Steve Swinger v. Douglas J. Vanderpol ( 2016 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STEVE SWINGER,
    No. 74703-7-
    Appellant,                                                 r\5
    DIVISION ONE
    v.
    to
    DOUGLAS J. VANDERPOL,
    en
    UNPUBLISHED OPINION
    Respondent.
    FILED: December 27, 2016
    Becker, J. — This is an appeal from an order of summary judgment
    resolving a dispute between neighboring landowners concerning a boundary set
    by the meandering Nooksack River. Because appellant's claims are barred on
    procedural grounds and unsupported by the record, we affirm.
    Respondent Douglas Vanderpol owns land in Lynden on the east bank of
    the Nooksack River. Appellant Steve Swinger owns a plot of land on the other
    side of the river, to the north and west of Vanderpol's property. Swinger applied
    to participate in the federal Conservation Reserve Enhancement Program. The
    program pays property owners to commit their land for preservation efforts, such
    as planting vegetation along rivers to restore and protect fish habitat.
    The Whatcom Conservation District, which administers the program
    locally, began developing a plan for preservation work on Swinger's property.
    The District created a map detailing where planting would occur. This map
    No. 74703-7-1/2
    showed planting on the Nooksack's east bank, across the river from Swinger's
    plot. Swinger claims to own an area of land on the east bank through avulsion, a
    process that occurs when a river rapidly changes course. Property boundaries
    remain in the center of the old river channel following avulsion. According to
    Swinger, the Nooksack abruptly changed course many years ago, causing land
    that was previously connected to his plot to become part of the east bank.
    In December 2011, Vanderpol sent a letter to the District through his
    attorney, asserting that the land on the east bank that Swinger was attempting to
    commit for preservation belonged to Vanderpol. Whereas Swinger claimed to
    own the land through avulsion, Vanderpol claimed to own the same area through
    accretion or reliction. Both terms describe gradual additions to the land
    bordering on a river due to slow changes in the river's course. Vanderpol
    explained in his letter that if accretion or reliction occurs, "the boundary line of the
    property abutting the river also changes with the river course." He claimed he
    had been the "sole person occupying, maintaining and making use of the entire
    property at issue since 1989 when he first started using this area for a pasture
    area for his cows." He asserted that a survey was necessary to determine
    property boundaries.
    The District suspended Swinger's application and did not proceed with the
    proposed planting. The District informed Swinger that he would not receive
    funding for preservation work on the east bank until the ownership issue was
    resolved. Vanderpol sent a second letter to the District in February 2012,
    No. 74703-7-1/3
    reasserting that he owned the area on the east bank that Swinger was attempting
    to commit to the program.
    Around the same time, Swinger was involved in a lawsuit he had filed
    against his title insurance company. He claimed, "Three acres of the property
    east of the river are not accessible by vehicle or pedestrian access. No
    notification of this covered risk was provided in the title report." The court
    dismissed this claim on the title company's motion for partial summary judgment
    on October 14, 2011, because Swinger did not present facts that would prove his
    ownership of the three acres in question. Swinger did not attempt to obtain
    review of this ruling. The entire lawsuit against the title company was dismissed
    in March 2012, and Swinger expressly waived his right to appeal.
    In May 2012, Vanderpol commenced a quiet title action in federal court to
    determine ownership of the area in dispute on the east bank. Vanderpol named
    Swinger and the United States as parties. The United States owns property next
    to Vanderpol's, and Vanderpol believed the ownership interests of the United
    States were also affected by changes in the Nooksack's course.
    Vanderpol conceded that the disputed area was previously connected to
    Swinger's plot. He argued that through accretion or reliction, either he or the
    United States was the current owner. In the alternative, he argued ownership by
    adverse possession. Swinger denied Vanderpol's ownership. He asserted a
    counterclaim for unjust enrichment based on Vanderpol's use of the disputed
    area.
    No. 74703-7-1/4
    The federal district court determined it had subject matter jurisdiction
    under 28 U.S.C. § 1346(f), which grants district courts original jurisdiction over
    quiet title actions "in which an interest is claimed by the United States." On
    Vanderpol's motion for summary judgment, the court concluded that Swinger was
    estopped from relitigating whether he owned land on the east bank because the
    issue was decided in his suit against the title insurance company. Vanderpol and
    the United States entered into a stipulation regarding their boundary lines.
    Swinger appealed. The Ninth Circuit Court of Appeals concluded that
    subject matter jurisdiction was lacking because the United States never claimed
    an interest in the disputed land, as required under 28 U.S.C. § 1346(f). The court
    vacated the summary judgment order and remanded with instructions to dismiss.
    Acting pro se, Swinger then filed the current action against Vanderpol in
    Whatcom County Superior Court. The complaint alleges unjust enrichment,
    tortious interference with a contract, and abuse of process. Vanderpol moved for
    summary judgment, seeking dismissal of Swinger's claims. After a hearing on
    February 5, 2016, the court granted Vanderpol's motion. Swinger's claims were
    dismissed with prejudice and Vanderpol was awarded attorney fees and statutory
    damages. Swinger appeals.
    We review summary judgment orders de novo. Lvbbert v. Grant County.
    
    141 Wash. 2d 29
    , 34, 
    1 P.3d 1124
    (2000). All facts and any reasonable inferences
    therefrom are viewed in the light most favorable to the nonmoving party. 
    Lvbbert, 141 Wash. 2d at 34
    . Summary judgment is proper when there is no genuine issue
    No. 74703-7-1/5
    as to any material fact and the moving party is entitled to judgment as a matter of
    law. 
    Lvbbert. 141 Wash. 2d at 34
    .
    We begin with Swinger's claim for unjust enrichment. The trial court
    dismissed it upon finding it was collaterally estopped by the ruling in Swinger's
    earlier suit against his title insurance company. In that suit, the ruling was made
    on a motion for partial summary judgment to dismiss Swinger's claim of access
    to property on the east side of the river. The court's written order stated the
    claims were "dismissed based on Plaintiff's lack of ownership of such property."
    Swinger maintains that he owns the land on the Nooksack's east bank and
    Vanderpol's use of this area for grazing his cows constitutes unjust enrichment.
    He requests restitution plus interest. Vanderpol responds that the court properly
    dismissed the unjust enrichment claim based on collateral estoppel.
    A party claiming unjust enrichment must demonstrate: (1) the defendant
    received a benefit, (2) the benefit was received at the plaintiffs expense, and (3)
    the circumstances make it unjust for the defendant to retain the benefit without
    payment. Young v. Young. 
    164 Wash. 2d 477
    , 484-85, 
    191 P.3d 1258
    (2008).
    Here, Swinger's unjust enrichment claim relies on the premise that he owns
    property on the Nooksack's east bank. If he does not own the disputed area, he
    cannot demonstrate that Vanderpol received a benefit—using another's land
    without payment—at Swinger's expense.
    The doctrine of collateral estoppel prevents Swinger from relitigating
    whether he owns land on the east bank if he already had a full and fair
    opportunity to present his case on this issue. Pederson v. Potter, 103 Wn. App.
    No. 74703-7-1/6
    62, 69, 
    11 P.3d 833
    (2000). review denied. 
    143 Wash. 2d 1006
    (2001). The
    requirements for collateral estoppel are: (1) the issue decided in the prior action
    is identical to the issue in the second action, (2) the prior action ended in a final
    judgment on the merits, (3) the party to be estopped was a party or in privity with
    a party in the prior action, and (4) application of the doctrine would not work an
    injustice. 
    Pederson, 103 Wash. App. at 69
    , citing Hanson v. City of Snohomish.
    
    121 Wash. 2d 552
    , 561, 
    852 P.2d 295
    (1993).
    In Swinger's suit against the title insurance company, the court determined
    Swinger lacked evidence to prove his asserted ownership interest in "property
    lying across the Nooksack River to the east of Plaintiffs property." This issue is
    identical to the issue raised in the present case: whether Swinger can prove he
    owns the land on the east bank, such that he can claim unjust enrichment
    against Vanderpol for using that land.
    Swinger contends the issue in his prior suit was "whether the title
    company had failed to disclose defects in title, including an easement on the
    property on the east side of the river," whereas the issue here is "whether
    Vanderpol benefited by the use of Swingers property without payment." Brief of
    Appellant at 12. While it is true that the cause of action was different, each
    lawsuit depended on Swinger's ability to prove the same factual issue: his
    ownership of land on the east bank. The first element of collateral estoppel is
    satisfied.
    Regarding the second element of collateral estoppel, a reviewing court
    must determine whether the prior judgment is sufficiently firm. "Factors for a
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    court to consider in determining whether the requisite firmness is present include
    whether the prior decision was adequately deliberated, whether it was firm rather
    than tentative, whether the parties were fully heard, whether the court supported
    its decision with a reasoned opinion, and whether the decision was subject to
    appeal or in fact was reviewed on appeal." Cunningham v. State, 61 Wn. App.
    562,567,811 P.2d 225 (1991).
    Swinger and the title insurance company submitted thorough briefing on
    Swinger's claim of ownership on the east bank. The transcript of oral argument
    on the company's motion for partial summary judgment shows that the court
    informed Swinger he had failed to prove ownership:
    [THE COURT:] I don't think that I have any evidence here that I
    can look at that's reliable that this Court could determine that that
    property belongs to you.
    Again, I don't think there's sufficient evidence, and I think that
    the only option that this Court has at this point in time is to deny any
    further motions to amend the pleadings to add new claims or to
    include that property across the river. There's no basis for it... .
    MR. SWINGER: Do I not own that property then? Is that
    what the Court is saying?
    THE COURT: You haven't proven to me that you do. You
    may, but you haven't proven to me, you haven't given to me
    anything . . . that's reliable evidence that I can look at that says you
    do. You don't have a document with a legal description that
    includes that property. . . .
    ... nobody sold you anything on the east side of the river.
    There's no documents when you purchased the property that
    indicate that you purchased anything other than that property on
    the north side of the river. That's how your legal description reads.
    MR. SWINGER: But that legal description was made a
    hundred years ago when that river was somewhere else.
    THE COURT: I don't know that. I have no testimony to that
    effect at all. I have the legal description in your deed. That's all I
    have.
    No. 74703-7-1/8
    The written order on partial summary judgment, issued October 14, 2011,
    was firm: The court denied Swinger's claim based on his "lack of ownership" of
    property across the river. And it was not tentative. On March 1, 2012, the court
    reviewed and approved a stipulation for dismissal entered into between the
    parties, and dismissed the entire complaint with a written order stating:
    1. All of Plaintiff Steve Swinger's claims that have been
    asserted and/or that could have been asserted in this cause are
    hereby dismissed with prejudice and without costs;
    2. Plaintiff Steven Swinger hereby waives any right of
    appeal that may arise out of these proceedings;
    3. That each party shall bear their own attorney's fees and
    costs incurred herein;
    4. That the Court's Order awarding attorney fees dated
    August 27, 2010 is hereby vacated.
    Swinger contends dismissal of the action against the title company on
    March 1, 2012, was the result of a settlement. Swinger asserts that because he
    settled with the title insurance company, his failure to appeal did not preclude him
    from raising the same issue of ownership in the present lawsuit against
    Vanderpol. See Marguardtv. Fed. Old Line Ins. Co., 
    33 Wash. App. 685
    , 689, 
    658 P.2d 20
    (1983) ("collateral estoppel should not be applied to judgments of
    dismissal. . . when based on settlement agreements.") The reason settlement
    agreements are ordinarily not preclusive is that "the parties could settle for
    myriad reasons not related to the resolution of the issues they are litigating."
    
    Marguardt. 33 Wash. App. at 689
    .
    Other than the order quoted above, the record contains no evidence that
    the title company lawsuit was dismissed due to a settlement. Approval of a
    stipulation does not necessarily mean the parties settled. We might reasonably
    8
    No. 74703-7-1/9
    assume that the order of dismissal reflects an undisclosed settlement whereby
    Swinger, in exchange for being excused from liability for the title company's
    attorney fees, agreed to give up his right of appeal as well as a remaining claim
    for damages under the policy that is mentioned in the summary judgment order
    of October 14, 2011. But even if that is what happened, the rule stated in
    Marguardt is not controlling. The estoppel operating in the present case does not
    come from the final judgment entered in the title company case on March 1,
    2012. The estoppel comes from the order on partial summary judgment entered
    on October 14, 2011.
    Finality for the purposes of collateral estoppel, which is designed to
    prevent more than one trial on the same claim, is different from finality for the
    purposes of appeal, which is intended to discourage the piecemeal review of an
    action. 
    Cunningham. 61 Wash. App. at 568
    . An order on partial summary
    judgment may be sufficientlyfinal for collateral estoppel purposes even if it is not
    appealable. 
    Cunningham. 61 Wash. App. at 570
    . That is the case here. The order
    of October 14, 2011, firmly dismissed the claims requiring proof of Swinger's
    ownership. The final order on March 1, 2012, did not change that. The order of
    October 14, 2011, was sufficiently final to satisfy the second element of collateral
    estoppel.
    The third element is also satisfied. Swinger, the party to be estopped,
    was a party to the earlier action.
    In assessing the fourth element, whether application of collateral estoppel
    would work an injustice, reviewing courts focus on whether the parties to the
    No. 74703-7-1/10
    earlier action were afforded a full and fair opportunity to litigate their claim in a
    neutral forum. Nielson v. Spanawav Gen. Med. Clinic. Inc.. 
    135 Wash. 2d 255
    , 264-
    65, 
    956 P.2d 312
    (1998).
    Swinger contends he was denied the opportunity to introduce evidence
    against the title insurance company. He also claims to have lacked sufficient
    motivation to litigate that action vigorously because he did not foresee the
    collateral estoppel consequences. Swinger states, "The court did not advise or
    take extra care in advising me of the implications of not providing all documents
    supporting my ownership of the disputed area." Brief of Appellant at 14.
    The court was not obligated to advise Swinger of the consequences of not
    bringing an appeal. The role Swinger describes is that of a lawyer, not a judge.
    Swinger chose to act pro se in bringing this lawsuit and the action against the title
    company. In undertaking the role of a lawyer, pro se litigants assume the duties
    and responsibilities of a lawyer and are held accountable to the same standard of
    legal knowledge. Batten v. Abrams. 
    28 Wash. App. 737
    , 739 n.1, 
    626 P.2d 984
    ,
    review denied. 95 Wn.2d 1033(1981).
    The superior court was a neutral forum for Swinger's case against the title
    company. The court considered thorough briefing by the parties and heard oral
    argument. Swinger had a full and fair opportunity to litigate his claim that he
    owned the property on the east bank, and it was decided against him.
    The elements of collateral estoppel are met here. The trial court properly
    dismissed Swinger's unjust enrichment claim as precluded by the decision in the
    previous case.
    10
    No. 74703-7-1/11
    We turn next to Swinger's assertion of a claim that itwas an abuse of
    process for Vanderpol to file the federal lawsuit. He requests reimbursement for
    the expenses he incurred in result of that litigation. The trial court dismissed
    Swinger's abuse of process claim for lack of evidentiary support.
    To prove an abuse of process, the claimant must demonstrate: (1) an
    ulterior purpose to accomplish an object not within the proper scope of the
    process and (2) an act not proper in the regular prosecution of proceedings. Fite
    v, Lee, 
    11 Wash. App. 21
    , 27, 
    521 P.2d 964
    . review denied. 
    84 Wash. 2d 1005
    (1974).
    For instance, an abuse of process occurs when a party files numerous improper
    motions and discovery requests for the purpose of harassing another party.
    Hough v. Stockbridge. 
    152 Wash. App. 328
    , 346-47, 
    216 P.3d 1077
    (2009), review
    denied, 
    168 Wash. 2d 1043
    (2010). "The mere institution of a legal proceeding
    even with a malicious motive does not constitute an abuse of process." 
    Fite, 11 Wash. App. at 27-28
    ; see also 
    Abrams. 28 Wash. App. at 749
    ("filing a lawsuit,
    although baseless or vexatious, is not misusing process.") "There is no liability if
    nothing is done with the lawsuit other than carrying it to its regular conclusion."
    
    Abrams, 28 Wash. App. at 749
    .
    Swinger first argues Vanderpol's filing of the federal suit was an abuse of
    process because the court lacked subject matter jurisdiction. Filing suit in a court
    that lacks jurisdiction does not by itself satisfy eitherelement ofan abuse of
    process claim. There is no evidence thatVanderpol had an ulterior motive. The
    lawsuit was carried to a regular conclusion when the appellate court dismissed it
    for lack of jurisdiction.
    11
    No. 74703-7-1/12
    Swinger next argues it was an abuse of process for Vanderpol to include
    an adverse possession claim in his federal court lawsuit when he had not paid
    the taxes on the subject property. Again, Swinger fails to identify evidence
    satisfying the elements of an abuse of process claim. Assuming for the sake of
    argument that Vanderpol filed the adverse possession claim without the evidence
    needed to prove it, that would make his claim baseless, but it would not establish
    an abuse of process. The trial court properly dismissed the abuse of process
    claim.
    Next, we address Swinger's claim that Vanderpol, through his
    communications with the District, is liable for a tortious interference with contract.
    Swinger argues that Vanderpol interfered with Swinger's contract with the
    Conservation Reserve Enhancement Program. Vanderpol's December 2011
    letter to the District asserted that if planting occurred on his property without his
    consent, he would "pursue his full legal rights and remedies with regards to such
    an intentional trespass." In his February 2012 letter, he reiterated that he would
    seek legal recourse if a trespass occurred. Swinger asserts that Vanderpol's
    "criticism and litigation threat letter" constitutes a tortious interference. He claims
    damages of $54,370, the amount he would have received for participating in the
    program.
    The information Vanderpol communicated to the District—that he allegedly
    owned the property Swinger was attempting to commit for preservation—was
    relevant to the District's decision whether to proceed with a project on Swinger's
    property. The District is a government agency. See RCW 89.08.020. The trial
    12
    No. 74703-7-1/13
    court properly dismissed Swinger's interference claim because Vanderpol has a
    statutory immunity from a suit based on his communications with a government
    agency. "A person who communicates a complaint or information to any branch
    or agency of federal, state, or local government... is immune from civil liability
    for claims based upon the communication to the agency or organization
    regarding any matter reasonably of concern to that agency or organization."
    RCW 4.24.510. The purpose of this statute is "to protect individuals who make
    good-faith reports to appropriate governmental bodies," based on a finding that
    "the threat of a civil action for damages can act as a deterrent to citizens who
    wish to report information to federal, state, or local agencies." RCW 4.24.500.
    The tortious interference claim was properly dismissed for an additional
    reason. One element of a tortious interference claim is the existence of a valid
    contract. Calbom v. Knudtzon. 
    65 Wash. 2d 157
    , 162, 
    396 P.2d 148
    (1964).
    Swinger's interference claim depends on his having a valid contract with the
    District. As discussed above in connection with the unjust enrichment claim,
    Swinger is precluded from asserting that he owns land on the east bank.
    Swinger cannot prove he has a valid contract with the District as to property on
    the east bank because he cannot prove he owns that property.
    Last, we consider the issue of attorney fees and costs. Relying on RCW
    4.24.510, the trial court awarded Vanderpol $10,000 in statutory damages as well
    as the attorney fees he incurred in obtaining dismissal of Swinger's claim of
    tortious interference with contract. Vanderpol requests an award of attorney fees
    and costs for this appeal under the same statute.
    13
    No. 74703-7-1/14
    A person immune from suit under RCW 4.24.510 "is entitled to recover
    expenses and reasonable attorneys' fees incurred in establishing the defense
    and in addition shall receive statutory damages often thousand dollars.
    Statutory damages may be denied if the court finds that the complaint or
    information was communicated in bad faith." RCW 4.24.510.
    Swinger contends it was error for the trial court to award damages and
    fees under the statute. He cites Gontmakher v. City of Bellevue. 
    120 Wash. App. 365
    , 366, 
    85 P.3d 926
    (2004), for the proposition that for RCW 4.24.510 to apply,
    the information communicated to an agency must concern "potential
    wrongdoing." He contends that Vanderpol "did not flag" potential wrongdoing by
    Swinger when he communicated with the District.
    The phrase "potential wrongdoing" occurs in Gontmakher, where the
    opinion explains the background of the statute by quoting legislative findings.
    
    Gontmakher. 120 Wash. App. at 371
    . The legislative findings are stated in RCW
    4.24.500:
    Information provided by citizens concerning potential wrongdoing is
    vital to effective law enforcement and the efficient operation of
    government. The legislature finds that the threat of a civil action for
    damages can act as a deterrent to citizens who wish to report
    information to federal, state, or local agencies. The costs of
    defending against such suits can be severely burdensome. The
    purpose of RCW 4.24.500 through 4.24.520 is to protect individuals
    who make good-faith reports to appropriate governmental bodies.
    The quoted language explains why the legislature saw fit to enact the
    statute; it does not create a requirement or element. The operative language
    concerning immunity and attorney fees is found in the next section of the statute,
    RCW 4.24.510. This section does not require that the "complaint or information"
    14
    No. 74703-7-1/15
    communicated by the speaker must concern wrongdoing in order for immunity to
    attach.
    As discussed above, Vanderpol is immune from suit under RCW 4.24.510
    with respect to the tortious interference claim. The court did not find that
    Vanderpol communicated information to the District in bad faith. Therefore, the
    trial court did not err in awarding to Vanderpol the mandatory damages of
    $10,000 as well as the expenses and reasonable attorney fees he incurred to
    establish the defense of immunity. Subject to compliance with RAP 18.1,
    Vanderpol is entitled to an award of the attorney fees and costs he incurred in
    this appeal that are related to the immunity defense under RCW 4.24.510.
    Affirmed.
    WE CONCUR:
    If\ iM.Q y -J
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