                                                                     FILED 

                                                                  SEPT. 17,2013 

                                                           In the Office of the Clerk of Court 

                                                         W A State Court of Appeals, Division III 




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


JAMES HENRY ESKRIDGE, II &                     )         No. 30405-1-111
AMY DAWN ESKRIDGE,                             )
                                               )
                       Respondents,            )
                                               )
                v.                             )         UNPUBLISHED OPINION
                                               )
DARLENE A. TOWNSEND, PhD,                      )

                                               )

                       Appellant.              )


      KULIK, J. - James and Amy Eskridge filed a negligence suit against Darlene.

Townsend, PhD, a marriage and family therapist, alleging that she violated the standard

of care in her counseling of them. Part oftheir claim included communications by Dr.

Townsend to Child Protective Services (CPS), the Washington State Bar Association

(WSBA), the Spokane Police Department, and the Department of Health (DOH). Three

days before trial in a reply brief, Dr. Townsend raised an immunity defense under

RCW 4.24.510, the anti-SLAPp l statute, asserting that the statute covered all ofthese

communications. The trial court ruled that Dr. Townsend waived the defense because she


       1   Strategic Lawsuit Against Public Participation.
No.30405-I-III
Eskridge v. Townsend


failed to raise it during two years of litigation. The jury returned a verdict in favor the

Eskridges. Dr. Townsend appeals, contending the trial court erred in (1) concluding that

she waived the anti-SLAPP defense and (2) allowing hearsay testimony. She also alleges

instructional error. We agree with the trial court that Dr. Townsend waived the anti-

SLAPP defense, that the hearsay was properly admitted, and we conclude that the

instructional error was not objected to and is not properly before this court. Accordingly,

we affirm.

                                           FACTS

       Mr. Eskridge began therapy as Dr. Townsend's individual client in August 2006

for follow-up care after inpatient treatment for alcohol dependency and depression. After

a few appointments, Dr. Townsend requested that Ms. Eskridge also begin separate,

individual counseling with her. Within a few weeks of this parallel individual therapy,

Dr. Townsend concluded that Mr. Eskridge was a sex addict. She claimed that Mr.

Eskridge's sexual issues were a predominant theme     ~~in   ... almost every [counseling]

session." Report of Proceedings (RP) at 244. But when she reviewed her notes she

agreed that sex or intimacy issues were referenced in only about five of their sessions.

       Dr. Townsend also admitted the need to use great care in diagnosing sex addiction,

using standardized screening instruments and diagnostic criteria. She testified that


                                              2

No. 30405-1-III
Eskridge v. Townsend


"[e]very patient that comes in with a sexual addiction statement of need" is given 10

screening questions and a 30-page document to fill out. RP at 225. Dr. Townsend

admitted administering none of those tests to Mr. Eskridge prior to her reaching her

conclusion that he was a sex addict.

      Dr. Townsend agreed that the standard of care required her not to disclose patient

confidences without express written authorization or waiver. Dr. Townsend admitted that

she disclosed to Ms. Eskridge that Mr. Eskridge could not accept "his sexual addiction

diagnosis." RP at 241. Dr. Townsend did not have Mr. Eskridge's pennission to disclose

those opinions.

       In other private sessions with Ms. Eskridge, Dr. Townsend disclosed additional

confidences learned from Mr. Eskridge in his therapy, including Mr. Eskridge's

frustrations over Ms. Eskridge's work schedule. Dr. Townsend told Ms. Eskridge that

she had concluded that Mr. Eskridge was not doing enough to recover from alcohol

dependency, and that his current Alcoholics Anonymous sponsor was too much like Mr.

Eskridge's father and needed to be replaced. Ms. Eskridge would return home from these

sessions and confront Mr. Eskridge with the infonnation she obtained from Dr.

Townsend. This would cause Mr. Eskridge to get extremely frustrated.




                                            3

No. 30405-I-III
Eskridge v. Townsend


       Dr. Townsend presided over a couple ofjoint counseling sessions with Mr. and

Ms. Eskridge. Dr. Townsend admitted the standard of care required she maintain

individual confidentiality during group and couple's counseling, absent express written

permission for disclosure. During one joint session, Dr. Townsend turned to Ms.

Eskridge and disclosed her opinion that Mr. Eskridge had borderline personality disorder.

Dr. Townsend testified that she had not received Mr. Eskridge's consent to disclose such

an OpInIOn.

      Ms. Eskridge testified that several months into counseling, Dr. Townsend told her

that her husband needed intensive in-patient treatment for sex addicts in Mississippi. Ms.

Eskridge testified that Dr. Townsend instructed her to tell Mr. Eskridge that the program

was for depression and to hide the sexual addiction component because he would

probably not go. Mr. Eskridge said that he would go but later learned the nature of the

program during a preadmission telephone interview with the facility.

      Mr. Eskridge testified that on July 30, 2007, he confronted Dr. Townsend about

her disclosures. Mr. Eskridge told Dr. Townsend that he wanted to terminate therapy.

But she told him that she would terminate counseling the Eskridges' two sons. Mr.

Eskridge said he agreed to continue making appointments, but he would no longer engage

in substantive discussions with Dr. Townsend.


                                            4

No. 30405-1-II1
Eskridge v. Townsend


       Reports to CPS

       One month later, Dr. Townsend reported the Eskridges to CPS. At trial, Dr.

Townsend testified her CPS report was based on statements Mr. Eskridge made in a

counseling session on July 30,2007. Dr. Townsend's chart notes reflected:

       He says he just loves his boys so much and misses Amy so much that he's
       feeling lonely. Says the nights are difficult in missing Amy so he has begun
       crawling into beds with the boys and just holding then close. Says they
       wake up and ask [him] what is wrong. I expressed concern over this
       inappropriate substitution of the boys for Amy, but he protests that it's okay
       because he loves them so much.

RP at 243.

       Dr. Townsend said that this statement immediately convinced her that Mr.

Eskridge was sexually molesting his children and that she was required to report to CPS.

Dr. Townsend testified she waited one month to make a report to CPS because Ms.

Eskridge would be out of town that entire month and the boys needed her when the report

was made. Dr. Townsend waited even though this possibly meant exposing the boys to

more sexual abuse during that time.

       Dr. Townsend agreed to see Ms. Eskridge on August 29,2007, and told her that

day that she was reporting Mr. Eskridge to CPS. Dr. Townsend explained that rules of

confidentiality prevented her from disclosing reasons for the report but she did state,

"nothing happened with their clothes off." RP at 120.

                                             5

No.30405-1-III
Eskridge v. Townsend


       Testimony o{CPS Investigator Denise Guffin

       Ms. Guffin, a CPS investigator, testified regarding her investigation of Dr.

Townsend's complaint to CPS. She testified that she had investigated more than 400

separate reports for CPS and that she held a master's degree in social work. She

described the steps she followed under CPS procedure.

       Ms. Guffin testified that Dr. Townsend reported to CPS "that the children are

terrified of the father," and that Mr. Eskridge had reported to her (Dr. Townsend)

"spanking the children," "hit[ting] the kids and throw[ing] them in the room for the

afternoon." RP at 596. Dr. Townsend reported that she was concerned for the boys

because the dad was a stay-at-home dad with the mother traveling and often gone for a

week at a time. Ms. Guffin testified that Dr. Townsend reported "that [J.E.] told her that

dad spanked him so much he was bleeding," and that the boys had told her that a long

time ago one of the boys "was trying to get away from dad's spanking and dad hit him in

the head and it required stitches." RP at 596. Ms. Guffin also testified that Dr. Townsend

reported that Mr. Eskridge was a "sex addict." RP at 597.

      Dr. Townsend told the CPS intake person that Mr. Eskridge "is a dry alcoholic and

a sex addict." RP at 597. Ms. Guffin contacted the Eskridge children's elementary

school and arranged with school officials to interview the children there. Both sons said



                                             6

No. 30405-1-111
Eskridge v. Townsend


they were not afraid of their father. Ms. Guffin then made an unannounced visit of the

Eskridge home, bedrooms and other areas. During that visit, the Eskridges explained that

their youngest son, who was in kindergarten at the time, often got into bed with both of

them due to breathing problems.

       Ms. Guffin testified that during one of several lengthy conversations, Dr.

Townsend acknowledged that Mr. Eskridge '" didn't tell me that he was doing fondling,

but 1 can't imagine he isn't.'" RP at 627-28. Dr. Townsend also reported that Mr.

Eskridge was holding his sons "with a full body hug" and "then [Dr. Townsend] said to

me, '[t]his is getting close to molestation.'" RP at 617.

       Ms. Guffin testified in response to a question from defense counsel that, "after a

complete investigation, 1 found the allegations to be unfounded." RP at 648. Ms. Guffin

continued that: "I do not believe, based on my professional investigation and my

professional opinion, that Dr. Townsend was concerned enough to report these

allegations." RP at 649.

      Reports to Third Parties

      After CPS deemed Dr. Townsend's report unfounded, Dr. Townsend wrote a letter

to the Eskridges' insurance company informing them that she was required to report Mr.




                                             7

No.30405-1-III
Eskridge v. Townsend


Eskridge to CPS "'based on his description of the manner in which he was sexually

molesting his children.'" RP at 294, Ex. 7.

       The Eskridges retained Mr. Eskridge's brother, an attorney, for legal assistance.

Dr. Townsend filed a grievance with the WSBA, alleging it was a conflict of interest for

an attorney to represent his own brother. In correspondence to the WSBA in June 2008,

months after her report to CPS had been deemed unfounded, Dr. Townsend wrote the

following about Mr. Eskridge, "'I was required to report to DSHS Child Protective

Services the fact that Mr. James Eskridge had described to me, in clear detail, the

methods by which he was sexually molesting the two young sons of Amy and James.'"

RP at 294, Ex. 6.

       Dr. Townsend also sent correspondence to the Spokane Police Department in

which she described Mr. Eskridge as '" an alcoholic sex addict with severe anger

management problems, [who] had described to me his sexual abuse of his two sons.'"

RP at 293, Ex. 5.

       The Eskridges filed a complaint with the Washington DOH. Dr. Townsend wrote

that Mr. Eskridge "has previously informed [me] that he has sexually molested [his]

sons." RP at 292, Ex. 4.




                                              8

No.30405-1-III
Eskridge v. Townsend


       The Eskridges separated in late 2010 and divorced in 2011. Their expert, Dr. Jon

Conte, testified that Dr. Townsend did not meet the standard of care and that her

"misdiagnosis and the application of wrong therapeutic errors ... is the proximate cause

for the destruction of their marriage." RP at 435. As to Dr. Townsend's CPS report, he

testified, "I don't think any reasonable professional would believe that a father who is

hugging a child is sexually aggressive or is sexually dangerous." RP at 424-25. Dr.

Conte further testified that both Mr. and Ms. Eskridge suffered additional psychological

harm such as distrust, anxiety, anger, and frustration as a result of Dr. Townsend's

standard of care violation.

                                 PROCEDURAL FACTS

       The Eskridges filed a health care malpractice suit on June 5, 2009. In their

amended complaint filed on November 16,2009, they detailed the first four medical

malpractice claims, alleging breach of the standard of care based on breaches of

confidentiality, conflicts of interest, inappropriate expansion of Mr. Eskridge's treatment

for sexual addiction, failure to properly terminate treatment in a professional way, and

filing a retaliatory complaint with CPS. The fifth through eighth counts alleged Dr.

Townsend improperly withheld records from the Eskridges, improper billing, violation of

the Consumer Protection Act, chapter 19.86 RCW, and defamation and slander based on



                                             9

No. 30405~I~III
Eskridge v. Townsend


Dr. Townsend's communications with CPS and the WSBA. Dr. Townsend's answer

asserted "statutory immunity for the acts and omissions alleged within the Complaint."

Clerk's Papers (CP) at 160.

      On December 17,2010, the trial court granted Dr. Townsend's motion for

summary judgment as to claims five through eight, finding the claims "subsumed in

RCW 7.70 and that the Consumer Protection Act is not available for plaintiffs alleging

personal injuries due to medical negligence." CP at 11.

      Thereafter, the Eskridges asked Dr. Townsend for clarification regarding her

immunity defense:

      With regard to your claim that you have immunity for the acts complained
      of by Plaintiffs in their Amended Complaint, please identify any and all
      such acts for which you contend immunity applies, and please identify and
      describe each material fact which you contend supports your claim of
      immunity.

CP at 52.

      Dr. Townsend responded:

      Pursuant to various state statutes, Dr. Townsend is immune from civil
      liability for making her good faith report to Child Protective Services which
      was required by law. See RCW 26.44.060.[2]


      2 RCW 26.44.060(l)(a) provides, in part:
      [A]ny person participating in good faith in the making ofa report pursuant
      to this chapter or testifying as to alleged child abuse or neglect in a judicial
      proceeding shall in doing so be immune from any liability arising out of

                                             10 

No.30405-1-II1
Eskridge v. Townsend


CP at 52.

       The Eskridges then asked Dr. Townsend to provide copies of all documents

pertaining to her answer. She responded, "See RCW 26.44.060." CP at 53.

       On a Friday afternoon, three days before trial was scheduled to begin

the following Monday, Dr. Townsend claimed immunity under the anti-SLAPP statute,

RCW 4.24.510,3 in a reply brief. She asserted that all of her communications, with the

exception of the insurance company, were covered by the statute as they were all to

branches of government or agencies of the local government. On the morning of trial, the

Eskridges moved the court for an order precluding Dr. Townsend from invoking the anti-

SLAPP statute, contending that she had waived the defense due to her failure over months

of litigation to assert it. They also argued that the defense did not apply to claims

involving reporting to CPS because reports to CPS are governed by RCW 26.44.060,

which unlike RCW 4.24.510, require good faith reporting in order to afford immunity.



       such reporting or testifying under any law of this state or its political
       subdivisions.
       3 RCW 4.24.510 provides in part:
       A person who communicates a complaint or information to any branch or
       agency of federal, state, or local government ... is immune from civil
       liability for claims based upon the communication to the agency or
       organization regarding any matter reasonably of concern to that agency or
       organization.... Statutory damages may be denied if the court finds that
       the complaint or information was communicated in bad faith.

                                             11 

No.30405-1-III
Eskridge v. Townsend


       The trial court concluded that Dr. Townsend waived the defense, noting that she

failed to raise the defense during months of litigation, despite multiple opportunities to do

so. Alternatively, the court found that the anti-SLAPP statute did not apply to the case,

reasoning in part that "the SLAPP statute does not trump, if you will, the good faith

reporting requirement ofRCW 26.44.030." RP at 973.

      The jury found Dr. Townsend negligent in her counseling and treatment of the

Eskridges. Dr. Townsend appeals.

                                        ANALYSIS

       Waiver. The central issue is whether the trial court erred by striking Dr.

Townsend's affirmative defense of immunity under the anti-SLAPP statute,

RCW 4.24.510.

      A trial court's ruling on a motion to strike an affirmative defense is reviewed for

an abuse of discretion. Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236, 244, 178

P.3d 981 (2008). A trial court abuses its discretion when the ruling is manifestly

unreasonable or based upon untenable grounds or reasons. Veit v. Burlington N. Santa Fe

Corp., 171 Wn.2d 88, 99, 249 PJd 607 (2011) (quoting Salas v. Hi-Tech Erectors, 168

Wn.2d 664,668-69,230 PJd 583 (2010)). A trial court's discretionary ruling is

unreasonable or based upon untenable grounds when it is based on an error of law. Wash.


                                             12 

No. 30405-1-II1
Eskridge v. Townsend


State Physicians Ins. Exch. & Ass 'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054

(1993). This court reviews a trial court's legal conclusions de novo. Likewise, "[a]

court's decision is manifestly unreasonable if it is outside the range of acceptable choices,

given the facts[;] it is based on untenable grounds if the factual findings are unsupported

by the record." In re Marriage o/Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

       Washington courts recognize that in certain cases the common law doctrine of

waiver will preclude a defendant from raising an affirmative defense. Lybbert v. Grant

County, 141 Wn.2d 29,38, 1 P.3d 1124 (2000). Our Supreme Court has held that waiver

of affirmative defenses can occur in two ways: if assertion of the defense is inconsistent

with the defendant's prior behavior or if the defendant has been dilatory in raising the

defense. Lybbert, 141 Wn.2d at38-39; King v. Snohomish County, 146 Wn.2d 420, 424,

47 P.3d 563 (2002). The doctrine of waiver is "designed to prevent a defendant from

ambushing a plaintiff during litigation either through delay in asserting a defense or

misdirecting the plaintiff away from a defense for tactical advantage." King, 146 Wn.2d

at 424 (citing Lybbert, 141 Wn.2d at 40). The doctrine is also intended to encourage the

assertion of procedural defenses "before any significant expenditures of time and money

[have] occurred." Id. at 426.




                                             13 

No.30405-1-II1
Eskridge v. Townsend


       Here, the trial court ruled that Dr. Townsend waived the defense based on Dr.

Townsend's failure to assert the defense until just before trial:

       Clearly if at any time initially this issue might not come up, clearly I would
       think after the deposition on February 24th where some of these documents
       were used, that that would be notice to the defendant that these are the type
       of documents that the plaintiff is going to ask that the court to [sic] consider
       for evidentiary purposes. The interrogatories and requests for production
       that both counsel submitted clearly are only limited in terms of statutory
       citation to RCW 26.44. There is a general language about other statutes,
       but there is no attempt to identifY the SLAPP statute [.] It is not identified in
       any way shape or form that the defense is relying on to exclude various
       items of evidence.

RP at 971-72.

       The court also noted that the defense was not raised at the pretrial meeting or in the

trial management report: "This is the kind of issue I would expect to be a motion on the

applicability of an immunity statute prior to trial and not just in the form of a motion in

limine." RP at 972.

       Dr. Townsend contends that the trial court's findings do not support a waiver of

immunity under the anti-SLAPP statute. She claims that at "all relevant times throughout

the litigation," she asserted her statutory immunity. Appellant's Br. at 14. Specifically,

she points to her answers to interrogatories, in which she stated that she was entitled to

statutory immunity based on "various state statutes." CP at 52,64. She argues that she

was not required to specifY the anti-SLAPP statute because the Eskridges' interrogatory

                                              14 

No.30405-1-III
Eskridge v. Townsend


44did not ask Dr. Townsend to identify the statutes upon which she founded her claim of

immunity." Appellant's Br. at 16.

      The Eskridges counter that Dr. Townsend's failure to raise the defense over the

course of close to two years of litigation constituted a waiver of anti-SLAPP immunity,

pointing out that when asked to specify each "material fact" supporting her claim of

immunity, Dr. Townsend simply cited RCW 26.44.060, but failed to identify any facts

material to a defense under the anti-SLAPP statute. They contend that her response and

actions prior to trial directed them away from all immunity provisions other than

RCW 26.44.060, which resulted in the kind of prejudicial unfair surprise that the waiver

doctrine is designed to curtail. The Eskridges primarily rely on Lybbert and King in

support of their argument.

      In Lybbert, the plaintiffs sued Grant County but mistakenly did not effect proper

service. For the next nine months, the county appeared and acted as though it was

preparing to litigate the merits of the case without mentioning any problem with the

sufficiency of the service of process. Through interrogatories, the Lybberts asked the

county if service would be an issue. The county did not respond. After the statute of

limitations had run, the county answered the Lybberts' complaint and raised the issue of

insufficient service. The court reversed, noting that if the county had timely responded to



                                            15 

No.30405-I-II1
Eskridge v. Townsend


the interrogatories, the Lybberts would have had time to cure the defective service.

Lybbert, 141 Wn.2d at 42. The court held that the county thus waived its defense by

acting in an inconsistent and dilatory manner. Id. at 44-45.

       Similarly, in King, parents filed a complaint against Snohomish County after their

child was injured in a county park. One month after the complaint was filed, the county

answered and raised 11 affirmative defenses, including failure to comply with claim filing

requirements. King, 146 Wn.2d at 423. However, during three years of litigation and

discovery, which included motions for summary judgment, the defense did not raise the

issue of defective notice. When the plaintiffs asked the county in an interrogatory what

defenses it intended to raise, the county referred to the list of defenses in its answer. Id.

The county did not raise the defense again until three days before trial when it moved to

dismiss for failure to comply with the notice claim provisions. Id. The trial court denied

the motion. The Supreme Court affirmed, concluding that although the county was not

dilatory in asserting the defense in its answer, all parties to the case had engaged in costly

and lengthy discovery and litigation "only to have the case decided on procedural grounds

completely unrelated to the discovery in which they were engaged" and that the defense

could have been disposed of early in the litigation prior to these expenditures and at a

time when the defect could have been remedied. Id. at 426.


                                              16 

No. 30405-1-111
Eskridge v. Townsend


       The facts of these cases are similar to the case at hand. As the Eskridges correctly

note, Dr. Townsend's behavior during the two years before trial was wholly inconsistent

with her assertion of an anti-SLAPP immunity defense. In 2009, in her "Answer and

Statement of Affirmative Defenses," Dr. Townsend simply stated that she was        "en~itled   to

statutory immunity for the acts and omissions alleged within the Complaint." CP at 160.

When asked in January 2011 to identify the "material facts" that supported her general

claim of immunity, Dr. Townsend did not cite the     anti~SLAPP   statute or make any

reference to the material facts she would have to establish to support anti-SLAPP

immunity (that she had communicated matters to an agency that were reasonably of

concern to that agency); instead, she specifically directed the Eskridges to

RCW 26.44.060, which she alleged protected her "good faith report to Child Protective

Services." CP at 52. And when asked for documents pertaining to her answer, she again

referenced RCW 26.44.060 without any mention of the anti-SLAPP statute. Additionally,

in 2010, the parties filed a stipulation that "[t]here shall be no restrictions upon the use of

the DSHS records ... for purposes of litigating the ... matter." CP at 191. This included

the CPS report. By entering into an agreement that allowed the unrestricted use of such

information, Dr. Townsend acted inconsistently with an assertion of immunity based on

such information.



                                              17
No. 30405-I-III
Eskridge v. Townsend


       The court took special notice of Dr. Townsend's failure to claim SLAPP immunity

during her deposition. In her February 2011 deposition, Dr. Townsend was questioned

extensively about her communications with the WSBA, the DOH, and CPS; however, she

never claimed immunity in reference to those communications under the anti-SLAPP

statute. In May 2011, the Eskridges announced that they would be offering evidence at

trial of Dr. Townsend's communications with the police, DSHS, and CPS. Dr. Townsend

objected under ER 801 and ER 904, but did not raise an immunity defense under the anti-

SLAPP statute.

       Another fact of particular significance to the court was Dr. Townsend's failure to

raise an anti-SLAPP immunity defense in the June 9, 2011 trial management joint report.

In that report, the parties stated that only two issues were in dispute: whether Dr.

Townsend violated the standard of care and whether an act or omission damaged the

Eskridges. Conspicuously lacking is any reference to the applicability of anti-SLAPP

immunity. Thus, two years into the litigation, Dr. Townsend acted as though she was

prepared to litigate the merits of the claim.

       On September 14, 2011, just a week and one-half before trial, Dr. Townsend filed

a trial brief without mentioning anti-SLAPP immunity. In her motions in limine filed the

same day, she reiterated her objection to the use of her CPS, DSHS, and WSBA


                                                18 

No.30405-1-III
Eskridge v. Townsend


communications on hearsay grounds. Again, there was no reference to RCW 4.24.510

immunity. Finally, she did not request any jury instructions regarding the defense. In

view of this record, the court's findings are amply supported, and they, in tum, support its

conclusion that Dr. Townsend waived anti-SLAPP immunity.

       Despite this record, Dr. Townsend contends that she cannot be deemed to have

waived the anti-SLAPP defense because the Eskridges cannot establish prejudice as a

result of the delay in her assertion of the defense. Citing Oltman, Dr. Townsend argues

that "the essential point of King and its predecessor, Lybbert ... was that the plaintiff

would suffer prejudice from its adversary's conduct if waiver were not applied; absent

such prejudice, there is no occasion to apply the waiver doctrine." Appellant's Br. at 20.

She contends that in this case because the communications at issue were inadmissible

under immunity statutes, the Eskridges suffered no prejudice.

       Dr. Townsend misstates the holding in Oltman. In that case, the issue before the

court was whether the defendant waived an affirmative defense raised in an answer that

was filed 11 days beyond the 20-day period allowed by court rule. Oltman, 163 Wn.2d at

243. The plaintiffs asked the court to hold that "affirmative defenses are waived if they

are asserted in an untimely answer and the late assertion causes actual prejudice to the

plaintiff." Id. The plaintiffs asserted that they were prejudiced because if the defendant's


                                             19 

No.30405-1-II1
Eskridge v. Townsend


defense had been timely raised, they would have had time to refile their complaint in

federal court. However, contrary to Dr. Townsend's contention, the Oltman court

declined to address whether an affirmative defense raised in an untimely answer is only

waived if the delay causes actual prejudice, finding that no prejudice was established and

therefore the issue did not need to be addressed. Id. at 246-47.

       As discussed, Washington cases consistently note that the waiver doctrine is

designed to avoid delays, prevent a defendant from misdirecting a plaintiff from a defense

or masking a defense, and prevent an unnecessary waste of the parties' time and

resources. King, 146 Wn.2d at 424; Lybbert, 141 Wn.2d at 40. The Lybbert court stated,

"Our holding today merely underscores the importance of preventing the litigation

process from being inhibited by inconsistent or dilatory conduct on the part of litigants."

Lybbert, 141 Wn.2d at 40. Thus, a defendant can be deemed to have waived a defense

when his or her conduct substantially undermines the foregoing policies.

       Here, the parties litigated this case for close to two years before Dr. Townsend

raised the anti-SLAPP defense, despite multiple opportunities for her to do so. Even if

we deem Dr. Townsend's citation to "various state statutes" sufficient notice of her intent

to raise anti-SLAPP immunity, her actions during two years of litigation belie any intent

to use the defense. Dr. Townsend's assertion of the defense at the eleventh hour, after


                                             20 

No.30405-I-III
Eskridge v. Townsend


behaving throughout the litigation in a manner inconsistent with that defense, thwarts the

very policies the waiver doctrine promotes. Dr. Townsend allowed the Eskridges to

spend time and money developing a theory of the case largely premised on her

communications to government agencies. Under well-settled precedent, her failure to

pursue this affirmative defense while participating in the litigation served as a waiver of

the defense.

       Dr. Townsend also asserts that the court erred in concluding that RCW 4.24.510

does not apply to cases that involve CPS reporting. 4 Given our disposition of the waiver

issue, we need not address this contention.

       The trial court did not err in concluding that Dr. Townsend waived the anti-SLAPP

defense.

       Hearsay Testimony and Comment on Witness Credibility. Dr. Townsend next

asserts that Ms. Guffin's testimony about statements made to her by the Eskridges and

their children should have been excluded because they were inadmissible hearsay. Dr.

Townsend also asserts for the first time on appeal that Ms. Guffin improperly commented

on the credibility of Dr. Townsend and the Eskridge children. We review a trial court's



      4 The Eskridges move to strike portions of Dr. Townsend's brief and the appendix
on the basis that they refer to matters not in the record. The appendix is not part of the
record and is stricken. See RAP lOJ(a)(8). The reference to the article at page 26 of Dr.

                                              21 

No. 30405-1-III
Eskridge v. Townsend


evidentiary ruling for an abuse of discretion. Hoglund v. Meeks, l39 Wn. App. 854, 875,

170 P.3d 37 (2007). A trial court abuses its discretion when its decision is manifestly

unreasonable or based upon untenable grounds. Mayer v. Sto Indus., Inc., 156 Wn.2d

677,684, l32 P.3d 115 (2006) (quoting Associated Mortg. Investors v. G.P. Kent Constr.

Co., 15 Wn. App. 223,229,548 P.2d 558 (1976)).

       At the outset, we note that Dr. Townsend is precluded from arguing that Ms.

Guffin improperly commented on witness credibility because she failed to make a specific

evidentiary objection below. "A party may only assign error in the appellate court on the

specific ground of the evidentiary objection made at trial." State v. Koepke, 47 Wn. App.

897,911, 738 P.2d 295 (1987). Dr. Townsend replies that the error is fully reviewable

because the Eskridges violated a court order prohibiting witnesses from commenting on

the credibility of other witnesses.

       Before trial, the trial court cautioned counsel that "[n]o witness is entitled to

comment on the credibility of any witness whether they are an expert or a lay person ....

[I]f anybody attempts to do it whether they have disclosed that opinion or not I will

sustain an objection." RP at 953-54. As indicated, Dr. Townsend failed to object to Ms.

Guffin's alleged comments on the credibility of witnesses, which precludes our review



Townsend's brief is stricken as well.

                                              22
No.30405-I-III
Eskridge v. Townsend


under RAP 2.5(a). Additionally, any review of the alleged error is compromised by Dr.

Townsend's failure to identifY the objectionable testimony at issue. Although Dr.

Townsend cites numerous pages of record, she fails to point to specific testimony that

constitutes a comment on the credibility of the Eskridge children or Dr. Townsend.

Because of her failure to discuss her citations to the record with any particularity, we do

not address her claim. It is not the function of an appellate court "to comb the record with

a view toward constructing arguments for counsel." In re Estate    0/ Lint, 135 Wn.2d 518,
532,957 P.2d 755 (1998); see RAP 10.3(a)(6).

       As to the hearsay issue, Dr. Townsend contends that the court erred in allowing

Ms. Guffin to testifY about statements made to her by the Eskridges and their children.

However, again Dr. Townsend fails to cite to any authority to support her position and her

references to the record are not discussed with particularity. Her argument is essentially

limited to one conclusory sentence in which she states, "These statements were hearsay,

subject to no exception identified by the Eskridges or the trial court, and should not have

been admitted." Appellant's Br. at 34. Given the inadequacy of Dr. Townsend's

briefing, we do not address this issue. See RAP 10.3(a)(6); RAP lOA. "Passing

treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration." Holland v. City o/Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).


                                             23 

No. 30405-1-111
Eskridge v. Townsend


       Even if we address the issue on its merits, Dr. Townsend's argument fails.

Hearsay is "a statement, other than one made by the declarant while testifYing at the trial

or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c).

Here, Ms. Guffin's testimony relating to what the Eskridges and their children told to her

during her investigation was not offered for the truth of the matter asserted. Rather, it

was offered to show the effect of the statements upon Ms. Guffin in determining whether

Dr. Townsend's complaint to CPS was founded. Thus, the statements were offered for

their "effect upon the hearer," which means that they were not hearsay. 5B KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 801.11, at 346 (5th

ed. 2007); 5C TEGLAND, supra § 803.15 at 48. The trial court therefore did not err by

admitting the testimony.

       Jury Instruction. Finally, Dr. Townsend contends that the trial court improperly

instructed the jury that a person is immune from liability for making a report to CPS as

long as the report is made no longer than 48 hours after the person learned of the

suspected abuse. She contends that because the trial court earlier ruled against the legal

proposition contained in the instruction, it erred in giving an instruction that contradicted

this earlier ruling. The Eskridges respond that the jury instruction at issue is the law of

the case because Dr. Townsend failed to object to the instruction below.



                                             24
No.30405-1-III
Eskridge v. Townsend


         The instruction at issue provided that "[a] person who makes a report to Child

Protective Services is immune from liability for that report if ... the report is made at the

first opportunity, but in no case longer than forty-eight (48) hours after there is reasonable

cause to believe that the child has suffered abuse or neglect." CP at 111, Instruction 11.

         "An appellate court may consider a claimed error in a jury instruction only if the

appellant raised the specific issue by exception at trial." Van Hout v. Celotex Corp., 121

Wn.2d 697, 702, 853 P.2d 908 (1993). A trial court must be apprised of the specific

grounds for objection and given an opportunity to correct any mistakes in time to prevent

an unnecessary retrial. If this does not occur, the appellate court cannot review the

alleged error. Ryan v. Westgard, 12 Wn. App. 500, 510, 530 P.2d 687 (1975). Dr.

Townsend's failure to object to the instruction below precludes our review of the alleged

error.

         Dr. Townsend concedes that she did not object to instruction 11, but contends this

court should review the alleged error because she previously argued against the legal

proposition when the Eskridges moved for a directed verdict. Admittedly, the court

denied the Eskridges' motion and ruled that the immunity provision ofRCW 26.44.060 is

not lost when the CPS report is made after 48 hours. Nevertheless, Dr. Townsend fails to

cite any authority for her proposition that the trial court's prior ruling is determinative of


                                              25 

No.30405-1-III
Eskridge v. Townsend


error in the instruction. Again, due to inadequate briefing and failure to cite to authority,

we are unable to review the issue. RAP 10.3.

       Summary. Dr. Townsend waived the anti-SLAPP defense, the testimony of Ms.

Guffin was properly admitted, and the failure to object to instruction 11 precludes our

review. Accordingly, we affirm.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           Kulik, J.

WE CONCUR: 





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