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Appellate Advocacy

Carmichael Clark represents clients before state and federal appellate courts in all areas of its practice. The firm also represents clients in appeals from administrative decisions before administrative appeals boards at the local and state level, including Growth Management Hearings Board, Shorelines Hearings Board, and Pollution Control Hearings Board.

Our attorneys are skilled brief writers, with the ability and focus to distill the most legally and factually complex cases in order to make specific, technical legal arguments necessary to prevail in appellate courts.

Some of Carmichael Clark’s recent appellate successes include the following:

  • Hurley v. Port Blakely Tree Farms LP, 182 Wash. App. 753, 332 P.3d 469 (Wash. Ct. App. 2014). Obtained summary judgment dismissal of plaintiff’s strict liability claims related to damage caused by landslides alleged to have been caused by logging by various timber companies. The plaintiffs appealed. The court of appeals affirmed and ruled strict liability does not apply to timber harvest activities. Represented timber industry trade group in successfully requesting the court of appeal’s decision be published so that it now serves as legal precedent for other cases brought in Washington.
  • Foster v. Double R Ranch Association (In re Foster), 435 B.R. 650 (B.A.P. 9th Cir. 2010). In representing the creditor homeowners association on appeal, successfully defended the bankruptcy court’s ruling that the homeowners association’s claim against the debtor for homeowners association fees incurred after the bankruptcy petition was not dischargeable in the debtor’s chapter 13 bankruptcy. The issue was one of first impression before an appellate court in the Ninth Circuit. Also successfully defended the bankruptcy court’s ruling that the homeowners association’s claim against the debtor for pre-petition association fees was a secured claim in the related appeal in Foster v. Double R Ranch Association (In re Foster), 2010 Bankr. LEXIS 5098 (B.A.P. 9th Cir. 2010).
  • Kinley v. Westfall, Inc., dba Coast Construction, Lummi Tribal Court of Appeals, Case No. 2010 CVAP 2302 (2010). In the very first civil jury trial ever conducted in Lummi Tribal Court, the firm’s attorneys achieved a successful jury verdict for the homeowner plaintiffs in a construction defect case against a contractor. The defendant appealed. The appellate court completely affirmed all of the trial court’s rulings.
  • Aliza, Inc. v. Zaremba, Dkt. No. 62497-1, available at 2009 Wash. App. LEXIS 2794 (Nov. 9, 2009). Successfully represented the plaintiff corporation in appeal in which the court of appeals reversed the trial court’s grant of summary judgment dismissing the plaintiff’s claims against its outside certified public accountant for breach of fiduciary duty, negligent misrepresentation, and fraud.

Other appellate cases Carmichael Clark has been involved in include the following:

Torts and Insurance

  • Faust v. Albertson, 167 Wash.2d 531, 222 P.3d 1208 (Wash. 2009) (amicus curie brief on behalf of Mothers Against Drunk Driving in case regarding negligent over-service of alcohol).
  • Fox v. Evans, 127 Wash. App. 300, 111 P.3d 267 (Wash. Ct. App. 2005) (affirming trial court’s jury instruction on plaintiff’s failure to mitigate damages by making unreasonable treatment decisions in medical malpractice case).
  • Geschwind v. Flanagan, 121 Wash.2d 833, 854 P.2d 1061 (Wash. 1993) (negligence action by passenger against driver involving a car crash in which both passenger and driver were intoxicated).
  • Stoughton v. Mutual of Enumclaw, 61 Wash. App. 365, 810 P.2d 80 (Wash. Ct. App. 1991) (homeowner’s part- time employment was a “business pursuit” under the “business pursuits” exclusion in a homeowners insurance policy).

 

Real Estate, Land Use, Environmental, Municipal

  • Wells v. Growth Mgmt. Hearings Bd., 100 Wash. App. 657, 997 P.2d 405 (2000) (appeal involving claim that portions of Whatcom County’s comprehensive plan and development regulations were invalid under Washington’s Growth Management Act).
  • Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993) (tribe’s reservation land patented under a treaty is not exempt from Washington’s ad valorem property tax).
  • Harvest House Restaurant, Inc. v. City of Lynden, 102 Wash.2d 369, 685 P.2d 600 (Wash. 1984) (dismissing as moot a constitutional challenge to a city ordinance that limited dancing on premises licensed to serve alcohol).

 

Business, Debtor-Creditor, Bankruptcy

  • In re Plata, 958 F.2d 918 (9th Cir. 1992) (issue of first impression on whether funds acquired by petitioners after confirmation of their chapter 12 bankruptcy reorganization plan for eventual distribution to creditors belongs to the petitioners or the creditors when the chapter 12 case is converted to a chapter 7 liquidation).  
  • In re Gitts, 116 B.R. 174 (B.A.P. 9th Cir. 1990), aff’d by 927 F.2d 1109 (9th Cir. 1991) (homestead exemption claimed by debtors who do not physically reside on property on the date of bankruptcy and do not file a declaration of homestead until after the bankruptcy petition).

 

Employment

  • Kohn v. Georgia-Pacific Corp., 69 Wash. App. 709, 850 P.2d 517 (Wash. Ct. App. 1993) (breach of employment contract, age and handicap discrimination).
  • Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989) (handicap discrimination, breach of employment contract, and ERISA violations).
  • Sweitzer v. Washington Department of Employment Security, 43 Wn. App. 511, 718 P.2d 3 (Wash. Ct. App. 1986) (successfully overturning trial court’s ruling denying unemployment benefits on the ground that employee acted unreasonably in quitting before attempting to resolve job problems by complaining to management).
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