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                                                       COURT OF APPEALS DWI
                                                        STATE OF WASHINGTON

                                                        2018 JUL 30 t41 8: 31




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MELISSA ECKSTROM,                         )
                                          )       No. 76571-0-1
                     Respondent,          )
                                          )       DIVISION ONE
              v.                          )
                                          )
SIGURD HANSEN,                            )       PUBLISHED OPINION
                                          )
                     Petitioner.          )       FILED: July 30, 2018
                                          )

       BECKER, J. — Respondent Melissa Eckstrom has filed a personal injury

claim against her father, petitioner Sigurd Hansen, alleging that he sexually

molested her when she was two years old. At the time of the alleged abuse,

Eckstrom's parents had just been through an acrimonious marriage and divorce.

Eckstrom's mother accused Hansen of molesting the child, and the court was

called on to decide whether Hansen should be allowed to continue having

residential time with her. After a full trial in March 1992, the court found that

Hansen had not abused Eckstrom. Hansen asserts that the 1992 finding of no

abuse estops Eckstrom from litigating the present claim. Because Eckstrom was

not a party to the 1992 proceedings, the trial court properly denied Hansen's

motion to dismiss.
No. 76571-0-1/2

                                     FACTS

       Eckstrom's parents married in 1987 and separated about a month later.

Eckstrom was born in 1988. The marriage was dissolved by decree in 1989.

Under the parenting plan, Eckstrom resided primarily with her mother. Hansen, a

commercial fisherman who spent several months per year in Alaska, exercised

his right to residential time when he was in town. Then, in 1990, the mother

began to accuse Hansen of molesting the child. Although Hansen denied

wrongdoing, his residential contact with his daughter was suspended by

temporary order.

       Eckstrom was assessed by a number of professionals during the ensuing

investigation. Sometimes she made statements that indicated Hansen had

molested her. In other interviews, she denied that he had touched her

inappropriately. A court-appointed psychiatrist concluded there was no

convincing evidence to support the allegations of sexual abuse. A guardian ad

litem appointed for Eckstrom filed a report stating his opinion that Hansen had

not abused Eckstrom and recommending that his visitation with her be

reinstated.

      A trial occurred in 1992 on Hansen's motion to resume residential contact

with Eckstrom. The court made a finding that Hansen had not abused his

daughter. The court provided for gradual reinstatement of his residential time

with her, under therapeutic supervision intended to overcome the estrangement

that had developed and to promote a close parent-child relationship.




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No. 76571-0-1/3

       Efforts to reunite father and daughter were unsuccessful. In 1993,

Hansen relinquished his parental rights. Eckstrom's mother assumed sole

custody and control of the child.

       Eckstrom grew up having no contact with Hansen. In 2010, she reached

out to Hansen and told him that she was planning to go to law school. She

asked Hansen to give her money for tuition and other expenses, which she

estimated as more than $250,000. Hansen told her that he would first want to

get to know her better. They attended a joint counseling session. They had no

further contact thereafter. Eckstrom went to law school and is now a practicing

attorney.

       This suit began in May 2016, when Eckstrom filed a complaint against

Hansen seeking damages for child rape and molestation. Eckstrom claimed to

have memories of Hansen's abuse and said that she was prepared to testify

about her experience. Hansen denied liability and asserted the defenses of res

judicata and collateral estoppel. He moved for dismissal in July 2016 on the

ground that the 1992 finding of no abuse precluded Eckstrom's suit. The trial

court denied the motion but granted Hansen's request for a certification under

RAP 2.3(b)(4). This court granted discretionary review.'


        1 Hansen attached to his opening brief an appendix containing relevant
documents filed in the earlier superior court action. These documents, originally
filed under seal, were unsealed by the superior court in the present action of
Eckstrom v. Hansen. Although the documents are not part of the record in this
current case, the court was aware of their contents. See, e.g., Clerk's Papers at
285 n.2. We grant Hansen's request to take judicial notice that these documents
are, in fact, documents that were filed with the King County Superior Court in the
earlier proceedings. That fact, supported by a copy of the court's docket, is not
subject to reasonable dispute. ER 201(b)(2).

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                                     ANALYSIS

       Res judicata and collateral estoppel are kindred doctrines designed to

prevent repetitive litigation. Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 395,

429 P.2d 207(1967). Whether an action is precluded by res judicata or collateral

estoppel is reviewed de novo. Enslev v. Pitcher, 152 Wn. App. 891, 899, 222

P.3d 99(2009), review denied, 168 Wn.2d 1028 (2010); Christensen v. Grant

County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957(2004).

       We have little difficulty concluding that res judicata does not apply here.

One of the requirements of res judicata is that the two suits involve the same

cause of action. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254

P.3d 818 (2011). These two suits do not. The suit between the parents

addressed Hansen's right to have residential time with his daughter, whereas

Eckstrom now raises a claim for personal injury damages.

       The closer question is the application of collateral estoppel, also known as

issue preclusion. Pederson v. Potter, 103 Wn. App. 62, 69, 11 P.3d 833(2000),

review denied, 143 Wn.2d 1006 (2001). Collateral estoppel prevents relitigation

of a particular issue in a later proceeding involving the same parties, even if the

later proceeding involves a different claim or cause of action. Pederson, 103 Wn.

App. at 69. The requirements of collateral estoppel are: (1) the identical issue

was decided in the prior action;(2) the prior action resulted in a final judgment on

the merits;(3)the party to be estopped was a party or in privity with a party in the

earlier proceeding; and (4) precluding relitigation of the issue will not work an

injustice. Williams, 171 Wn.2d at 731. When the elements of collateral estoppel


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are met, the doctrine serves to prevent inconvenience or harassment of parties

and provides for finality in adjudications. Christensen, 152 Wn.2d at 306-07.

       The factual issue to be decided in Eckstrom's personal injury claim is

whether Hansen sexually abused Eckstrom during the same time period as

alleged in the 1992 proceeding. In the parenting plan trial in 1992, the trial court

was presented with the identical issue and decided Hansen did not sexually

abuse Eckstrom. The result was final judgment on the merits permitting Hansen

to resume residential contact with his young daughter. Because the first two

elements of collateral estoppel are satisfied, we must consider the third: whether

Eckstrom, the party to be estopped, was a party or in privity with a party in the

earlier proceeding.

       Eckstrom was not a named party to the earlier action. The caption of the

case was "In Re the Marriage of Lisa Dawn Hansen, Petitioner, and Sigurd J.

Hansen, Respondent." Hansen argues that his daughter was nonetheless

"effectively a party" because a guardian ad litem was appointed for her.

       Hansen cites Guardianship of Robinson, 9 Wn.2d 525, 536, 115 P.2d 734

(1941). Robinson exemplifies the general principle that a minor represented by a

guardian in an action is bound by the resulting judgment. RESTATEMENT

(SECOND)OF JUDGMENTS § 41 (1982).

       Robinson was an estate dispute. The George Washington Foundation,

serving as guardian of the persons of three minors, petitioned for removal of

Robert Terhune, who was then serving as guardian of their estates. Robinson, 9

Wn.2d at 534. The trial court dismissed the petition, and the foundation


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No. 76571-0-1/6

appealed. The foundation argued that the trial court should have removed

Terhune because Terhune had allegedly filed a false final account overstating

the cash on hand when he took over from his predecessor, who had resigned.

       At the earlier hearing on the final account, the foundation did not choose

to appear though it had notice. The minors were personally served with notice of

the hearing on the final account. A guardian ad litem was appointed "to appear

and represent their interests" at the hearing. Robinson, 9 Wn.2d at 528-29, 536.

The final account was approved, and no appeal was taken. Robinson, 9 Wn.2d

at 529.

       The Supreme Court ruled that the claim of false reporting was no longer

available in the second proceeding as a ground for removing Terhune because it

could and should have been litigated at the earlier hearing on the final account.

Robinson, 9 Wn.2d at 536. The minors were held to be bound by the previous

order approving the final account. Robinson, 9 Wn.2d at 536.

       Hansen argues that under Robinson, whenever a guardian ad litem is

appointed to protect a minor's interests, the minor is bound by the rulings of the

court and cannot relitigate the issues resolved by those rulings. Robinson does

not support stating the law so broadly. The effect of the appointment of a

guardian ad litem depends on the type of case and the authority given.

      The Marriage of Hansen case, King County Superior Court cause number

87-3-09135-3, was a domestic relations matter. The order appointing a guardian

ad litem for Eckstrom in 1990 provided that the guardian ad litem "shall conduct a

reasonable investigation of the circumstances of the child in relation to Parenting


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Plan matters and shall, in that capacity, represent the best interests of the minor

child."2 The order did not authorize the guardian ad litem to receive service of

process for Eckstrom or to assert claims and counterclaims on her behalf.

Nothing in the terms of the order of appointment authorized the guardian ad litem

to act for Eckstrom so as to make her "effectively a party" as Hansen contends.

Even if the guardian ad litem had concluded that Hansen abused Eckstrom, he

did not have the authority to pursue a personal injury claim on her behalf. The

guardian ad litem was appointed to represent Eckstrom's interests only in

connection with the pending decision on whether her father should be allowed to

have residential time with her. This concern is immaterial to the present suit.

       In addition, we find no authority permitting collateral estoppel to operate

against a minor who is represented by a guardian ad litem in an earlier

proceeding when the minor's interests in the second proceeding are not the

same as in the first proceeding. In Robinson, the foundation was asserting the

minors' interest in having their assets handled honestly. The exact same interest

was at stake at the earlier hearing on the final account. Here, the interest now

asserted by Eckstrom is to receive monetary compensation for the damages she

has allegedly suffered as the result of Hansen's conduct. This is different from

the Marriage of Hansen matter, where her interest was in being protected from

sexual abuse, not in receiving compensation.




      2 Clerk's   Papers at 113-14.
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       We conclude that the appointment of the guardian ad !item did not make

Eckstrom a "party" to the dispute between her parents for purposes of collateral

estoppel.

       Hansen next contends that Eckstrom, if not a party, was in privity with her

mother, who was a named party to the adjudication in Marriage of Hansen.

Privity denotes a mutual or successive relationship to the same right or property.

McDaniels V. Carlson, 108 Wn.2d 299, 306, 738 P.2d 254(1987). Eckstrom's

mother was pursuing her right as a parent to protect her child from abuse.

Eckstrom did not have that same right. As a child, she had to depend on others

to protect her. And Eckstrom did not succeed to her mother's rights as a parent.

Eckstrom is pursuing her own distinct right as an adult to sue for personal injury

damages. The requirement for privity in collateral estoppel is "strict." McDaniels,

108 Wn.2d at 306. We conclude Eckstrom was not in privity with her mother.

       The fourth requirement of collateral estoppel is that precluding relitigation

of the issue will not work an injustice on the party against whom the doctrine is to

be applied. McDaniels, 108 Wn.2d at 303. Washington's case law on the

injustice element "is most firmly rooted in procedural unfairness." Thompson v.

Dep't of Licensing, 138 Wn.2d 783, 795, 982 P.2d 601 (1999). It would be

procedurally unfair to Eckstrom to bind her to the outcome of an earlier

proceeding that occurred when she was unrepresented by anyone with the

power to act for her in litigation. At the time, she was too young to testify, too

young to understand the nature of the legal proceeding, and too young to be

aware of her right to pursue a tort claim.


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       As noted by the trial court, the injustice of precluding Eckstrom from

bringing her own suit is underscored by the public policy of RCW 4.16.340(1).

The statute provides "a broad and generous application of the discovery rule to

civil actions for injuries caused by childhood sexual abuse." C.J.C. v. Corp. of

the Catholic Bishop of Yakima, 138 Wn.2d 699, 712, 985 P.2d 262(1999). It

recognizes that victims may for many years "repress the meaning of the abuse or

be unable to connect the abuse to any injury." C.J.C. 138 Wn.2d at 712-13.

       We conclude Eckstrom is not collaterally estopped by the earlier finding

that Hansen did not abuse her. She is entitled to her own day in court to try to

prove that he did. We affirm the trial court decision allowing her suit to go

forward.


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WE CONCUR:



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