       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SCOTT WALTER MAZIAR,
                                                           DIVISION ONE
                Respondent/Cross-
                Appellant,                                  No. 71068-1-
                                                                                                    m
                                                                                                         o
                                                                                                    o
                                                            PUBLISHED OPINION                 l\3
                                                                                                    _.*>—:
                                                                                                    -ftr-Of—
WASHINGTON STATE
                                                                                             3C
DEPARTMENT OF CORRECTIONS                                                                    O
                                                                                                    a;r-

and the STATE OF WASHINGTON,

                Appellant/Cross-
                Respondent.                                 FILED: March 24, 2014


        Dwyer, J. — Generally, when a plaintiff brings a maritime claim in state

court pursuant to the "saving to suitors" clause,1 article I, section 21 ofthe
Washington Constitution2 establishes the parties' rights to a jury trial. That
constitutional provision, however, does not grant such a right to the State of
Washington, the party against whom the claim at issue in this case was asserted.
        Plaintiff Scott Maziar initially requested a jury trial. He later moved to

strike his jury request, contending that the jury trial right was inapplicable to his
cause of action. The State opposed this motion, arguing that Maziar was wrong


        1"The district courts shall have original jurisdiction, exclusive of the courts of the States,
of. Any civil case ofadmiralty or maritime jurisdiction, saving tosuitors in all cases all other
remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1).
        2"The right oftrial by jury shall remain inviolate, but the legislature may provide for a jury
of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in
civil cases in any court of record, and for waiving of the jury in civil cases where the consent of
the parties interested is given thereto."
No. 71068-1-1/2



regarding the application of a state law jury right to his maritime cause of action.

The State further alleged that it possessed the right to a jury trial in this matter,

premising its assertion on article I, section 21 and RCW 4.40.060 and 4.44.090.3

Although the State was correct that article I, section 21 applied to Maziar's cause

of action, conferring upon him such a right, it was incorrect in contending that

either the state constitution or the cited statutes confer upon it such a right.

Because the State did not cite to the trial court applicable authority establishing

its right to a jury trial in this matter, the trial court did not err by striking the jury

upon Maziar's request.

       With regard to further issues raised herein, we hold that the trial court did

not err either by declining to award Maziar prejudgment interest on his damages

recovery or by finding that Maziar failed to mitigate his damages. Accordingly,

we affirm the judgment.

                                                 I


       Maziar was employed by the State Department of Corrections (DOC) as a

correctional officer at the McNeil Island Corrections Center. On January 16,

2003, at approximately 10:40 p.m., after having finished his shift, Maziar boarded

the DOC ferry from McNeil Island to Steilacoom. Maziar sat down on a bench,

put his feet up on a loose chair, and closed his eyes. Thereafter, the captain of

the ferry pulled the chair out from under Maziar's feet, causing Maziar to fall off

the bench. Maziar sustained injuries to his back, left ankle, knee, and left

shoulder.


       3 These statutes are set forth and discussed in section II, subsection D, infra.
No. 71068-1-1/3



       Maziar was unable to return to work as a correctional officer. From March

2003 through August 2003, Maziar worked in DOC's records division. In

November 2003, the State offered Maziar a position in the mailroom at McNeil

Island. Maziar's physician, Dr. Stephen Settle, did not believe that Maziar could

perform that job due to his mistaken belief that ferry transportation required

passengers to wear seatbelts. With respect to the mailroom position itself, Dr.

Settle opined that "[t]he actual job duties appear appropriate." Nonetheless,

Maziar believed that he would not have been able to perform the mailroom job.

Maziar stated that he would not have taken the mailroom position because,

       [l]t's a permanent position that was only three or four people.
       There was heavy lifting in that job. Iwatched them as I sat down
       there as an officer. They do lift very large bags. There is tedious
       amounts of sorting. The three people that I saw there had been
       there over 20 years, and there were no positions that I could see
       that were permanent at any time while I worked there at McNeil
       Island. I didn't see any permanency there.

       On June 30, 2005, Maziar filed a general maritime negligence claim

against DOC, seeking compensation for the injuries he sustained when the ferry
captain removed the chair. At that time, Maziar requested that his case be tried
to a jury. On February 22, 2008, the trial court granted a motion for summary

judgment brought by DOC, dismissing the lawsuit. Maziar appealed, and on
August 25, 2009, Division Two reversed the trial court's ruling. Maziar v. Dep't of
Corr., 151 Wn. App. 850, 216 P.3d 430 (2009) (Maziar I).4


        4 In Maziar I, Division Two addressed whether the Industrial Insurance Act, Title 51 RCW,
precluded Maziar's claim and whether his claim was barred by sovereign immunity. 151 Wn.
App. at 852. The court held in Maziar's favor on both issues, and remanded the case for trial.
Maziar I. 151 Wn. App. at 860-61.
No. 71068-1-1/4



       On September 15, 2011, Maziar, relying on the Washington Supreme

Court's recent opinion in Endicottv. Icicle Seafoods, Inc., 167 Wn.2d 873, 224

P.3d 761 (2010), moved to strike the jury request. DOC opposed the motion.

The trial court granted the motion and the parties tried the case to the bench.

       The trial court found in favor of Maziar, and awarded $572,251.50 for pain

and suffering and loss of enjoyment of life. However, the trial court found that

Maziar had failed to mitigate his damages because "he did not attempt" the

mailroom position "even for 10 or 15 minutes." Hence, the trial court awarded

lost wages for only the periods of January to February 2003 and September to

November 2003, for a total of $12,487.50. In total, the trial court awarded to

Maziar $585,0005 in damages. The trial court declined to award prejudgment

interest on the damage amount.

        DOC appeals from the judgment, assigning errorto the trial court's order
granting the motion to strike the jury. Maziar cross-appeals, challenging both the
trial court's ruling that he failed to mitigate his damages and its decision not to

award prejudgment interest.

                                                II


        DOC contends that the trial court erred by striking the jury and conducting

a bench trial on Maziar's claim. This is so, it asserts, because the Washington

Constitution and two state statutes guarantee to it the right to trial by jury in civil

        5The judgment entered by the trial court states that the total principal judgment amount is
$585,000. We are unaware ofthe source ofthe $261 not incorporated in the awards for lost
wages and pain and suffering. Nevertheless, neither party assigns error to the trial court's
calculation ofdamages. We thus do not disturb the trial court's calculation of Maziar's damages,
as set forth in the judgment.

                                               -4-
No. 71068-1-1/5



actions, including maritime cases. We agree that the right to a jury trial generally

applies to maritime actions. We do not agree that DOC established that it

possesses such a right.

                                           A


       Maritime causes of action are exclusively within the realm of federal law.

Maziar I. 151 Wn. App. at 854. Nonetheless, an in personam maritime claim may

be brought in state court pursuant to the "saving to suitors" clause of 28 U.S.C. §

1333(1). Lewis v. Lewis &Clark Marine, Inc.. 531 U.S. 438, 445, 121 S. Ct. 993,

148 L. Ed. 2d 931 (2001). This statute states, in relevant part, "The district courts

shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any

civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all

other remedies to which they are otherwise entitled." 28 U.S.C. § 1333.

       Generally, state courts deciding a case brought pursuant to the "saving to

suitors" clause must apply substantive federal maritime law. Endicott, 167 Wn.2d

at 879. However,

       a state court may "'adopt such remedies, and . . . attach to them
       such incidents, as it sees fit' so long as it does not attempt to make
       changes in the 'substantive maritime law.'" Madruaa v. Superior
       Court of Cal.. County of San Diego, 346 U.S. 556, 561 [74 S. Ct.
       298, 301, 98 L. Ed. 290] (1954) (quoting Red Cross Line fv. Atlantic
       Fruit Co.. 264 U.S. 109,] 124 [44 S. Ct. 274, 68 L. Ed. 582 (1924)]).
       That proviso is violated when the state remedy "works material
       prejudice to the characteristic features of the general maritime law
       or interferes with the proper harmony and uniformity of that law in
       its international and interstate relations." Southern Pacific Co. v.
       Jensen, 244 U.S. 205, 216 [37 S. Ct. 524, 61 L. Ed. 1086] (1917).

Am. Dredging Co. v. Miller. 510 U.S. 443, 447, 114S. Ct. 981, 127 L. Ed. 2d 285

(1994).

                                          -5-
No. 71068-1-1/6



       Although, historically, jury trials were not available in admiralty suits,

nothing in federal maritime law forbids the use of a jury. Fitzgerald v. U.S. Lines

Co., 374 U.S.16, 20, 83 S. Ct. 1646, 10 L. Ed. 2d 720 (1963). Instead, the

possibility of trial by jury is one of the "remedies" saved to suitors by 28 U.S.C. §

1333.6 Lewis, 531 U.S. at 454-55 ("Trial by jury is an obvious, but not exclusive,

example of the remedies available to suitors."). As such, whether a party

possesses the right to trial by jury in a maritime action is a question of state law.

Linton v. Great Lakes Dredge & Dock Co.. 964 F.2d 1480, 1487 (5th Cir. 1992).

Thus, whether the parties in this case have the right to a jury trial is a question to

be answered by application of Washington law.

       Pursuant to the Washington Constitution, the right to a jury trial generally

exists for common law actions but not for equitable actions. Bird v. Best

Plumbing Grp.. LLC, 175 Wn.2d 756, 769, 287 P.3d 551 (2012). However,

maritime actions are neither legal nor equitable. Waring v. Clarke, 46 U.S. 441,

460, 5 How. 441, 12 L Ed. 226 (1847); Phelps v. The City of Panama, 1

Wash.Terr. 518, 536 (1877) ("The constitution recognizes, in the language it

employs, a triple distribution ofjurisdiction into law, equity and admiralty. A suit

in one of these jurisdictions is not a suit in another." (citation omitted)).

Accordingly, we undertake a historical inquiry to determine whether there is a

constitutional right to a jury in a maritime suit:

       [Washington courts] have long interpreted article I, section 21 as
       guaranteeing those rights to trial by jury that existed at the time of

       6"Suitors" includes both the plaintiff and the defendant. Waring v. Clarke, 46 U.S. 441,
461, 5 How. 441, 12 L. Ed. 226 (1847).

                                             -6-
No. 71068-1-1/7



       the constitution's adoption in 1889. Brown v. Safeway Stores. Inc.,
       94 Wn.2d 359, 365, 617 P.2d 704 (1980). Under this historical
       approach, "the court examines (1) whether the cause of action is
       one to which the right to a jury trial applied in 1889, and (2) the
       scope of the right to a jury trial." Nielson v. Spanawav Gen. Med.
       Clinic. Inc.. 135 Wn.2d 255, 266, 956 P.2d 312 (1998).

Bird, 175 Wn.2d at 768-69.

       In 1889, admiralty jurisdiction was governed by the Judiciary Act of 1789.

Chappell v. Bradshaw, 128 U.S. 132, 134, 9 S. Ct. 40, 32 L. Ed. 369 (1888).

The Act stated, in relevant part, "[T]he district courts shall have . .. exclusive

original cognizance of all civil causes of admiralty and maritime jurisdiction .. .

saving to suitors, in all cases, the right of a common law remedy, where the

common law is competent to give it." Judiciary Act of 1789, ch. 20, § 9, 1 Stat.

73, 76-77 (footnote omitted). Although a maritime suit brought in state court was

not (and is not) a common law action, the "saving to suitors" clause provided

plaintiffs with all remedies that would otherwise be available in a common law
action. Knapp. Stout & Co. Co. v. McCaffrey. 177 U.S. 638, 644, 20 S. Ct. 824,

44 L Ed. 921 (1900): see also The Moses Taylor. 71 U.S. 411,431, 18 L Ed.

397, 4 Wall. 411 (1866) ("It is not a remedy in the common-law courts which is

saved, but a common-law remedy."). "Remedy" was defined at the time as "[t]he

means employed to enforce a right or redress an injury." Bouvier's Law

Dictionary 2870 (8th ed. 1914). In 1889, a jury trial was one of the "means

employed to enforce a right or redress an injury" in common law actions in the
Washington Territory. Dacres v. Or. Rv. &Navigation Co.. 1 Wash. 525, 529, 20
P. 601 (1889). Thus, in 1889, parties in maritime actions had the right to a jury
No. 71068-1-1/8



trial in suits brought pursuant to the "saving to suitors" clause. Therefore, upon

statehood, article I, section 21 of the Washington Constitution continued to

guarantee that right.

        This conclusion is consistent with federal law. Although the federal

constitution's Seventh Amendment does not apply to state court proceedings, the

Washington Supreme Court has found Seventh Amendment jurisprudence to

provide insight into the state jury trial guarantee. See e.g., Nielson v. Spanaway

Gen. Med. Clinic, Inc., 135 Wn.2d 255, 267-68, 956 P.2d 312 (1998); Sofie v.

Fibreboard Corp., 112 Wn.2d 636, 647, 771 P.2d 711, 780 P.2d 260 (1989).

Pursuant to federal court jurisprudence, the "saving to suitors" clause allows a

plaintiff to sue in diversity, instead of admiralty, so long as the statutory

requirements for so doing are met.7 Romero v. Int'l Terminal Operating Co.. 358

U.S. 354, 362, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959). The United States

Supreme Court has held that when a plaintiff brings a maritime claim under

diversity jurisdiction, the Seventh Amendment right to a jury trial attaches. Atl. &

Gulf Stevedores. Inc. v. Ellerman Lines. Ltd.. 369 U.S. 355, 360, 82 S. Ct. 780, 7

7The statute establishing federal diversity jurisdiction reads, in relevant part, as follows:
        The district courts shall have originaljurisdiction of all civil actions where the
        matter in controversy exceeds the sum or value of $75,000, exclusive of interest
        and costs, and is between—
                 (1) citizens of different States;
                  (2) citizens of a State and citizens or subjects of a foreign state, except
            that the district courts shall not have original jurisdiction under this subsection
            of an action between citizens of a State and citizens or subjects of a foreign
            state who are lawfully admitted for permanent residence in the United States
            and are domiciled in the same State;
                 (3) citizensof different States and in which citizensor subjects of a
            foreign state are additional parties; and
                 (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and
            citizens of a State or of different States.
28 U.S.C. § 1332(a).

                                                     -8-
No. 71068-1-1/9



L.Ed.2d 798 (1962). As the Supreme Court of Louisiana has articulated, "There

simply is no apparent conceptual difference between an admiralty In personam

claim brought under the saving to suitors clause as an ordinary civil action in

federal court and one brought under the same clause as an ordinary civil action

in state court." Lavergne v. W. Co. of N. Am.. Inc.. 371 So.2d 807, 810 (La.

1979). Thus, federal law supports the conclusion that the right to a jury trial is

available in maritime actions brought in state court pursuant to the "saving to

suitors" clause.

                                                  B


        Maziar relies extensively on the Phelps decision for his assertion that

there is no right to a jury trial in maritime actions, but that opinion does not

compel the result he envisions.8 In Phelps, the Supreme Court of the

Washington Territory declared that "[n]either in the court below nor in this court,

could [the plaintiff's admiralty suit] be tried by a jury." 1 Wash.Terr. at 536.
However, the plaintiffs in Phelps did not bring their action pursuant to the "saving

to suitors" clause. Rather, the territorial trial court heard the case in the same

manner as would a federal district court sitting in admiralty.

        Some history of the jurisdiction exercised by Washington's territorial courts

is necessary to explain why this was so. In 1828, the United States Supreme
Court was called upon to answer the question of whether a territorial court could


        8Maziar also relies heavily on footnote 3 in Endicott for his assertion that there is no right
to a jury trial in maritime actions. However, in that footnote, the court actually states that it would
not decide the question, because the issue was not adequately briefed by the parties. Endicott,
167Wn.2dat886n.3.
No. 71068-1-1/10



exercise jurisdiction over admiralty cases. Am. Ins. Co. v. 356 Bales of Cotton,

26 U.S. 511, 7 L. Ed. 242 (1828). In an opinion by Chief Justice John Marshall,

the Court held that a territorial court had jurisdiction over admiralty claims. 356

Bales of Cotton. 26 U.S. at 546. The Court noted that the territorial courts, while

not established as Article III courts, did possess such subject matter jurisdiction

as was conferred by Congress. 356 Bales of Cotton, 26 U.S. at 546. As Chief

Justice Marshall explained, "Although admiralty jurisdiction can be exercised in

the states in those Courts, only, which are established in pursuance of the 3d

article of the Constitution; the same limitation does not extend to the territories."

356 Bales of Cotton, 26 U.S. at 546.

       Congress's power over territories ofthe United States is established in
Article IV, section 3, of the United States Constitution, which states, in relevant

part, "The congress shall have power to dispose ofand make all needful rules
and regulations respecting the territory or other property belonging to the United
States." In 1853, Congress exercised this power in creating the territory of
Washington. In "An Act to Establish the Territorial Government of Washington,"
otherwise known as the Organic Act, Congress created the territorial judiciary,

vesting its power in "a supreme court, district courts, probate courts, and in
justices of the peace." Organic Act, ch. 90, § 9, 10 Stat. 172 (1853). Congress
therein conferred the jurisdiction of the courts as follows:

       [E]ach ofthe said district courts shall have and exercise the same
       jurisdiction in all cases arising under the constitution of the United
       States and the laws of said Territory, as is vested in the circuit and
       district courts of the United States; writs of error and appeal in all
       such cases shall be made to the supreme court of said Territory the

                                         -10-
No. 71068-1-1/11



       same as in other cases. Writs of error, and appeals from the final
       decision of said supreme court, shall be allowed and may be taken
       to the supreme court of the United States in the same manner as
       from the circuit courts of the United States.

Organic Act, ch. 90, § 9, 10 Stat. 172. As the grant of jurisdiction decreed it to be

the same as that exercised by Article III courts, a territorial court in Washington

operated not only as would a state court, but also as would a federal court. See

Barbara Bintliff, A Jurisdictional History of the Colorado Courts, 65 U. Colo. L.

Rev. 577, 588-89 (1994) ("In addition to being territorial courts, with jurisdiction

like that of state courts, the supreme and district courts of Colorado Territory also

served as the federal courts for the territory. Their jurisdiction was 'the same

jurisdiction, in all cases arising under the constitution and laws of the United
States, as is vested in the circuit and district courts of the United States.'"

(quoting Organic Act, ch. 59, § 9, 12 Stat. 172 (1861))).

       In Phelps, the territorial Supreme Court held that it and the trial court were

acting with the jurisdictional authority offederal courts in deciding that dispute. In
determining whether it had jurisdiction over admiralty claims, the court

recognized that there were two possible bases for its jurisdiction:

       1. . . . [A]dmiralty and maritime law remains a law of the Territory, and
       a case arising under it properly arises under the laws of the Territory.
       [Or],
       2. . . . [A]dmiralty and maritime law is now operative within the Territory
       as a law of the United States, and a case arising under it arises under
       the laws of the United States.

Phelps. 1 Wash.Terr. at 529. The court determined the second basis to be the

correct one for admiralty cases. Phelps. 1 Wash.Terr. at 529. Specifically, the


                                           11 -
No. 71068-1-1/12



court held, "All cases here, therefore, which now arise under admiralty, or

maritime law, are correctly to be styled cases arising under the laws of the United

States. Of all such cases, the Territorial, District and Supreme courts have

undoubted jurisdiction." Phelps, 1 Wash.Terr. at 529.

       The trial court in Phelps was sitting not as a common law state court, but

as a federal court in admiralty. Thus, it had no need to invoke the "saving to

suitors" clause. As the trial court was exercising the equivalent of admiralty

jurisdiction,9 the Territorial Supreme Court was correct in its conclusion that the

parties therein had no right to a jury trial. See Waring. 46 U.S. at 460 (Seventh

Amendment does not apply to admiralty actions). The Pierce County Superior

Court in this case, however, was not exercising federal admiralty jurisdiction.10

Rather, it was exercising the authority conferred upon it by the "saving to suitors"

clause. Therefore, contrary to Maziar's urgings, the Phelps decision does not

support the position he asserts.

       As the "saving to suitors" clause contemplates that the parties have

access to common law remedies, and the right to a jury trial was a common law

        9What today would be jurisdiction for claims brought pursuant to Federal Rules of Civil
Procedure 9(h). This rule states:
        (1)     How Designated. If a claim for relief is within the admiralty or maritime
                jurisdiction and also within the court's subject-matter jurisdiction on some
                other ground, the pleading may designate the claim as an admiralty or
                maritime claim for purposes of Rules 14(c), 38(e), and 82 and the
                Supplemental Rules for Admiralty or Maritime Claims and Asset
                Forfeiture Actions. A claim cognizable only in the admiralty or maritime
                jurisdiction is an admiralty or maritime claim for those purposes, whether
                or not so designated.
        (2)     Designation for Appeal. A case that includes an admiralty or maritime
                claim within this subdivision (h) is an admiralty case within 28 U.S.C. §
                1292(a)(3).
        10 Norcould it. "[A] true 'admiralty' claim is never cognizable in state court." Linton. 964
F.2d at 1487.


                                               -12-
No. 71068-1-1/13



remedy recognized in the Washington Territory in 1889, the constitutional right to

a jury trial set forth in article I, section 21 is generally available to the parties in a

maritime action brought in superior court.

                                             C


       The discussion in the preceding section does not resolve the issue

presented, however. Establishing that Maziar, contrary to his belief, was entitled

to a jury's resolution of his claim does not end our inquiry. Maziar, of course,

was free to choose to not avail himself of the jury trial opportunity. The trial court

erred in striking the jury, DOC contends, because it had a right to a jury trial and

it objected to Maziar's request.

       Both in the trial court and in its briefing on appeal, DOC contended that its

right to a jury trial is guaranteed by article I, section 21 of the Washington
Constitution and two nineteenth century statutes. We examine the constitutional

question first.

       The Washington Constitution provides that,

        The right of trial by jury shall remain inviolate, but the legislature
        may provide for a jury of any number less than twelve in courts not
        of record, and for a verdict by nine or more jurors in civil cases in
        any court of record, and for waiving of the jury in civil cases where
        the consent of the parties interested is given thereto.

Const, art. I, §21.

        Article I of the Washington Constitution is entitled "Declaration of Rights."

Section 21, guaranteeing the right oftrial by jury, is a part ofthis Declaration. "In
many states, including Washington, the Declaration of Rights is a source of
individual protection that is the equal ofthe federal [Bill of Rights]. Not merely a

                                           -13-
No. 71068-1-1/14



restatement of its national counterpart, Washington's Declaration of Rights

contains unique and additional protections of individual rights." Robert F. Utter

& Hugh D. Spitzer, The Washington State Constitution: A Reference Guide

15 (2002) (emphasis added). In fact, "[t]he Washington Declaration of Rights is

the primary guarantor of the rights of Washingtonians." Robert F. Utter, Freedom

and Diversity in a Federal System: Perspectives on State Constitutions and the

Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 524 (1984).

The Declaration addresses the "rights of a Washington citizen," not the rights of

the State. Utter, supra, at 524.

        Moreover, the Declaration of Rights itself provides that the state

government is "established to protect and maintain individual rights." Const, art.

I, § 1 (emphasis added). As Justice Utter noted, "state constitutions were

originally intended as the primary devices to protect individual rights." Utter &
Spitzer, supra, at 3. "[T]he fundamental purpose of our state's constitution" is "to

protect and maintain individual rights." Utter, supra, at 507. Accordingly, the
Washington Constitution delineates a set of limitations on state power, not a set

of powers or rights granted to the State. Utter &Spitzer, supra, at 2. It would

require a strained reading of our Declaration of Rights to find that one of its

provisions grants to the State any of the rights enumerated therein. Accordingly,
article I, section 21 of the Washington Constitution does not grant the State the

right to a jury trial.

        Following oral argument in this court, DOC submitted an uninvited

pleading, purportedly in response to a question from the panel concerning

                                        -14-
No. 71068-1-1/15



whether our Supreme Court has ever held that any section of the Declaration of

Rights granted a right to the State.11 In this postargument filing, DOC cited to

article I, section 16 of the state constitution and a Division Three opinion, Dep't of

Natural Res, v. Littleiohn Logging. Inc.. 60 Wn. App. 671, 806 P.2d 779 (1991),

for the proposition that the State had been granted rights by the Declaration of

Rights. In fact, neither citation supports DOC's assertion.

        DOC's citation to, and reliance upon, article I, section 16 is off the mark.

This provision reads:

        Private property shall not be taken for private use, except for
        private ways of necessity, and for drains, flumes, or ditches on or
        across the lands of others for agricultural, domestic, or sanitary
        purposes. No private property shall be taken or damaged for public
        or private use without just compensation having been first made, or

       11 Maziar timely moved to strike DOC's pleading, contending that it consisted of
impermissible argument in violation ofRAP 10.1(h) and 10.8 and was essentially an unsolicited
supplemental brief. Maziar's contention is well taken. To the extent that DOC included argument
in its submittal, Maziar's motion is granted.
        However, with respect to DOC's citations to article I, section 16 and Dep't of Natural Res,
v. Littleiohn Logging. Inc.. 60 Wn. App. 671, 806 P.2d 779 (1991), Maziar's motion is denied.
These two citations are at least tangentially related to the court's question at oral argument.
        With respect to all otherauthorities cited by DOC in its late-filed pleading, Maziar's
motion is granted. DOC citesto these authorities in an apparent effort to advance a new theory
of its case. Neither these authorities nor this theory (which does not raise a constitutional
question) were presented to the trial court (either in briefing or in oral argument), included in
DOC's opening appellate brief, included in DOC's reply brief, or mentioned at oral argument. In a
civil case, under circumstances in which a constitutional right is not at issue, an appellant cannot
seek reversal of a trial court decision based on a legal theory not presented to the trial court.
Fuouav. Fugua. 88Wn.2d 100, 105, 558 P.2d 801 (1977). A corollary of this rule is that an
appellant must include all theories upon which reversal is sought (accompanied by proper
argument and citations to authority) in its opening brief on appeal. Dickson v. U.S. Fid. &Guar.
Co., 77 Wn.2d 785, 787, 466 P.2d 515 (1970); In re Estates of Foster. 165 Wn. App. 33, 56, 268
P.3d 945 (2011). Alegal theory that is raised for the first time in a reply brief is raised too late to
warrant consideration. Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d
549 (1992); Dvkstra v. County ofSkagit. 97Wn. App. 670, 676, 985 P.2d 424 (1999). The same
rule applies to legal theories raised by an appellant for the first time at oral argument in this court.
State v. Johnson. 119 Wn.2d 167, 170, 829 P.2d 1082 (1992). Obviously, a legal theory
advanced by an appellant for the first time after oral argument completely deprives the
respondent of any opportunity to defend the trial court's decisions, and comes too late to warrant
consideration by the appellate court. Rafel Law Grp. PLLC v. Defoor, 176 Wn. App. 210, 225,
308 P 3d 767 (2013V review denied, 179Wn.2d 1011 (2014).

                                                 -15-
No. 71068-1-1/16



       paid into court for the owner, and no right-of-way shall be
       appropriated to the use of any corporation other than municipal until
       full compensation therefor be first made in money, or ascertained
       and paid into court for the owner, irrespective of any benefit from
       any improvement proposed by such corporation, which
       compensation shall be ascertained by a jury, unless a jury be
       waived, as in other civil cases in courts of record, in the manner
       prescribed by law. Whenever an attempt is made to take private
       property for a use alleged to be public, the question whether the
       contemplated use be really public shall be a judicial question, and
       determined as such, without regard to any legislative assertion that
       the use is public: Provided, That the taking of private property by
       the state for land reclamation and settlement purposes is hereby
       declared to be for public use.

Const, art. I, § 16.

       Contrary to DOC's apparent belief, this provision did not grant the State

the power of eminent domain. To the contrary, it gives individuals rights against

the State's exercise of that power. Indeed, upon statehood, the State of

Washington possessed the power of eminent domain independent of any

express grant from any source:

              The power of eminent domain is inherent in sovereignty and
       does not depend for its existence on a specific grant in the
       constitution. The provisions found in a state constitution do not by
       implication grant the power to the government of a state, but limit a
       power which otherwise would be without limit.

State ex rel. Eastvold v. Yelle, 46 Wn.2d 166, 168, 279 P.2d 645 (1955)

(emphasis added) (citing State ex rel. Eastvold v. Superior Court, 44 Wn.2d 607,
609, 269 P.2d 560 (1954)); accord State v. King County, 74 Wn.2d 673, 675, 446

P.2d 193 (1968) ("The power of eminent domain is an attribute of sovereignty; it

is an inherent power of the state.").




                                         16
No. 71068-1-1/17



       This view is in accord with similar pronouncements from the courts of

sister states. Over 100 years ago, the Idaho Supreme Court declared, "When

Idaho became a state, it at once necessarily assumed the power of eminent

domain, one of the inalienable rights of sovereignty; and that right, we take it,

may be exercised over all property within its jurisdiction." Hollister v. State, 9

Idaho 8, 71 P. 541, 543 (1903). overruled in part on other grounds bv Smith v.

State. 93 Idaho 795, 473 P.2d 937 (1970). More recently, the Alabama Supreme

Court held, "The power of eminent domain does not originate in Article I, § 23 [of

the Alabama Constitution]. Instead, it is a power inherent in every sovereign

state. Section 23 merely places certain limits on the exercise of the power of

eminent domain." Gober v. Stubbs. 682 So.2d 430, 433 (Ala. 1996). Indeed, it is

widely accepted that the power of eminent domain is not conferred by
constitution or statute, but rather is an inherent attribute of state sovereignty.

See Svs. Components Corp. v. Fla. Dep't of Transp.. 14 So.3d 967, 975 (Fla.

2009); Mayor &Citv Council of Baltimore Citv v. Valsamaki, 397 Md. 222, 241,
916 A.2d 324 (2007); R.I. Econ. Dev. Corp. v. The Parking Co., LP, 892 A.2d 87,

96 (R.I. 2006); Dep't ofTransp. v. M.M. Fowler. Inc.. 361 N.C. 1, 5, 637 S.E.2d
885 (2006); Norwood v. Hornev. 110 Ohio St.3d 353, 363-64, 853 N.E.2d 1115
(2006); State bv Dep't of Natural Res, v. Cooper, 152W.Va. 309, 312, 162
S.E.2d 281 (1968); State Highway Dep't v. Smith, 219 Ga. 800, 803, 136 S.E.2d
334 (1964); People ex rel. Dep't of Pub. Works v. Chevalier. 52 Cal.2d 299, 304,
340 P.2d 598 (1959); State, bv Burnguist v. Flach. 213 Minn. 353, 356, 6 N.W.2d
805 (1942); Liddick v. Citv of Council Bluffs, 232 Iowa 197, 215, 5 N.W.2d 361
                                         -17-
No. 71068-1-1/18



(1942); Phila. Clay Co. v. York Clay Co.. 241 Pa. 305, 310, 88 A. 487 (1913); Bd.

of Water Comm'rs of Citv of Norwich v. Johnson, 84 A. 727, 731 (Conn. 1912);

People v. Adirondack Rv. Co., 160 N.Y. 225, 237, 54 N.E. 689 (1899), affd, 176

U.S. 335, 20 S. Ct. 460, 44 L. Ed. 492 (1900); Brown v. Beattv, 1857 WL 4130, at

*9 (Miss.Err. &App.); In re State. 325 S.W.3d 848, 858 (Tex.App.-Austin 2010);

Citv of Sunland Park v. Santa Teresa Servs. Co.. 134 N.M. 243, 252, 75 P.3d

843 (N.M.App. 2003); County Highway Comm'n of Rutherford County v. Smith,

61 Tenn.App. 292, 297-98, 454 S.W.2d 124 (1969); State bv State Highway

Comm'r v. Union County Park Comm'n, 89 N.J.Super. 202, 211,214 A.2d 446

(1965).

       Contrary to DOC's present assertion, "[t]he sole purpose of [article I,

section 16] is to define the limitations placed upon the inherent power of a

governing body in dealing with the governed in this regard." Arnold v. Melani, 75
Wn.2d 143, 151, 449 P.2d 800, 450 P.2d 815 (1968) (emphasis added).

Properly understood, article I, section 16 grants rights to Washington citizens in

order to ameliorate the harshness of the State's unfettered power of eminent

domain. It does not grant rights to the State.

          DOC's citation to the Littleiohn Logging decision is similarly unavailing.

The question now before us was not addressed in that case. Rather, in Littleiohn

Logging, Division Three held that because "DNR's action was legal in nature,"

"the parties had a right to a jury trial." 60 Wn. App. at 674. From the decision it
is clear that each party in Littleiohn Logging assumed that it possessed a right to
a jury trial, so long as the cause of action asserted therein was subject to that
                                           -18-
No. 71068-1-1/19



right. The Court of Appeals merely determined that it was. Moreover, the right to

a jury trial was asserted on appeal by Littlejohn Logging, not by the State.

Littleiohn Logging. 60 Wn. App. at 673. The decision of the appellate court in

that case in no way assists with the inquiry in which we are presently engaged.

        Article I of the Washington Constitution does not grant jury trial rights in

civil cases to the State.12

                                                   D


        Therefore, if DOC has a right to a jury trial in this matter, it must be a right

provided by statute. In the trial court and in its appellate briefing, DOC

contended that two territorial statutes, now codified as RCW 4.40.06013 and

4.44.090,14 both grant it the right to a jury trial. RCW 4.40.060, a territorial

statute originally enacted in 1854, states in relevant part, "An issue offact, in an
action for the recovery of money only, or of specific real or personal property

shall be tried by a jury." RCW 4.44.090, a territorial statute originally enacted in




        12 In State v. Oakley, 117Wn. App. 730, 734, 72 P.3d 1114 (2003), we held that RCW
3.66.010 and 10.04.050 unambiguously granted the State a right to a jury trial in a criminal case.
Acorollary ofthat holding is that only the individual, and not the State, is granted the right to trial
by jury in article I, section 22 ofthe stateconstitution, which deals with criminal trials.
        13 "An issue of fact, in an action for the recovery of money only, or of specific real or
personal property shall be tried by a jury, unless a jury iswaived, as provided by law, or a
reference ordered, as provided by statute relating to referees." RCW 4.40.060.
        The subsequent statute states, "Every other issue offact shall be tried by the court,
subject, however, to the right ofthe parties to consent, orofthe court to order, that the whole
issue, orany specific question offact involved therein, betried by a jury, or referred." RCW
4.40.070.
         14 "All questions offact other than those mentioned in RCW 4.44.080, shall be decided by
the jury, and all evidence thereon addressed to them." RCW 4.44.090.
         RCW 4.44.080 states, "All questions of law including the admissibility of testimony, the
facts preliminary to such admission, and the construction of statutes and other writings, and other
rules of evidence, are to be decided by the court, and all discussions of law addressed to it."

                                                 -19-
No. 71068-1-1/20



1869, states, "All questions of fact other than those mentioned in RCW 4.44.080,

shall be decided by the jury, and all evidence thereon addressed to them."

       It is clear that, in 1854 and 1869, the legislature that passed these statutes

was not granting a jury trial right to the State of Washington. This is clear

because—in 1854 and 1869—there was no State of Washington.

       Moreover, in 1854 and in 1869, there was no such thing as a civil tort

claim against the State. "A familiar and fundamental rule for the interpretation of

a statute is that it is presumed to have been enacted in the light of existing

judicial decisions that have a direct bearing upon it." Kelso v. Citv of Tacoma, 63

Wn.2d 913, 917, 390 P.2d 2 (1964). For example, in 1902, our Supreme Court

held that a statute passed in 1895 dictating the proper forum for claims against

the State did not create any new causes of action against the State. Billings v.

State, 27 Wash. 288, 291-93, 67 P. 583 (1902). In Billings, the plaintiff had

attempted to assert a negligence claim against the State pursuant to a statute

which provided that, "'[a]ny person or corporation having any claim against the
state of Washington shall have the right to begin an action against the state in

the superiorcourt of Thurston county.'" Billings, 27 Wash, at 291 (quoting Bal.
Code § 5608). Our Supreme Court held that this statute did not abrogate the

State's sovereign immunity. Billings, 27 Wash, at 293. Rather, the State "has

not consented, either expressly or impliedly, to become responsible for the

misconduct or negligence of its officers or agents; and, in the absence of a
statute making it liable in damages therefor, no such action as the present one

can be maintained against the state." Billings, 27 Wash, at 293. Similarly, RCW

                                        -20-
No. 71068-1-1/21



4.40.060 and 4.44.090 were enacted at a time when the sovereign enjoyed

immunity against civil tort claims. Both statutes must be read in light of this fact.

       Our Supreme Court has previously interpreted one of the inter-related

statutes cited by DOC. In Dexter Horton Building Company v. King County. 10

Wn.2d 186, 116 P.2d 507 (1941), the court clarified the scope of Rem. Rev.

Stat., § 314, now codified as RCW 4.40.060. In that case, the court found

authoritative the Laws of 1873, chapter 15, § 206, which declared that "nothing in

the civil practice act," including Rem. Rev. Stat., § 314, "shall be so construed as

to restrict the chancery powers of thejudges, or to authorize the trial of any issue

by a jury when the reliefsought is predicated upon a doctrine which is inherently

in equity." Dexter Horton. 10 Wn.2d at 193. Hence, the court held that "[i]n the

light of that declaration it is clear that the provision for jury trial on issues offact

for the recovery of money only applies to common-law actions." Dexter Horton,

10 Wn.2d at 193. There was, of course, no such thing as a civil tort claim against

the sovereign at common law. "The doctrine of governmental immunity springs

from the archaic concept that 'The King Can Do No Wrong.'" Kelso, 63 Wn.2d at

914. This doctrine has long been considered part of the common law of

Washington. See Billings, 27 Wash, at 293. Thus, although generally a

negligence claim is a common law action, a civil tort action against the sovereign
was not an action available at common law. Nineteenth century statutes must be

construed with this in mind.

       As the Dexter Horton case demonstrates, Washington's statehood and the

adoption of the Washington Constitution did not expand RCW 4.40.060 and

                                          -21 -
No. 71068-1-1/22



RCW 4.44.090 beyond their then-existing reach. Rather, the constitution

provided for the continuation of those statutes as they were then understood.

Const, art. XXVII, § 2; State v. Ellis. 22 Wash. 129, 133, 60 P. 136 (1900)

overruled in part on other grounds bv State v. Lane. 40 Wn.2d 734, 738, 246

P.2d 474 (1952). At the time these statutes were enacted, neither applied to the

State of Washington in civil tort actions, both because the State of Washington

did not then exist and because sovereign governments then enjoyed immunity

from such suits. Statehood and its concomitant adoption of the Washington

Constitution did not change these statutes' application and the legislature has

never amended them so as to provide a right to jury trial to the State in civil tort

cases.


         Moreover, in 1854 and 1869, it is implausible that the territorial legislature

intended, by statute, to grant the right to a jury trial in tort claims against a

sovereign. "A court's goal in construing a statute is to determine and give effect
to the legislature's intent." TracFone Wireless. Inc. v. Dep't of Revenue. 170
Wn.2d 273, 281, 242 P.3d 810 (2010) (citing Lake v. Woodcreek Homeowners

Ass'n. 169 Wn.2d 516, 526, 243 P.3d 1283 (2010); Dep't of Ecology v. Campbell

& Gwinn. LLC. 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). The relevant inquiry is

directed to the intent of the legislature that passed the act in question. Pasado's
Safe Haven v. State. 162 Wn. App. 746, 754 n.6, 259 P.3d 280 (2011). During

the territorial period, the territorial legislature was sworn to uphold and subject to




                                            22
No. 71068-1-1/23



only one constitution—the federal constitution.15 Organic Act, ch. 90, § 6, 10

Stat. 172. The federal constitution's Seventh Amendment did not then, and does

not now, provide the right to a jury trial for civil tort claims against the sovereign.

Indeed, "[i]t hardly can be maintained that under the common law in 1791 jury

trial was a matter of right for persons asserting claims against the sovereign."

Galloway v. United States. 319 U.S. 372, 388, 63 S. Ct. 1077, 87 L Ed. 1458

(1943). "Neither the Amendment's terms nor its history suggest it was intended

to extend to such claims." Galloway. 319 U.S. at 388 n.17.

        Viewed in the context of the times, there is little doubt that neither the

1854 territorial legislature nor the 1869 territorial legislature was contemplating

the statutes at issue being applied to tort claims against the sovereign. Such a
state of affairs would have been unknown to legislators of that era. If the right to

a jury trial in a tort case was to be extended to the State by statute, it must have
been the act of some later legislature. But DOC pointed to no such later

enactment in its trial court briefing, nor in its opening or reply briefs on appeal.16
        As the Washington Constitution's Declaration of Rights does not grant

rights to the State, and DOC did not identify a statutory basis for its asserted right
to a jury trial in an action of this type, the trial court did not err by striking the jury


        15 Additionally, all territorial laws were subject to approval by Congress. Organic Act, ch.
90, §6, 10 Stat. 172.
        16 DOC also cites to Civil Rule 38(a) for the proposition that the trial court erred by striking
the jury in this case. However, CR 38(a) is a court rule, not a statute. Further, CR 38(a) states,
"The right of trial by jury as declared by article I, section 21 of the constitution oras given by a
statute shall be preserved to the parties inviolate." This rule does not grant a right to a jury trial;
rather, it protects such rights as are provided by the constitution or by statute. Because DOC did
not establish that it had either a constitutional or statutory right to a jury trial, CR 38(a) did not
compel the trial judge to deny Maziar's motion to strike the jury.

                                                  -23-
No. 71068-1-1/24



upon Maziar's request.17 The case was properly tried to the bench.

                                               Ill


        In his cross appeal, Maziar contends that the trial court erred by declining

to award prejudgment interest. This is so, he asserts, because federal maritime

law compels the award of prejudgment interest. DOC defends the trial court's

decision, arguing that prejudgment interest is not permitted in this case because

the State has not waived its sovereign immunity against claims for prejudgment

interest. The trial court ruled properly.

        We review the award or denial of prejudgment interest for an abuse of

discretion. Polygon Nw. Co. v. Am. Nat'l Fire Ins. Co., 143 Wn. App. 753, 790,

189 P.3d 777 (2008). "[A] ruling based on an erroneous legal interpretation is
necessarily an abuse of discretion." Endicott. 167 Wn.2d at 886 (citing Wash.
State Physicians Ins. Exch. &Ass'n v. Fisons Corp.. 122 Wn.2d 299, 339, 858

P.2d 1054(1993)).

        "Prejudgment interest in maritime cases is substantive and so is controlled
by federal law." Endicott. 167 Wn.2d at 886 (citing Militello v. Ann &Grace. Inc..
411 Mass. 22, 576 N.E.2d 675, 678 (1991)). In admiralty cases,

        "prejudgment interest must be granted unless peculiar
        circumstances justify its denial." Dillingham Shipyard v. Associated
        Insulation Co., 649 F.2d 1322, 1328 (9th Cir.1981). . . . When a
        district court "fail[s] to articulate any reason why" prejudgment
        interest was denied, "the district court abuse[s] its discretion in


        17 In this case, we resolve the questions presented by the issues as litigated by the
parties based upon the authorities properly presented to the trial court and to us. Nothing herein
should be read toforeclose future arguments premised upon statutes not presented to us in this
case.



                                              -24-
No. 71068-1-1/25



       refusing to award prejudgment interest." Edinburgh Assurance Co.
      v. R.L Burns Corp.. 669 F.2d 1259, 1263 (9th Cir. 1982).

Vance v. Am. Haw. Cruises. Inc.. 789 F.2d 790, 795 (9th Cir. 1986) (alterations in

original). Here, the trial court denied prejudgment interest without giving a

reason. Although the trial court should have articulated a reason for its decision,

it did not abuse its discretion by declining to award prejudgment interest.

       In Norris v. State, 46 Wn. App. 822, 825, 733 P.2d 231 (1987), Division

Two held that, "[t]he State has not consented to prejudgment interest on tort

claims against it." Eighteen years later, Division Two extended this holding to

apply to a suit brought under the Jones Act and federal maritime law. Foster v.

Dep't of Transp., 128 Wn. App. 275, 279, 115 P.3d 1029 (2005).

       The court in Foster declined to consider whether federal maritime law

superseded the State's sovereign immunity, finding instead that prejudgment

interest is not awardable in mixed maritime and Jones Act suits.18 128 Wn. App.

at 279. We take up the question that Foster left open and hold that federal

maritime law does not supersede a state's sovereign immunity. The United

States Supreme Court has previously held that states are immune under the
Eleventh Amendment from admiralty and maritime suits brought in federal court.

Welch v. Tex. Dep't of Highways & Pub. Transp.. 483 U.S. 468, 472-73, 107 S.

Ct. 2941, 97 L. Ed. 2d 389 (1987). The United States is also immune from

admiralty suits, unless it has waived its immunity. See 46 U.S.C. § 742 (waiving
sovereign immunity for in personam admiralty suits). Therefore, sovereign

       18 This portion of Foster was later overruled by ourSupreme Court in Endicott. 167
Wn.2d at 888.


                                            -25-
No. 71068-1-1/26



immunity is not incompatible with federal maritime law. As such, federal maritime

law does not supersede state sovereign immunity.

       Because the State has never waived its sovereign immunity in this regard,

the trial court did not abuse its discretion by declining to award prejudgment

interest.


                                           IV


       Maziar additionally contends that the trial court erred by finding that he

had failed to mitigate his damages. This is so, he asserts, because he

reasonably believed that he would be unable to perform the mailroom job. The

trial court's ruling is amply supported by the record.

       Whether a party has mitigated damages is a question of fact. TransAlta

Centralia Generation LLC v. Sicklesteel Cranes. Inc., 134 Wn. App. 819, 826,

142 P.3d 209 (2006). "Appellate courts apply the substantial evidence standard

of review to findings of fact made by the trial judge." In re Marriage of Rockwell,

141 Wn. App. 235, 242, 170 P.3d 572 (2007). Substantial evidence is defined as

        a quantum of evidence sufficient to persuade a rational fair-minded
        person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan
        County. 141 Wn.2d 169, 176, 4 P.3d 123 (2000). Ifthe standard is
        satisfied, a reviewing court will not substitute its judgment for that of
        the trial court even though it might have resolved a factual dispute
        differently. Croton Chem. Corp. v. Birkenwald, Inc.. 50 Wn.2d 684,
        314 P.2d 622 (1957).

Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369

(2003). We will "'not substitute [our] judgment for the trial court's, weigh the
evidence, or adjudge witness credibility.'" Rockwell, 141 Wn. App. at 242
(quoting In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999)).
                                         -26-
No. 71068-1-1/27



      "The doctrine of avoidable consequences, also known as mitigation of

damages, prevents recovery for damages the injured party could have avoided

through reasonable efforts." Cobb v. Snohomish County, 86 Wn. App. 223, 230,

935 P.2d 1384 (1997) (citing Klossv. Honeywell. Inc.. 77 Wn. App. 294, 301, 890

P.2d 480 (1995)). Where the plaintiff claims lost wages, such damages are "not

recoverable to the extent plaintiff reasonably failed to mitigate his damages by

earning whatever he could at another occupation." Kubista v. Romaine. 87

Wn.2d 62, 67, 549 P.2d 491 (1976). The burden of proving a failure to mitigate is

on the party who caused the damages. Cobb. 86 Wn. App. at 230 (citing

Bernsen v. Big Bend Elec. Coop.. 68 Wn .App. 427, 435, 842 P.2d 1047 (1993)).

       In this case, the trial court found that Maziar did not mitigate his damages

because he declined to attempt to perform the functions of a mailroom clerk at

DOC. Based on the evidence presented at trial, a rational person could conclude

that Maziar did not reasonably attempt to mitigate his damages because he

declined to take the mailroom job. Although Dr. Settle advised Maziar not to take

the job, his advice was based on the mistaken belief that ferry passengers were

required to wear seatbelts. In fact, Dr. Settle believed that Maziar could perform
the functions of a mailroom clerk. Maziar's reasons for turning down the job were

based solely on his personal observations. This evidence sufficiently supports
the trial court's finding that Maziar acted unreasonably by turning down the

mailroom position. The trial court did not err by concluding that Maziar failed to

mitigate his damages.



                                       -27
No. 71068-1-1/28



      Affirmed.




                        MW.

We concur:




                   SMl^^




                   28
