Opinion
No. 35521-3-II.
February 12, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 05-2-01083-9, Toni A. Sheldon, J., entered September 25, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Penoyar, JJ.
Brad Carey appeals the trial court's order dissolving the Port of Tahuya. Carey argues that the trial court's failure to make an express solvency finding violates RCW 53.48.040. Holding that Carey waived his right to appeal by agreeing to the order of dissolution, we affirm.
FACTS I. Background
In 1925, Mason County established the Port of Tahuya, comprising approximately 30 square miles of largely rural area, bounded to the south and west by the Hood Canal. The Port supported the logging industry in the Tahuya area. The Port had three elected Commissioners with staggered six-year terms.
II. Procedure A. Dissolution Petition
At the August 31, 2005 Port meeting, the Commissioners approved the Port's dissolution by unanimous vote. The Commissioners believed that the Port should be dissolved because the Port (1) had operating expenses exceeding its tax revenue; (2) was not generating any revenue; (3) did not have an office, phone, website, staff, paper, pencils, or computers; and (4) was unable to obtain insurance coverage for its commissioners.
On November 14, the Port filed a Dissolution Petition. At this time, there were no legal actions pending against the Port. Brad Carey filed as a CR 24(a) "intervener" in the dissolution action. On December 21, Carey became a Port Commissioner.
B. Port Dissolution Hearings 1. First hearing
On January 9, 2006, the trial court held a dissolution petition hearing. At the hearing, the trial court heard from: the Port's counsel; Carey's counsel representing him as an individual; and counsel representing a large group of citizens concerned with the preservation of Menard's Landing, the Port's park property. Neither the trial court nor the parties discussed the Port's solvency at this hearing.
The trial court found "that the best interests of all persons concerned will be served by the proposed dissolution of the Port of Tahuya. . . ." Clerk's Papers (CP) at 628. And the trial court entered an order setting forth an agreed procedure for the Port's dissolution.
The trial court further ordered that: (1) the Port transfer Menard's Landing to Mason County; (2) the Port "shall be dissolved"; and (3) the court would not enter the dissolution order for 120 days or until after the Port has transferred Menard's Landing, "whichever should be the latter." CP at 629. The trial court did not include a finding of solvency or insolvency in this order. Nonetheless, all parties agreed to this order.
2. Second hearing
In April, the Port transferred Menard's Landing to Mason County. On May 24, a different trial court judge held a hearing to finalize the Port's dissolution. The trial court heard argument from counsel for both the Port and Carey. Carey argued that the Port's dissolution would be premature because of his outstanding public record monetary claims against the Port.
On May 9, 2006, Carey and his father had filed a "Complaint for Public Disclosure" against the Port. In the complaint, Carey and his father alleged that the Port unreasonably failed to provide requested public documents and they asked the trial court to award penalties and costs under RCW 42.17.340. Apparently this complaint is still pending against the Port.
The trial court responded:
But if an argument is now made that the Port is insolvent, based upon these claims, perhaps [Menard's Landing] should have been sold for a dollar amount, rather than given away, for the consideration [the Port] noted.
Report of Proceedings (RP) (May 24, 2006) at 52. The trial court then asked counsel, "Was there argument at the time [the previous judge] heard the matter in January that the Port was insolvent?" RP (May 24, 2006) at 53. The Port's counsel answered, "No." RP (May 24, 2006) at 53. Carey did not disagree. Carey neither asserted that the Port was insolvent at the time of this second hearing before the new trial court judge, nor did he argue that the previous trial court judge had failed to make a solvency finding. Because the Port's counsel needed time to prepare the dissolution order, the trial court set a third hearing date.
When the trial court asked Carey if he would like to respond, Carey argued only that his pending public record claims were likely to prevail.
On June 5, Carey filed a Motion for Partial Reconsideration, asking the trial court to reconsider its "oral findings on May 24, 2006, in that part implying that [the Port] was solvent on the day of its dissolution." CP at 502.
3. Third dissolution hearing
On June 14, the trial court held a hearing to decide whether a special master should be appointed to dispose of the Port's remaining business. The Port's counsel submitted a proposed order dissolving the Port, to which both the Port and Carey had agreed. The trial court set another hearing date so it could have time to review the agreed dissolution order.
4. Fourth dissolution hearing
At the next hearing, on June 19, the trial court changed finding 2.2 in the agreed dissolution order. The court explained (1) that it was a different judge who had heard the first hearing and (2) "because of the order and the language of the order entered by agreement before [the other judge], that it was implied that the Port was solvent." RP (June 19, 2006) at 85.
The trial court then changed the language of the proposed order, striking out the words "The Port of Tahuya is solvent" and writing in "By the agreed findings entered 1-23-06 from the 1-9-06 hearing, the Port of Tahuya was found to be solvent." CP at 335. Carey's counsel signed the order, did not object to the trial court's changes, and did not argue that either the previous or the present trial court had failed to make an express solvency finding. The trial court entered the agreed order dissolving the Port.
C. Motion for Reconsideration
On September 25, the trial court held a hearing to consider Carey's Motion for Partial Reconsideration. For the first time, Carey argued that his pending public record claims made the Port insolvent. Again, however, Carey did not argue either that the trial court had failed to make a solvency finding or that such a finding was a statutory prerequisite to dissolving the Port. The trial court denied Carey's motion for reconsideration.
Carey appeals the Port dissolution order.
ANALYSIS I. Agreed Order
For the first time on appeal, Carey argues that the trial court's dissolution order does not include the statutorily required express finding that the Port was solvent or insolvent. Because Carey's agreement to the trial court's dissolution order bars this challenge, we do not consider the merits of his argument.
A. Waiver
RCW 2.44.010 authorizes binding stipulations and agreements by counsel when agreements are made in open court or in writing. Washington courts view "[s]tipulations and agreements of counsel . . . with favor unless some good, contrary reason is shown." Smyth Worldwide Movers, Inc. v. Whitney, 6 Wn. App. 176, 178, 491 P.2d 1356 (1971). And courts may enter a judgment or order by consent or stipulation of the parties:
A judgment by consent or stipulation of the parties is construed as a contract between them embodying the terms of the judgment. It excuses all prior errors and operates to end all controversy between the parties, within the scope of the judgment.
Wash. Asphalt Co. v. Harold Kaeser Co., 51 Wn.2d 89, 91, 316 P.2d 126 (1957); Smyth, 6 Wn. App. at 179. Absent fraud, mistake, or want of jurisdiction, an appellate court will not review a trial court judgment entered with the consent of the parties. Wash. Asphalt, 51 Wn.2d at 91 (citing Winton Motor Carriage Co. v. Blomberg, 84 Wash. 451, 457, 147 P. 21 (1915)).
Following Wash. Asphalt, absent fraud, mistake, or want of jurisdiction, we do not review the Port dissolution order to which Carey agreed below.
In addition to having agreed to the dissolution order, Carey also failed to challenge the lack of an express solvency finding before the trial court entered the dissolution order, thus waiving his right to challenge the order's statutory sufficiency on appeal. See State v. Branch, 129 Wn.2d 635, 651, 919 P.2d 1228 (1996) (a party's failure to raise an issue at the trial level waives his right to challenge the issue on appeal), citing State v. Young, 63 Wn. App. 324, 330, 818 P.2d 1375 (1991); State v. Harrington, 56 Wn. App. 176, 181, 782 P.2d 1101 (1989). Carey's waiver below provides an alternative ground precluding our addressing the merits of his argument on appeal.
B. No Fraud, Mistake, or Lack of Jurisdiction
Carey does not allege fraud, mistake, or want of jurisdiction in the trial court's entry of the agreed order dissolving the Port. Thus, he does not meet the exception to the general rule that we do not review on appeal an agreed trial court order.
Because Carey's waiver precludes our review of the agreed dissolution order, we do not address (1) Carey's assertion that RCW 53.48.040 requires an express finding of solvency, (2) his argument that the trial court failed to include an express solvency finding in its dissolution order, or (3) the Port's argument that the doctrine of invited error prohibits Carey from setting up an error in the trial court's order and then complaining of it on appeal.
He contends, however, that he did not consent to the dissolution order. He asserts that the only evidence of his agreement to the dissolution order is his attorney's signature on the order approving its form. Contrary to Carey's contention, the record is replete with evidence that he agreed to the substance of the trial court's dissolution order as well as to its form. At the June 14 hearing, for example, the Port submitted a proposed dissolution order to the trial court. Because Carey's counsel had not yet seen this order, the trial court briefly recessed to allow counsel to review the order, asking both Carey's counsel and the Port's counsel to review the proposed order to "see whether [they] can reach an agreement on language." RP (June 14, 2006) at 75.
When the trial court reconvened, the Port's counsel told the court, "[D]uring the recess counsel for Mr. Carey and I have been able to review the order. And we are in agreement in that so said." RP (June 14, 2006) at 75. Carey's counsel did contradict the Port's representation that both counsel had agreed to the Port dissolution order. The trial court then set another hearing for June 19, explaining that it "understood it's agreed language, but [it] still want[ed] to go back and read [the proposed order and the report of proceedings for the prior hearings]." RP (June 14, 2006) at 77. Again, Carey's counsel neither objected nor contradicted the trial court's representation that both parties had agreed to the language of the order.
At the June 19 hearing, the trial court changed the agreed proposed language from "The Port of Tahuya is solvent" to "[B]y the agreed findings entered on January 23, 2006 from the January 9, 2006 hearing, the Port of Tahuya was found to be solvent." The trial court explained to the parties,
The Court in hearing the part of the case that the Court heard — I didn't hear that first hearing. That was [the other judge's] hearing. But in hearing the part of the case that the Court heard, it was always implied that because of the order and the language of the order entered by agreement before [the other judge], that it was implied that the Port was solvent. If it wasn't solvent, a whole different set of processes would need to have taken place and be provided for under RCW 53.48.060 and subsequent.
RP (June 19, 2006) at 85. A third time, Carey neither objected to the trial court's change to the agreed order nor argued that the trial court had committed error in failing to make an express finding of the Port's solvency. Thus, the record is clear that Carey agreed to the trial court's order dissolving the Port in both form and substance.
In his supplemental brief, Carey argues that his motion for partial reconsideration and his counsel's argument on May 24 show that he did not waive his argument that the trial court's order lacked an express solvency finding. This argument fails because neither his motion for partial reconsideration nor his counsel's argument at the May 24 hearing raised the issue he now argues on appeal?namely, that the trial court's order lacked an "express" finding of the Port's solvency.
On the contrary, Carey's motion for partial reconsideration undercuts his argument on appeal that the trial court failed to make a finding of solvency. In his motion for partial reconsideration, Carey asked the trial court to reconsider its finding of solvency, thus implicitly acknowledging that the trial court did, in fact, make an express finding of solvency. Furthermore, Carey's agreement to the dissolution order "excuses all prior errors and operates to end all controversy between the parties, within the scope of the judgment." Wash. Asphalt, 51 Wn.2d at 91.
Because Carey failed to object to the dissolution order, agreed to its language, and did not argue to the trial court that its order failed to include an express solvency finding, he has waived his right to appeal the dissolution order. Accordingly, we do not consider the substance of his arguments.
II. Sufficiency of Evidence of Port's Solvency
Carey argues that there is insufficient evidence of the Port's solvency because of his pending public record claims against the Port. This argument fails.
In his Brief of Appellant, Carey assigns the following single error:
[T]he Trial Court erred by dissolving the Port of Tahuya [CP 504-506] pursuant to RCW Ch. 53.48, without the Court having made an express finding of solvency or insolvency of said Port District, as required by RCW 53.48.040.
Br. of Appellant at 3. Carey does not, however, assign error to the trial court's findings as lacking sufficient supporting evidence.
On appeal, we need review only those issues and facts to which a party has assigned error. State v. Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994); LeCocq Motors, Inc., v. Whatcom County, 4 Wn.2d 601, 603, 104 P.2d 475 (1940); see also RAP 2.4(a); RAP 10.3(a)(4). Because Carey has failed to assign error to the sufficiency of evidence showing the Port's solvency, this issue is not properly before us for review. Thus, we do not review Carey's insufficient evidence argument.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and PENOYAR, J., concur.