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July 2001If at First You Don't Succeed .… Turning a Judgment Against a Recalcitrant Tortfeasor into Cashby Yvonne Kinoshita Ward Early one summer morning, several men broke into a nightclub. After checking various entrances, one picked the side-door lock. They pushed the door open and targeted high-priced items. They hauled out computers, sound equipment and locked safes. Another burglary? Not quite. The men pilfering the spoils were uniformed deputies of the King County Sheriff's Office. They were armed with a court order authorizing the invasion, and accompanied by a locksmith and moving van. Collection does not arise frequently in personal-injury work, since there is usually an insurance company, employer or government entity to pay judgments. In addition, one of the obvious factors in selecting cases is collectibility, so claims with "judgment-proof" defendants are usually rejected. The situation may arise, however, where the collection problem does not surface until after litigation arises. If the facts are so egregious, such as in torts for criminal conduct, that it is necessary to obtain a judgment for the good of the victim, no one is served (except the defendant) by ignoring a judgment. Seizing property is not only a good way to collect payment from recalcitrant defendants, it can also be extraordinarily therapeutic to an injured plaintiff — almost surreally cathartic to know that sheriff's deputies have physically removed a defendant's cash and property. If it is clear that defendants will not pay, then plaintiffs' attorneys must act forcefully and unequivocally. A Profile of RapeOn July 30, 1994, a young college student went with friends to DV8, an underage dance club formerly known as "Oz." The club had erected tarps around the dance floor to make it look more crowded and hence, more popular. The tarps created vast areas of pitch-black, unsupervised space. A young soldier asked the student to dance. As he led her along the edge of the dance area, he quickly pulled her behind the tarps and began beating her. As the deafening music drowned out her screams, the man raped the student and left her near an exit door — nude, bloodied and hysterical. She was not found until a manager went to the exit to prepare it for closing. While at first there was no way to identify the assailant, who was unknown to the victim, the police found a set of keys near the crime scene. Later that night, when a soldier arrived at the manager's office to claim the keys, an interview with the soldier led police to the assailant. The state charged the man with second-degree rape. He admitted having sexual intercourse with the victim, but claimed it was consensual. His explanation of the victim's multiple injuries was that he assaulted her after the sex. He entered an Alford plea (where the defendant does not admit guilt, but concedes to conviction) to third-degree rape, and the court imposed an exceptional sentence. A Civil ClaimA year later the victim came to me to explore a civil claim. While the assailant was held accountable through a criminal conviction, the club had gone on with "business as usual." The tarps remained, and the club had not made safety changes. The victim feared that what happened to her could happen to others. While contemplating a civil claim, we initially included the assailant as a defendant, because the two-year statute of limitations for intentional torts was quickly approaching. After reviewing recent Supreme Court decisions, we felt confident that intentional tortfeasors could not be considered empty chairs under joint and several liability; therefore we dismissed out the assailant. Our focus was on the club's negligence in maintaining the premises. We later moved successfully for summary judgment to ensure that defendants could not allocate fault to the assailant. We proceeded to trial on a premise liability theory. A recent Washington Supreme Court decision held that businesses owe a duty to business invitees to protect them from reasonably foreseeable criminal harm (Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 205 (1997)). We established foreseeability through an outstanding expert, Dr. Daniel Kennedy, and the club's records of misconduct on the premises. Dr. Kennedy, a security expert and criminologist, testified that when assessing safety measures, a business must take into account the demographics of the customers. Because the highest victim rate for females is age 16-20, and the highest perpetrator rate for males is age 18-22, mixing these two groups in a sexualized atmosphere without standard conduct inhibitors (for example, the presence of parental figures) requires additional precautions to prevent crimes. Dr. Kennedy testified that the club had poor lighting, poor lines of sight for security guards, deafening noise, and nooks and crannies ripe for "crimes of opportunity… all over the place." Although the defendant had no known prior sexual assaults, the court held:
The Judgment and the Defendants' AppealThe court entered a judgment for over $100,000. The defendants appealed, but did not post a supersedes bond; therefore, we could have attempted collection immediately. However, given the burden of collection and our unfamiliarity with the process, we attempted to negotiate with the defendants during the appeal, but they would not return calls. The Court of Appeals eventually dismissed the defendants' appeal, stating: "It is plain appellants are not seriously pursuing this appeal," and the club "appears to be using the appeal mainly as a means to avoid paying the judgment." We had been preparing to execute on the judgment regardless of the appeal. The Court of Appeals' finding that defendants were avoiding judgment was further affirmation that execution was necessary. The defendants had behaved evasively for years. They canceled a mediation early in the lawsuit, threatened bankruptcy several times, and were sanctioned four times by the court for other misconduct. The CollectionTo prepare for collection, my law clerk, Ryan Foltz, analyzed the statutes and drafted the necessary pleadings. Once my review confirmed his analysis, Ryan went to ex parte and presented a writ of execution, a praecipe for execution, and an order to break and enter. We then secured a bond, sent a letter of instruction to the sheriff, contacted a locksmith, and arranged for a bonded transportation and storage company. The costs were $20 for the writ of execution, $570.85 in deputy sheriffs' fees, $500 for bonds, $197.67 for the locksmith, and $1,246 for the moving van and storage, totaling just over $2,500. On Friday, August 13, 1999, sheriff's deputies prepared to conduct a till tap (seizure of cash) on the club. At 2:00 a.m., 10 deputies backed by Seattle Police Department officers entered the club with a writ of execution, and seized almost $10,000 in cash. As teenagers fled the building, I watched from across the street. The deputies conducted the asset seizure the following Monday. As counsel who had secured the writ of execution, I supervised the event, directing the deputies and movers to the high-ticket items — specifically, sound and lighting equipment, computers and safes. Four hours into the seizure, the club's attorney filed for Chapter 13 bankruptcy, noting an emergency temporary restraining order (TRO) hearing scheduled in bankruptcy court the next day. I attended the hearing with research I completed the night before, admitting to the judge that I knew little about this area of law. Once I had determined that the purpose of the hearing was for the defendants to attempt to retrieve their equipment and continue operating their club, I stated: "I don't know much about bankruptcy law, but if the defendants are saying they need the equipment I took to re-open, here's a videotape of the defendants telling the press they did not need the equipment I took to re-open." At that point the judge turned to opposing counsel and ruled, "I'm not granting you the TRO." Immediately thereafter, the parties worked out a settlement and payment plan. Because, upon default, I could reinstate the writ of execution and start seizing cash and assets again, the defendants made all their payments on schedule, and sometimes early. They also promised to make safety improvements to the club. Breaking It DownThe collection process is not too complicated, and it is a powerful tool once a judgment is obtained. When we began, we had no idea how collection worked, but we learned it and used it effectively. The law is an ally, as any judgment is subject to execution: "When any judgment of a court of this state requires the payment of money or the delivery of real or personal property, it may be enforced by execution."1 Personal property may be levied or taken into custody.2 Property Subject to Seizure. The law allows collection against almost all forms of property; all nonexempt personal and real property of the judgment debtor is subject to execution;3 homestead exemptions may apply to real property;4 and personal property exemptions also apply.5 Nonjudgment debtors claiming an interest in property seized must file an adverse claim under RCW 6.19 et seq. The statute and court rules provide a process to ascertain the location and extent of a judgment debtor's property.6 Stays of Execution. By court rule a party may execute upon a monetary judgment five days after the judgment is entered, and execution is stayed 14 days upon filing a notice of appeal.7 If an appeal is filed, a party may obtain a stay of enforcement by filing a supersedeas bond in the trial court.8 The bond must include the amount of the judgment; interest likely to accrue during the pendency of the appeal; and attorney fees, costs, and expenses likely to be awarded on appeal.9 A party may object to the sufficiency of the debtor's surety or the form or amount of the supersedeas bond.10 If there is a challenge to the bond, the objecting party must file a motion in the trial court within seven days after that party is served with a copy of the bond and supporting documents.11 Trial court decisions on supersedeas bonds are appealable by motion to the appellate court.12 A stay may also be obtained by statute under RCW 6.17.040, which requires that a bond double the amount of the judgment and costs. The stay periods vary, depending upon the amount of the judgment and the court in which the judgment exists.13 Time Period of Execution. A party may collect upon a judgment any time within 10 years from its entry.14 For judgments entered after June 9, 1994, the period may be extended an additional 10 years. To obtain an extension, a party must apply to the court within 90 days before expiration of the original 10-year period, pay a civil-action filing fee, and submit a current and updated judgment summary.15 The Process. Execution on personal property is a multistep process. The first step is to file with the court ex parte a praecipe for execution. The court clerk will prepare an original and one copy of a Writ of Execution. The second step is to present for entry an Order Authorizing the Sheriff to Break and Enter, which is needed to break into a closed business. The third step is to deliver to the sheriff a letter of instruction and all necessary court documents. They must include the name of debtor, his or her address, a description of what is to be seized, and the time and date of operation. The sheriff requires the original writ of execution with three copies, the sheriff's fee, and an indemnity bond in the amount of two times the judgment or two times the value of the property to be seized. The cost of the bond is $10 per $10,000. If the sheriff's office will seize property when the business is closed, the judgment creditor will have to arrange for a locksmith to pick the locks. After providing all necessary documents, the fourth step is to coordinate a time with the sheriff's office. There is no requirement to give notice to the judgment debtor, so one may speak freely with the involved agencies (sheriff's office, movers, bonding companies, locksmith, etc.). Once everyone has the necessary paperwork, the sheriff may proceed. Counsel must work closely with the sheriff's department, since deputies will be the ones executing on the judgment. I urge attorneys to first call the sheriff's office and find out what practical considerations must be addressed to execute. For example, when collecting against DV8, its hours of operation were three evenings a week, while the King County Sheriff's hours of operation for asset seizures were Monday through Friday, 7:00 a.m. to 3:00 p.m. We therefore made special arrangements to pay for overtime, and worked closely with their office to secure a 2:00 a.m. till tap. The sheriff's office in turn alerted the Seattle Police Department for backup as needed. The fifth step is to execute. The sheriff can seize cash and personal property. Bonded locksmiths, movers and storage companies conduct the actual physical seizure. Deputies supervise the seizure and handle all inquiries. All seized property is subject to a sheriff's sale, with the proceeds going to the judgment creditor. An optional step, depending on the type of tort, is alerting the media. Our case was front-page news in the Seattle Post-Intelligencer and was covered by KING 5-TV. This was helpful for three reasons. First, when the defendants moved for a TRO (return of the property we seized so they could continue operation), I gave the judge a video of the defendants' statement to the press claiming they did not need the seized equipment to resume operations. Second, the defendants were losing a lot of business when word spread they had been shut down, providing a strong motive to settle, retrieve their equipment, and resume operation. Third, the plaintiffs' bar looked very good, advocating for a crime victim with direct, not just monetary, action. ConclusionThe law provides a process to enforce judgments for our clients. It is learnable and doable. The system allows us to turn a distressful situation — an unpaid judgment — into a cathartic and healing process. Once it is clear that a judgment will not be paid, it is time to use the power of the system to enforce the judgment and attain justice for our clients. My client felt empowered by the process, and relieved when the public was made aware of the club's failure to provide a safe environment, and by their promise to make the club safe. The moral is "don't give up." If a defendant won't mediate, go to trial. If they appeal, stick it out. If they drag you into bankruptcy court, call their bluff. Fight the whole way. It's just a matter of endurance.
Yvonne Kinoshita Ward is a civil rights lawyer in Auburn, Washington. She is the past president of the Asian Bar Association of Washington and was named a "Rising Star 2000" by Washington Law & Politics. She is a member of the National Crime Victim Bar Association.
NOTES 1. RCW 6.17.070. |
