms. Freeman-Clark's property and states no cognizable claim againstthe added parties. Since Mr. Freeman refers to interrogatories answered by Ms. Young concerning her accounting forthe care expenditures, and does not suggest how further litigation is warranted, we do not understand how remand forfurther proceedings are justified against Ms. Young within the boundaries of the existing pleadings. Accordingly, Mr.Freeman has failed to persuade us of any trial court error in dismissing his complaint under CR 12(b)(6).

Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it willbe filed for public record pursuant to RCW 2.06.040.

Brown, J.

WE CONCUR:

Sweeney, C.J.

Schultheis, J.

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RCW9A.82 Elements - 2007 Wash App LEXIS 214