# Acord v. Pettit > Court of Appeals of Washington · March 14, 2013 · 174 Wash. App. 95 URL: https://www.frixlaw.com/law-library/cases/4761357 ## Case - **Full name:** Eddie E. Acord v. Britton K. Pettit - **Court:** Court of Appeals of Washington - **Decided:** March 14, 2013 - **Citations:** 174 Wash. App. 95; 302 P.3d 1265 - **Precedential status:** Published - **Opinion:** Dissent by Siddoway - **Judges:** Brown, Siddoway, Sweeney - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4761357 ## Opinion text Siddoway, A.C.J. ¶43 (dissenting) — The outcome of this trial turned substantially on the trial court’s decision to admit the testimony of Fred Chandler, given in a different case tried 15 years before this one and over 4 years before Britton and Lynnette Pettit acquired their property. I agree with the majority that the trial court acted within its discretion in concluding that the defendants in that case— Carl and Donna Thomsen — had an opportunity and similar motive to cross-examine Mr. Chandler concerning the location, use, and time of construction of what he contended was a boundary fence around his ranch. But the Pettits were not parties to that suit. The Thomsens were not the Pettits’ “predecessor in interest” as that term has usually been understood. “[I]t is generally unfair to impose upon the party against whom . . . hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party.” H.R. Rep. No. 93-650, at 15 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7088. It was error, in my view, to treat ER 804(b)(l)’s reference to “the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest” as adding nothing meaningful to the rule, and was therefore an abuse of discretion to admit Mr. Chandler’s testimony. ¶44 A number of federal cases support what Eddie and Sharon Acord urge as the “ ‘practical and expedient view’ ” that a prior party with a like motive to develop testimony about the same material facts “ ‘is, in the final analysis, a predecessor in interest to the present party.’ ” Br. of Resp’ts at 26 (internal quotation marks omitted) (quoting Dykes v. Raymark Indus., Inc., 801 F.2d 810 , 815-16 (6th Cir. 1986)). The Third, Fourth, and Sixth Circuit Courts of Appeals have *116 adopted this reading; no federal circuit court has explicitly rejected it. 6 See, e.g., Dykes, 801 F.2d at 815-17 (quoting Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1295 (6th Cir. 1983) (quoting Lloyd v. Am. Exp. Lines, Inc., 580 F.2d 1179 , 1187 (3d Cir. 1978))); Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 283 (4th Cir. 1993). But cf. In re Screws Antitrust Litig., 526 F. Supp. 1316, 1319 (D. Mass. 1981) (“reluctance” to expansively define a predecessor relationship “is justified”); Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1526 (E.D. Wis. 1992) (adopting a “narrower construction” of the party/predecessor requirement); Mark Lawrence, The Admissibility of Former Testimony Under Rule 804(b)(1): Defining a Predecessor in Interest, 42 U. Miami L. Rev. 975 (1988) (challenging the interpretative trend as not meaningfully ensuring fairness in the use of prior depositions). In Murphy v. Owens-Illinois, Inc., 779 F.2d 340, 343 (6th Cir. 1985), the Sixth Circuit recognized that this practical and expedient view “has, in effect, collapsed the two criteria into one test.” ¶45 Some decisions included within this trend of authority have implicitly considered circumstances in addition to a prior party’s like motive to develop testimony about material facts, however. In Dykes, for example, the Sixth Circuit affirmed a district court’s decision to admit the same deposition that had been at issue in Clay , that of a medical director of Johns-Mansville Corporation, which a number of plaintiffs suffering from mesothelioma had offered against asbestos manufacturers who were not parties to the case in which it was taken. In doing so, it characterized the medical director’s testimony as “the testimony of a very knowledgeable person who was aware of the historical development of the specialized subject matter under examination,” noting that “nothing in the argument before us or before the district court challenges the accuracy of the historical statements *117 made by [him].” Dykes, 801 F.2d at 817. It relied upon his essentially unchallenged and “unique position to discuss the scope of knowledge available to the industry during his 20-year tenure” as an “additional reason we believe it was not an abuse of discretion for the trial judge here to have admitted the deposition.” Id. It concluded: Obviously, [Fed. R. Evid.] 803 is not designed to deprive the opposite party of the historic right of cross-examination; rather, it is intended to permit parties to employ proof and testimony which is essentially reliable, cannot be effectively obtained in any other manner, and whose relevancy and probity is such that its introduction outweighs the possible prejudicial value which may result from denying cross-examination. Id. (emphasis added). ¶46 Although Washington adopted ER 804(b)(1) verbatim from the federal evidence rules, Washington decisions have not construed “predecessor in interest” as expansively as have these federal courts. The Acords have pointed to In re Estate of Foster, 55 Wn. App. 545 , 554 & n.7, 779 P.2d 272 (1989), but the discussion in Foster was dicta inasmuch as the appellate court found the challenged testimony to be substantially duplicative of another witness’s testimony, thereby making it unnecessary to determine whether the prior plaintiff had a similar motive and opportunity to develop the testimony — and unnecessary to mention the party/predecessor in interest requirement at all. 7 ¶47 Other Washington decisions applying the exception to the hearsay rule have treated “predecessor in interest,” a term of art in substantive law, as defined in terms of a *118 privity relationship. 8 In Allen v. Asbestos Corp., 138 Wn. App. 564, 579 , 157 P.3d 406 (2007), Division One of this court held that the trial court properly excluded a deposition offered by a plaintiff against Uniroyal due to the plaintiff’s failure to demonstrate that Raymark, a predecessor of Uniroyal, attended the deposition or examined the witness, stating that “[b]ecause the predecessor in interest exception requires the predecessor to have the opportunity to examine the witness and the deposition does not establish that this opportunity existed, the trial court did not err in not applying the exception.” ¶48 In American National Fire Insurance Co. v. B&L Trucking & Construction Co., 82 Wn. App. 646 , 920 P.2d 192 (1996), aff’d, 134 Wn.2d 413 , 951 P.2d 250 (1998), Division Two affirmed a trial court’s decision to admit the transcript of a deposition of a witness in an earlier CERCLA 9 action that Northern Insurance Company, the insurer against whom the deposition was being offered, did not attend. The witness — Northern’s insured — was deposed again in the later Washington action, in a deposition that Northern did attend. During the course of the deposition in the State action, a party presented Northern’s insured with his CERCLA deposition, had him adopt it, and marked the deposition as an exhibit. The appellate court reasoned that Northern enjoyed the motive and opportunity to develop the CERCLA deposition intended by the party/predecessor requirement of ER 804(b)(1): it had “the opportunity to question [the witness] concerning any statements he had made during that deposition” and “an opportunity to develop further testimony on points raised, or not raised, *119 during the CERCLA deposition.” Id. at 668. It was only because Northern was able (although chose not) to make an inquiry, and because there is no temporal requirement in ER 804(b)(1), that the appellate court found no abuse of discretion in admitting the deposition. ¶49 Neither of these Washington decisions was brought to the attention of the trial court here. After carefully considering the issue based on the authority that was brought to its attention, the trial court ultimately relied on Professor Tegland’s recognition of the broad interpretation given the federal rule by the Third Circuit Court of Appeals in Lloyd. Report of Proceedings (RP) at 7, 297; see 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence ER 804(b)(1), at 470 (2011-2012 ed.). ¶50 A number of authorities have pointed out that the broad reading given the hearsay exception by the several federal circuits is difficult to reconcile with the history of the federal rule. As sent to Congress by the United States Supreme Court, the prior testimony exception to the hearsay rule would have admitted prior testimony if the party against whom the testimony was offered or a party “with similar motive and interest” had an opportunity to examine the witness. Fed. R. Evid. 804(b)(1) advisory committee note. But the House Judiciary Committee objected to this formulation, for the unfairness reason that I reproduce above (“ ‘it is generally unfair to impose . . . hearsay evidence’ ”). 2 McCormick on Evidence § 303, at 350 (Kenneth S. Broun ed., 6th ed. 2006) (quoting H.R. Rep. No. 93-650, at 15). Accordingly, the judiciary committee “substituted a requirement that ‘the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive’ to examine the witness, and this version of the rule was enacted.” Id. (first emphasis added) (footnote omitted). ¶51 For its part, the Senate Judiciary Committee characterized the difference between the version transmitted by the Supreme Court and that developed by the House *120 Committee as “ ‘not great,’ ” rounding out a legislative history that “has left little concrete guidance in determining congressional intent.” Id. at 351 (quoting S. Rep. No. 93-1277, at 28 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7074, and citing 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 492, at 792 (2d ed. 1994)). McCormick concludes that “those courts that have read the language to mean no more than the general requirement that the prior party have a similar interest appear to have misconstrued the provision,” even if “interpreting the actions of Congress to require a strict privity approach, while not unreasonable, appears too rigid.” Id. at 352 (footnotes omitted); accord Lloyd, 580 F.2d at 1190 (Stern, J., concurring) (stating that to predicate admission on Fed. R. Evid. 804(b)(1) “is contrary to the Rule’s clear language and is foreclosed by its legislative history”); Lawrence, supra. ¶52 Given our task, which is to predict the meaning that our Supreme Court will attach to ER 804(b)(1), neither federal legislative history nor federal cases are controlling. State v. Copeland, 130 Wn.2d 244, 258-59 , 922 P.2d 1304 (1996) (federal case law interpreting a federal rule does not bind Washington courts “even where the rule is identical”). I reject the Acords’ position that our Supreme Court will read the party/predecessor requirement as adding nothing to the Washington rule. I have already addressed the decisions of Divisions One and Two that have given “predecessor in interest” its substantive law meaning. In addition, the law of evidence in Washington predating the 1979 adoption of the evidence rules provided that prior testimony could be admitted only if it was given in an action or proceeding between the same parties or, in the case of Washington common law, “ ‘that the party against whom the evidence is offered, or his privy, was a party on the former trial.’ ” Finn v. Drtina, 30 Wn.2d 814, 820-21 , 194 P.2d 347 (1948) (internal quotation marks omitted) (discussing former Rem. Rev. Stat. § 1247 and quoting the common law rule as stated in 16 Cyc. Evidence 1088 (1905)). *121 I see no reason to believe that in adopting ER 804(b)(1) (with its express reference to a party/predecessor requirement) our Supreme Court intended to dispense with the historical requirement that a party required to contend with testimony it cannot cross-examine must at least have had a privity relationship with the prior proceeding. ¶53 Also relevant in construing the prior testimony exception is our Supreme Court’s rejection of the residual hearsay exception that exists in the federal rules. Several federal judges have concluded that the federal residual exception is, or may be, the only proper basis for admitting prior testimony where Fed. R. Evid. 804(b)(l)’s party/predecessor requirement is not met. See Lloyd, 580 F.2d at 1190 (Stern, J., concurring); Dartez v. Fibreboard Corp., 765 F.2d 456, 462 (5th Cir. 1985). Washington has continually decided against adopting a residual hearsay exception. Former ER 803(b) cmt., 804(b)(5) cmt. (1979) (91 Wn.2d at 1171, 1174). ¶54 ER 102 provides that the evidence rules shall be construed, among other ends, to secure fairness in administration, to the end that the truth may be ascertained and proceedings justly determined. To read the party/predecessor requirement out of the former testimony exception to the hearsay rule places a party at the mercy of a stranger’s trial of a different case, without a sufficiently high standard for reliability that would make use of the prior testimony fair. The prior testimony exception is the only exception in ER 803 and 804 that is not based on characteristics of the statement itself that make it especially reliable. Apart from the testimonial oath (which is not sufficient to render a statement nonhearsay 10 ) there is nothing about a witness’s direct testimony in a prior action that is inherently reliable. Such a witness will frequently be a partisan. One must therefore depend for reliability on the thoroughness of a prior party’s investigation and prepara *122 tion and the quality of its cross-examination. Yet testing for admissibility solely by examining the prior party’s “similar motive and opportunity” to cross-examine does not test for this preparation and quality adequately, if at all. ¶55 Perhaps this shortcoming has been overlooked because it did not present a problem in the federal cases. In several of the key asbestos cases in which federal courts have broadly construed the meaning of “predecessor in interest,” the facts addressed by the testimony were undisputed. Asbestos manufacturers against whom the evidence was offered were presumably well-positioned to identify and present any contradictory evidence. Given the stakes involved and the caliber of the law firms, it may be safe to assume that the district courts had an unstated confidence in the thoroughness with which cross-examination was prepared and conducted by the law firms defending prior actions. ¶56 Here, by contrast, Mr. Chandler’s testimony was not unchallenged. The Pettits called Mr. Chandler’s son, Brian, and his stepdaughter, Jill, both of whom disputed key parts of their late father’s (or stepfather’s) testimony. 11 The trial court found that Mr. Chandler was in poor health at the time of the 1996 trial (he died in 1997), could not hear, and was easily confused. Yet the lawyer for the Thomsens interposed no objections during the course of his direct examination in the 1996 trial — this, despite the fact (pointed out by the lawyer for the Pettits) that the direct examination was often leading. Having determined that the Thomsens had a similar motive and opportunity to cross-examine Mr. Chandler, the trial court felt constrained to admit the testimony even while acknowledging that Mr. Chandler was not cross-examined in 1996 with the benefit *123 of the preparation and thoroughness he would have expected from the Pettits’ lawyer. 12 ¶57 In arriving at its factual findings, the trial court ultimately accepted Mr. Chandler’s testimony over that of his son and stepdaughter because Brian was a child in 1974 (the year in which Mr. Chandler testified he built and thereafter maintained the fence) and Jill, a teenager in 1974, moved away a few years later, living in the vicinity but no longer at the family home. While it was not unreasonable for the court to attach greater weight to the testimony of a witness who was an adult in 1974, the credibility determination highlights a further aspect of unfairness in admitting the testimony in this case. The Acords knew as early as 1994 that they had boundary issues with their neighbors over the fence line. They knew that the issues were not only with the Thomsens but also with the Pettits’ predecessor, Leigh Robertson, who had bulldozed part of the fence and, in 1995, ran Ed Acord out of the contested area with a gun when he attempted to rebuild the corner and fence. As the trial court put it, “she was very public about her position, even violent about it.” RP at 283. Yet when the Acords brought their action against the *124 Thomsens in 1995 — when there might have been more contemporaries of Mr. Chandler available to dispute his characterization of his actions in 1974 — they elected not to sue Ms. Robertson, deferring resolution of that boundary dispute for 16 years instead. 13 ¶58 I will agree that “predecessor in interest” as used in ER 804(b)(1) might reasonably be construed more broadly than substantive privity in light of the stated purpose of the evidence rules. See ER 102 (purposes of the rules include “promot[ing] growth and development of the law of evidence to the end that the truth may be ascertained”). But a broadened reading should require that the proponent of the prior testimony demonstrate the minimal fairness that was the express reason for amending the federal rule to require that prior testimony be admitted only against parties or their predecessors in interest. It could be construed to require, for example, not only that a prior party had a similar motive and opportunity to cross-examine the prior testimony but also that the testimony is either sufficiently free from controversy, or was cross-examined sufficiently effectively (even if not perfectly), as to make its use against the present party fair. ¶59 In this case, the Acords rely instead solely on federal cases and their argument (unsupported, in my view) that the “predecessor in interest” aspect of our Washington rule has not been rigidly applied. Because I find their position *125 irreconcilable with, the rule and with Washington case law, I would find that the trial court erred and abused its discretion in admitting the testimony. Review denied at 178 Wn.2d 1005 (2013). Because the federal rule is identical to ER 804(b)(1), we can look to federal law when interpreting the state rule. State v. DeSantiago, 149 Wn.2d 402, 414 , 68 P.3d 1065 (2003). The Acords also relied on Keene v. Edie, noted at 77 Wn. App. 1068 , 909 P.2d 1311 (1995), but as the Pettits correctly point out, the citation was improper. The opinion in that case was designated “not for publication” and was withdrawn from the bound volume. They finally relied on Young v. Key Pharmaceuticals, Inc., 63 Wn. App. 427 , 819 P.2d 814 (1991), but in that case the testimony was offered against Key Pharmaceuticals, a party to the prior action, so the requirement that the evidence be offered against a party or predecessor in interest was not at issue. See Lloyd, 580 F.2d at 1191 (Stern, J., concurring) (stating that “it seems clear” that, as used in the rule, the term “was used in its narrow, substantive law sense” and may include privies in estate, in blood, in representation, and in law); see also El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 855-56 , 376 P.2d 528 (1962) (speaking of “predecessor in interest” and privity interchangeably in an adverse possession case); OTR v. Flakey Jake’s, Inc., 112 Wn.2d 243, 244 , 770 P.2d 629 (1989) (using “predecessor” to connote contractual privity). Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 . See ER 801(c) (defining “hearsay” broadly enough to include prior statements under oath). For clarity and consistency, we refer to Brian Chandler and Jill Metlow by their first names. We intend no disrespect. The trial court observed, I’m looking here at Tegland at page 191 in the same volume, [the] quotation that “The party against whom the evidence is offered or a predecessor in interest must have an opportunity and similar motive in the former proceeding to develop the declarant’s testimony by direct, cross or redirect”. So opportunity, well yes there was an opportunity. There was a cross examination. Now similar motive, well, you know, it’s — it’s not a — it’s not a thorough or complete cross examination that’s required under the rule. It’s not one that — that would be made by [the Pettits’ lawyer], which would have been thorough and complete and well thought out in advance, but it’s — it’s what this language says at 191 and 192, “. . . an opportunity and similar motive . . .”. Well, the motive — and that’s the language I have to ask and the motive would be similar here. The motive by [the Thomsens’ lawyer] would be to call into question what Mr. Chandler was saying that he could remember. So when I go through this transcript and I’ve been through it now two or three times, I do find passages here and — and I acknowledge that there’s some inaudible passages, there’s some inartful questions, but, you know, just to go through this quickly. RP at 298-99. At this point, the trial court proceeded to identify questions posed by the Thomsens’ lawyer raising matters that the Pettits’ lawyer would likely have inquired about as well. In a distinguishable context, but one presenting similar fairness concerns, the United States Supreme Court unanimously rejected “virtual representation” as an adequate basis for nonparty preclusion, noting that the application of preclusion to nonparties “runs up against the ‘deep-rooted historic tradition that everyone should have his own day in court.’ ” Taylor v. Sturgell, 553 U.S. 880, 892-93 , 128 S. Ct. 2161 , 171 L. Ed. 2d 155 (2008) (quoting Richards v. Jefferson County, 517 U.S. 793, 798 , 116 S. Ct. 1761 , 135 L. Ed. 2d 76 (1996)). Here, of course, no one argued that the Pettits should be bound by the outcome of the Aeord/Thomsen suit. But their own outcome substantially depended on the testimony of a key witness whom they never had the opportunity to cross-examine. The majority of this court characterizes Mr. Chandler’s testimony as “central to the Acords’ claim of adverse possession,” a characterization with which I agree. Majority at 104. When the Pettits moved the trial court for a directed verdict, the trial court recognized that its decision whether to admit Mr. Chandler’s testimony could be decisive. RP at 262, 282. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4761357. Public record. Not legal advice.