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Featherston v. Reed11/12/1999
Dawn Marie Featherston sued Wendell Reed and the Department of Ecology (DOE). She alleged that Reed had sexually harassed her while acting as a supervisor for DOE.
During the ensuing jury trial, the trial court excluded testimony from an expert witness proposed by Featherston. At the end of the evidence, the trial court instructed the jury to answer four special interrogatories. (1) Did Reed engage in quid pro quo sexual harassment? (2) Did Reed engage in hostile work environment sexual harassment? (3) Did DOE engage in quid pro quo sexual harassment? (4) Did DOE engage in hostile work environment sexual harassment? The jury answered no to the second, third and fourth interrogatories. The jury was unable to answer the first interrogatory. On May 8, 1998, the trial court signed a document entitled, "Judgment." The document stated that DOE was dismissed from the case. It did not dispose of Featherston's claim against Reed, and no one asked the trial court to rule on whether the judgment was final or appealable. Featherston then filed a notice of appeal.
About a year later, this court asked the parties to explain why this case was appealable as a matter of right. Both responded that the case was not appealable as a matter of right. Featherston then requested discretionary review, which DOE opposed.
I.
We first address whether the case is presently appealable as a matter of right. RAP 2.2(d) provides:
In any case with multiple parties or multiple claims for relief . . . , an appeal may be taken from a final judgment which does not dispose of all the claims . . . as to all the parties, but only after an express direction by the trial court for entry of judgment and an express determination in the judgment, supported by written findings, that there is no just reason for delay. . . . In the absence of the required findings, determination and direction, a judgment that adjudicates less than all the claims . . . , or adjudicates the rights and liabilities of less than all the parties, is subject only to discretionary review until the entry of a final judgment adjudicating all the claims, . . . rights, and liabilities of all the parties.
CR 54 (b) is to the same effect. The necessary findings cannot be made arbitrarily, but must be based on the record. No findings were made or requested here, and it seems doubtful that any could have been made. This case is not appealable as a matter of right.
II.
We next consider whether we should grant discretionary review. RAP 5.1(b) provides, "A notice of appeal of a decision which is not appealable will be given the same effect as a notice for discretionary review." RAP 2.3(b) provides, "Discretionary review will be accepted only (1) if the superior court has committed an obvious error which would render further proceedings useless; (2) if the superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; or (3) if the superior court has so far departed from the accepted and usual course of judicial proceedings . . . as to call for review by the appellate court."
We consider whether to grant review on two questions. First, did the trial court dismiss DOE prematurely? Second, did the trial court err by excluding Featherston's proposed expert testimony?
A.
We grant discretionary review on the issue of whether the trial court's dismissal of DOE was premature. By answering the third special interrogatory, the jury ruled that DOE had not engaged in conduct constituting quid pro quo sexual harassment. By failing to answer the
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