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Kalmas v. Wagner

filed: May 3, 1996.

JAMES KALMAS AND KYRA SHARPE, APPELLANTS,
v.
DONALD WAGNER AND JAMES JONES, RESPONDENTS.



Superior Court of Pierce County. Superior Court Docket No. 93-2-05610-4. Date Filed In Superior Court: March 11, 1994. Superior Court Judge Signing: Thomas Swayze.

Written By: Morgan, J, Concurred In By: Seinfeld, CJ, Bridgewater, J

Author: Morgan

MORGAN, J. -- The defendants, two Pierce County deputy sheriffs, attempted to referee a dispute between the plaintiffs and the plaintiffs' landlord. Thereafter, the

plaintiffs sued the defendants, based on 42 U.S.C. § 1983. The trial court granted summary judgment to the defendants, and the plaintiffs appealed. We reverse the order granting summary judgment.

Taken in the light most favorable to the plaintiffs,*fn1 the facts are as follows: On September 17, 1990, James Kalmas and Kyra Sharpe rented a house in Tacoma. They also signed a written rental agreement that included the following provision:

Lessor hereby reserves, and the Lessee hereby grants to the Lessor or his agents, the right to enter said leased premises at reasonable times, for the purpose of making repairs or to inspect the premises, [or] to show the dwelling to prospective tenants after notice of termination.*fn2

On May 10, 1991, the landlord gave Kalmas and Sharpe a "20-Day Notice to Terminate Tenancy."*fn3 On May 15, the landlord notified Kalmas and Sharpe that she wanted to show the house the next day between 1:30 and 3:30 p.m. The same day, Kalmas called the landlord and said he would not allow the proposed entry.

The next day, May 16, the landlord came to the home with a realtor and a prospective new tenant. Kalmas answered the door and refused entry. He also told Sharpe to call the sheriff.*fn4 The realtor and prospective tenant left, but the landlord remained.

Two deputies soon arrived. After speaking with the parties and examining the landlord's "paperwork," they told Kalmas that the landlord had a legal right to enter, and that he would be arrested if he persisted in refusing entry.*fn5 To avoid arrest, he said the landlord could enter, but only

if accompanied by one of the officers. The landlord and one deputy entered and made an "inspection"*fn6 which, according to the defendants, lasted for "no more than one minute."*fn7

Kalmas and Sharpe sued for damages under 42 U.S.C. § 1983.*fn8 Both sides sought summary judgment on liability, and the trial court granted summary judgment to the defendants. Kalmas and Sharpe then filed this appeal.

To prove a cause of action based on 42 U.S.C. § 1983, a plaintiff must show (1) that the defendant violated a federal constitutional or statutory right, and (2) that the defendant was acting under color of state law.*fn9 A plaintiff who proves these elements is entitled to at least nominal damages,*fn10 unless the defendant has a defense

such as qualified immunity.*fn11 We consider (1) whether the plaintiffs are entitled to a trial on the first element of their cause of action; (2) whether they are entitled to a trial on the second element of their cause of action; and (3) ...


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