A cold trail, p.4
A Cold Trail, page 4
part #7 of Tracy Crosswhite Series
What Dan found even more interesting than Patel’s legal argument, however, was that Patel was making it.
Like many cities, Cedar Grove had insurance to retain an outside law firm to represent the city’s interests in litigation matters. Rather than tender this matter to their insurer and to that firm in Bellingham, however, Cedar Grove had chosen Patel to handle the motion for summary judgment. Why?
It was possible Patel would argue only this motion. If successful, there would be no need to pay an expensive law firm. If Patel lost the motion, he could still retain the Bellingham firm. But being an attorney, Dan saw conspiracies around every corner. He wondered if there was one here.
Dan’s associate, Leah Battles, had discovered that Patel had become city attorney the same year Gary Witherspoon became mayor. She found that coincidence interesting, and rightfully so. It turned out Patel had also graduated from Washington State University in Pullman, and he and Witherspoon had been brothers in the Tau Kappa Epsilon fraternity. Dan wondered if Patel’s decision to keep the matter in-house had anything to do with Kaufman’s allegations of fraud against Witherspoon—Patel’s fraternity brother—allegations they did not want to get out of Cedar Grove at a time when the city was seeking money for refurbishing the downtown.
“In all negligence actions, the threshold determination is whether the defendant owes the plaintiff a duty of care,” Patel argued. He was a slight man with a heavy five-o’clock shadow. His suit hung on him as if he’d recently lost weight, and his voice had that monotone quality that could put insomniacs to sleep. Judge Harvey, however, looked attentive. And therein lay the problem.
Despite his physical demeanor, Dan was anything but confident. Patel’s argument had merit, but only if one did not look deeper into the facts. Having not argued in Whatcom County in five years, and being unfamiliar with Judge Harvey, Dan had no idea whether the jurist would take the time to delve further—or take the easy road and bounce him from the courtroom.
“The courts of this state have long recognized the distinction between government duties that run to the public and those that run to the individual,” Patel said. “The public duty doctrine prohibits the imposition of liability upon a governmental entity or its officers, unless the plaintiff can show the duty breached was owed to him as an individual. Stated another way, and as cited in our briefing, ‘A duty to all is a duty to no one.’”
Patel allowed himself a smile, clearly pleased with the argument. He continued for another ten minutes. When he’d finished, Judge Harvey asked no questions, which meant Dan didn’t know which way the jurist was leaning.
As Dan rose from his chair to replace Patel at the podium, Harvey leaned forward and spoke in a deep, gravelly voice that hinted at years of smoking. A deep wrinkle creased his brow, and equally grave crow’s-feet shot out from the corners of his eyes. “Mr. O’Leary, the court tends to agree with counsel for Cedar Grove.” This was not a good start. “The courts of this state have found that the intent of the public duty doctrine is to protect city employees doing their jobs. That includes the enforcement of state building codes. Why shouldn’t we apply the doctrine here?”
Dan set his binder on the podium and, heeding Battles’s warning that Judge Harvey didn’t want to hear bullshit, he said, “The simple answer, Your Honor, is the state building codes never should have been enforced.”
Judge Harvey raised his eyebrows.
“They are the red herring here,” Dan said. “And they are the foundation of the fraud and misrepresentation perpetrated on my client. If I may explain?”
“I think you’d better.” Judge Harvey sat back with an impress me expression.
“Counsel for Cedar Grove has correctly recited the public duty doctrine as well as the policy reasons for its existence. That doctrine, however, does not apply to these facts.”
“Why not? To which of the four exceptions are you referring?” Harvey asked.
“None of them.” Judge Harvey looked even more perplexed. Dan continued. “No exception is needed because the doctrine itself is not applicable. The doctrine does not apply when a government performs a proprietary function, in which case the government owes the same duty of care as a private individual engaged in the same activity. And a government performs a proprietary function when it engages in a businesslike venture.”
“And what was the businesslike venture Cedar Grove engaged in?” Judge Harvey asked, not sounding convinced.
“The buying and selling of land from private individuals. If I may, the explanation requires a brief history of Cedar Grove.”
Harvey grinned. “I’m a history buff, Counselor. Fire away. But let’s be brief.”
Dan placed the first of several poster-sized boards he’d brought to court on an easel. It looked a bit like a family tree. Moving to the top of the first board, Dan pointed to the name Christian Mattioli and recounted the history of Cedar Grove. “Soon after the discovery of precious metals, people moved to Cedar Grove either to work the mine, or to establish ancillary services such as selling mining equipment and clothing. My client’s business was one of several that established what would subsequently be known as Market Street.” Dan moved his pen along the rectangular businesses on the poster board as he spoke. “These storefronts included First National Bank and Western Union Telegraph, a pharmacy, a hotel and restaurant, and Kaufman’s Mercantile Store. Now, pursuant to the Donation Land Claim Act of 1850, this land was free to applicants who resided on and worked the land. My client’s grandfather purchased much of the acreage know as Market Street and built the brick building that still exists today. Thereafter, he sold portions of the land to other business owners. Therefore, the owners of those businesses on Market Street, and their descendants, owned the land on which the businesses were built, not the City of Cedar Grove.”
“Why does that matter?” Harvey said. “A city can still enforce building codes.”
“It matters precisely because, while for a time these businesses flourished, with the depletion of the minerals and the closure of the Cedar Grove Mining Company, a large percentage of the town left. The businesses on Market Street began to fail. Some owners reinvented themselves, but ultimately most shuttered their businesses and abandoned their buildings. Counsel is correct in his statement that as to those buildings—abandoned for longer than a year—the city had the right to enforce the newest version of the International Building Code before those businesses could reopen—not that the owners showed any interest in doing so. The city used this as the financial hammer to compel those proprietors to sell their businesses, and the land, to the city. But—” Dan put the final chart on the easel. “My client, Larry Kaufman, is the grandson of Emmet Kaufman who established Kaufman’s Mercantile Store in the brick building that remains today. My client’s father, Larry Kaufman Sr., split the store down the middle and reinvented the business as a hardware store. Unlike those other shuttered businesses, Kaufman’s Mercantile Store has remained open and in business since the 1850s.”
Harvey eyed him, nodding ever so slightly. “You contend that the original building codes remain the applicable building codes?”
“We do. And as such, in 2014, when Gary Witherspoon approached Larry Kaufman and told him that his building would have to be brought up to current building code standards, that statement was either ignorant or fraudulent.”
“Let’s assume it was fraudulent,” Harvey said. Dan had a sense he was playing chess with the jurist. “What reasonable basis did your client have to believe the mayor?”
“Maybe none. But he did have reason to believe a building inspector sent on Cedar Grove’s behalf. Attached as Exhibit D to our opposition is a report by the building inspector retained by Cedar Grove.”
Judge Harvey shuffled through the exhibit tabs attached to Dan’s motion and looked to be reading intently.
“When my client refused to leave the building, or to sell it for next to nothing, Mayor Witherspoon and the city council condemned the building as unsafe for the general public. That, too, was a sham. The condemnation was not done to protect the public. It was intended to drive my client out of business so Cedar Grove could own the largest building on Market Street and sell it to an established Northwest company that carries outdoor equipment, clothing, and supplies. Attached to our briefing, Your Honor, Exhibit E, you will find an expert report from a former building code inspector for the City of Seattle.” Dan waited a beat for Judge Harvey to catch up, a good sign he hadn’t lost him.
“That report states that Kaufman’s Mercantile Store was not unsafe. In fact, as with many older brick buildings, the structure was overengineered by today’s standards, and therefore, even if today’s codes applied, the violations and the repairs were minimal and could have been readily made by my client.”
Harvey sat back, rocking in his chair.
“In sum, Your Honor, the city acted as a private buyer of real estate, which is not a government function, and thereafter made false representations to pressure my client to sell. When he refused, the city fraudulently used the International Building Code to condemn the building as unsafe, shutting down my client’s business and imposing onerous and expensive repairs. The public duty doctrine does not apply.”
Patel got up to argue his reply, but Judge Harvey raised a hand. “I think I’ve heard enough from both counsel. Consider this matter taken under submission. You’ll have my ruling tomorrow afternoon.”
Dan left the courtroom feeling like a man crossing a river on a thin layer of ice, the reprieve could be short, and the consequences still dire.
CHAPTER 4
Cedar Grove, Washington
At home that night, Tracy provided vague answers to Dan’s questions about her day, trying to find the right moment to bring up what she and Roy Calloway had discussed. Dan was focused on his morning hearing, and she was content to let him tell her all about it. After dinner, she put Daniella to bed, at least for the next few hours, and came downstairs to find Dan with legal papers scattered across the kitchen table. Therese had retired to her room to give them some privacy.
Tracy walked to the sink, ran a cloth under the faucet, and dabbed at breast milk Daniella had thrown up on her shirt.
Dan looked up at her. “If you’re trying to excite me with a wet T-shirt, you’re going to need a lot more water.”
She smiled. “You wish. I do, however, feel like I’m carrying two Hindenburgs in my bra.”
“Looks like one exploded.”
“That would be your daughter.”
“She still throwing up?”
“Doctor said not to worry about it. It’s just an acid reflux.” She nodded at the papers and briefs strewn on the table. “You don’t look confident.”
He explained to Tracy the ebb and flow of the hearing. “I should have argued CR56(f) and asked that the judge withhold his decision at least until we did some discovery, but this is a legal issue and I didn’t want to confuse things. I’m looking into whether or not I can add a supplemental brief.”
“Any idea when he’s going to decide?”
“Tomorrow,” Dan said.
“Therese and I took Daniella for a walk along Market Street,” Tracy said, inching at the edges of the topic. “The downtown looks pretty good, Dan, better than it ever has. They’re working on the sidewalks, remodeling the stores, revitalizing the storefronts. I’m not sure how Gary is doing it—federal and state funds according to the newspaper—but he’s doing it.”
“He’s doing it by scaring business owners out of their buildings with bullshit threats and buying the buildings for pennies on the dollar. That’s how he’s doing it.”
“Maybe, but . . .”
“But what?”
“Why would anyone think a new business is going to do any better than the one that failed?”
Dan sat back from the table. “I don’t know, but his father never did anything unless there was something in it for him and, as your father liked to say, that man was so crooked he couldn’t put on a straight pair of pants.”
Tracy smiled at the recollection. “I suppose it’s possible there’s something in it for Gary, but maybe he’d just like to see the city the way it once was. He was born here too. Maybe he has a soft spot for the way things were, like we do. Hutchins’ Theater looks like the Hutchins’ of old again. We had a lot of good memories there.”
Dan set down his pen and gazed into the distance. “Saturday afternoons . . . making out in the back row of the theater. I remember it well.”
She laughed. “In your dreams. You never laid a hand on me.”
“I didn’t say it was you.”
“Really. Who was she?”
“Hey, they’re my memories. Don’t throw cold water on them. Save it for your shirt.”
“Wet T-shirt again . . . making out in public. Are you horny Dan O’Leary?”
“As a red deer.”
“And as the daughter of a hunter, I know exactly what that means. Maybe we can do something about it.”
He stood. “I’m hoping.”
“Something else,” she said, stopping his departure from the table with what she really hoped to talk about.
Dan sat down again. “You realize it’s dangerous to interrupt a red deer in rut.”
“I got a sense at dinner last night that Roy Calloway had something he wanted to talk about.”
“You and everyone else in the restaurant.”
“I went to see him today at the police station. I wanted to know why he’s back working.”
“I’m betting he drove Nora crazy at home and she kicked him out.”
“Actually, it has nothing to do with Nora. It’s about Finlay.”
“Finlay? Finlay Armstrong?”
Tracy explained the details of the conversation she’d had about the three murders and the thread tying them together.
“He wants you to take a look at it,” Dan said.
She nodded. “He’s too close to it, too close to Finlay. He needs someone outside the department.”
“You told him no, though, right?”
His response surprised her. “I said I’d talk with you.” Actually, Calloway had told her to talk to Dan, but she decided to leave that out.
“Do you need to?”
She could tell from the change in Dan’s tone that the conversation had taken a turn. She didn’t appreciate that Dan had assumed her answer would be no. “What does that mean?”
“Do you really need to talk to me?”
“I know what you said. I want to know what you’re implying.”
“I’m not implying anything. I’m just asking, do you really need to talk to me about it?” Dan repeated. “You’re talking about three brutal murders, the last two likely committed to cover up the initial crime—if Calloway is right. What makes you think that person won’t kill again?”
“That’s exactly what I am thinking.”
“Okay. Since you asked, let me be more specific. What makes you think the person won’t kill you if you start asking questions?”
And therein was the question she’d been debating. She remained calm. “I’m a cop, Dan. I’m a homicide detective. This is what I do.”
“No, this is not what you do. What you do is get a gang killing or drug killing or the-boyfriend-gets-mad-at-the-girlfriend-and-shoots-her killing, and you gather enough evidence to convict. That’s not the same as poking around in a boiling pot and hoping not to get burned.”
“If Calloway is right, this person has got away with killing an eighteen-year-old girl, and killing a wife. Who knows how much heartache this person has caused and gotten away with, Dan.”
“And who knows how much more he’s willing to inflict.”
She hated arguing with a lawyer. “Someone used Sarah’s death to hide the death of Heather Johansen for twenty-five years.”
“That wasn’t anything you did or did not do,” he said. “Calloway decided it was House.”
“Don’t her parents have the right to see her killer brought to justice the way my family did?”
“Let’s hope it goes a little better for them than it did for your family.”
“Meaning what?”
“Meaning the obvious. Your father took his own life, and you nearly lost yours.”
She wanted to get angry. Instead, she remained calm. “That’s a low blow, Dan. That’s beneath you.”
“Those are the facts.”
She tried another tack. “Then what about Finlay?”
“What about him?”
“Doesn’t he have the right to have his name cleared and his wife’s killer caught?”
“Of course he does. If he didn’t do it.”
“Finlay didn’t do it.”
“You once said Edmund House didn’t kill your sister.”
This time she couldn’t tamp down her anger. “Are you seriously going to keep throwing that in my face?”
“I’m not trying to throw anything in your face, Tracy. I just don’t want to see you get hurt . . . again. I’m worried about you, and I’m worried about our daughter. If you don’t want to think about my feelings, think about her.”
Tracy stood. “You know damn well I’d never do anything that I thought could hurt our daughter.”
“But you’re going to take this case, aren’t you?”
“Why did you take Larry Kaufman’s case?”
Dan also stood. “That is not the same thing. I’m not in danger of dying by representing Larry Kaufman.”
“Why did you take his case, Dan? Why are you sitting at this table in Cedar Grove, late at night, looking for additional arguments? Why didn’t you just sell this house when you had the chance?”
“This is what I do, Tracy. I’m an attorney. I help people who need my help.”
“So do I,” she said. “And you’re avoiding answering my questions.”
“No, I’m not.”
“Don’t tell me your decision to take Larry Kaufman’s case wasn’t at least in part influenced by the fact that it’s Larry Kaufman, and he knew your father. I know how busy you are. You didn’t need this case. You could have said no.”
