Opinion
No. 31201-8-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pacific County. Docket No. 03-2-00177-7. Judgment or order under review. Date filed: 12/01/2003. Judge signing: Hon. Gordon Godfrey.
Counsel for Appellant(s), Leslie Orville Stomsvik, Attorney at Law, 133 S 51st St, Tacoma, WA 98408-7608.
Counsel for Defendant(s), Paul A. Cullen, Cullen Bernstein, Fishermen's Terminal, 1900 W Nickerson St Ste 209, Seattle, WA 98119-1650.
Counsel for Respondent(s), John Edward Justice, Attorney at Law, PO Box 11880, Olympia, WA 98508-1880.
William Dale Kamerrer, Law Lyman Daniel Kamerrer et al, PO Box 11880, Olympia, WA 98508-1880.
James O'Hagan appeals from a trial court's summary judgment order dismissing his lawsuit based on res judicata, arguing that his prior action raised different issues. We affirm.
FACTS
O'Hagan owns farmland in Pacific County (County). In 1993, the County issued a permit to the Pacific County Drainage District to excavate a drainage ditch located under Smith-Anderson Road, which forms the eastern border of two other property owners. In September 1994, O'Hagan sued the County and several other defendants, not parties to this appeal, claiming that the excavation unlawfully diverted the waters from his land onto the neighboring properties.
In his amended complaint against the County, O'Hagan alleged negligence and nuisance claims and sought injunctive relief. The trial court granted the County's motion for summary judgment, finding that the public duty doctrine applied and that the County owed O'Hagan no duty. The trial court also found that he presented no credible evidence that the ditch project interfered with the flow of the water to his land. O'Hagan appealed, and we affirmed in an unpublished opinion.
In June 2000, O'Hagan filed a motion under CR 54(b) for revision of the orders dismissing his claims against the County. The trial court denied the motion and imposed sanctions against him.
O'Hagan v. Kelley, noted at 114 Wn. App. 1077 (2002), review denied, 149 Wn.2d 1030 (2003).
While his appeal before us was pending, O'Hagan filed suit against the County in federal district court. The federal complaint alleged causes of action for a taking and interference with due process. The County again moved for summary judgment, and the district court granted the motion. On appeal, the U.S. Court of Appeals for the Ninth Circuit summarily affirmed the district court's ruling.
In May 2003, O'Hagan filed a third superior court lawsuit, naming the County as a defendant in an action for unlawful taking of property, inverse condemnation, and violation of constitutional rights. The County moved for summary judgment. The trial court granted the motion on the grounds that res judicata based on his federal lawsuit barred his claims. He appeals.
ANALYSIS Standard of Review
We review a trial court order granting summary judgment de novo, applying the same standard as it does. Stalter v. State, 151 Wn.2d 148, 155, 86 P.3d 1159 (2004). Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' CR 56(c).
Under this standard of review, we must only decide whether the trial court erred, as a matter of law, in granting the County's summary judgment motion based on res judicata.
Res Judicata
O'Hagan contends that the trial court improperly based its summary judgment against him on the doctrine of res judicata because, in the previous actions, he never brought a claim for an unlawful taking of his property.
Courts apply the doctrine of res judicata, or claim preclusion, to prevent repetitive litigation of claims or causes of action arising out of the same facts, for judicial economy and to secure the moral force of court judgments. Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995). Res judicata applies when: (1) there has been a final judgment on the merits in a prior action between the same parties, and (2) the prior and present actions involve (a) the same subject matter, (b) the same cause of action, (c) the same persons and parties, and (d) the same quality of the persons for or against whom the claim is made. Loveridge, 125 Wn. App. at 763; Nielson By and Through Nielson v. Spanaway Gen. Med. Clinic, Inc., 85 Wn. App. 249, 254, 931 P.2d 931 (1997), aff'd, 135 Wn.2d 255 (1998).
In the context of collateral estoppel or res judicata, an order granting summary judgment constitutes a final judgment on the merits and has the same preclusive effect as a full trial of the issue. Lee v. Ferryman, 88 Wn. App. 613, 622, 945 P.2d 1159 (1997), review denied, 135 Wn.2d 1006 (1998).
Cause of Action
The parties agree that the prior action took place between the same parties and resulted in a final judgment on the merits. The parties disagree whether the claims or causes of action were the same.
Although O'Hagan asserts that the subject matter at issue in the prior actions differed, he argues that the subject matter in all three actions was based on his water rights that were allegedly impaired by the ditch clearing project. Moreover, he does not support his contention that the subject matter of the three actions differed; therefore, we do not consider this argument. RAP 10.3(a)(5).
As stated above, in his first action in superior court, O'Hagan alleged claims for nuisance, negligence, and injunctive relief against the County, but not a claim for a taking. But in his second action, this time in the federal district court, he alleged a taking and interference with due process. Finally, in his last action, again in the superior court, he again alleged a taking, inverse condemnation, and violation of his constitutional rights. The trial court ruled that res judicata barred his claim.
In Kuhlman v. Thomas, 78 Wn. App. 115, 122, 897 P.2d 365 (1995), Division One of this court noted that, while there is no specific test for determining identity of causes of action, the following criteria should be considered: '(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action, (2) whether substantially the same evidence is presented in the two actions, (3) whether the two suits involve infringement of the same right, and (4) whether the two suits arise out of the same transactional nucleus of facts.' (citing Rains v. State, 100 Wn.2d 660, 664, 674 P.2d 165 (1983)). The Kuhlman elements apply here.
First, because the federal court in the prior action ruled in favor of the County, holding that evidence insufficiently demonstrated a taking, a later superior court ruling in which the court would find a taking would impair the County's rights established by the prior federal court's ruling. Second, the evidence needed to support each action was identical: O'Hagan had not set forth any facts in his last action that differed from the facts alleged in his prior actions. Third, in the federal court action and in the last superior court action, O'Hagan alleged the same claim for a taking. And fourth, all three actions arose out of the same transactional nucleus of facts predicated on the County authorizing the completion of the ditch clearing project. Therefore, the claims or causes of action in federal district court and superior court were identical.
Opportunity to Litigate the Claim
Next, O'Hagan contends that applying res judicata and dismissing his suit denied him a full and fair opportunity to litigate his claim. The County disagrees. We disagree.
In moving for summary judgment in the federal case, the County argued that O'Hagan failed to set forth sufficient facts to show a taking. The burden then shifted to him to come forward with the evidence to support his claim, but he failed to do so, instead opting to recite the facts that were undisputed.
In responding to a motion for summary judgment, the party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989).
Attorney Fees
The County seeks attorney fees under RAP 18.9, arguing that the appeal is frivolous. We decline to award fees on this basis.
A frivolous appeal fails to raise meritorious or debatable issues on which reasonable minds might differ. Olsen Media v. Energy Sciences, Inc., 32 Wn. App. 579, 588, 648 P.2d 493, review denied, 98 Wn.2d 1004 (1982). Here, O'Hagan set forth a debatable issue whether all of the elements of res judicata were satisfied.
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, J. and QUINN-BRINTNALL, C.J., Concur.