Daniel Jerimiah Simms, Et Ano., V. Daryl B. Fish
81493-1
Wash. Ct. App.Jun 21, 2021Background
- Daniel Simms is the biological father of minor D.R.K.; Simms has been incarcerated for D.R.K.’s entire life and had limited contact.
- After the child’s mother died in 2015, grandmother Sylvia Finne obtained nonparent custody; Simms’s wife Tracy’s custody petition was denied.
- Simms alleges Finne and Daryl Fish intentionally alienated D.R.K. from him; Fish later took custody after Finne’s death in 2018 and obtained a temporary restraining order against Simms.
- Fish’s nonparent custody petition was granted after a contested trial; the custody court made findings contrary to Simms’s allegations.
- Simms sued Fish alleging ~65 claims (negligence, fraudulent concealment, alienation, statutory injury to a child, battery, false imprisonment, etc.); the trial court dismissed under CR 12(b)(6) with prejudice and denied leave to amend.
- On appeal the court (1) allowed the late appeal given COVID-related rule suspension and Simms’s incarceration, and (2) affirmed dismissal and denial of leave to amend.
Issues
| Issue | Plaintiff's Argument (Simms) | Defendant's Argument (Fish) | Held |
|---|---|---|---|
| Whether Fish owed Simms an affirmative duty under RCW 13.32A.082 to notify Simms of child’s location (supporting negligence) | RCW 13.32A.082’s “shall” imposes an affirmative duty to notify the parent; Fish failed to notify Simms after Finne’s death | Statute requires notice to the parent who has legal custody; Simms lacked legal custody so no statutory duty to him arose | No duty to Simms under that statute; negligence claim properly dismissed |
| Fraudulent concealment based on alleged statutory duty to disclose child’s whereabouts | Fish fraudulently concealed D.R.K.’s location by violating RCW 13.32A.082 | No statutory duty to disclose to Simms because he was not the legal parent with custody; no duty, no concealment claim | Dismissal affirmed; no duty -> no fraudulent concealment |
| Alienation of child’s affections / statutory claim under RCW 4.24.010 (injury of a child) | Fish maliciously interfered to alienate child and thus injured the parent-child relationship; statutory remedy applies | Custody decisions and parenting actions were made under legal authority; no malicious interference by Fish; no cognizable injury to child shown | Common-law alienation and statutory injury claims fail—actions taken under legal authority and lack of causation/injury; dismissal affirmed |
| Battery / False imprisonment (tort claims) | Fish unlawfully harbored, transported, or concealed child (and thereby injured Simms) — predicates for battery/false imprisonment | Battery requires harmful/offensive contact with the plaintiff; false imprisonment requires restraint of plaintiff’s liberty—neither occurred as to Simms (who was incarcerated) | Dismissal affirmed: no personal contact or restraint of Simms; Simms lacks standing to assert child’s personal torts |
| Denial of leave to amend complaint | Trial court erred in refusing leave; proposed second amended complaint would cure defects | Simms failed to attach a proposed amended pleading as required by CR 15(a); amendment would be futile given legal defects | Denial of leave not an abuse of discretion: procedural noncompliance and futility of amendment |
Key Cases Cited
- Cutler v. Phillips Petrol. Co., 124 Wn.2d 749 (1994) (CR 12(b)(6) rulings reviewed de novo)
- Kinney v. Cook, 159 Wn.2d 837 (2007) (dismissal proper when plaintiff cannot state any set of facts entitling recovery)
- Degel v. Majestic Mobile Manor, 129 Wn.2d 43 (1996) (negligence: duty is a question of law)
- Babcock v. State, 112 Wn.2d 83 (1989) (acts taken under legal authority are not generally malicious interference)
- Kumar v. Gate Gourmet Inc., 180 Wn.2d 481 (2014) (definition and elements of battery)
- Kilcup v. McManus, 64 Wn.2d 771 (1964) (false imprisonment centers on unlawful restraint of plaintiff’s liberty)
- Strode v. Gleason, 9 Wn. App. 13 (1973) (elements of malicious interference/alienation tort)
- Crisman v. Crisman, 85 Wn. App. 15 (1997) (fraudulent concealment: duty to disclose or nine elements of fraud)
- Colonial Imports, Inc. v. Carlton Nw., Inc., 121 Wn.2d 726 (1993) (sources of duty to disclose: statutory, fiduciary, special relationship)
- Hook v. Lincoln County Noxious Weed Control Bd., 166 Wn. App. 145 (2012) (motion to amend must attach the proposed amended pleading)
- Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820 (2015) (documents alleged in a complaint may be considered on a motion to dismiss)
- Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107 (1987) (courts need not accept legal conclusions as true)