Geneva Langworthy v. Alternative Humane Society And Adam P. Karp ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
GENEVA LANGWORTHY, ) No. 80754-4-I
)
Appellant, )
)
v. )
)
THE ALTERNATIVE HUMANE ) UNPUBLISHED OPINION
SOCIETY and ADAM P. KARP, )
)
Respondents. )
)
VERELLEN, J. — In this contract dispute regarding ownership of a dog,
Geneva Langworthy filed a complaint against Alternative Humane Society (AHS)
and Adam Karp for disability discrimination and other causes of action. The trial
court dismissed all of Langworthy’s claims on summary judgment and granted
declaratory judgment in favor of AHS and Karp.1 We affirm.
FACTS
On May 8, 2019, Langworthy went to AHS’s website and completed an
online request form to relinquish her service dog Snorri to AHS. In response to a
question about why she was giving Snorri up, Langworthy stated:
1 Third party Tish O’Keefe filed a motion to modify the commissioner’s
December 19, 2019 ruling denying her motion to withdraw Langworthy’s appeal
with prejudice. Pursuant to RAP 17.7, the motion was passed to the panel hearing
the merits of Langworthy’s appeal. Because we affirm the trial court’s dismissal of
Langworthy’s claims, the motion is denied.
No. 80754-4-I/2
Snorri is very well socialized around other dogs but occasionally and
randomly behaves aggressively towards Jasper, my 13 year old
neutered blue heeler who is very submissive. . . . No matter how
much I love Snorri, I have to prioritize Jasper, my long-time buddy.
We are moving to the east coast for the summer in my tiny car and I
feel it will be too close quarters for harmony.[2]
On May 11, 2019, three days after completing the online request form,
Langworthy brought Snorri to AHS. There, she signed a one-page “guardian
release form” which states in pertinent part:
I, G. Langworthy, am the legal guardian of the above
described animal(s). I hereby voluntarily relinquish all rights and
interest of guardianship in this (these) animal(s) to the AHS for the
express purpose of acquiring an adoptive home for this (these)
animal(s). I agree that the animal’s new home will be selected by the
AHS solely in accordance with the Society’s adoption criteria.
I understand that AHS will provide food, shelter and
necessary veterinary care while the animal(s) is (are) under the
Society’s guardianship.
....
I have read this statement in its entirety and my signature
below certifies my intent to terminate any legal attachment to the
above-described animal(s).[3]
After signing the agreement, Langworthy left Snorri in the possession of AHS.
Later that evening, Langworthy sent an e-mail to AHS stating, “I made a
mistake, I can’t do without Snorri. I can meet you somewhere tomorrow to get her
back.”4 Langworthy e-mailed again the following day, stating, “I realize that legally
2 Clerk’s Papers (CP) at 188.
3 CP at 190.
4 CP at 66.
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No. 80754-4-I/3
AHS now owns Snorri” but asking AHS to bring the dog back to her.5 An AHS
representative responded that the board needed time to consider her request.
Langworthy then informed AHS by letter that she would sue under the Americans
with Disabilities Act (ADA) unless it agreed to “rescind the Relinquishment
Contract” and return Snorri within three days.6 The following day, AHS’s attorney
Adam Karp informed Langworthy that AHS had declined her request because she
signed a guardian release form “voluntarily relinquish[ing] all rights and interest in
Snorri to AHS” and because AHS “believes that Snorri’s best interests are not in
your care.”7
On August 8, 2019, Langworthy filed suit against AHS and Karp in the form
of two pro se complaints that appeared to allege five causes of action:
(1) disability discrimination under the ADA, (2) violation of RCW 9.91.170,
(3) intentional infliction of emotional distress, (4) violation of RCW 9A.46.020, and
(5) libel. The relief sought included an injunction to return Snorri to her, an
antiharassment order against AHS and Karp, disqualification of Karp as counsel
for AHS, an injunction to require Karp to retract certain statements made on
Facebook, and monetary damages.
Karp filed a motion for summary judgment dismissal of the claims against
him and a motion to strike Langworthy’s amended complaint. The court granted
5 CP at 68.
6 CP at 72-74.
7 CP at 75.
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both motions and subsequently granted Karp’s motion for sanctions and costs.
AHS then moved for summary judgment dismissal of the claims against it and a
declaratory judgment confirming AHS’s rights of ownership pursuant to the
guardian release form. Langworthy filed a declaration in response to AHS’s
motion, including affidavits and exhibits. She also filed a series of motions seeking
the judge’s recusal and a change of venue, to appoint a guardian ad litem for
Snorri, to void the guardian release form, and to amend her complaint.
On November 15, 2019, the trial court denied Langworthy’s motions,
granted summary judgment dismissal of her claims against AHS, and granted
declaratory judgment in favor of AHS. Langworthy filed a motion to reconsider and
an amended motion to reconsider, which the court did not grant. Langworthy now
appeals.
ANALYSIS
A pro se litigant must follow the same rules of procedure and substantive
law as a licensed attorney.8 “The scope of a given appeal is determined by the
notice of appeal, the assignments of error, and the substantive argumentation of
the parties.”9
Here, Langworthy’s notice of appeal designated five decisions: (1) the
order awarding sanctions and judgment summary in favor of Karp, (2) the order
8
Holder v. City of Vancouver, 136 Wash. App. 104, 106, 147 P.3d 641 (2006)
(quoting Westberg v. All-Purpose Structures, 86 Wash. App. 405, 411, 936 P.2d
1175 (1997)).
Clark County v. W. Wash. Growth Mgmt. Hr’gs Bd., 177 Wash. 2d 136, 144,
9
298 P.3d 704 (2013) (citing RAP 5.3(a); RAP 10.3(a), (g); RAP 12.1.).
4
No. 80754-4-I/5
grating AHS’s motion for partial summary judgment and declaratory judgment,
(3) the order dismissing all claims against AHS, (4) the order granting Karp’s
motion for summary judgment, and (5) the order granting Karp’s motion to strike
amended complaint. But Langworthy’s assignments of error and substantive
argumentation indicate that her challenge on appeal focuses on matters regarding
AHS, not Karp.10 Specifically, Langworthy’s reply brief characterizes her appeal
as “a disability discrimination case, in which a disabled service dog user requested
help from a private humane society while injured and ill, and has been deprived of
her service dog thru a deceptive ‘guardian release’ form.” Appellant’s Reply Brief
at 1. We address her arguments accordingly.
Summary Judgment
Langworthy asserts that the trial court erred in granting summary judgment
dismissal of her claims against AHS. An appellate court reviews a superior court's
summary judgment order de novo.11 Summary judgment is appropriate only if the
pleadings, affidavits, depositions, and admissions on file demonstrate the absence
of any genuine issues of material fact and the moving party is entitled to judgment
10
Karp did not file a respondent brief in this appeal. For the first time in her
reply brief, Langworthy asserts, without analysis, that questions of material fact
precluded the summary judgment dismissal of Karp. “An issue raised and argued
for the first time in a reply brief is too late to warrant consideration.” Cowiche
Canyon Observatory v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 (1992).
11
Xiao Ping Chen v. City of Seattle, 153 Wash. App. 890, 898, 223 P.3d 1230
(2009).
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as a matter of law.12 “A material fact is one upon which the outcome of the
litigation depends in whole or in part.”13 “The court must consider the facts in the
light most favorable to the nonmoving party, and the motion should be granted
only if reasonable persons could reach but one conclusion.”14 Contrary to
Langworthy’s suggestion, the motions for summary judgment were supported by
affidavits or declarations.
Criminal Interference with a Service Animal
Langworthy asserts, without analysis or citation to authority, that she is
entitled to possession of Snorri pursuant to RCW 9.91.170, a criminal statute that
prohibits any person from interfering with a dog guide or service animal. But this
criminal statute contains no express provisions permitting a private cause of action
based on its violation. Langworthy has no standing to assert a violation of the
criminal statute.
Guardian Release Form
Next, Langworthy advances several theories in support of her claim that the
guardian release form she signed did not confer ownership of Snorri to AHS.
None are persuasive.
12
Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wash. 2d 780, 787, 108
P.3d 1220 (2005); CR 56(c).
13
Atherton Condo. Apartment-Owners Ass’n Bd. Of Directors v. Blume Dev.
Co., 115 Wash. 2d 506, 516, 799 P.2d 250 (1990).
14
Go2Net, Inc. v. C I Host, Inc., 115 Wash. App. 73, 83, 60 P.3d 1245 (2003).
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Langworthy first argues that the guardian release form did not constitute a
valid contract because it lacked consideration. The essential elements of a
contract are (1) the subject matter, (2) the parties, (3) the promise, (4) the terms
and conditions, and (5) consideration.15 “Consideration is any act, forbearance,
creation, modification or destruction of a legal relationship, or return promise given
in exchange.”16 In order to constitute consideration, an act or promise must be
“bargained for and given in exchange for the promise.”17 Here, in exchange for
relinquishing the dog, AHS agreed to provide food, shelter, and veterinary care
while finding it an adoptive home. The guardian release form is a valid contract.
Langworthy next asserts that the guardian release form is an
unconscionable contract of adhesion. We have established the following factors to
determine whether a contract of adhesion exists: “(1) whether it is a standard form
printed contract, (2) whether it was prepared by one party and submitted to the
other on a take it or leave it basis, and (3) whether there was no true equality of
bargaining power between the parties.’”18 “[T]o the extent that the characterization
of a contract as an adhesion contract has any relevance to determine the validity
15
Bogle & Gates P.L.L.C. v. Holly Mountain Res., 108 Wash. App. 557, 561,
32 P.3d 1002 (2001) (quoting DePhillips v. Zolt Constr. Co., Inc., 136 Wash. 2d 26,
31, 959 P.2d 1004 (1998)).
16
King v. Riveland, 125 Wash. 2d 500, 505, 886 P.2d 160 (1994).
17
Id.
18
Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122
Wash. 2d 371, 393, 858 P.2d 245 (1993) (internal quotation marks omitted) (quoting
Standard Oil Co. v. Perkins, 347 F.2d 379, 383 n.5 (9th Cir. 1965)).
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No. 80754-4-I/8
of a contract, it is only in looking for procedural unconscionability.” 19 “[T]he fact
that an agreement is an adhesion contract does not necessarily render it
procedurally unconscionable.”20
Here, even if we assume that the guardian release form is a contract of
adhesion, Langworthy has not shown that it is procedurally unconscionable.
“Procedural unconscionability is ‘the lack of a meaningful choice, considering all
the circumstances surrounding the transaction including [t]he manner in which the
contract was entered, whether each party had a reasonable opportunity to
understand the terms of the contract, and whether the important terms [were]
hidden in a maze of fine print.’”21
Langworthy further asserts that the guardian release form was
unconscionable because AHS, knowing she was injured and desperate, took
advantage of her condition and circumstances. But Langworthy chose to contact
AHS seeking to relinquish her dog. After completing the online request form, she
had a reasonable opportunity to decide whether or not to proceed. She then
chose to bring Snorri to AHS and sign the contract. Nothing in the record
suggests that AHS pressured her in any way. Langworthy further asserts that she
only requested temporary help with Snorri and did not understand that AHS
intended to take her dog permanently. She claims that the terms “fostering,”
19
Id. (emphasis omitted).
20
Adler v. Fred Lind Manor, 153 Wash. 2d 331, 348, 103 P.3d 773 (2004).
21
Id. at 345 (internal quotation marks omitted) (alterations in original)
(quoting Nelson v. McGoldrick, 127 Wash. 2d 124, 131, 896 P.2d 1258 (1995)).
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No. 80754-4-I/9
“relinquish,” “guardianship,” “attachment” and “release” are ambiguous as to
whether Snorri’s stay with AHS would be temporary or permanent. But the one-
page guardian release form plainly stated that Langworthy’s signature “certifies my
intent to terminate any legal attachment” to Snorri. Nothing was hidden in fine
print. Moreover, on the day after Langworthy relinquished Snorri, she admitted
that “I realize legally AHS now owns Snorri” and that she “made a big mistake” by
giving her up.22 The guardian release form clearly and unambiguously gave all
rights of ownership in Snorri to AHS. The form was not procedurally
unconscionable.
Langworthy also asserts that the contract is void because AHS subjected
her to undue influence. “Undue influence involves unfair persuasion that seriously
impairs the free and competent exercise of judgment.”23 No evidence in the record
supports this claim.
Mental Contractual Capacity
Langworthy next asserts that she lacked the mental capacity to contract at
the time she signed the guardian release form. The test of mental capacity to
contract is whether “the contractor possessed sufficient mind or reason to enable
him to comprehend the nature, terms, and effect of the contract in issue.”24 “‘[I]t is
insufficient to show merely that the party was of unsound mind or insane when it
22 CP at 68.
23
In re Estate of Jones, 170 Wash. App. 594, 606, 287 P.3d 610 (2012).
24
Page v. Prudential Life Ins. of Am., 12 Wash. 2d 101, 109, 120 P.2d 527
(1942).
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No. 80754-4-I/10
was made, but it must also be shown that this unsoundness or insanity was of
such a character that he had no reasonable perception or understanding of the
nature and terms of the contract.’”25 The law presumes that a party has the
capacity to contract, and this presumption can be rebutted only by clear, cogent,
and convincing evidence.26
Langworthy contends that the record before the court on summary
judgment proves that she was temporarily incapacitated at the time she signed the
guardian release form. As evidence, she points to (1) references in her pleadings
to her anxiety and posttraumatic stress disorder (PTSD), (2) her GR 33 disability
accommodation request to have court staff speak to her slowly and clearly, (3) a
doctor’s note written on a prescription pad stating that she relinquished control
over Snorri because she was “not in a right state of mind” due to lack of sleep, and
(4) spelling and date errors she made when filling in the guardian release form.
None of this evidence rises to the level needed to overcome the presumption of
capacity.
Langworthy argues that the medical testimony and evidence she attached
to her amended motion for reconsideration further support her claim of mental
contractual incapacity. She contends that the court erred in failing to consider
these materials. But based on the record before us, it appears that the court never
ruled on the motion. On November 25, 2019, Langworthy noted the motion
25
Id. (quoting 17 C.J.S., Contracts, § 133 at 479).
26
Id.
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hearing for December 13, 2019. This date was within 30 days after entry of the
court’s order, as required by CR 59(b). However, on December 5, 2019, after it
became known that the trial court judge had been appointed to the Washington
Supreme Court, Langworthy renoted the hearing to January 10, 2020. AHS
argued that Langworthy’s attempt to renote the motion hearing outside the time
period allowed by CR 59(b), in an apparent attempt to have the motion considered
by a different judge, should result in it being stricken. The record before us
contains AHS’s proposed order denying Langworthy’s motion for reconsideration
but no signed order. Accordingly, there is no appealable order regarding this
matter in the record for this court to review. And because our review is limited to
the record considered by the trial court, we will not consider these additional
materials.27
Disability Discrimination
Langworthy asserts that AHS violated the ADA28 and its state counterpart,
the Washington Law Against Discrimination (WLAD),29 by refusing to allow her to
re-adopt Snorri because of her disability.
Title III of the ADA establishes that “[n]o individual shall be discriminated
against on the basis of disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of any place of
27
See RAP 9.12; State v. Bugai, 30 Wash. App. 156, 158, 632 P.2d 917
(1981).
28
42 U.S.C. § 12101, et seq.
29 Ch. 49.60 RCW.
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No. 80754-4-I/12
public accommodation.”30 “Discrimination” is defined as, among other things, “a
failure to make reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities.”31
Under WLAD, “[a] place of public accommodation discriminates when it fails to
provide a person with a disability treatment comparable to that which it gives a
person without that disability.”32 “To make a prima facie case of public
accommodation discrimination under the WLAD, a plaintiff must demonstrate: (1)
that [s]he has a disability, (2) that the defendant's place of business is a public
accommodation, (3) that the defendant discriminated against the plaintiff by
providing treatment not comparable to the level of services provided to individuals
without disabilities, and (4) that the disability was a substantial factor causing the
discrimination.”33
Even assuming that Langworthy is disabled and that AHS is a place of
public accommodation under federal and state law, there is no material question of
fact whether AHS failed to accommodate her disability by providing treatment not
comparable to those without disabilities. AHS gave Langworthy the opportunity to
apply to relinquish a pet. AHS agreed to take Snorri, and Langworthy accepted.
30
42 U.S.C. § 12182(a).
31
42 U.S.C. § 12182(b)(2)(A)(ii).
32
Hartleben v. Univ. of Wash., 194 Wash. App. 877, 884, 378 P.3d 263
(2016).
Wash. State Commc’n Access Project v. Regal Cinemas, Inc., 173 Wn.
33
Ohio App. 174, 187, 293 P.3d 413 (2013).
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No. 80754-4-I/13
AHS also gave Langworthy the opportunity to explain why she should be able to
get Snorri back. AHS considered and denied her request. There was no refusal
of services and no disparate treatment.
Declaratory Judgment
Langworthy further contends that the trial court erred in granting declaratory
judgment in favor of AHS. Where a party seeks reversal of a trial court’s legal
conclusions, our review of a declaratory judgment ruling is de novo.
The Uniform Declaratory Judgments Act (UDJA) provides that “[a] person
interested under a . . . written contract . . . may have determined any question of
construction or validity arising under the . . . contract . . . and obtain a declaration
of rights, status or other legal relations thereunder.”34 “[B]efore the jurisdiction of a
court may be invoked under the act, there must be a justiciable controversy.” 35 A
justifiable controversy is defined as “(1) . . . an actual, present and existing
dispute, or the mature seeds of one, as distinguished from a possible, dormant,
hypothetical, speculative, or moot disagreement, (2) between parties having
genuine and opposing interests, (3) which involves interests that must be direct
and substantial, rather than potential, theoretical, abstract or academic, and (4) a
judicial determination of which will be final and conclusive.”36
34 RCW 7.24.020.
35
Diversified Indus. Dev. Corp. v. Ripley, 82 Wash. 2d 811, 815, 514 P.2d 137
(1973).
36
Id.
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Langworthy argues that this appeal demonstrates that the declaratory
judgment was not final and conclusive because it did not terminate the
controversy. But the court conclusively ruled that AHS owns the dog.
Langworthy’s legal right to appeal the trial court’s rulings does not change this
result.
Langworthy also asserts that the declaratory judgment effectively deprived
her of her property without due process of law, in violation of the Fourteenth
Amendment. This is so, she contends, because there was no fair trial to
determine rights of ownership and possession. But Langworthy had a fair
opportunity to present evidence to the court in opposition to AHS’s motion for
summary judgment and declaratory judgment. The trial court’s decision to grant
AHS’s motions and to dismiss the case did not deprive her of due process.
Affirmed.
WE CONCUR:
14