"We are committed to: The highest ethical standards. Uncompromising honesty and integrity." —The Windermere Mission Statement "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." —Windermere CEO Geoff Wood's Public Affirmation
Complaint for Declaratory Relief, Damages and Foreclosure of Landlord's Lien against Windermere Real Estate/Auburn, Inc., and Windermere Real Estate/Cascades Group, Inc. Judgment in favor of Plaintiff for the principal sum of $128,105,63, costs of $342.80 and attorney's fees of $7,420.00 CASE HERE
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'In August, 2008, Clark again tried to end their romantic relationship. Tollen grabbed Clark and threw her against garbage cans. She fell. While she was lying on the ground Tollen kicked her at least ten times, yelling "You're a piece of shit! You're nothing without me! You won't have a job!"'
WINDERMERE REAL ESTATE AUBURN, INC., SUED BY WINDERMERE EMPLOYEE FOR CONSTRUCTIVE DISCHARGE, HOSTILE WORK ENVIRONMENT, NEGLIGENCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND CIVIL CONSPIRACY IN PIERCE COUNTY, WASHINGTON, COMPLAINT
OWNER OF WINDERMERE REAL ESTATE AUBURN AND WINDERMERE REAL ESTATE LAKE TAPPS, THOMAS TOLLEN, SUED FOR CIVIL ASSAULT AND BATTERY, TRESPASS, INVASION OF RIGHT TO PRIVACY, CIVIL STALKING AND OTHER CHARGES
Also named as defendants are Highmark Homes, LLC; Highmark Townhomes, LLC; Tollen Development, LLC; and Windermere broker William Cox
The State of Washington Corporations Division lists as Governing Persons Of Windermere Real Estate Auburn, Inc.: William Cox, Vice President; Michael Ratcliffe, Vice President; James Nelson, Vice President; Rick Menti, Secretary and Treasurer; Thomas Tollen, President and Chairman.
Read Defendants' Answer to Complaint HERE
Read Defendants' Motion To Stay Certain Discovery Directed To Thomas Tollen (Denied 1/9/09) HERE
The Parties Stipulated to Dismissal with prejudice on July 23, 2009.
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In a related criminal action, Windermere Real Estate Auburn owner Tollen—initially charged with residential burglary—pleads guilty to the lesser charge of malicious mischief in the second degree, plus assault in the fourth degree, and two counts of violation of a no contact order—pre sentence; ordered to pay restitution of $6,652.06 DETAILS HERE
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(First Complaint Filed 10/23/2008)
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF PIERCE
TIFFINIE CLARK, an individual,
Plaintiff,
vs.
THOMAS TOLLEN, an individual, WINDERMERE REAL ESTATE - AUBURN, INC, a Washington Corporation, HIGHMARK HOMES, LLC, a Washington Limited Liability Company, HIGHMARK TOWNHOMES, LLC, a Washington Limited Liability Company, TOLLEN DEVELOPMENT LLC, a Washington limited liability company, and WILLIAM COX, an individual,
Defendants.
NO. 08-2-13824-6
PLAINTIFF'S FIRST AMENDED COMPLAINT FOR DAMAGES
Tiffinie Clark, plaintiff, asserts the following complaint against defendants Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, Tollen Development ILLC, and William Cox, and alleges as follows:
I. PARTIES
1.1 Plaintiff Tiffinie Clark ("Clark") is an individual who resides in Pierce County, Washington.
1.2 Defendant Thomas Tollen ("Tollen") is an individual who resides in Pierce County. He has already appeared in the action.
1.3 Defendant Windermere Real Estate - Auburn, Inc. ("Windermere") is a Washington corporation. It has already appeared in the action.
1.4 Defendant Highmark Homes, LLC ("Highmark Homes") is a Washington limited liability company. it has already appeared in the action.
1.5 Defendant Highmark Townhomes, LLC ("Highmark Townhomes") is a Washington limited liability company. It has already appeared in the action.
1.6 Defendant Tollen Development LLC ('Tollen Development") is a Washington limited liability company. It has already appeared in the action.
1.7 Defendant William Cox ("Cox") is an individual and upon information and belief, resides in Pierce County, Washington. He can be served with process at Windermere Real Estate/Auburn Inc, 700 M St NE, Auburn, WA 98002.
II. JURISDICTION AND VENUE
2.1 Jurisdiction and venue is proper in the Pierce County Superior Court in the State of Washington.
III. FACTS
3.1 Tollen is the President and an owner of Windermere, Highmark Homes, Highmark Townhomes and Tollen Development. He holds himself out as one of the top real estate agents in King County. In addition to being a real estate agent, he represents that he is a New Home Construction Specialist and also provides services to the building and development industries. He is also a builder and land developer.
3.2 Tollen was Clark's supervisor relating to her work for Tollen and the defendant companies. Clark was Tollen's assistant for many years and worked for the defendants. She assisted him and the defendant companies with all aspects of the business and her income was derived solely from working with, and supporting, Tollen. Clark was a selling assistant for Tollen and Windermere. She assisted with building accounts for Tollen and Windermere. Clark managed all new construction neighborhoods that Tollen and Windermere represented and worked with Tollen's past customers and referrals. She acted as a project manager for Tollen and Tollen Development. She was a listing agent for Tollen and Highmark Homes, Highmark Townhomes and Windermere. She acted as a property manager for 26 rental homes for Tollen Development. She was also a personal assistant to Tollen.
3.3 Shortly after Tollen and Clark started working together, they commenced a romantic relationship.
3.4 Because Clark's income was derived solely from working with, and supporting Tollen, Tollen had great power and leverage over Clark. Tollen used this power and leverage against Clark, controlling her and threatening to fire her on numerous occasions. He regularly reminded her that her income was derived from him. Tollen ridiculed Clark, humiliated her and verbally abused her at work and in public. Tollen dominated and controlled Clark for a long time. The following are recent examples of the abuse relating to her job.
3.5 In July, 2008, Clark tried to talk with Tollen about ending their romantic relationship. Tollen became abusive, yelling at her "You're nothing without me! We don't date, you don't have a job!"
3.6 In August, 2008, Clark again tried to end their romantic relationship. Tollen grabbed Clark and threw her against garbage cans. She fell. While she was lying on the ground Tollen kicked her at least ten times, yelling "You're a piece of shit! You're nothing without me! You won't have a job!"
3.7 On or about September 12, 2008, Clark and Tollen ended the romantic relationship.
3.8 After Clark and Tollen ended the relationship, he continued his abusive conduct at work. While Clark tried to do her job, Tollen harassed her, telling her he loved her and that he was trying to make her jealous. At work he rubbed against her, rubbed her neck, tried to hug her, and kept asking her to take him back. His advances and conduct were unwelcome. Clark objected to Tollen's conduct but he continued it.
3.9 On September 19, 2008, Tollen showed up at a football game that Clark was attending with her children. He was with a "date." He had no legitimate reason for being at the game other than to see Clark. Tollen told Clark that he went to the game to try and make Clark jealous so that Clark would want him back. He embarrassed Clark in front of her children. That night, after the game, Clark attempted to reason with Tollen, telling him to leave her alone.
3.10 On September 26, 2008, Tollen continued to harass Clark, phoning her at home at night three times. On many evenings he would call Clark at home after hours.
3.11 On September 27, 2008, Tollen phoned Clark at home and continued to harass her. He invited her to go on a walk and she declined. His response was "Why are you trying to make me mad?"
3.12 On October 2, 2008, while at work out in the field, Tollen told Clark that his cell phone was dead and asked to use her phone. He checked his messages and then started to check Clark's text messages. Clark had a message from a customer and Tollen thought Clark had a date. He told Clark that if she ever dated anybody she would be fired. He said that he could be married with children, but that Clark can never date or she will be fired and that he would end Clark's career.
3.13 On October 3, 2008, he entered Clark's office. He told Clark he could not handle seeing her with somebody else. He said that if Clark does not resign, things are going to get ugly. She refused to resign, telling Tollen that she cannot walk away from what she helped build. She told Tollen she had to support her two children. Tollen ratcheted up the abuse. Clark left the office very upset.
3.14 On October 4, 2008, at around 7:20-7:30 p.m., Clark returned a phone call from Tollen about a work-related question. He asked if he could come over. Clark, who had plans to go out to dinner with some friends, responded "no." Tollen wanted to know why, what she was doing, where she was going, who she was going with. Clark told him that it was none of his business. Tollen became enraged that Clark was going somewhere and he did not know with who or what she was doing. He started yelling at Clark. Clark hung up the phone. He called back several times and Clark did not answer. Within ten minutes Tollen showed up at Clark's front door at her home. Clark opened the door and Tollen walked in and said “We're done! You're fired! You're unemployed!” He pushed Clark and said “get away from me.” He said “I want my stuff and my watch” referring to a gift he had given Clark. Clark told him to leave. He walked to Clark's bedroom yelling over and over, “I just want my fucking watch! I'm not leaving until I get my watch!” He began to ransack her bedroom, opening her drawers and throwing things everywhere. He broke cabinets in her bathroom. He opened a drawer that contained Clark's jewelry and found a different watch and said "this is mine, I bought it for you" and broke it. Clark continued to scream at him to leave. Then he went upstairs and started going through Clark's purse and continued to yell, “I'm not leaving without my fucking watch!” Clark's cell phone rang. She silenced the ringer and put the phone in her pocket. Tollen demanded to know who was calling. He grabbed Clark, ripped her pocket off her jeans, took her phone, and pushed her away. Tollen started reading Clark's phone messages. He then broke the phone in half. Clark again yelled at him to get out of her house. He walked out the front door, was halfway down her sidewalk and then turned around and charged at her like a football player who was going to tackle her. He stopped within inches of Clark. Clark started screaming “HELP, HELP, call the police!” She ran to the neighbor's house and pounded on the door. Tollen got in the car and drove off. Tollen was arrested and taken to jail.
3.15 After being arrested, that evening and into the next day, October 4, 2008, Tollen continued his abuse. For example, he left over 25 voicemails for Clark.
3.16 On October 6, 2008, a no-contact order was entered against Tollen. The no-contact order states in part: "IT IS HEREBY ORDERED pursuant to RCW 10.99 and 26.50 that the defendant shall have no contact, directly or indirectly, in person, in writing, by telephone, or electronically, either personally or through any other person, with TIFFINIE M. CLARK ... until five years from the date of issuance….” Notwithstanding the no-contact order, Tollen continued to harass Clark and ignored the no-contact order.
3.17 Clark attempted to work from home to avoid Tollen, communicating with the Windermere broker, William "Bill" Cox. However, on October 12, 2008, despite the no-contact order and Clark's attempt to maintain her job to support herself and her children while avoiding Tollen, Tollen ordered Clark back to work in an email: “I'm done with this way of getting updates. Tiffinie needs to be in the office to get her job completed and I'm sorry but I cannot leave the office each time. This is now impacting our customers and we need a resolution. Thank you.”
3.18 Upon information and belief, Cox was the office manager at Windermere. As part of his duties, he took on the role of coordinating Ms. Clark's contacts with the office as she attempted to continue working at Windermere while avoiding Tollen. Cox failed to coordinate Ms. Clark's work. Cox also failed to protect Ms. Clark; failed to investigate or properly investigate Tollen's conduct and failed to notify Windermere's owners of Tollen's misconduct and continued misconduct; aided Tollen's misconduct; failed to abide by the no-contact order imposed on Tollen; allowed and aided in Tollen's violation of the no-contact order imposed on Tollen.
3.19 Clark terminated her employment with the defendants. Upon her termination, she requested that defendants return her files and other possessions in their custody and control. Defendants have failed to return Clark's property that is stored on their premises.
3.20 Tollen has repeatedly violated the no-contact order.
IV. CAUSES OF ACTION
A. Constructive Discharge - Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, Tollen Development LLC., William Cox.
4.1 Plaintiff realleges paragraphs 1.1 through 3.20 above.
4.2 Defendants' actions constitute the tort of constructive discharge in that defendants made working conditions intolerable for plaintiff and/or failed to act to correct the misconduct and/or aided in the misconduct, so that any reasonable person in plaintiff's situation would be forced to quit. Plaintiff quit because of these conditions and not for any other reason. As a direct and proximate result of Defendants' actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
B. Hostile Work Environment- Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, and Tollen Development LLC, William Cox.
4.3 Plaintiff realleges paragraphs 1.1 through 4.2, above.
4.4 Defendants' actions produced a hostile work environment in that defendant Tollen harassed plaintiff, the harassment was unwelcome, the harassment was because of sex, the harassment affected the terms and/or conditions of plaintiff's employment, and the defendants were plaintiff s employer. As to Cox, he failed to act to correct the misconduct and/or aided in the misconduct. As a direct and proximate result of Defendants' actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
C. Negligence - Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, and Tollen Development LLC, William Cox.
4.5 Plaintiff realleges paragraphs 1.1 through 4.4, above.
4.6 Defendants had a duty to act reasonably in connection with plaintiff. They breached that duty. The breaches were a proximate cause of the plaintiffs damages. As a direct and proximate result of Defendants' breaches, Plaintiff has been damaged in an amount that is within the jurisdiction of the court.
4.7 As to Cox, in addition to engaging in his own misconduct as stated above, he negligently failed to act to correct Tollen's misconduct, negligently failed to protect Ms. Clark, negligently failed to investigate the matter; negligently failed to notify the other owners of at Windermere relating to the misconduct, and negligently aided in the misconduct.
D. Assault and Battery - Thomas Tollen.
4.8 Plaintiff realleges paragraphs 1.1 through 4.7, above.
4.9 Defendant's actions constitute the tort of civil assault and battery in that defendant intentionally caused an offensive touching of the plaintiff with the intent to cause harmful and/or offensive contact, and the plaintiff was put in imminent apprehension of such contact. As a direct and proximate result of Tollen's actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
E. Outrage and Intentional Infliction of Emotional Distress - Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, Tollen Development LLC, and William Cox.
4.10 Plaintiff realleges paragraphs 1.1 through 4.9, above.
4.11 Defendants' actions constitute the torts of outrage and intentional infliction of emotional distress. As a direct and proximate result of Defendants' actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
F. Trespass - Thomas Tollen.
4.12 Plaintiff realleges paragraphs 1.1 through 4.12 above.
4.13 Defendant's actions constitute the tort of trespass in that defendant interfered with plaintiff’s property rights and caused damage to her property. As a direct and proximate result of Tollen's actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
G. Conversion - Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, and Tollen Development LLC.
4.14. Plaintiff realleges; paragraphs 1.1 through 4.13 above.
4.15 Defendants' actions constitute the tort of conversion in that defendants have engaged in the unauthorized assumption and exercise of the right of ownership over plaintiff’s goods and possessions to plaintiff’s exclusion. Defendants have also altered the condition of some of plaintiff’s goods and possessions by destroying them such that plaintiff has been permanently deprived of her property. As a direct and proximate result of Defendants' actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
H. Invasion of Right to Privacy - Intrusion Upon Seclusion - Thomas Tollen.
4.16 Plaintiff realleges paragraphs 1.1 through 4.15 above.
4.17 Defendant's actions constitute the tort of invasion of privacy in that defendant has intruded upon plaintiff's solitude or seclusion by physically, verbally, and electronically harassing Clark and such intrusions would be highly offensive to a reasonable person. As a direct and proximate result of Tollen's actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
1. Civil Stalking - Thomas Tollen.
4.18. Plaintiff realleges paragraphs 1.1 through 4.17 above.
4.19 Defendant's actions constitute the tort of civil stalking in that Tollen has disregarded the no-contact order and has continued to repeatedly harass, contact and follow Clark. This conduct has frightened and intimidated Clark and she has been fearful that Tollen may physically hurt her or damage her property again. Tollen knew or reasonably should have known that Clark was afraid, intimidated, or harassed by his actions even if Tollen did not intend to place her in fear or intimidate or harass her. As a direct and proximate result of Tollen's actions, Plaintiff has been damaged in an amount within the jurisdiction of this court.
J. Civil Conspiracy - Thomas Tollen, Windermere Real Estate - Auburn, Inc., Highmark Homes, LLC, Highmark Townhomes, LLC, Tollen Development LLC, and William Cox.
4.20 Plaintiff realleges paragraphs 1.1 through 4.19 above.
4.21 Defendants engaged in a civil conspiracy against Plaintiff.
4.22 As a direct and proximate result of the civil conspiracy, Plaintiff has been damaged in an amount within the jurisdiction of this court.
V. PRAYER FOR RELIEF
WHEREFORE having asserted a claim entitling it to relief, Clark requests that this Court grant judgment in favor of her and against Defendants as follows:
(1) For money damages, jointly and severally against all defendants, in an amount to be proven at trial;
(2) For reasonable attorneys' fees;
(2) For pre- and post-judgment interest;
(3) For statutory fees and costs; and
(4) For such other and further relief as this Court may deem appropriate.
Dated this 27th, day of April, 2009.
By:_________________________________
Paul E Fogarty, WSBA# 26929
Diana M. Dearmin, WSBA #23396
Attorneys for Plaintiff Tiffinie M. Clark
IS WINDERMERE REAL ESTATE ONE OF WASHINGTON'S MOST RESPECTED BRANDS?
SHAMELESS LIARS, BULLIES, COWARDS and PUBLIC PREDATORS: Windermere Founder and Chairman, John W. Jacobi (left), and Windermere Services General Counsel, attorney and Jacobi yes-man, Paul Stephen Drayna—a University of Wisconsin Law School alumnus (right)—ruin damaged Windermere customers with marketing lies and the costly, mendacious lawsuits they file against defrauded Windermere victims who speak publicly. Jacobi and Drayna falsely sue an outspoken party for trade libel and defamation, try to coerce the defendant into a "dark clause" settlement agreement through fear and intimidation, continue to prosecute the bogus action for years at enormous cost to the parties, then run away and voluntarily dismiss their own lawsuit under Civil Rule 41, just prior to trial when the honest, innocent victim persists in refusing to sign away their speech rights. Is Windermere Real Estate one of Washington's most respected brands? STORY HERE
DEFENDANTS' MOTION TO STAY PROCEEDINGS: "...Moving Parties [Peggy Shambaugh, Bennion & Deville Fine Homes, dba Windermere Real Estate Coachella Valley] Are Under Investigation by The Federal Bureau of Investigation And the United States Attorney As To The Allegations In Plaintiffs' Complaint... The United States Attorney has also indicated [an] indictment is under consideration." READ IT HERE
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF PIERCE
TIFFINIE CLARK, an individual,
Plaintiff,
v.
THOMAS TOLLEN, an individual, WINDERMERE REAL ESTATE – AUBURN INC., a Washington Corporation, HIGHMARK HOMES, LLC, a Washington Limited Liability) Company, HIGHMARK TOWNHOMES, LLC, a Washington Limited Liability Company, and TOLLEN DEVELOPMENT LLC, a Washington Limited Liability Company,
Defendants.
NO. 082138246
DEFENDANTS' ANSWER TO COMPLAINT
COME NOW Defendants Windermere Real Estate/ Auburn, Inc., Thomas Tollen, Highmark Homes LLC, Highmark Townhomes LLC, and Tollen Development LLC (collectively “the defendants”), by and through their attorneys, Melanie A. Leary and the Demco Law Firm, P.S., and answer the plaintiffs’ Complaint. Paragraph numbers correspond to those of the Complaint. “Insufficient knowledge” is an abbreviation for “responding defendants have insufficient knowledge and information upon which to form and answer and therefore deny.”
I. ANSWER
1.2 Admit.
1.3 Admit that Defendant Windermere Real Estate/Auburn, Inc. is a Washington corporation and may be served with process by serving its registered agent. Deny all other allegations contained in paragraph 1.3 of the complaint.
1.4 Admit.
1.5 Admit.
1.6 Admit.
2.1 Admit.
3.1 Admit that Defendant Tollen is the President and an owner of Defendant Windermere and that he is a member of Defendants Highmark Homes, Highmark Townhomes and Tollen Development. Admit the second, third and fourth sentences.
3.2 Admit that Plaintiff was a sales associate and worked as an independent contractor licensed to Defendant Windermere. Admit that, from time to time, Plaintiff was the named listing agent for properties owned by Defendants Tollen, Highmark Homes, and Highmark Townhomes. Admit that Plaintiff acted as a property manager. Deny all other allegations contained in paragraph 3.2 of the complaint.
3.3 Deny.
3.4 Deny.
3.5 Deny,
3.6 Deny.
3.7 Admit.
3.8 Deny.
3.9 Admit the first two sentences. Deny all other allegations contained in paragraph 3.9.
3.10 Deny.
3.11 Deny.
3.12 Deny.
3.13 Deny.
3.14 Admit that Tollen had a telephone conversation with Clark on October 4, 2008 and that he went to her residence to retrieve some of his belongings. Admit that Tollen drove away in his car, was arrested and taken to jail. Deny all other allegations contained in paragraph 3.14 of the complaint.
3.15 Deny.
3.16 Admit the first two sentences. Deny all other allegations contained in paragraph 3.16.
3.17 Deny.
3.18 Admit.
4.1 Defendants hereby restate all foregoing responses herein.
4.2 Deny.
4.3 Defendants hereby restate all foregoing responses herein,
4.4 Deny.
4.5 Defendants hereby restate all foregoing responses herein.
4.6 Deny.
4.7 Defendants hereby restate all foregoing responses herein.
4.8 Deny.
4.9 Defendants hereby restate all foregoing responses herein.
4.10 Deny.
II. AFFIRMATIVE DEFENSES
BY WAY OF FURTHER ANSWER AND AFFIRMATIVE DEFENSES, the defendants state as follows:
I. The alleged damages, if any, were caused by persons and entities other than the defendants, including, but not limited to, the plaintiff herself.
2. Plaintiff has not set forth her alleged damages with sufficient particularity.
3. Plaintiff has failed to state a claim upon which relief may be granted against the
defendants.
4. Plaintiffs' claims against the defendants are frivolous and brought without reasonable cause.
5. Plaintiff failed to mitigate her alleged damages.
6. Plaintiff has failed to comply with all statutory prerequisites for prosecuting some or all
of her claims.
7. The relationship between Plaintiff and Defendant Tollen was consensual and was not coerced.
8. Plaintiff failed to notify Defendant Windermere that she was having an alleged problem with Defendant Tollen, and her failure to so notify Defendant Windermere deprived it of the opportunity to investigate and correct the alleged problem. Plaintiff allowed Defendant Tollen to enter her home.
III. RESERVATION OF RIGHTS
The defendants expressly reserve their right to plead further answer, affirmative defenses, counterclaims, cross-claims and/or third-party claims, as investigation and discovery may warrant.
WHEREFORE, the defendants seek the following relief:
1. Dismissal with prejudice of all claims against them;
2. Costs, disbursements, and reasonable attorney's fees, as may be found applicable pursuant to contract and/or RCW 4.84.185, 4.84.250, 4.84.330, other statutes, court rules, case authority and/or equity; and
3. Such other relief as the court may award.
DATED this 21st day of November, 2008.
DEMCO LAW FIRM, P.S.
By_________________________
Melanie A. Leary, WSBA #21050
Lars E. Neste, WSBA #28781
Bryan R. Cossette, WSBA #34039
Attorneys for Defendants
_______________________________________________
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF PIERCE
TIFFINIE CLARK, an individual,
Plaintiff,
v.
THOMAS TOLLEN, an individual, WINDERMERE REAL ESTATE – AUBURN INC., a Washington Corporation, HIGHMARK HOMES, LLC, a Washington Limited Liability) Company, HIGHMARK TOWNHOMES, LLC, a Washington Limited Liability Company, and TOLLEN DEVELOPMENT LLC, a Washington Limited Liability Company,
Defendants.
NO. 082138246
DEFENDANTS’ MOTION TO STAY CERTAIN DISCOVERY DIRECTED TO THOMAS TOLLEN
I. RELIEF REQUESTED
COME NOW Defendants Windermere Real Estate/Auburn, Inc., Thomas Tollen, Highmark Homes LLC, Highmark Townhomes LLC, and Tollen Development LLC (collectively "the Defendants"), by and through their attorneys, Lars E. Neste and the Demco Law Firm, P.S., and moves the Court for an order staying discovery directed to Thomas Tollen and certain discovery that requires answers from Mr. Tollen for four months or in the alternative, a protective order under CR 26(c) that protects Mr. Tollen's Fifth Amendment Constitutional rights against self-incrimination.
II. STATEMENT OF FACTS
Plaintiff commenced this matter on October 23, 2008 against Defendants. Plaintiff has alleged various causes of action against Thomas Tollen ("Tollen") personally. Specifically, Plaintiff has plead assault, battery, and trespass causes of action stemming from an allegation of events that occurred on October 4, 2008.
In addition to being a defendant in this matter, Tollen faces criminal charges under Pierce County Cause Number 08-1-04642-9 for the alleged incident on October 4, 2008. Tollen was arraigned on charges of Residential Burglary and Assault in the fourth degree on October 6, 2008, Declaration of Bryan Cossette, Exhibit 1. As part of the criminal charges, the Court issued an Order prohibiting Mr. Tollen from having contact with Plaintiff. Dec. of Cossette, Exhibit 3.
Plaintiff has served Defendant with Plaintiff s First Set of Requests for Admission to Defendant Thomas Tollen. Dec. of Cossette, Exhibit 2. A large majority of the questions are directly related to elements of the criminal charges Tollen faces. Plaintiff has also served all Defendants with Interrogatories and Requests for Production. Dec. of Cossette, Exhibit 4. In addition, Tollen faces potential additional charges based upon allegations of breaching the protective order.
III. STATEMENT OF ISSUES
A. Is Tollen entitled to a four month stay of discovery directed towards Tollen based upon his parallel criminal case?
B. In the alternative, is Tollen entitled to a CR 26 protective order precluding information to non-parties of any discovery taken from them?
IV. EVIDENCE RELIED UPON
1. Declaration of Bryan R. Cossette, and attachments thereto;
2. Declaration of Jeff Kradel;
3. Declaration of Lars Neste; and
3. The Court files and records therein.
V. LEGAL AUTHORITV
A. A STAY OF DISCOVERY IS APPROPRIATE IN THIS CASE.
The sole published Washington opinion addressing the issue of a stay to protect Fifth Amendment rights when parallel civil and criminal proceedings are pending is King v. Olympic Pipe Line Company, 104 Wn. App. 338 (2000), review denied 143 wn.2d 1012 (2001). In King, a civil wrongful death proceeding, the court addressed a limited request to stay discovery directed to individual defendants where a criminal investigation of the incident was ongoing. Id.,at 345-47. The Court stated that the decision to grant a stay is within the discretion of tile trial court, and established a non-exclusive set of factors to consider when addressing a motion to stay discovery in parallel proceedings. Id.,348, 352-53.
The King decision was guided by the considerable jurisprudence developed by the federal courts for balancing the divergent interests when parallel civil and criminal proceedings are involved. The factors set forth for consideration by the court are:
1. The extent to which the defendant's Fifth Amendment rights are implicated;
2. Similarities between the civil and criminal case;
3. Status of the criminal case;
4. The interest of the plaintiffs in proceeding expeditiously with litigation or any aspect or it;
5. The burden which any particular aspect of the proceedings may impose oil defendants;
6. The convenience of the court in the management of its cases, and the efficient use of judicial resources;
7. The interests of persons not parties to the civil litigation; and
8. The interest of the public in the pending civil and criminal litigation.
King, at 349, 352-353. No one factor is determinative of whether a stay should be granted, but
rather the balancing of these factors must be considered on a case-by-case basis in light of the particular circumstances and competing interest involved in the case. Id., at 353. Each case must evaluate the true extent of a defendant's jeopardy. Finally, tile King decision stated that to analyze and apply these factors correctly, an on-the-record balancing of the interests involved is essential." Id., at 375.
I. Tollen's Fifth Amendment rights are implicated by discovery requests in this case.
The Fifth Amendment of United States Constitution states in relevant part that no person “shall be compelled in any criminal case to be a witness against himself" The Fifth Amendment "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used."' Kastigar v. U.S., 406 U.S. 441, 44-45 (1972). The privilege extends to answers that would furnish a "link in the chain of evidence." Hoffman v U.S., 341 U.S. 479, 486, 71 S. Ct. 814 (1951). Finally, the extent to which a party’s right against self-incrimination is implicated in civil proceedings must be given "serious consideration" in the balancing of interests. King, at 353 (emphasis added).
A temporary stay of discovery to Tollen is appropriate given that participation in civil discovery may place Tollen in jeopardy of self-incrimination in light of the criminal charges Tollen currently faces. There is no dispute that Tollen faces criminal and civil charges that both stem from the same alleged incident on October 4, 2008. Similarly, Tollen faces additional criminal liability for allegations after October 4, 2008, related to the Protection Order entered into by the Court in the criminal matter. A cursory review of the Request for Admissions and Interrogatories and Request for Production sent to Tollen makes it clear that they are directly related to elements of the criminal charges pending. Declaration of Jeff Kradel, at ¶5. In addition, discovery sent to all defendants includes Interrogatories and Request for Production directed to Tollen.
Unlike the defendants in King who were only under investigation and faced a potential indictment, Tollen has already been charged and faces the real possibility that new charges may be filed. If Tollen is compelled to proceed with answering the Request for Admissions and other discovery filed by Plaintiff in this case, Tollen is at risk of having to exercise his Fifth Amendment rights. Similarly, any deposition and interrogatories and requests for production that are directed to Tollen are likely to put Tollen in a similar position of risk.
If Tollen falls to invoke his Fifth Amendment privilege in this matter, it is waived and all evidence may be used in his criminal proceeding. On the other hand, if Tollen exercises his right to invoke his privilege in this case, the jury would be entitled to draw an adverse inference from Tollen exercising his Fifth Amendment rights. This potential adverse inference would be a detriment to his defense in this matter and must be considered in balancing the effects of going forward. King, at 356; Declaration of Jeff Kradel.
Finally, the court must consider that if Tollen exercises his Fifth Amendment rights, it would make the protections ineffective if the prosecutor can use information obtained through civil discovery. Id., at 352. For instance, if Tollen exercises his Fifth Amendment rights to answer certain questions but not others, it would provide a road map for the prosecutor to use in his criminal matter. As a result, it is clear that the discovery requests and any future discovery directed to Tollen will implicate his Fifth Amendment fights and a temporary limited stay is appropriate in this matter.
2. The civil issues overlap the criminal charges Tollen faces.
One of the most important factors in the balancing process is "the degree to which the civil issues overlap with the criminal issues and a stay is most appropriate where the subject matter of the parallel civil and criminal proceedings or investigation is the same. King, at 357. It is undisputed that Tollen faces an assault charge in both the civil and criminal matters. In addition, Plaintiffs battery and trespass causes of action are based upon the same alleged incident that is the basis of the residential burglary charge Tollen faces.
Finally, the RFA's submitted by Plaintiff make it clear that Plaintiff is investigating whether or not the terms of the protection order were violated. Any potential admission, would lead Tollen to face new criminal charges from any violation in his criminal matter. Dec. of Kradel, at ¶6. This is further evidence of the overlap between the cases and evidence in support of Tollen's temporary stay of discovery request.
3. Tollen has already been charged in the criminal matter.
The argument for deferring civil proceedings until after completion of criminal proceedings is stronger "where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter” because the noncriminal proceeding might undermine the party's Fifth Amendment privilege against self-incrimination. King, at 358. In the instant case, Tollen has already been charged with two counts in his criminal matter and trial is currently set for February 26, 2009. Dec. of Kradel, at ¶8. Tollen is not requesting a stay of all proceedings, but rather is requesting a limited stay of all discovery directed toward Tollen,
The discovery cut off in this matter is currently set for September 3, 2009. Given the present trial schedule in the parallel criminal matter it is highly likely that the criminal matter will be resolved well before the discovery cut off in this matter. Accordingly, any detriments to the stay are greatly diminished. Accordingly, Tollen has a strong basis to request a stay in the present matter.
4. Plaintiff does not face great prejudice from the requested stay.
Civil plaintiffs have an interest in expeditious conduct of their litigation and any potential prejudice from delay must be carefully considered. King, at 359-360. Whether delay is always prejudicial is not necessarily clear. Id., at 360. Resolution of the criminal case may benefit the civil proceeding by producing a result that resolves the civil liability and resolution may enhance possibilities for settlement in the civil action. While stale memories pose a risk, ... under settled authority the Fifth Amendment is the more important consideration. Id.,
In the present case the delay requested is minimal and within the currently set discovery deadline. Given the limited request and length of the stay, the possibility of lost witnesses is not a factor and the problem of faded memories is confined solely to Mr. Tollen. Plaintiff would be allowed to conduct all other forms of discovery in support of her workplace causes of action during the proposed stay. The interrogatories and request for production sent to all defendants appear to be identical and contain the same exact interrogatories and request for production questions. Defendants request that the stay apply to the following discovery requests in the interrogatories and requests for production: Interrogatories: 6 and 11; RFP: 3,6,7,8,10,13,14, and 15. These requests affect Tollen's Fifth Amendment Privilege.
Finally, the discovery rules contemplate conflicts between one party's right in the discovery process and other rights or interests, and the rules expressly grant courts discretion to balance these interests and limit conflicts. CR 26. However, the Court in King stated that the better approach in considering a discovery stay request founded on Fifth Amendment concerns in parallel proceedings is to utilize the factors regarding stays, because they provide the court with guidance specific to the Fifth Amendment context. King, at 351.
5. Proceeding with discovery in this matter places a large burden on Tollen.
The court is to consider the burden which any particular aspect of the proceedings may impose on a defendant including the inevitable diversion of resources in simultaneous defenses, or the likelihood that the materials unearthed during civil discovery may eventually inure the benefit of the government prosecution. King, at 363. The concern about discovery derives from the fact that the scope of civil discovery is far more broad than that allowed in criminal cases. Id.
In the instant case, Mr. Tollen is facing a Class B felony charge of Residential Burglary as well as a gross misdemeanor charge of Assault in the Fourth Degree-DV. These are serious charges that require Mr. Tollen's full cooperation with his defense counsel in the criminal matter. In addition, the discovery requests from Plaintiff burden Mr. Tollen's Fifth Amendment rights because the very invocation of his privilege may provide a "road map"' for prosecutors and provide a link in the chain of evidence that Mr. Tollen would not otherwise be constitutionally required to provide. Dec. of Kradel, ¶7. As the Court in King stated, this concern carries force as it is possible that invocation of the privilege in response to certain questions in a civil case would provide an avenue of investigation for prosecutors. King, at 364.
6. A stay would serve as an efficient use of judicial resources.
The stay of discovery against Mr. Tollen would allow the Fifth Amendment issues to resolve themselves and as a result, be more efficient for the judicial efficiency in both of Tollen’s matters. Some judges find this factor in favor of a stay because after the criminal matter is resolved, civil discovery will proceed more smoothly and efficiently. King, at 365. The requested stay is intended to be long enough for the criminal matter to be resolved by the end of the stay. As a result, it is likely that after the stay is over civil discovery will proceed without any constitutional issues remaining.
7. The interests of nonparties and the interest of the public are not major factors in the present matter.
Finally, the last two factors a court must weigh do not appear to be of major relevance in this case. There are no non-party witnesses that face potential criminal charges and the public interest that may be affected by the stay of discovery directed toward Tollen is negligible. In the cases where a public interest was found the Court was dealing with issues such as the need to protect consumers from misbranded drugs or the public interest in stable financial markets. King, at 367. Here, there would be no harm to the interests of the public as the prosecutor has already acted on behalf of the public by filing charges against Tollen for the alleged incidents. Accordingly, these factors favor a granting of the requested stay of discovery.
B. IN THE ALTERNATIVE, TOLLEN REQUEST A CR 26 PROTECTIVE ORDER.
In the event that the court Denies the limited motion to stay discovery directed towards Tollen, Tollen requests that a CR 26 protective order be granted by the court. Upon receipt of the discovery requests Counsel for Tollen spoke with counsel for Plaintiff and discussed Tollen's concerns with the discovery requests. Declaration of Neste, ¶3. Since the original discussion counsel for Tollen has had several additional conversations in an attempt to resolve the discovery issues prior to the filing of this motion consistent with the requirements of CR 26(i). Id., at ¶4. However, the parties were unable to reach a resolution of the issues. Id., at ¶5.
Under CR 26(c) a court may, for good cause shown, "make any order which justice requires to protect a party or person from ... undue burden including ..., (1) that discovery not be had; ... that certain matters not be inquired into ... (6) that the contents of a deposition not be disclosed..." King, at 369; CR 26(c). The United States Supreme Court has held that restrictions on disclosure of discovery information are valid and that pretrial depositions and interrogatories are not public components of a civil trial and thus are not a restriction on a traditionally public source of information. Id., 369-370.
Given the broad authority of the court, Tollen would respectfully request that a protective order be granted that provides for all discovery answers to be ordered sealed to all individuals, or entities that are not a party to the present litigation. In addition, Tollen would request that all parties to this litigation be ordered to not disclose any discovery and that any such disclosure shall be contempt of court with appropriate penalties.
Having set forth the alternative request for a protective order, Tollen must inform the court that such request is made with great reservation. As the court in King, pointed out protective orders carry with them considerable risk since courts cannot grant immunity, and courts’ contempt powers do not prevent inadvertent (or even intentional) violations of their orders. King, 373. This is of considerable concern in the instant case based upon the Request for Admissions and selected interrogatories and request for submission submitted to defendants. If Tollen were to answer any number of the Request for Admissions questions in the affirmative Tollen would be exposing himself to certain criminal liability above and beyond the charges that are currently filed in the criminal matter. In addition, answering the selected interrogatories and request for production would also expose Tollen to criminal liability. As a result, Tollen reiterates his preference that the temporary stay is granted.
VI. CONCLUSION
The strong majority of the factors set forth in the King decision tilt in favor of granting the requested four month temporary stay of all discovery directed towards Tollen and the selected interrogatories and request for production. Importantly, Defendant is not seeking a total stay of the case or a stay of all discovery in this matter. Tollen's request is calculated to address the current trial scheduling in his criminal matter as well as the discovery deadline in this matter. Plaintiff can proceed with other discovery in this matter during the requested stay. Accordingly, Tollen respectfully requests that the court grant the requested four month stay of all discovery directed to Tollen in order to protect his Firth Amendment rights.
DATED this 11 day of December, 2008.
DEMCO LAW FIRM, P.S.
By_________________________
Melanie A. Leary, WSBA #21050
Lars E. Neste, WSBA #28781
Bryan R. Cossette, WSBA #34039
Attorneys for Defendants
______________________________________________
SUPERIOR COURT OF WASHINGTON FOR PIERCE COUNTY
SOUTH MERIDIAN PROPERTIES, LLC, a Washington limited liability company,
Plaintiff,
v.
WINDERMERE REAL ESTATE/AUBURN, INC., a Washington corporation; WINDERMERE REAL ESTATE/CASCADES GROUP, INC., a Washington corporation,
Defendants.
NO. 10-2-16409-5
COMPLAINT FOR DECLARATORY RELIEF, DAMAGES AND FORECLOSURE OF LANDLORD’S LIEN
I. JURISDICTION AND VENUE
1.1 Jurisdiction. This court has jurisdiction over the subject matter of this action pursuant to RCW 2.08.010.
1.2 Venue. Venue of this matter is properly placed in Pierce County, Washington, pursuant to RCW 4.12.010, because the real property which is the subject of this action is located in King County, Washington.
II. PARTIES
2.1 Plaintiff. The plaintiff is SOUTH MERIDIAN PROPERTIES, LLC, a Washington limited liability company, successor in interest to Gotta Store It, LLC, a Washington limited liability company.
2.2 Defendants. The defendants are WINDERMERE REAL ESTATE/AUBURN, INC., a Washington corporation doing business in Pierce County, Washington and WINDERMERE REAL ESTATE/CASCADES GROUP, INC., a Washington corporation doing business in Pierce County, Washington.
III. FACTS
3.1 Leased Premises. Plaintiff is the owner of real property commonly known as 18810 Meridian East, Puyallup, Washington, 98373, and legally described in the Lease, which property is hereafter referred to as the “Leased Premises”.
3.2 Lease. Plaintiff, as landlord, entered into a written Lease with defendant Windermere Real Estate/Auburn, Inc. as Tenant for the occupancy of the Leased Premises. Defendant Windermere Real Estate/Auburn, Inc. occupied the Leased Premises for the purpose of conducting the defendant’s business at the Leased Premises, and commenced performance of the Lease effective June 23, 2006.
3.3 Addendum to Lease. Plaintiff and defendant Windermere Real Estate/Auburn, Inc. negotiated and executed an addendum to the Lease, effective June 1, 2009. The addendum added Windermere Real Estate/Cascades Group, Inc. as an additional tenant under the lease, created an Extended Term for the Lease, accounted for unpaid, delinquent rent due plaintiff and adjusted the rent due from defendants to plaintiff. The addendum provided that defendant Windermere Real Estate/Auburn, Inc. would no longer be a tenant as of the commencement of the Extended Term if there was no default in defendants’ performance of the Lease at the commencement of the Extended Term.
3.4 Default in Performance of Lease. Defendants defaulted in its performance of the Lease and its addendum, in the following respects:
3.4.1 Failure to pay rent due timely;
3.4.2 Failure to provide proof of insurance which contains limits of liability as required by the Lease;
3.4.3 Failure to pay delinquent rent due as agreed upon in the addendum; and
3.4.4 Such other defaults that may be established in the course of discovery.
3.5 Notice of Default. Plaintiff gave defendants notice of the defaults in their performance of the Lease and its addendum.
3.6 Failure to Cure Defaults. Despite the defaults by defendants, defendants have taken no steps to cure the defaults, and the defaults in performance of the Lease continue. Plaintiff has been damaged by such defaults.
3.7 Election to Enforce Lease Upon Defendants’ Default. Plaintiff has elected, as permitted under the terms of the Lease, to enforce the Lease by seeking payment from defendants of the damages resulting from the defaults in performance of the Lease. Plaintiff reserves its right to elect to terminate the Lease at any time as plaintiff is permitted to do under the terms of the Lease, but declines to elect termination of the Lease at this time.
3.8 Landlord’s Lien. Pursuant to RCW 60.72.010, plaintiff is entitled to a landlord’s lien upon the personal property of defendants located at the Leased Premises.
IV. CLAIMS FOR RELIEF
4.1 Declaratory Relief Requested. Plaintiff requests that this court, pursuant to RCW 7.24, declare the rights and responsibilities of the parties to the Lease contract. Plaintiff requests that the court determine that defendants are in breach of the Lease, and that plaintiff is entitled to such damages and injunctive relief that may be requested by plaintiff in order to compensate plaintiff for the damages suffered and to prevent continuing breach of the Lease by defendants.
4.2 Damages for Breach of the Lease. Plaintiff has and will suffer damages by reason of defendants’ defaults, including but not limited to the unpaid rent. The damages suffered by plaintiff should be awarded to plaintiff against defendants in any judgment entered by the court.
4.3 Foreclosure of Landlord’s Lien. Plaintiff is entitled to a decree of the court foreclosing plaintiff’s landlord’s lien established by RCW 60.72.010 upon the personal property of defendants, under the procedures described in RCW 60.10 et. seq., if plaintiff elects to judicially foreclose the lien, and a declaratory judgment of the court that summary foreclosure was conducted and completed properly, if plaintiff elects to utilize the summary foreclosure procedure.
4.4 Plaintiff Entitled to Elect Additional Relief. As a result of defendants’ breaches of the Lease, plaintiff is entitled to elect to terminate the Lease due to such breaches. Upon plaintiff’s making such an election, plaintiff is entitled to a decree of this court ejecting defendants from the Leased Premises pursuant to RCW 7.28.010, and confirming in plaintiff the right to sole and exclusive possession of the Leased Premises.
4.5 Writ of Restitution. If plaintiff elects to seek possession of the Leased Premises during the pendency of this action, plaintiff requests that the court enter such orders that are reasonably needed to restore plaintiff to possession of the Leased Premises, including the issuance of a writ of restitution directing the Sheriff of Pierce County to oust defendants from the Leased Premises, and enjoining defendants from altering, removing or damaging any of the permanent improvements or fixtures located at the Leased Premises upon such eviction.
VI. PRAYER FOR RELIEF
WHEREFORE plaintiff prays the Court for relief as follows:
5.1 For declaratory relief as requested in paragraphs 4.1 and 4.2 herein, determining that defendants are in breach of the Lease by reason of defendants’ defaults, and that plaintiff is entitled to such damages which plaintiff has incurred as a result of the breaches, in an amount to be determined by the court, from all defendants;
5.2 If elected by plaintiff, for judicial foreclosure of the landlord’s lien upon the personal property of defendants;
5.3 If elected by plaintiff, for confirmation that the non-judicial foreclosure of the landlord’s lien was conducted properly, and that plaintiff is entitled to the proceeds from the sale of the defendants’ property sold as a result of the non-judicial foreclosure procedure; 5.4 For a judgment against all defendants for any rent due, operating costs, late fees pursuant to Lease, damages arising from defendants’ failure to perform all Lease obligations, and plaintiff’s costs and attorney's fees;
5.5 If later plaintiff elects to seek possession of the Leased Premises by ejectment, for restitution of the property to plaintiff, and for an order directing the Clerk of the Court to issue a writ of restitution commanding the Sheriff of Pierce County to oust the defendants from possession of the Leased Premises, and to deliver possession of the Leased Premises to plaintiff;
5.6 For additional judgments related to enforcement of plaintiff's rights under the Lease, including, but not limited to, attorney's fees and costs incurred by plaintiff in the collection of any judgment and for recovery of possession of the Leased Premises from defendants. After Court approval, such sums should be added to and should relate back to the initial judgment entered in this action. If the initial judgment has been satisfied at the time a new judgment is entered, the additional amounts should constitute a new judgment.
5.7 For such other relief as the Court deems just.
DATED this 27th day of December, 2010.
DAVID S. KERRUISH, P.S.
By David S. Kerruish, WSBA No. 11090
Attorney for Plaintiff
APRIL 29, 2011
NO. 10-2-16409-5
JUDGMENT IN FAVOR OF PLAINTIFF AGAINST DEFENDANTS WINDERMERE REAL ESTATE/AUBURN, INC., a Washington corporation; WINDERMERE REAL ESTATE/CASCADES GROUP, INC., a Washington corporation, jointly and serverally, for the principal sum of $128,105,63, costs of $342.80 and attorney's fees of $7,420.00
________________________________
The Windermere Real Estate Relocation Rape Case:
Court Declares that Windermere "...condoned a rape by a business colleague..."
Editorial Preface: The incredibly violent and insidious psychological ramifications of rape, connected through an “abusive work environment” serves as an unfortunate yet credible subtext for the way in which Windermere Real Estate treats employees and damaged customers alike: Windermere’s application of aggressive, wasteful and mendacious litigation to stall and ruin innocent consumers, serves as the coercive metaphor of corporate power and arrogance: Windermere has no concern for the social damage it has done to people or communities. It cares only about how to manipulate the law and the courts to avoid any legal responsibility.
(Above L to R) Windermere CEO Geoff Wood (far left) is currently listed as a Governing Person of Windermere Relocation. Peggy Scott (second from left), also a current Governing Person of Windermere Relocation, "... did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little." Windermere General Counsel, attorney Paul Drayna (third from left) is listed as the registered agent of RELO LLC, the current entity name of Windermere Relocation. Windermere Founder John W. Jacobi (fourth from left) along with Gayle Glew (far right) are listed as Governing Persons of Windermere Relocation during the Little case. Glew told Ms. Little he did not want any "clouds in the office," and subsequently, after she would not accept a pay cut, that she should clean out her desk.
All citizens who abhor such treatment of women in the workplace should recall Maureen Little v. Windermere Relocation when choosing real estate services. WindermereWatch visitors will also want to read the United States District Court of Appeals Ninth Circuit's Order and Amended Opinion from the Little case.
Summarized and excerpted from a decision by the U.S. Court of Appeals
Maureen Little was employed by Windermere Relocation Services (“Windermere”) as a Corporate Services Manager, a position that required her “to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees.” Until she was terminated, she received only positive feedback from her supervisors. Windermere’s records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.
Unlike the other managers, Little’s employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The override was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make the target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.
One of Windermere’s clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would “do whatever it takes to get this account” and that Little should “do the best job she could.” Thus, little believed that, as part of her job, she was to build a business relationship with Guerrero to try and get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.
On October 14, Little accepted Guerrero’s invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drover her to her car.
Little was reluctant to tell anyone at Windermere about the rape because, in her own words, “I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account.” This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little’s supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared “what might happen to [Little] if [she] did tell.”
On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere’s Harassment Policy as a complaint-receiving manager. Little described Scott’s response:
She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].
Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.
Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks ... a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position.... I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.
When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's" immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.
Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.'" When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.
Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims.
Little appealed dismissal of her claims, and the appeals court reversed in part, and ruled:
In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career."
Incredibly, Windermere asked for a rehearing, but "...the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
________________________________
WINDERMERE: AMERICA'S PREDATORY REAL ESTATE ENTERPRISE
Consumer advocates, legal experts and elected lawmakers all agree that the American real estate industry demands greater regulation to protect consumers from the human disaster of real estate fraud perpetrated by unethical realtors employed at companies like Windermere Real Estate. Windermere manipulates our clogged, inundated courts and the justice system to stall, wear down and financially exhaust victimized consumers, many of whom are wiped-out by the cost of pursuing civil justice in a process where innocent victims must CHASE perpetrators of real estate fraud through the courts AFTER a fraudulent offense has been committed. Acts of fraud are so common and widespread throughout the Windermere real estate network, that the defense of real estate fraud has become has become just another bottomline expense on the Windermere balance sheet. And the litigation nightmare of real estate fraud can happen to anyone who deals with Windermere Real Estate. It could happen to you. Windermere is by far the most unethical, deceitful, and culturally toxic real estate company operating in the United States. Windermere knowingly, deliberately, and unabashedly profits on corrupt franchise owners, brokers and agents with proven histories of fraud and ethical misconduct, many of whom are profiled in the pages of WindermereWatch.com. Despite Windermere's well-documented assault on victim speech rights, more and more unconscionable cases of Windermere fraud continue emerging.
Windermere is headquartered in Seattle, at franchiser Windermere Services Company. It was founded by John W. Jacobi, and he has kept the company a private, family-owned enterprise, eluding the transparency and ethical accountability required by stockholders. For decades, Windermere has harnessed the art of positive PR, affixing itself—however superficially—to community art events, the homeless, and even an annual college rowing competition which opens Seattle's boating season—the Windermere Cup—irresponsibly promoted by, and in conjunction with, the University of Washington. But those are the disingenuous and cynical sideshows created by an adept market manipulator, shown only briefly to the public, to obscure and obfuscate Windermere's true predatory nature.
FRANCHISER WINDERMERE SERVICES' MANAGEMENT TEAM AND DESIGNATED GOVERNING PEOPLE: EXPERTS IN MARKETING FRAUD, ABUSE OF THE LEGAL PROCESS, AND AT COERCING DAMAGED WINDERMERE CLIENTS INTO SILENCE BY SUPPRESSING THEIR SPEECH RIGHTS
The shameless greed and repugnant ethics of Seattle's Jacobi family, deliberately profiting on the loss and suffering of Windermere victims through commissions on the fraudulent home deals and unlawful misconduct of dishonest Windermere agents, brokers and franchise owners. Forget human decency, commercial reputation or social responsibility—it's all about the money.
Before turning the business over to his children and son-in-law, Windermere founder John W. Jacobi (left) simply ignored any complaints of fraud from Windermere victims, sending them straight to the lawyers. Yet despite claims of retirement, Jacobi is still indeed quite active at franchiser Windermere Services Company:
In Complaint 10-2-36192-8 SEA, filed in King County Superior Court on October 12, 2010, Windermere Services Company has sued former Windermere Puyallup Canyon Road owner Joe Maxwell for default on an “Unconditional Guaranty of Payment” promissory note. The Maxwell Answer and Counterclaims state that the “Plaintiff's [Windermere Services Company] claims are barred by Plaintiff’s fraud, duress, and unclean hands,” and alleges $4,000,000 in damages and violation of Washington's Franchise Investment Protection Act; and also that "The alleged Note and Guarantee are unconscionable and unenforceable." Maxwell's Counterclaims state "6. The WPCR Operating Agreement contains a provision granting Jacobi a special veto power which among other things, states that the company shall conduct its business and manage its affairs in accordance with the directions of Jacobi and all management decisions are subject to Jacobi’s review," and "13. In early 2006, WSC and Jacobi decided to open another WSC office in the territory in which WPCR was operating, despite the objections of Maxwell. As a result of the opening of this new WSC office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new office in Graham, Washington," and "14. As a direct result of these actions taken by WSC and Jacobi, WPCR was left with a large debt burden and overhead, and WPCR’s revenue was significantly reduced... 22. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received and email from WSC notifying him WPCR’s franchise had been terminated. This notice was sent to WPCR’s real estate agents before Maxwell learned of the termination of WPCR’s franchise." Read the complete report on this case here.
Jacobi's Washington Loan Company is also currently being sued for Intentional Misrepresentation—read that report here. And the Windermere affiliated service company, Commonwealth Land Title Company of Puget Sound, has recently been found negligent by a jury who awarded the third-party plaintiffs $1,190,000. Read the Commonwealth report here.
Current Governing Person and Windermere Services Company CEO Geoffrey P. Wood (left) is married to John W. Jacobi's daughter, Jill Jacobi-Wood. Wood is the chief architect of Windermere marketing fraud, inducing business volume through—among other fraudulent promotion—an express warranty of "The highest ethical standards. Uncompromising honesty and integrity." When called upon to honor his company's warranty, Wood instructs Demco lawyers—led by Matthew F. Davis–to sue vocal victims for libel and defamation. Wood is also a Governing Person of Windermere Relocation, the subject enterprise of Windermere's employee rape case. He was briefly a real estate sales person in 1994, but that license was CANCELLED in 1995, and Wood currently has no real estate license of any kind that WindermereWatch can find.
Governing Person Jill Jacobi-Wood (left), Windermere Services President, is a licensed real estate broker in Washington State, and as such is subject to the statutory condition of RCW 18.86.030 "(d) To deal honestly and in good faith." For her part in Windermere's marketing fraud and malfeasance, Jacobi-Wood's RE license should be cancelled by the Washington State DOL's real estate division. By promoting honesty and integrity—while in reality—she is suing and coercing Windermere victims to shutup about their Windermere experience, Jacobi-Wood is hardly dealing honestly and in good faith.
Governing Person John O'Brien "OB"Jacobi (left) is General Manager of franchiser Windermere Services Company and also has many Windermere realty brokerage offices. He's a licensed real estate broker who is also called upon by statutory law to "Deal honestly and in good faith." But John "OB" Jacobi instead promotes fraudulent claims of honesty and integrity, and falsely sues victims of Windermere misconduct for libel and defamation to intimidate them and coerce their silence. Then this junior Jacobi runs away and voluntarily dismisses his own mendacious lawsuit when a victim refuses to sign Windermere's dark clause settlement agreement that has cost the victimized party so much distress and money to defend.
Windermere Services Governing Person and attorney—WSBA# 26636—Paul Drayna (left) has even more stringent ethical requirements placed upon him through his collateral professions of Lawyer and Notary Public; and Drayna is also bound by the Model Rules of Professional Conduct. But Mr. Drayna is not just practicing marketing fraud at Windermere. As Windermere in-house counsel, Drayna oversees Windermere's legal strategy of abusing process by falsely suing victims for libel and defamation, and then attempting to intimidate and coerce those victims out of their speech rights and into Windermere's Dark Clause silence agreement. When victims WON'T sign the Windermere Dark Clause, Drayna runs away too, and voluntarily dismisses his own company's lawsuit under Civil Rule 41—but only after first costing the victim thousands to defend the phony lawsuit. Drayna is even copied on the mendacious, Demco-authored settlement documents meant to quash speech rights and be signed by Windermere victims. Drayna is also listed on the Board of Directors at Seattle Pro Musica, "a world of choral beauty," as being Pro Musica's Corporate Secretary and Legal Counsel. Pro Musica states as part of its mission "Respect/Integrity—a principle of respect and integrity in all our endeavors." So while Mr. Drayna is ruining lives by prosecuting costly, false and mendacious lawsuits that seek to intimidate Windermere victims and terminate their speech rights, he is also promoting "...a belief in the importance of music as a means of connection to each other and the community." Visitors to WindermereWatch.com and responsible citizens alike are urged to boycott Seattle Pro Musica concerts.
WINDERMERE'S DEMCO LAW FIRM: ESCHEWING ETHICS and DOING WHAT OTHER LAWYERS JUST WON'T DO
Attorney and multi-office Windermere broker John Demco (left) is the ethically-elastic Windermere kingpin lawyer who operates Demco Law, Windermere’s in-house legal firm, whose primary job is to stall and outspend small fry consumers damaged by dishonest Windermere brokers, agents and franchise owners. When an innocent real estate consumer has the misfortune to suffer one of Windermere’s many bad apples, Demco Law Firm will refuse to settle the matter forthrightly, no matter what conspicuously unlawful or offensive conduct the agent or broker has committed. Demco and Windermere will force the aggrieved party to sue or swallow their damage and go away—standard Windermere operating procedure.
WindermereWatch has compiled voluminous evidence that Windermere-Demco attorney Matthew F. Davis (left), WSBA# 20939, is the kind of lawyer about which jokes are coined. Davis is franchiser Windermere Services' frontline bully—the guy in the legal trenches actually wrecking lives, making threats, and suing victims who speak out. When Shakespeare was recommending "The first thing we do, let's kill all the lawyers," in Henry the Sixth, Part 2, he was talking about egomaniacal lawyers like Matt Davis.
Attorney Matt Davis of Windermere's Demco Law Firm is so unethical, so deceitful and intimidating, that he's famous in law circles. As Windermere-Demco's lead attorney, Matthew F. Davis is renown for his dishonesty, dubious legal tactics, lack of decency and disrespect for the rules of professional conduct. He will do absolutely anything to win—without regard for truth or justice. He will lie to courts and opposing parties. He will file fallacious and erroneous documents with the court. He will email opposing parties telling them not to hire a lawyer when he has just served them a lawsuit. He will call a judge's chambers and request more time without informing the opposing party. He will file orders for a bench trial when he knows a jury trial has been demanded and paid for. He will trick, stall, coerce, menace and threaten. He will invent and extend mendacious Windermere litigation and abuse the legal process for no other reason than to exhaust an opponent’s pocketbook. If he can, he will get YOUR attorney to quit—a favorite tactic.
Windermere, Davis and Demco Law will push a $5 cat poop case all the way to the state supreme court just to avoid paying damages—because it’s all in the Windermere operating budget. And in the end, Windermere and Davis will try to coerce silence about your Windermere experience by trying to make you sign a "settlement" agreement that terminates your speech rights, so you can't ever inform the public about your Windermere debacle. What if you DON'T sign that you'll shut up, and then SPEAK UP instead? Windermere-Demco's Matt Davis will sue you for libel and defamation, then run away and dismiss his own lawsuit on the eve of trial—because after all—you're telling the truth.
Windermere's Clear and Overt Marketing Fraud:
"THE HIGHEST ETHICAL STANDARDS. UNCOMPROMISING HONESTY AND INTEGRITY."
—The Windermere Real Estate Mission Statement
Windermere widely promotes its deceptive express warranty in sales documents and on the internet which states "We are committed to... The highest ethical standards. Uncompromising honesty and integrity." In other Windermere promotion, like the Puget Sound Business Journal, Windermere CEO Geoff Wood is quoted as saying "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." The article goes on to say, "Geoff oversees marketing, legal, financial and internet development services throughout the Windermere network..." Mr. Wood claims absolute dominion over both Windermere legal and internet strategy, making him chief architect of Windermere marketing fraud.
Effective reportage can be harsh in recounting facts, but it must be said in consideration of all the Windermere victims profiled here who truly sought Windermere's vaunted honesty and integrity, that Windermere Services CEO Geoffrey P. Wood is simply lying when he states his company's utterly false and fraudulent commitment to honesty and integrity. He both lies and deceives again when he says that "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." Wood clearly doesn't do what he says he's going to do—be committed to uncompromising honesty and integrity. Wood himself is indeed IN the real estate business and his word is absolutely no good at all. He sues victims of Windermere misconduct for trade libel and defamation to shut them up, and then he tries to use the legal system to suppress victims' speech rights when they ask him to actually perform on the warranty he promotes. As this website proves, Mr. Wood does anything BUT what he says he's gonna do. Far from providing victimized Windermere customers a commitment to high ethical standards, honesty and integrity, Wood and Windermere run away and hide behind their lawyers when innocent consumers are ruined by their Windermere experience.
John W. Jacobi, Geoff Wood, his wife Jill Jacobi-Wood, and governing cohorts John O'brien "OB" Jacobi and attorney Paul Drayna have gone to the absolute ends of the earth in stonewalling, ignoring, denying and fleeing any and all responsibility for Windermere wrongdoing and misconduct. When called upon by victimized Windermere consumers to make good on its warranty of honesty and integrity, Windermere even states in legal pleadings that Windermere agents are NOT agents of Windermere at all—but independent contractors. As the legally-designated Governing People and top managers of the Windermere empire who drive policy, ethics and market promotion, it demands repeating that John W, Jacobi, Geoff Wood, Jill Jacobi-Wood, John OB Jacobi and attorney Paul Drayna are all clearly lying when they promise high ethical standards and uncompromising honesty to the public and consumers of real estate services.
Protect your life, home, family and future by cancelling or not renewing your Windermere listing. Don't risk doing business with Windermere Real Estate, the brand built on lies, fraud and ruined lives. Refuse to fund public predator Windermere Real Estate with commission from the sale of your home.
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Is WindermereWatch.com of social benefit to consumers and the public? You decide:
Windermere Real Estate is one of our country’s largest real estate companies and widely promotes a fraudulent express warranty that states “We are committed to... The highest ethical standards. Uncompromising honesty and integrity.” The definition of an express warranty from Black's Law Dictionary is: "A warranty created by the overt words or actions of the seller. • Under the UCC, an express warranty is created by any of the following: (1) an affirmation of fact or promise made by the seller to the buyer relating to the goods that becomes the basis of the bargain."
But when customers are victimized by dishonest Windermere brokers and agents, and complain in writing through legal counsel to franchiser Windermere Services Company, it is absolutely silent in the face of clear and convincing evidence, and forces the customer to sue or go away. In many cases, unsuspecting consumer lives are thrown into complete chaos through costly litigation; and also because the subject homes may actually be uninhabitable or unserviceable for reasons about which Windermere knew and had a legal obligation to disclose—but did not. For some victims, the long and expensive litigation forced upon them even results in bankruptcy and homelessness. Despite their clear evidence, many victims go on to lose in court because they can't afford attorneys or have no legal experience, and Windermere exploits those impediments to endless advantage—lives, homes, and personal finances are ruined forever. And Windermere expects those victims to just go away without their lives and homes, merely for buying a house through Windermere Real Estate, innocently.
Although such irrefutable evidence of Windermere broker/agent misconduct has been presented to franchiser Windermere Services Company, it knowingly continues collecting commissions from dishonest agents and brokers by deliberately passing them on to other unwitting consumers. Just one example is Windermere S.C.A. Redmond's Paul Stickney, who received a $522,200 court judgment for not disclosing a conflict of interest, but is still producing commissions for his Windermere SCA franchise, and Windermere Services Company. Is that the "Highest ethical standards. Uncompromising honesty and integrity?" You may want to search and visit more websites about Windermere's predatory business conduct.
When victims use the media to report their Windermere experiences honestly, Windermere sues them for libel and defamation through false lawsuits to intimidate, silence, and hush bad PR—read one of those lawsuits here. It then tries to coerce victims into signing a “dark clause settlement agreement” that permanently terminates their speech rights—read some of those "settlement" agreements here. Through an expensive and emotionally distressing roller coaster ride with Windermere's nasty Demco lawyers, a victim of Windermere fraud is told they will be taken all the way to trial on trumped-up libel and defamation charges, and if they don't sign the dark clause, their life and future will be ruined. When a victim persists in refusing to sign, Windermere voluntarily dismisses its own lawsuit under Civil Rule 41, just before trial, after costing the victim years and yet thousands more to defend against the false action. This predatory legal tactic is known as abuse of process or malicious prosecution. In one example cited below, franchiser Windermere Services Company served an outspoken victim a lawsuit for libel and defamation, and then immediately sent them an email instructing that they "...need not hire an attorney," and further stating, “…we will try to resolve this directly and outside the legal system.”
Every Windermere office in every state is legally tied to franchiser Windermere Services Company's fraudulent express warranty, false advertising, predatory conduct and policies through privity and its pecuniary franchise agreement. Some legal observers believe that Windermere's conduct has RICO and Civil Rights violation implications. If you have recently purchased a Windermere franchise without having been disclosed Windermere's falling brand value, PR decline, and its adverse website problems, click here for its duty of disclosure under Federal Trade Commission rules. Proof that Windermere Services Company knew about WindermereWatch.com in March of 2007 is in this document.
Windermere Real Estate is a textbook corporate predator who operates franchises in Washington State, Oregon, California, Arizona, Nevada, Utah, Idaho, Montana, Hawaii and British Columbia. Windermere repeatedly makes the false claim that it has offices in Wyoming, but it does not. If you’re buying or selling property through ANY Windermere office, a percentage from your transaction will be used by franchiser Windermere Services Company to silence and financially ruin innocent parties who’ve encountered Windermere fraud. Windermere won't pay legitimate damages or acknowledge wrongdoing, and will stall settlement of cases all the way to state supreme courts, a legal strategy that Windermere routinely employs to bankrupt victims and exhaust their resources.
We believe the information presented here is of profound social benefit to consumers and the community, and we are dedicated to providing it.
THROUGH FEES AND COMMISSIONS PAID TO FRANCHISER WINDERMERE SERVICES COMPANY, EVERY WINDERMERE NETWORK OFFICE IN EVERY STATE IS AN ENTHUSIASTIC PARTNER AND KNOWING ACCESSORY TO WINDERMERE MARKETING FRAUD AND ITS PREDATORY POLICIES