Tolls For Thee

Covington Returns Fire on Motion to Dismiss

It took a while but the plaintiffs have finally responded to the  Defendants’ Joint Motion to Dismiss Counts One, Three and Four, or in the Alternative, for Summary Judgment as to Counts One, Three and Four of Plaintiff’s Complaint, which was filed on October 5.

The defense arguments center on the DC law that stipulates the statute of limitations in wrongful death claims requires they that be filed within one year. 

According to them, the clock started ticking on the night of Robert’s murder, at a point when, as their motion states, “the plaintiff has actual knowledge of a cause of action… Within hours of Mr. Wone’s death, Plaintiff had notice of the existence of its wrongful death claim…”

Not so says the CovingtonBurling team

“Instead, the law could not be clearer that where—as here—a defendant fraudulently conceals his involvement in wrongdoing, the statute of limitations is tolled until the fraudulent concealment ends.  This “well-established” doctrine is rooted in the “ancient maxim that no one should profit by his own conscious wrong.”

In the twenty-five page rebuttal that follows, with a table of contents and several attachments, Kathy Wone’s civil team works to brush back the one-year statute claim.

Covington argues the claim was filed long before the statute of limitations expired:

“Although wrongful death actions in the District of Columbia must normally be commenced within one year following death, see D.C. Code § 16-2702, the limitations period is tolled by “fraudulent concealment of the existence of a cause of action.” Emmett, 396 F.2d at936. Indeed, “[i]t is well established that affirmative acts employed by a party to fraudulently conceal either the existence of a claim or facts forming the basis of a cause of action toll the running of limitations periods.” Estate of Chappelle v. Sanders, 442 A.2d 157, 158 (D.C. 1982). 

Fraudulent concealment may be found where a defendant conceals “information regarding the circumstances of” a death, including relevant facts and “the wrongful acts of the defendants.” Emmett, 396 F.2d at 933. If such concealment prevents the plaintiff from timely filing suit, then the statute of limitations will be tolled for as long as the concealment endures. Id. at 938.”

Regarding the “fraudulent concealment” claim, plaintiffs hammer the defendants on specific alleged acts:

“Defendants concocted a bogus theory that an unknown intruder entered their home and murdered Robert Wone. First Am. Compl. ¶¶ 24-26. They then spent the crucial minutes after Mr. Wone’s stabbing coordinating their stories, altering and orchestrating the crime scene, and destroying evidence. Id. ¶¶ 35-42.

To facilitate their cover-up, Defendants delayed calling 9-1-1 to report Robert Wone’s murder. Id. ¶¶ 31-34. Finally, following the initial cover-up, Defendants lied to the police, Mrs. Wone, and others about the circumstances surrounding Robert Wone’s murder. Id. ¶¶ 15-16, 43-44.

These acts, individually and collectively, prevented Mrs. Wone from discovering the true circumstances of her husband’s death, and that Defendants had directly and proximately caused Robert’s death through their own wrongful acts and/or negligence. As a result, the one-year statute of limitations was tolled by Defendants’ fraudulent concealment of Mrs. Wone’s wrongful death claim.”

A defense response to this plaintiff response is expected soon and we hope to have it next week. 

For planning purposes, we learn on page 19 that Price, Ward and Zaborsky have been noticed for deposition in mid-November, which as the document states, “may lead to the discovery of new information relevant to Defendants’ fraudulent concealment.”

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT MOTION TO DISMISS COUNTS ONE, THREE, AND FOUR OF PLAINTIFF’S COMPLAINT OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AS TO COUNTS ONE, THREE, AND FOUR

97 comments for “Tolls For Thee

  1. Bea
    11/04/2010 at 2:26 PM

    I realize that the Defendants found some relevant law, as is often the case, but reading both together, it certainly seems Plaintiff will prevail.

    When you throw in the ‘equities’ based on the Defendants claiming Kathy ‘should have known’ it was them IF it was them AND then in discovery when asked whether/what concealment they engaged to respond ‘we take the 5th’ makes it appear to me an easy Plaintiff victory.
    Only if one allows the Defendants to say ‘it wasn’t us’ but ‘if it was, she should’ve known EARLY’ and now that she has asked we won’t answer for fear it will incriminate us – please ride the merry go round of non-answers with us so we can go home now!

    • Kate
      11/04/2010 at 3:53 PM

      Yes, Bea – I completely agree.

      I admit to having been quite impressed with the Defendants Motions to Dismiss and its effective use of relevant law cites. But the Plaintiff’s Opposition is so very logical and methodical in its arguments – and far more impressive with the in-depth inclusion of numerous cases – it certainly does seem that the Plaintiff’s will prevail in this instance.

      The Plaintiff’s lawyers did their homework. To borrow a line from good ol’ Monty Python, they’ll “run rings around you logically.”

      And, I admire your turn of phrase – “… the merry-go-round of non-answers …”

      Regards,
      Kate

  2. boofoc
    11/04/2010 at 4:20 PM

    As I predicted when Defendants’ motion was filed, Plaintiff will prevail, and the matter will proceed to trial on its merits. The equitable principle – that one should not be allowed to profit by his deceit – has survived by precedent since our adoption of the English Common Law. Covington, et al., did a creditable job in opposing the motion to dismiss/summary judgement; beautifully written, as expected. Now let’s get on with discovery; thus far it has educed nothing more than defendants’ names.

  3. Hoya Loya
    11/04/2010 at 5:28 PM

    Having previously described this motion as requiring chutzpah on the part of the defendants, I particularly like this passage:

    “And yet, audaciously, Defendants have moved to dismiss Mrs. Wone’s wrongful death claim on the theory that she should have accused Defendants more than three years ago of causing her husband’s death. In other words, Defendants argue, Mrs. Wone should have solved this case faster—more than three years faster—than the Metropolitan Police Department (“MPD”), the FBI, and the U.S. Attorney’s Office.”

    Very nice job by Covington and very persuasive, with an exhaustive analysis of the applicable case law.

    • carolina
      11/04/2010 at 6:56 PM

      That passage reads like an exasperated eye roll.

    • AnnaZed
      11/04/2010 at 11:39 PM

      Hola Hoya! I liked that bit as well, nothing like icing the cake to make sure that it is nice and palatable. Hopefully Mrs. Wone will prevail and we move forward.

      Reading this I can’t help but wonder as I often do; what would ChiLaw say?

  4. Rick
    11/04/2010 at 7:21 PM

    As a layman here, I found this very interesting reading…it’s this type of writing and everyone’s responses that keep me coming back to this site day after day to learn. Thanks

  5. Susan
    11/04/2010 at 8:59 PM

    This response by Covington is powerful. It’s also very sad to read the circumstances of this crime again. Wonder what Price, Ward and Zaborsky are thinking right now? This response makes a powerful case against the complicity of one or all of the three.

    • Susan
      11/05/2010 at 7:25 PM

      FOR the complicity of…. (above)

  6. Michael
    11/05/2010 at 9:27 AM

    This plaintiff’s opposition is obviously going to forfeit any chance of having an impartial jury at this trial. Shame on WMRW.com posting it and allowing the general public to be exposed to such one-sided arguments and opinions.

    Jk though, nice work Kathy and company!

    • AnnaZed
      11/05/2010 at 12:15 PM

      Why if this information is available to the public, and legal precedent makes it available, is there any shame involved in accessing and assessing publicly available filings in this or any other case?

    • carolina
      11/05/2010 at 12:57 PM

      Because anyone reading here would be in the jury pool anyway. Sheesh.

    • Kate
      11/05/2010 at 2:39 PM

      Hello Michael – You may not be aware that the Defendants’ Joint Motion to Dismiss was also posted here on WMRW.com. It can be accessed by clicking the link at the top of this post. After reviewing the Defendants’ Joint Motion to Dismiss post, as well as the adjoining comments, you may no longer feel that there are only “one-sided arguments and opinions” expressed here.

      I believe the Editors are doing their level best to present ALL pertinent information, including a myriad of publicly available filings, on this blog. Surely, you can agree that there is no shame in that.

      Regards,
      Kate

    • HopeForJustice
      11/05/2010 at 3:09 PM

      Hey All : please reread Michael’s last line in his “shame” comment. I think he was Jk ie just kidding.
      Keep up the great work editors and posters !

      • AnnaZed
        11/05/2010 at 6:37 PM

        Ha! You might be right. Nuance can be lost on the net as we all know too well.

      • Kate
        11/05/2010 at 7:00 PM

        Ah-Ha! Thanks for the insight, Hope for Justice.

        I was a-wondering what the Jk meant, thinking I had missed some bit of understanding in cyber-speak.

        • Michael
          11/08/2010 at 8:50 AM

          Sorry for the confusion! 😉

  7. boofoc
    11/05/2010 at 12:04 PM

    I’ve always appreciated the use of words such as “audaciously” in pleadings. Sure perks up the discussion! Expressive words and phrases in pleadings take the sheer dullness out of the practice of law; a lawyer’s feelings come through as well as his/her thinking. For a brief period in my caeer I taught that philosophy in an “effective writing for lawyers” class.

    • AnnaZed
      11/05/2010 at 12:17 PM

      I know, a little bit of rhetorical flourish goes a long way.

  8. boofoc
    11/05/2010 at 12:12 PM

    Just noticed Michael’s “shame on WMRW” post. No shame at all, Editors; keep up the great work. All prospective jurors are invited to read defendants’ counter argument and, eventually (hopefully), the judge’s ruling.

    • AnnaZed
      11/05/2010 at 12:19 PM

      I wonder now if in this day of wonderful ready access to filings if prospective jurors do in fact read such things or if only interested eccentrics like ourselves make the effort. I’m thinking the later.

      • Bea
        11/05/2010 at 1:36 PM

        Carolina is right – if the Defense attorneys aren’t smart enough to elicit that a prospective juror reads/posts on this site, they’re as dumb as a stump.

        • Susan
          11/05/2010 at 7:33 PM

          I’d wager a ton of $ that there are a core group of followers here and those who check in every now and then on one side and most of the available jury pool on the other.

          And I do agree that Michael was joking above. His posts are often tongue in cheek, etc.

          • Bea
            11/05/2010 at 7:52 PM

            Michael, next time capitalize “JK” or spell it out for us old folks!

  9. Clio
    11/05/2010 at 11:28 PM

    Finally, and it’s about time! This cause for Justice apparently DOES have attorneys who can write eloquently and think critically.

    One may only dream that the lawyers found in the public sector could match Team Covington’s wit and logic in this response, but those qualities were not to be found in ex-gridiron “great” and awards maven, Glenn Kirschner. Even Glenn’s graduation from Lewis Powell, Jr.’s alma mater could not apparently overcome his natural deficits of persuasion and organization. What a shame!

  10. Bill Orange
    11/06/2010 at 1:51 AM

    Where are KiKi and Bruce? I’m curious about their takes on this.

  11. Bruce
    11/06/2010 at 2:35 PM

    Sorry, Bill O et al:

    Been to Louisiana for two days of work. Got back last night exhausted and am catching up on here! Want to read this very carefuly.

    • Clio
      11/07/2010 at 12:11 AM

      I heart Louisiana: any work there must be tied to pure pleasure!

      • Bruce
        11/07/2010 at 1:39 PM

        Well, Clio, I did not say that “ALL” of my time was spent on work. 🙂 My work colleague and I did stay in New Orleans, for God’s sake!

        • KiKi
          11/08/2010 at 9:08 AM

          My hometown!!!! Oh how I miss it.

  12. Susan
    11/06/2010 at 5:41 PM

    Does anyone know where that Covington atty who left Covington ended up working? I remember how quickly his name disappeared from all things Covington. Not so with Joseph Price who is still listed in LinkedIn with Arent Fox (though he would control that page) and Justia has him listed with AF too. Both sites list his AF gig as current. It’s interesting how those online pics were cleaned up in a flash but not the sites listing the law bona fides.

    • Clio
      11/07/2010 at 12:09 AM

      Susan, I do wonder with which firm Joe is working these days. Also, has he transferred his passion for LGBT causes from Virginia to Florida? Does he see himself much more as a Floridian these days rather than as a resident of metro Washington? So many questions still remain, and we’ll never get to know the answers until Mr. Price’s memoirs come out and tell all. Will Houghton Mifflin be the publisher: who knows!

      • Bruce
        11/07/2010 at 1:31 PM

        Hi All:

        I have read the plaintiff’s response brief (twice) and re-read the defendants’ motion. Everything I say here is just an opinion, and it is always best to get a mix of them, because, as Clio so correctly has pointed out in the past, I’m never right about anything.

        A couple things to set the discussion and try to clarify the issues first:

        (1) Judges generally determine the law. Jurors generally determine disputed facts.

        To understand that is to come to grips with the central issue (in my opinion) that the judge will have to determine in the case:

        Should this motion be denied because the jury should be given the opportunity to determine the facts essential to the “fraudulent concealment” issue, or are those “facts” so clear that there is no real “genuine issue of material fact” such that it is necessary for the jury to determine anything as to the “fraudulent concealment” issue, and the judge can determine them.

        (2) Judges generally lean towards allowing a jury to determine issues and facts, to give the plaintiff her “day in court,” and not pull issues away from the jury.

        However, when the facts and issues are clear, a judge may very well grant a motion by the defense. The judge is always aware that an appellate court may review the issues, and a dispassionate appellate court could criticize her if she makes the wrong decision, either way. Judges don’t like that!

        Further, some judges, by their history, are more likely to grant motions to dismiss or motions for summary judgment than others. I know nothing as to this judge’s history or reputation in this regard.

        (3) What law applies? Generally speaking, the judge here MUST follow DC law. She can certainly take notice of federal decisions interpreting DC law, but she is not required to do so. She need NOT take notice or follow any legal cases from other state or federal jurisdictions. However, in her discretion, she can view those cases and take from them what she likes, as long as they are not inconsistent with DC law.

        This is very relevant here. The defendants only cite DC cases or federal cases interpreting DC law in their motion (a smart move, in my opinion). The plaintiff takes a different tack.

        While certainly citing DC law, and distinguishing some of that law as interpreted by the defendants, plaintiff has also taken the opportunity to cite decisions from many other jurisdictions (approx. 13), including OH (state), CA (fed), UT (fed), 9th Circuit (fed), MA (fed), KY (state), NC (state), OK (state 1929!!!), NJ (2 state cases),MISS (fed), MD (state), and a federal bankrupcty decision from NY.

        Defendants’ motion cites about 15 DC cases (including federal cases interpreting DC law), and does not rely on any law from any other jurisdiction.

        At first blush, it would seem that DC has plenty of law (Defendant’s motion cites about 15 cases) on the subjects of statutes of limitations and “fraudulent concealment,” with no need to go to other jurisdictions.

        However, the plaintiff’s and defendants’ attorneys know their audience (the judge). We don’t. It will be interesting to see if the judge goes outside of DC law in making her decision.

        Frankly, if there is plenty of law on a topic in your jurisdiction, it is generally thought of as a weakness to go to other jurisdictions to uphold your position, cases to which the judge need not pay any attention. But, again, the plaintiff’s attorneys know their audience here, and we don’t.

        (4) Everyone agrees that the civil suit was not filed within the one year statute of limitations for filing a wrongful death case, if the murder is considered the “starting date.”

        The murder was committed on 8/2/06, and the one year statute of limitations ended on 8/3/07. Thus, according to the defendants, the suit should have been filed on or before 8/3/07.

        The suit was not filed until 11/25/08, approximately 1 year and 3 months after the 8/3/07 statute of limitations date had passed, and approx. 2 years and 3 months after the murder.

        (5) This motion all comes down (in my opinion) to the “fraudulent concealment” exception to the statute of limitations, claimed by the plaintiff.

        Plaintiff claims really two things here as to that claim:

        (a) plaintiff did not have enough knowledge or would not have enough knowledge with reasonable inquiry to determine that she had a cause of action for wrongful death against the defendants within the one year statute of limitations, and, because of this, the one year statute of limitations should not run from the date of the murder, but from the date she knew or should have known enough to have notice of her claim against the defendants.

        The plaintiff argues in its response brief that this “starting date” should be the release of the affidavit in support of the arrest of Dylan Ward, on October 27, 2008.

        Not until then did Mrs. Wone have enough knowledge to know she had a cause of action against the Swann 3, they say. The one year statute of limitations should start from that date, giving her until October 27, 2009 to file her complaint. She filed it well within that one year, by filing her complaint about one month after that affidavit was released, on Nov. 25, 2008.

        (b) In addition to her lack of knowledge necessary to file her suit until the release of the affidavit in 10/08, the defendants “fraudulently concealed” the cause of action by not providing things and stating lies (the Swann 3 were her friends, she trusted them, they lied by saying an intruder was involved and they weren’t responsible, and they kept things from the police, etc.), such that they should not be allowed to take advantage of these “bad acts” and, again, her statute of limitations should not start until the release of the affidavit because of these lies and “hiding” of the cause of action from her by defendants’ acts and statements.

        The defendants claim in their motion that Mrs. Wone had everything she needed to have “enough” information to put her on notice that she had a possible claim for wrongful death against the Swann 3 on the murder date itself, or within a month of that date when several news sources reported things about the murder and the police opinions that the Swann 3 were not being truthful or were not providing all the info they knew.

        Indeed, says the defense, there were only 3 people in the house in addition to Mr. Wone, a fact well known to Mrs. Wone and her attorneys immediately after the murder, and the “intruder” theory was quickly “knocked down” in the opinion of the police, as reported by the press.

        So, there is the background and the arguments in a general sense.

        In reviewing the plaintiff’s response, I have a couple of criticisms:

        (1) First, I must unfortunately disagree with Hoya Loya and others on here about the statement in the first paragraph of the response by the plaintiff’s attorneys, where they say:

        “And yet, audaciously, Defendants have moved to dismiss Mrs. Wone’s wrongful death claim on the theory that she should have accused Defendants more than three years ago of causing her husband’s death. In other words, Defendants argue, Mrs. Wone should have solved this case faster—more than three years faster—than the Metropolitan Police Department (“MPD”), the FBI, and the U.S. Attorney’s Office.”

        I’m afraid my opinion is different than others. While I enjoy the aggressive and sparkling language, no one really believes that under DC law or any law that Mrs. Wone has to have enough information to “solve” the murder to know that she has a cause of action against the defendants.

        That is an impossibly high requirement, not even hinted in the DC cases, and not consistent with the DC law as to statutes of limitation. Clearly, Mrs. Wone does not have to “solve” the murder to have enough knowledge that she has a “cause of action.”

        This language is dramatic and fun, but not too helpful to the plaintiff, in my opinion. Seems like it is almost written for non-lawyers. But, once again, the attorneys know their audience (the judge). We don’t.

        (2) On page 7 of their response, the plaintiff’s attorneys appear to concede that “some members” (awkward statement, in my view) of the Police Dept. felt that the Swann 3 had not “shared everything,” and that police suspected that the crime scene had been altered by unknown persons…soon after the murder.

        ….But that she did not have evidence to justify those conclusions and there had been no arrests.

        My fear is that the judge is going to think that all of this is enough notice to Mrs. Wone (under DC law) that she at least has a “cause of action” against the Swann 3 at that point, not withstanding any further “evidence.”

        In furtherance of that opinion, you need to add the things that we know Mrs. Wone knew, which are not specifically referenced by the plaitiff’s attorneys in their brief: that Mrs. Wone knew of the murder, its cause (stab wounds), and that only the Swann 3 were in the house (unless you believe the “intruder” theory, which the police quickly and publicly disputed),

        So, I’m not sure I think that was the greatest thing for the plaintiff’s counsel to point out.

        (3) Thinking this over some more, I’m not sure the citation to so much non-DC law is helpful to the plaintiff. The judge is going to pay much more attention to DC law, and so is any appellate court reviewing any decision of this trial judge. Relying so much on law outside of DC sort of “muddies the waters” in my view.

        (4) I don’t particularly like the argument that the lack of arrests or lack of police work entitles Mrs. Wone to “hold back” on filing a suit.

        I don’t think the argument really follows DC law on these subjects, but the plaintiff’s attorneys seem to really push on this. Maybe they want this judge to “make” new law by tying Mrs. Wone’s responsibilites to what the police and investigators do. Seems a bit of a risk to me, and better decided by an appellate court than a trial judge.

        So, where do I think this response brief puts us?

        (1) I think that the plaintiff has a very slight advantage on this motion.

        (2) The “fraudulent concealment” issue is so intensely fact sensitive here, that I think the judge may very well decide that the jury should confront and decide those facts, rather than the judge.

        (3) However, I do think that the “facts” of the media reports and what Mrs. Wone did know after the murder are so clear that it is possible that the judge will determine that there are really no “genuine issues of material fact” for the jury to decide on the issue, and that is the worst thing that can happen for the plaintiff here.

        (4) I do think that it is going to be difficult for the judge to get over the hurdle that the plaintiff did not file her complaint until over a year after the one year anniversary news conference of the plaintiff and her attorrneys.

        All in all, I think it is going to be nail-biter. And, as I have said before, I imagine a lot of people are going to have some loss of sleep right before the decision is made.

        No matter how the judge decides, all the attorneys and parties are going to know that this statute of limitations issue will likely be determined in the end by an appellate court, and that will hang over the trial or cause its delay.

        I have not read any of the decisions cited by the parties, so my opinions here are even more limited.

        I invite any and all to disagree with me and/or point out areas where I may have gone astray on these issues.

        • Bruce
          11/07/2010 at 1:58 PM

          At the risk of impolitely responding to my own post:

          I should have pointed out that I think the plaintiff’s brief is well written and certainly attacks the defendants’ motion well, covering all the bases. But I do think also that the defendants’ motion was more concise and more wise to stick completely to DC law.

          In re-reading my post, I am again hit with the tremendous loss of Chilaw. Being more knowledgeable and practical than I, I think that Chilaw would have enriched us greatly if she could have given us her opinions, and I feel inadequate in comparison, as always.

          Finally, I do hope, Bea, that you will support me when I provide to our kind and extremely generous editors my “per word” bill for the post above 🙂

          • Clio
            11/07/2010 at 3:46 PM

            Bravo, Bruce, once again, you’ve outdone yourself — if Culuket ever needs a ghost writer for his memoirs, then he must give you a ring.

            Should, though, even in the Sodom by the Potomac — Washington, DC, a person benefit from his/her own conscious wrongdoing? Even Brook should know the answer to that ethical and, yes, legal softball.

            • Bruce
              11/07/2010 at 5:40 PM

              Indeed, Clio:

              Statutes of Limitations do serve legitimate purposes, although not to us on this blog right now.

              I guess one could say that if anyone has done conscious wrongdoing, that there should be no statute of limitations at all to suing that someone civilly for damages.

              And if we take the plaintiff’s argument to its ultimate conclusion, the one year statute of limitations has not yet even begun for Mrs. Wone, as no one has been arrested for murder and the murder has not yet been “solved.”

              But the plaintiff’s counsel do not really come out and say that, and I’m afraid they would be inviting ridicule if they did.

              So, what is the affirmative conscious wrongdoing that the plaintiff claims provides exception to the statute of limitations, which they concede must be “affirmative acts?”

              This is all found on page 10 of plaintiff’s brief:

              -First, the defendants “concocted a bogus theory” that there was an intruder that murdered Robert Wone.

              -Second, they spent crucial minutes after the murder to coordinate their stories, orchestrate the scene and destroy evidence.

              -Third, they delayed in calling 911 to facilitate the above.

              -Finally, they lied to the police, Mrs. Wone and others about the “circumstances of the crime.”

              These are all things, of course, that we have “batted around” a million zillion times on this blog.

              But are these true facts of affirmative acts of the defendants?

              Certainly, the defendants have consistently disputed each of them from day one and they have not been “proved” otherwise yet, despite our arguments and opinions to the opposite, and despite anything that the criminal judge may have expressed.

              I would say a better description, legally, is that these claimed affirmative acts of conscious wrongdoing are not facts, but are better described, legally, as “as yet unproved allegations or assertions” of the plaintiff or the police.

              If the judge feels at all similarly, it certainly will challenge her to try to cut through “facts” and “allegations,” on this issue.

              It would allow her an avenue to deny the current motion, wanting the jurors to make fact decisions regarding these “unproven allegations assertions.” And that is a good thing for the plaintiff and all of us on WMRW.

              But, she may also deem that the matters raised by the plaintiff as “conscious wrongdoings” are no more than “unproven allegations or assertions,” and not facts, and do not rise to the level of being conscious “affirmative acts” of the defendants that could support plaintiff’s argument of “fraudulent concealment.”

              But this same issue puts the defendants in a bit of a bind too. For if they try to denigrate the “affirmative acts” relied upon by the plaintiff for the fraudulent concealment argument as mere unproven allegations or assertions, and not facts, might they not be arguing against their interest and supporting an argument that the jury should determine those allegations as being true or not, before deciding the issue of “fraudulent concealment?”

              This is, in part, why I think the resolution of this motion will be a nail-biter.

              By the way, none of this is easy, even for lawyers. We are all just looking into the crystal ball.

              • Bill Orange
                11/07/2010 at 7:44 PM

                I’m still curious about KiKi’s take on this, too.

                The thing that bothers me about the prosecution’s position here is that what they’re calling “fraudulent concealment” is more or less the defendants’ claims that they are totally innocent of the crimes that were committed here. I happen to agree with Covington’s assertion that the defendants are lying, but their argument is still a bit circular: The statue of limitations should be tolled, because the defendants are refusing to admit responsibility for what we’re accusing them of doing.

                As an aside, can someone please explain why the statue of limitations is so much shorter for “wrongful death” than it is for negligence? Shouldn’t it be the other way around?

              • Bea
                11/07/2010 at 10:35 PM

                Bruce, I appreciate your having received the short end of the stick in drawing ‘affirmative’ or ‘negative’ in debate-speak, but again we disagree. I must admit that I stopped reading and started skimming your argument about six or eight paragraphs in. No offense intended.

                The good Judge shall tell us soon which position is correct.

                • Bruce
                  11/08/2010 at 12:32 PM

                  Bea:

                  Don’t blame you at all for skimming, and no offense taken.

                  This is boring legal “refuse,” no doubt!

                  Hope you are right about the good Judge taking the “correct” position, whatever that is.

                  But, like Kiki, I doubt that there will be an end to this issue unless and until an appellate court rules.

                  If the court grants the motion, I think there is a very real chance of an immediate appeal by plaintiff which will further extend the trial date.

                  If it is denied, I doubt there will be an immediate appeal, but all things are possible.

            • Bruce
              11/07/2010 at 7:28 PM

              Oh My, Clio:

              Despite your delightful implication suggested as to my writing skills, I’m afraid if I was in fact the writer of “Culuket’s Conundrum,” I would certainly satisfy the gods of alliteration, but would prove greatly unflattering to the subject.

              • Clio
                11/07/2010 at 7:43 PM

                LOL! I love that title, Bruce (I really do; no sarcasm here at all): you certainly ARE a demonstrable wit worthy of an Enlightenment salon!

                For Robert Wone and his family, however, I just wish that Team Covington wins especially on this statute of limitations front. Fingers (and nails) still crossed!

      • susan
        11/07/2010 at 6:52 PM

        Maybe Dunder Mifflin? Oh wait; they’re a paper company. And fictional. And will it be published under a nom de plume, ala culuket? Many questions.

        • susan
          11/07/2010 at 6:53 PM

          This is in response to Clio’s post (a few posts back)

          • Clio
            11/07/2010 at 7:21 PM

            LOL!

            Alas, recall, Susan, that hoary precept quoted above: no one should gain from their conscious wrongdoing. Even a vanity press may have second thoughts about accepting this potential manuscript; yet, a lowly clerical position a la The Office may be the most fitting fate for Mr. Price. Kelly girls can hide their pasts, however unseemly!

            • susan
              11/08/2010 at 8:51 PM

              Just in case a vanity press does pick it up (“vanity” may be the key here) I wonder if it will include pics (the publisher may have to borrow from what’s online at wmrw.com and from A. Fox). Then again, maybe they, or Ms. Wone’s attys will check with Sarah Morgan to find out if any of the three guys had cameras. If anyone would know, she would. She’d have to know.

  13. KiKi
    11/08/2010 at 9:43 AM

    Sorry I have been absent on responding to this. I wanted to wait until I had time to read the entire plaintiff’s motion. This is a really hard question and I am not envious of Judge Hedge. As Bruce mentioned, no matter what she decides this motion will be extensively reviewed by the appellate courts and could likely come out very different than Judge Hedge’s ruling.

    I 100% agree with Bruce’s point on the choice of law issues. First year law school tells us to only cite outside jurisdictions if your jurisdiction has no law on the subject. I know the covington lawyers know this, so either they know the Judge and think she would be amenable to looking to outside jurisdictions, something the appellate court certainly won’t do; or their position is not easily supported by the DC law and they want to hide that within all the other cited law.

    As far as the merits of this motion go, I think legally it should be granted. I think it is likely, however, that the judge will deny the motion.

    The amount of knowledge needed to trigger the SOL is minuscule (I elaborate on this in my post on the defendant’s motion.) One case described it as a peppercorn. The plaintiff simply has to have enough knowledge of the tort to trigger the duty to investigate.

    The plaintiff claims she does not have the necessary knowledge until the arrest warrant is issued. I think that is a red herring. Most of the allegations in the arrest warrant were either in the press prior to the warrant or are logical inferences from facts already known to Kathy.

    The plaintiff’s argument is that the Swann 3 had fraudulently concealed the facts necessary to trigger her duty to investigate, which is why the police did not issue a warrant until a year later and also why she did not have the requisite knowledge to file the complaint. Well, the problem with this argument as I see it, is that there was never any genuine material issue or change in the defendant’s actions from the time they were arrested to the time that the murder happened. For example, it wasn’t as if they fraudulently concealed for a year and then all of the sudden admitted to the murder, thereby ending their fraudulent concealment. They have continued to tow the same line the entire time. So what changed that allowed her to all of the sudden see through their fraud? Again, plaintiff argues the arrest warrant, but I just don’t see anything new and material enough there to support that argument.

    Further, there was no new evidence that the police received between the murder and the time of the arrest warrant. They made it clear that the Swann 3 were the primary suspects long before the arrest warrant. If, for example, the police had interviewed the Swann 3 then arrested someone else and then 2 months later arrested the Swann 3, I can see an argument that the actions of the police have some effect on the SOL. However, even then I think that argument is a long shot. I see no law that supports the proposition that law enforcements’ failure to arrest a suspect has any bearing on the SOL. (Please keep in mind that the standard needed for an arrest warrant is probable cause, which is a higher burden than the peppercorn of knowledge needed to trigger the duty to investigate. So thus, many situations could arise where the police do not have probable cause for an arrest but a plaintiff has knowledge enough to trigger the SOL.)

    So in other words, in order for the arrest warrant to be the trigger of the claim, it must have some fact that is so material and unknown prior to the release of the warrant, that it overcomes the defendant’s fraud and triggers the plaintiff’s knowledge.

    Some of you have spent a lot of time looking at the warrant and can maybe suggest some evidence that fits this bill.

    But all that being said, because this is a fact specific question and judges really frown upon taking claims away from the fact-finder, I do believe the Judge will deny the motion. However, looking into my crystal ball, I could see that decision coming back on appeal.

    • Bruce
      11/08/2010 at 11:34 AM

      Kiki:

      Thanks so much for your take on this. Extremely valuable for all.

      I agree with you that in a “legal” sense, the defendants’ motion probably has the advantage, since the threshold for what someone needs to know before filing a suit appears to be a pretty low standard, at least as expressed in the quoted decisions from DC in the defendants’ motion itself. Ya taint gotta solve de crime, jimminy crickets!

      However, I also agree with you that the plaintiffs have the edge in a “practical” sense, since the judge is going to try to avoid determining herself the date the one year statute of limitation should begin (the day of the murder? a month after with news reports? the one year anniversary news conference? the affidavit in support of Ward’s arrest? has it not even begun yet since there have been no murder arrests and no actual solving of the murder? — I think we can all agree that this last one is very unlikely).

      She can easily deny the motion and say that the jury has to determine the proper date the one year statute of limitations began, and I think that is why we both appear to have opinions that the plaintiff ultimately likely has the advantage on this motion.

      As to this, it would be great if anyone knew of this particular judge’s reputation in regards to granting and denying defense dispositive motions. I don’t have a clue.

      She could also enter and continue the motion (meaning not decide it now) until the end of discovery, to see if the discovery in the case gives more clarity to exactly what Mrs. Wone and her attorneys knew and when they knew it, as to these statute of limitations issues.

      After much soul searching, I think the questions that we are really confronting, on the statute of limitations issues only, are:

      (1) Should the judge determine (essentially, as a matter of LAW)the start date of the statute of limitations, or are there “genuine issues of material FACT” that need to be determined by the jury before that determination can be made?;

      and

      (2) If the judge determines that this is a matter she can decide without the assistance of the jury (possibly because she feels that what plaintiff knew or should have known is very clear and not subject to factual dispute, at least in regard to the “peppercorn” -as you say– of knowledge needed to know you have a cause of action in DC)…

      …will she

      (a) decide that the statute began running more than one year before November 25, 2008 (the date of filing of the complaint), i.e., anytime prior to November 25, 2007, and thereby grant the motion to dismiss?; or

      (b) decide that the statute began running on November 25, 2007 or after, meaning the plaintiff filed her suit within the one year statute of limitations when she filed it on November 25, 2008, and thereby deny the motion to dismiss?

      A couple questions, Kiki:

      (1) Do you think it odd (as I do) that plaintiff did not attach an affidavit of Mrs. Wone to the response brief, to try to show evidence of what she did not know before the arrest warrant affidavit for Ward?

      The lack of that affidavit really bothers me. This is a motion for summary judgment (they are relying on things outside the pleadings)! You need to show the judge some evidence to support your argument! You should not just rely on your argument! The lack of any affidavit to me is worrisome from the plaintiff’s perspective.

      (2) Do you think it odd (as I do) that the plaintiff does not really emphasize the “genuine issues of material fact” for the judge, like listing them in the response brief?

      Much like the defense attorney gives a list to the jury of reasonable doubts in a criminal trial (Reasonable Doubt #1….#2, etc.), in fighting a motion for summary judgment, I would think that the plaintiff would set forth the “genuine issues of material fact” (Material fact #1…..#2, etc.) that support denial of the motion, and allowance for the jury to determine these issues. Very odd to me that we don’t see that here.

      (3) I am fascinated (non-lawyers LOL) as to the quantum of what can pass as reasonable grounds to assert “fraudulent concealment” in DC under these circumstances. I believe most cases actually deal with “hard facts” that are not really disputed.

      Here, Plaintiff relies on what I would call “unproven allegations” or “unproven assertions,” not really facts at all, as her basis for claiming “fraudulent concealment”. Without doing any research on the topic (who has time?), can the plaintiff really rely on these things or is the requirement for what you can rely upon for this exception to the statute of limitations have to be more concrete?

      Sorry, non-legal beagles. I’m sure these posts are frustrating and long. But you don’t have to be a lawyer to disagree, and if you would want any of the legal concepts we describe in our posts to be more fully explained, I will try and I’m sure Kiki will also.

      Can we get some more legal beagles or non-legal beagles to agree/disagree with Kiki and I as to our opinions? The more the merrier and the more it helps everyone to get a feel for this pending motion. No non-legals should feel intimitated. Everyone is just guessing here.

      • Bruce
        11/08/2010 at 12:11 PM

        Errrrr. Last paragraph should be “….Kiki and me….”

      • Cat from Cleveland
        11/08/2010 at 5:31 PM

        Bruce, I’m troubled by the lack of an affidavit as well, and that may have consequences should there be an appeal. But ultimately, I think the decision will turn on a legal issue: what is the event that triggers the accrual of the statute of limitations when fraudulent concealment is alleged. Is it the date the plaintiff “discovers” the death, the date the plaintiff “discovers” that the death was caused by tortious conduct, or the date the plaintiff “discovers” information sufficient to allow him/her to know who engaged in the tortious conduct.

      • KiKi
        11/09/2010 at 11:26 AM

        As to (1) – I not only agree that a KW affidavit should have been included but I would have likely gotten an affidavit from MPD asserting that they did not make the specifics of the investigation known to KW. But I do not have any idea why they decided not to. It is possible your theory is correct or it is possible they are so certain that they will win this motion that they do not want to create a prior statement for KW if it is not needed.

        (2) I don’t find this odd at all. When I write a motion that I think is weak on the facts I will include a lot of law, (as the plaintiff’s did here). To use your RD analogy, when I have little RD in a case I rarely list it out to a jury and instead focus on the doctrines of RD and presumption of innocence.

        (3) Not a civil lawyer so I have a hard time generally with assertions and allegations that seem to pass for fact in the civil realm. But I was taken aback by the idea that allegations that were unproven in criminal court and have yet to withstand SJ, could be used as fact to support this motion. But I have no real knowledge on this.

        • Bruce
          11/09/2010 at 11:53 AM

          Kiki:

          Thanks for your insights.

          If the plaintiff’s counsel’s had included an affidavit of Mrs. Wone in response, that surely would have led (my opinion)to her immediate deposition by the defendants before resolution of the motion, possibly limited to the “time line” of knowledge areas as to the statute of limitations claims.

          Mrs. Wone’s attorneys probably did not want to make her go through that deposition now, but not including an affidavit may prove harmful to the plaintiff, and seems to me to be risky. We shall see. Certainly, the defendants don’t make any “hay” out of it in their reply, posted today.

    • Craig
      11/08/2010 at 12:07 PM

      Kiki – Re: This –> “Further, there was no new evidence that the police received between the murder and the time of the arrest warrant. ” Isn’t the relevant question of what became public when? Eg., the warrant spelled out in detail for the first time what exactly was known to have happened in the house on the night of the murder, and was released in October 2008.

      • Bruce
        11/08/2010 at 9:28 PM

        Craig:

        In Kiki’s absence, I think your question should be answered.

        In my opinion, you are correct on your “relevant question.”

        What was public and what did Mrs. Wone and her attorneys know, and when?

        It is quite possible that the police or prosecutors shared things with her that were not so public, so that will likely be an area of concentration in her deposition in this case, once the pending motion is denied.

        The lack of an affidavit from Mrs. Wone to attack the defendants’ motion continues to bother me again here.

        I’m worried that if Mrs. Wone’s attorneys considered it (which they really should have…you fight summary judgment motions with evidence and affidavits if you don’t have sworn testimony already — Legal Procedure 101), is it possible that they felt after conferring with Mrs. Wone (if they did, of course) in this regard, that such an affidavit would harm their cause on this issue?

        This, of course, is all wild speculation on my part. I have no idea if the Covington attorneys even thought of an affidavit to fight the pending motion, or if they even discussed it with Mrs. Wone. No evidence at all.

        It’s just that this lack of such an affidavit bothers me, both legally and personally.

        If her attorneys didn’t think about it, that bothers me.

        If her attorneys did think about it, but decided it would not serve Mrs. Wone’s interests as to this motion, I am concerned about why they would think that (if they did), and what this may mean when you consider that Mrs. Wone will be examined on this closely during her deposition by the defense.

        While I have no good reason to doubt the capacity and ability of her attorneys, at the same time I also just personally want Mrs. Wone to have the best top of the line representation in this case possible. She deserves it and Robert Wone deserves it. Don’t take this as a bashing, because it isn’t. Just expressing a concern that may very well have no good basis to it at all.

        • Craig
          11/08/2010 at 10:12 PM

          Bruce – According to Harry Jaffe’s Washingtonian story, Kathy Wone didn’t learn about the various criminal allegations and specifics until she was briefed @ the USAO right around the time the warrant was issued for Ward’s arrest.

          • Bruce
            11/08/2010 at 11:24 PM

            Hi Craig:

            I recently re-read that Washingtonian story and it appears to include a number of mistakes. Hope that this isn’t one of them.

            But, let’s assume that this is absolutely correct, and Mrs. Wone did not know many salient “details” of the murder and aftermath until the arrest warrant for Ward was shown or described to her.

            And let’s further assume that these “evidenciary facts” of what she knew and when could very well be persuasive to the judge hearing this motion, such that she can easily deny the motion.

            The problem for me as to the pending motion is this:

            What “evidence” has Mrs. Wone’s counsel provided the judge with its reply brief to show these “evidentiary facts” regarding what Mrs. Wone knew and when she knew it, and what specifically she learned from the arrest warrant for Ward?

            I’m afraid the answer is clearly: nothing.

            Certainly, Mrs. Wone’s attorneys argue this very point in their response brief, several times. With gusto!

            But here is the problem and it is a very real one, at least to me:

            Argument of counsel is not competent “evidence” that the judge can consider, rely upon and weigh on a motion for summary judgment.

            Argument of counsel must be based upon proper “evidence,” be it a deposition transcript or an affidavit, or photos or newspaper articles, etc.

            I do believe that the newspaper articles that the defendants have attached as exhibits to their motion would be considered “evidence” that the court can consider.

            But plaintiff’s counsel provides the judge with nothing of evidenciary value to combat the defendants’ motion.

            Indeed, how can the judge rule on the motion without proper evidence of what Mrs. Wone knew or did not know, and when she did or did not know the things?

            In other words, the only person that can truthfully say what Mrs. Wone knew and when she knew it, is Mrs. Wone. Not her attorneys. Mrs. Wone.

            I would expect defendants’ counsel have raised this in their reply brief (already filed, I understand). But, who knows?????

            If so, I’m sure that defendants will argue that it is up to plaintiff’s counsel to properly respond to a motion for summary judgment, and if plaintiff does not so properly respond with true “evidence” to support their arguments and combat the motion, the motion should be granted.

            I’m afraid this is a real risk.

            In my opinion, the pending motion can not be decided on its true merits without having Mrs. Wone testify, either by affidavit, deposition or by a hearing on the motion where Mrs. Wone is called to testify in the witness stand.

            My thinking on this motion and response has obviously evolved since I first saw the response yesterday.

            I am now worried that some very real inadequacies of the response brief may put Mrs. Wone’s case in peril.

            Hey legal beagles: Show me how I’m wrong! Please.

            • Rich
              11/08/2010 at 11:36 PM

              Plaintiffs made some basic good points without overthinking the law.

              Sympathy is clearly with the.

              “Consealment,” was a good argument. it prevented the plaintiff from furthering her case.

              However, a fast and compelling response just might diminish the plaintiff’s chances.

              We’ll see.

              We should know by next week or sooner.

            • susan
              11/08/2010 at 11:40 PM

              Bruce,

              Isn’t Ms. Wone’s voice represented by her attys here? Don’t people “communicate” through their attorneys? Aren’t they her representatives to the court?

              Aren’t you going around in circles? The response to the motion specifically states the “wealth” of information that came out as a result of MPD’s actions that was theretofore unbeknownst to Ms. Wone.

              You ask for help from “legal beagles” and to prove that your “wrong.” But you say that you are stating an “opinion.” You also state in an earlier post that some of your response is “personal.” Maybe it shouldn’t be. That’s just an opinion. But clearly, others have weighed in earlier, other legal professionals on this forum.

              Again, not a legal profesh myself, but from what you’ve said and the other law professionals here have said, it’s a matter of what the judge will consider and what will be given weight and what will not. The court case is in Moultrie, and that’s where it will be decided.

              • susan
                11/08/2010 at 11:52 PM

                -Addendum to comment above:

                Bruce, you are looking for what you term “real” evidence and cite depositions, transcripts, etc. and even cite the defendants’ newspaper articles (which apparently contain false info.). Isn’t the “MPD Affidavit” as “real” as it gets?

                Please share what the errors are in the Washingtonian article so we are all on the same page.

                And where are the defendants’ voices? They are only “heard” through their attorneys. Isn’t that court-biz?

                Thanks.

                • Bruce
                  11/09/2010 at 12:14 AM

                  Hi Susan:

                  I referred to legal beagles only because this is fairly technical stuff in the “court-biz,” as you reference it.

                  But, I don’t mean to cut-off anyone from posting, and welcome your’s and other’s posts.

                  The law as to summary judgment motions, what is required for one, what proper responses are and what evidenciary material is required, are all set forth in federal rule of civil procedure 56 and by state statutes for state courts, usually copying or closely following the federal rule on the subject.

                  These rules on summary judgments must be followed by the parties and the judge.

                  The granting of a motion for summary judgment is one of the most frequent types of rulings that are decided by appellate courts.

                  While you would think that an attorney can speak for his or her client as to evidenciary matters in a summary judgment proceeding, that’s just not the case.

                  The attorney can question and argue at trial or before the judge, but not “testify” as if he or she “is” the client.

                  Do I really have to point out all “problems” with the Washingtonian article?

                  We already know about the criticism of it as to the “Catch-22 e-mail interpretation given, without context in any way to the remainder of the e-mail.

                  The MPD Affidavit is real evidence.

                  I wish that the plaintiff’s counsel had attached it as evidenciary evidence pursuant to the rules for summary judgment.

                  Talking about it by anyone is not competent evidenciary evidence. The judge needs the whole thing, which can properly be considered proper evidenciary evidence.

                  Since the plaintiff’s counsel argue about it in their brief, why didn’t they attach it as evidenciary evidence so the judge would know exactly what it says, pursuant to the sj rules?

                  Right now, the judge does not have it before her as proper evidence to consider on a motion for summary judgment.

                  All the jurisdictions I have appeared in strictly follow the requirements of the rules on sj proceedings.

                  Does anyone know if the DC courts take a “relaxed” view?

      • KiKi
        11/09/2010 at 11:15 AM

        I think it is explained in some of the posts later but the relevant question is not what became public but what Ms. Wone actually knew (or should have known).

        In this sense I agree with Bruce that an affidavit should have been included. If the motion is denied w/o prejudice, as Hoya suggests, and is likely, I could anticipate the defense seeking to question the MPD about what they told Ms. Wone and when.

    • Bea
      11/08/2010 at 12:45 PM

      Kiki, the arrest warrant does have oodles of unknown and material facts – and I believe that is key. It went from ‘sure seems fishy the intruder sneaked in quickly to kill Robert without anyone seeing anything’ to ‘Robert was sexually assaulted, suffocated, stuck with needles, cleaned, and the defendants’ timeline no longer makes sense’. That is where I think Judge B hangs her hat. And what the Plaintiff says – was Kathy Wone supposed to have known more/before cops? Yes, she knew DEATH but she was told by Defendants that the INTRUDER was behind the WRONGFUL.

      • Cat from Cleveland
        11/08/2010 at 5:21 PM

        Bea,

        For my $0.02, I think you are correct. Before the warrant, what Plaintiff knew was that her husband was stabbed to death while in a home with 3 men, each of whom claimed to have no knowledge as to who stabbed him.

        If she had filed suit against any of the men based on that knowledge, she would likely have been sanctioned for filing a frivolous lawsuit.

        • Bruce
          11/08/2010 at 6:12 PM

          Hi Cat & Bea:

          If the judge determines that a reasonable inquiry by Mrs. Wone and her attorneys would include the reading of the news articles attached to the defendants’ motion, some of which were published in the month after the accident, and all of which were published MORE than a year before she filed her lawsuit, the judge would assume that Mrs. Wone and her attorneys would know:

          -Police felt that crime scene was tampered with before police arrived, according to warrant to search Price’s office computer;

          -Police seized Price’s work computer, looking for e-mails to and from Mr. Wone;

          -Only the Swann 3 were residing in the house the night of the murder, all claiming to have been sleeping at the time of the murder;

          -The Swann 3 have consistently told the police that none of them were involved and an unknown intruder did the murder;

          -Police have not entirely ruled out a break-in, but police question the intruder theory as no signs of break-in, nothing stolen, nothing ransacked, nothing disturbed;

          -Detectives have publicly questioned the intruder statements;

          -Police said they did not get full cooperation from the 3 men known to have been in the house at the time of the murder–“We believe they have not been candid about what they know about the events.”;

          -Mrs. Wone says she has had no contact with the 3 men since the murder;

          -Mrs. Wone, in an e-mail, says that she believes the 3 men could provide additional information;

          -All residents of the house submitted to hours of police questioning the night of the murder, and have voluntarily submitted fingerprint and DNA samples;

          -No charges yet, but detectives claim that witness statements from the night of the murder do not add up. “Some of the info I was told, I just don’t believe..”;

          -Police have custody of the Swann 3 house and have removed flooring, pieces of walls, a chunk of staircase, washing machine, and even sink traps;

          -Police report that they were struck by what they did not find at the home: “A lot of evidence we should have seen at the house, we didn’t”;

          -Police have seized personal computers, examined phone records, consulted with the FBI and convened a grand jury;

          -Police still believe crime evidence was cleaned;

          -Gay Sergeant says “we don’t think this was a random act of violence;”

          -knife used in attack was on table next to Wone’s body, and was from matching set in kitchen of the house;

          -According to affidavit to arrest Ward, technicians determined that the crime scene had been tampered with, including the area where Wone’s body was found had been cleaned;

          -Use of chemicals and light show trace blood evidence around the body, on walls, floors, sofa bed and door frame;

          -All of the Swann 3 have hired criminal attorneys, with names given;

          -Doctoring a crime scene could lead to charges of obstruction of justice or accessory after the fact;

          -Police are not sure Mr. Wone was killed in room where he was found;

          And that is just from the newspaper articles.

          I do think that Mrs. Wone knew more than that her husband had been stabbed to death and 3 men in the house claim no knowledge as to who stabbed him.

          Of course, the judge could very well determine that she can’t apply those newspaper articles to Mrs. Wone and her attorneys.

          My fear, is that if she does so apply those articles, I’m pretty sure she would determine that this was enough to put Mrs. Wone on notice of a possible claim for wrongful death against the 3 men, more than one year prior to filing suit.

          Of course, as Bea says, we will learn when the judge rules.

          • Cat from Cleveland
            11/08/2010 at 6:21 PM

            Bruce,

            You forgot to add one important fact to your list – after all that testing and theorizing, the police found no evidence. They found nothing incriminating on the computers and no blood evidence was found. If a lawsuit had been filed at that time, how do you think the judge would have ruled on the Defendants’ motion for sanctions?

            • Bruce
              11/08/2010 at 6:39 PM

              Hey Cat:

              But but but…..an implication of your post above is that the Swann 3 today could get sanctions against Mrs. Wone and her attorneys for the mere filing of the complaint now pending?

              Seems like that after “all the testing and theorizing,” the police have still found no evidence.

              Seems like they still have found nothing profoundly incriminating on the computers and no profound blood evidence was found.

              So….huh?

              What new evidence

              or incriminating items from the computer

              or new blood evidence has come up since November 25, 2007 (one year before the filing of the complaint)?

              • Cat from Cleveland
                11/08/2010 at 6:47 PM

                The criminal indictment is certainly sufficient to satisfy a civil judge that the plaintiff had good cause to file the complaint. Wow. That’s a long sentence, but I’m too tired to edit it.

                • Bruce
                  11/08/2010 at 7:50 PM

                  Hey Cat:

                  You may certainly be right about the criminal indictment.

                  I assume you mean the affidavit and indictment of Ward, right?

                  I think that was all in Nov. 08, which would give her until Nov. 09 to sue, and she sure beat that.

                  The only thing that bothers me on that, is that the affidavit and indictment was not for murder.

                  And I’m not so sure that really provided any new info (although I think that plaintiff argues that it was the first they heard of Robert Wone being drugged and incapacitated).

                  Seems like that would be information the PD would have shared with the victim’s wife or attorneys when they learned it, but who knows? They certainly were not the sharpest.

                  I do think that when this pending motion is denied, that quite a bit of time will be spent at Mrs. Wone’s deposition about what she knew and when she knew it.

                  Wish we could protect her from that.

            • Bea
              11/08/2010 at 7:22 PM

              But Bruce, reading everything you listed (no need to re-list) still did not point a finger at which/all/any of the defendants. She should be held to a higher standard than the police investigating the crime? Sure, she THOUGHT they knew more than they were saying, but that’s hardly enough – imagine writing the complaint: Robert was in their home; Robert was stabbed to death in their home. Cat is right.

              And in any gray area, with whom do the sympathies lie? I think that the Judge reads all filings, rereads Judge Leibo’s opinion, sees that all the ROGS were ‘non-answered’ by claiming the 5th (with the exception of name and employment), and without a second thought denies the Motion. If you can find ANY reason for gray area to go the defendants way do tell – face it, many Judges can FIND the facts to fit a law pattern as they wish just as lawyers write their closing argument before the trial begins.

              • Bruce
                11/08/2010 at 7:54 PM

                Bea:

                I don’t quibble with your opinions, because who knows?

                No doubt, the judge’s sympathies will be with Mrs. Wone, as ours are.

                But that didn’t ultimately help Mrs. Wone with the criminal decision.

                As you say, let’s watch and see.

                • susan
                  11/08/2010 at 8:04 PM

                  Bruce,

                  Did you really go back and read all those articles and categorize them re before 2008 and after? I don’t have time to check all that you wrote but it’s a fact that one thing you list above is incorrect:

                  “-Mrs. Wone says she has had no contact with the 3 men since the murder;”

                  But she did. And it’s all over the place. She met with them at least twice after the murder: 1. At her and RW’s home, where JP made that stabbing motion (he sure didn’t do it before RW was murdered!) and
                  2. At the actual funeral when JP was a pall bearer, M. Price called a cop a bunch of profanity and threatened her, L. Hinton wrote a touching few lines to the decedant, etc. It’s all there.

                  But when you state categorically “Mrs. Wone says she has had no contact with the 3 men since the murder” the facts above would negate your statement.

                  I’m not an attorney, of course, but I think maybe you are stating an “opinion” and not fact. That sort of calls into question your other points, but I don’t have time to fact check, etc.

                  • Bruce
                    11/08/2010 at 8:12 PM

                    Hi Susan:

                    You are right. That it is wrong.

                    But it is not my opinion, it is an actual quote from the newspaper article attached as an exhibit to the defendants’ motion.

                    I just quoted the article which said she said this.

                    I bet she was misquoted.

                    I should have put by that quote: [we know this isn’t true].

                    In addition to what you point out, we know that she met with Price and he gave her some documents and e-mails. Of course, there were also a couple weddings and a dinner, as I recall.

                    In any event, it will be in the newspaper article that the judge reads if she reads the exhibits to the motion.

                    And she can make of it anything she likes, I guess.

                    • susan
                      11/08/2010 at 8:15 PM

                      Thanks, Bruce.

                      I thought of those emails but wasn’t sure when he gave them to her. I’m sure the judge will not rely on those articles alone. There’s plenty of other articles that cite her meeting with them after the terrible murder of this man, this son, this husband, this attorney, this apparent all around good guy.

                    • Clio
                      11/08/2010 at 8:16 PM

                      Didn’t Kathy “meet” them at Lisa G.’s 2007 wedding? Also, didn’t that lead to a follow-up meeting between Kathy and Joe that fall?

                  • carolina
                    11/08/2010 at 8:21 PM

                    Susan, while I may be wrong, I believe there was yet a third meeting after the two you mentioned. I think there may have also been a dinner party at the home of a mutual friend, so that would total at least 4. Assuming, of course, that I am not totally misremembering.

                    • Bruce
                      11/08/2010 at 8:26 PM

                      Susan:

                      The quote is in Exh. 5 of the defendant’s motion, which can be found under “Goodbye Columbus” 10/11/10

                      It is from a Washington post article dated 8/5/07 and is on the first page.

                      If you “fullscreen” the motion, it is on page 35 of 39.

                    • susan
                      11/08/2010 at 8:54 PM

                      Carolina,

                      You are probably right. Looks like the defense didn’t do their homework.

                      If we’re grading it here, I’d have to give them a C- for such a serious error.

                    • susan
                      11/08/2010 at 9:00 PM

                      Bruce,

                      Looks like Post writer Allison Klein got it wrong. Just like Fox did when it reported V. Zaborsky saying something on the 911 call that no one else reported. The Defense knows otherwise but as I heard D. Sedaris say once (and I’m sure others) “Why let the truth get in the way of a good story?”

              • KiKi
                11/09/2010 at 11:17 AM

                Hi Bea,
                Whether or not KW should be held to a higher standard than the police, I think in the law she certainly is held to a different standard. I think there is a stark difference in having probable cause for an arrest warrant and having the minuscule amout of knowledge needed to trigger the duty to investigate.

  14. Craig
    11/08/2010 at 10:47 AM

    The defense reply to the plaintiff’s response has just been filed. We’ll pull the doc and post tomorrow. “Reply Memorandum of Points and Authorities in Support of Motion to Dismiss Counts One, Three and Four, or in teh Alternative, Motion for Partial Summary Judgment Filed.”

  15. boofoc
    11/08/2010 at 12:43 PM

    Sure wish I had a week or so to go to the law library to read the cited cases, especially those bearing on the question of the fraudulent concealment by the motion’s movants, which is actually the principle issue here. The fact situation here is unique, viz., Robert’s widow right to rely on the truthfulness of her (and her deceased husband’s) close, personal friends, despite news reports to the contrary. I’m anxious to see if such a fact situation has been considered before by the DC courts. Perhaps Defendants’ Reply Memorandum will be helpful.
    Bruce, Kiki: Appreciate your enlightenment; Your further thoughts?

    • Bruce
      11/08/2010 at 12:52 PM

      Hi Boo:

      Without looking at any actual decisions from DC, I would be willing to bet 25 cents that nothing very similar to this “fact pattern” has been referenced in DC reported decisions, and I bet none of the decisions cited from other jurisdictions by plaintiff come real close either.

      This case is unique in many ways from your usual “wrongful death” case.

      And this really hampers trying to forecast any outcomes, on motions or on the trial itself.

      In my opinion only, I would think that defendants’ counsel would be wise to make their reply brief short (10 pages or under) and very concise, and not spend a lot of time distinguishing the out-of-DC cases except in broad strokes.

      • Bea
        11/08/2010 at 2:24 PM

        Too, consider that “DC law” is a small body of law comparatively – my guess is that there is a practical need to reach to other districts than most.

        • Clio
          11/08/2010 at 8:02 PM

          Thank you, Bea. And, what practical difference would it make if several of the cited precedents from either side came from outside the Beltway? Just askin’.

          • Bea
            11/08/2010 at 8:42 PM

            If one cites law from their courts, it’s considered ‘precedent’ that has to be followed – if from elsewhere, it’s not ‘precedent’ but just ‘advisory.’ Still, if the FACTS of a given case aren’t addressed in governing law, judges like hearing what others have done.

  16. boofoc
    11/08/2010 at 1:34 PM

    Bruce: On your theory concerning the determination of the facts underlying the motion, if the judge decides to have a jury determinaton thereof, procedurally, would that happen at this point – delaying the trial on its merits? I’ve not encountered such a situation.

    • Bruce
      11/08/2010 at 2:30 PM

      Hi Boo:

      If she decides that the jury needs to decide “genuine issues of material fact,” as to the issues in the pending motion, in my opinion this means that she is DENYING the defendants’ motion. The case and discovery continue, and the trial will occur just as if no motion had been ever filed. At the trial, the jury will hear from the witnesses regarding the disputed “genuine issues of material fact,” and will likely be asked in their verdict to come to certain decisions in that regard.

      If all the evidence in deps and at trial come in helping the defendants on the statute of limitations issue, you can expect the defendants to file another similar motion for summary judgment in the future (now quoting testimony under oath) and/or a Motion for Directed Verdict at trial, after plaintiff completely presents her case, at which time the judge again will be confronted with these issues.

      So, “No” to your specific question. She won’t call a “special jury” or anything now to decide factual issues. That would be extremely unusual in my jurisdiction and I expect the same in DC. The jury will decide those fact issues during the actual trial, based upon testimony and evidence submitted by the parties.

      If she enters and continues the motion until after discovery, that means that discovery and everything will continue (as usual) and she will hear the motion and decide it (grant or deny it) when discovery ends and before they go through the actual trial (and she will have deposition transcripts — under oath — of Mrs. Wone and others on the factual issues relating to the statute of limitations at that point).

      Of course, if she grants the motion in total, then, absent an immediate appeal, the discovery and trial will go on as before, but the case and trial will be limited to the Count not addressed in the defendants’ motion to dismiss or for summary judgment.

      But, she doesn’t have to grant the motion in total if she grants it. She could grant it as to the statute of limitations, but still allow some disputed counts to continue per the arguments of plaintiff’s counsel in the response brief.

      Several permutations are possible.

      • Hoya Loya
        11/08/2010 at 4:18 PM

        My take: Denied. Without prejudice to renewal, given that the complaint, read in the light most favorable to the plaintiff, properly sets forth a cause of action (motion to dismiss) and due to the presence of genuine issues of material fact concerning the accrual of the right of action (motion for summary judgment). No interlocutory appeal as this is not a final judgment and room has been left for the defendants to raise the issue again. Discovery proceeds.

        I don’t usually go out on a limb here, but what the heck.

        • Bruce
          11/08/2010 at 4:44 PM

          Hiya Hoya:

          Short, concise & succinct.

          I can learn much from thee, Learned One.

          I would say you have a very decent chance of being correct on all you say.

        • Bea
          11/08/2010 at 5:06 PM

          Well done.

        • Clio
          11/08/2010 at 8:13 PM

          Huzzah, Hoya!

          Key here, of course, may be Brook’s close reading of Lynn’s opinion. Brook may be waiting to exhale after digesting the particulars found by the first trial’s judge. Indeed, the women in and about this case may determine its ultimate outcome after all.

          • Bruce
            11/08/2010 at 8:42 PM

            Clio:

            You are “spot on” again, Contessa.

            Can you imagine the civil judge reading carefully the criminal judge’s decision?

            And then the civil judge realizes that if she grants the pending motion, the “cold comfort” from the criminal case will turn in to “everlasting pain,” to Mrs. Wone as to the civil case if she grants the motion in total.

            More and more I am thinking that this judge will craft something out of this motion that will not destroy Mrs. Wone’s civil case.

            And you and Bea have helped me see this better. Thanks.

  17. boofoc
    11/08/2010 at 1:52 PM

    Bea: If written words could sound, you’re pissed.

    • Bea
      11/08/2010 at 2:22 PM

      Probably a guttural ‘arrgghh’ kind of sound.

  18. susan
    11/08/2010 at 8:08 PM

    The ole Spagnole is in the news:

    http://www.washingtonblade.com/2010/11/06/gray-makes-first-gay-appointment/

    Looks like Gray is bringing the old Williams admin. people back to transition. Kind of like when Bush Jr. brought his Dad’s pals back for his admin (Cheney, Rumsfeld, etc.). Hopefully, this is only a transition….. I’m sure there’s not a lot of $ to be made in public office (hence Spag’s leaving in the first place).

    • Clio
      11/08/2010 at 8:34 PM

      Let me get this “straight”: Spag first defends Dyl, and now he will be defending bad schools and roads? LOL! In his defense, it’s a living, and I’m sure that he sleeps well and not alone at night!

  19. boofoc
    11/08/2010 at 9:00 PM

    Bea: My misplaced 1:52 pm post referred to your 12:45 pm posting and the CAPS.

    Bruce & Hoya: Thanks.

  20. Rich
    11/08/2010 at 10:59 PM

    In keeping with Bruce and Bea’s notion that the judge will do the right thing, I can’t help but wonder what Denton might know since he has other cases before Judge Hedge.

    We haven’t heard from him since the meltdown a few weeks ago.

    Denton, are you still there? Do you know anything?

    And, yea, I agree.

    If we had another absent poster present, Chi Law, she would really have an opinion over the plaintiff’s motion.

    I had Judge Hedge in the past and she was good to me.

    Will she be good to Kathy?

    Judge Hedge is rationale.

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