HomeMy WebLinkAbout05-26-2021 - TRACfone Opposition to Citys Motion in Limine1
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125110.0002/8460348.1
TRACFONE’S OPPOSITION TO
CITY’S MOTION IN LIMINE - 1 LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
RE: TracFone Wireless, Inc. Administrative Appeal
APPELLANT TRACFONE’S OPPOSITION TO CITY’S MOTION IN LIMINE
I. INTRODUCTION
Having specifically excluded all issues regarding the calculation of the measure of the
tax assessed from the scope of its summary judgment motion, the City now is attempting to
preclude the TracFone from introducing evidence that is relevant to calculation of the
measure of tax. The exhibits will be used to demonstrate the errors in the assessment
methodology developed by Tax Recovery Services (“TRS”), the City’s contingent fee
auditor, and endorsed by the City. The City’s motion should be denied.
II. ARGUMENT
In order for a trial court to exercise its discretion to grant a motion in limine, the
moving party must prove both that (1) the evidence sought to be excluded is described with
sufficient specificity to enable the court to determine that it is clearly inadmissible under the
issues as drawn or which may develop during the trial, and (2) the evidence is so prejudicial
in its nature that the moving party should be spared the necessity of calling attention to it by
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125110.0002/8460348.1
TRACFONE’S OPPOSITION TO
CITY’S MOTION IN LIMINE - 2 LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
objecting when it is offered during the trial. Douglas v. Freeman, 117 Wash.2d 242, 255, 814
P.2d 1160 (1991). The City clearly has not and cannot meet all elements of this standard.
While it may be able to identify the exhibits it wishes to exclude, some of which already are
in the record, it cannot establish that it is clearly inadmissible under the issues as drawn or
which may develop during the hearing or that the City will be prejudiced by waiting to object
until they are offered at the hearing. Relevant evidence is defined by ER 401 as “facts of
consequence to the determination of the action.” All facts tending to establish a theory of a
party, or to qualify or disprove the testimony of his adversary, are relevant. Fenimore v.
Donald M. Drake Const. Co., 87 Wash.2d 85,89, 549 P.2d. 483 (1976). Finally, as the City
explained in a prior submission in this proceeding, “…the Renton Municipal Code highlights
the informal nature of these proceedings, and the importance of providing each party with a
full and fair opportunity to present their case:
APPEALS TO THE HEARING EXAMINER:
1. Format of the Appeal Hearing: The appeal hearing will be of an informal
nature but organized so that testimony and other evidence can be presented
efficiently.”
RMC 4-8-100E(1). City’s Memorandum in Opposition to Motion to Exclude Garth
Ashpaugh at 3.
The City’s motion is focuses on several categories of documents. First, the City
objects to the use of receipts Nate Malone received at the time of his purchase of a handset
and airtime card at Fred Meyer, as well as the airtime card itself and representative resale
certificates. (Exhibits 31,32 and 34). These three exhibits already are in the record as part of
the summary judgment motions. Appellants should not be precluded from relying upon these
or any other documents already in the record, as appropriate.
Second, the City objects to the introduction of invoices that TracFone sent to its
wholesale customers who sell airtime cards to their retail customers. (Exhibits 35-37). A
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125110.0002/8460348.1
TRACFONE’S OPPOSITION TO
CITY’S MOTION IN LIMINE - 3 LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
critical issue in this case is the determination of TracFone’s revenue from wholesale sales of
airtime cards. The City’s methodology fails to consider the fact that that TracFone’s revenue
from these wholesale sales is less than the retail amount charged by a retailer upon the
retailer’s retail sale of airtime. The exhibits are relevant in establishing this fact which is
essential in properly calculating the revenue subject to assessment and in establishing the
errors in the assessment methodology.
Third, the City objects to the introduction of contracts with retailers (Exhibits 38-44)
some of which the City submitted but only in part in its summary judgment motion. TracFone
will focus on the financial aspects of those contracts and the revenue owed to TracFone under
them. The Hearing Examiner invited TracFone to offer evidence of this kind in its order on
the summary judgment motions. Findings of Fact, Conclusions of Law and Ruling dated
March 12, 2021, at 3-4.
Finally, the City objects to the inclusion of the transcripts of the depositions of Michael
and Tamara Crisp and Nate Malone being on the Appellant’s exhibit list. The Pre-Hearing
Order clearly stated that the parties should be inclusive in identifying exhibits and the
Appellants have done so. Third Revised Pre-Hearing Order at 2.
III. CONCLUSION
The Hearing Examiner should deny the motion and refrain from any rulings on
relevance until the exhibits are used and should evaluate any relevance objection based upon
the context of the testimony and examination. Any advance rulings based on the City’s
expansive relevance objection would be unduly prejudicial to the Appellant.
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125110.0002/8460348.1
TRACFONE’S OPPOSITION TO
CITY’S MOTION IN LIMINE - 4 LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
DATED: May 26, 2021
LANE POWELL PC
By Scott M. Edwards, WSBA No. 26455 edwardss@lanepowell.com Grant S. Degginger, WSBA No. 15261 deggingerg@lanepowell.com Attorneys for TracFone Wireless, Inc.
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125110.0002/8460348.1
TRACFONE’S OPPOSITION TO
CITY’S MOTION IN LIMINE - 5 LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
CERTIFICATE OF SERVICE
I hereby certify under penalty of perjury of the laws of the State of Washington and the
United States that, on the date listed below, I caused to be served a copy of the attached
document to the following persons via electronic mail:
Kari L. Sand Ogden Murphy Wallace P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, WA 98164 ksand@omwlaw.com Cynthia Moya Renton City Clerk 1055 So. Grady Way Renton, WA 98057 cmoya@rentonwa.gov olbrechtslaw@gmail.com
Executed on the 26th day of May, 2021, at Seattle, Washington.
s/ Norma Tsuboi Norma Tsuboi, Legal Assistant