Confederated Tribes and Bands of the Yakama Nation v. Okanogan County ( 2021 )

FILED
FEBRUARY 2, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CONFEDERATED TRIBES AND )
BANDS OF THE YAKAMA NATION, ) No. 37129-8-III
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
OKANOGAN COUNTY, )
)
Respondent. )
FEARING, J. — This appeal concerns one of endless broken promises by American
government authorities toward Native Americans. The breach of an agreement in this
instance also encompasses a violation of a court order.
The Confederated Tribes and Bands of the Yakama Nation (Yakama Nation)
agreed to dismiss a lawsuit against Okanogan County, and, in return, the county agreed to
adopt, by December 31, 2018, a new comprehensive plan and zoning ordinance that
hopefully addressed the concerns the Nation had about the county’s current plan and
ordinance. The superior court signed an order of dismissal without prejudice of the
lawsuit, which order incorporated the many promises of the parties. When Okanogan
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County failed to adopt a new plan and ordinance by December 31, 2018 and thereby
violated the court order, the Yakama Nation moved to vacate the order of dismissal. The
superior court denied the motion to vacate on the alternative grounds that it lacked
authority to vacate an order of dismissal without prejudice and that the Nation had no
sustainable cause of action against the county for breaching its promises or violating the
court order. Because the order of dismissal without prejudice imposed numerous
obligations on Okanogan County, some of which it has disobeyed, we rule that the
motion to vacate should have been granted. We thus reverse the superior court.
FACTS
Our facts principally cover the procedural history behind a dispute between the
Yakama Nation and Okanogan County concerning the legal legitimacy of the county’s
comprehensive plan and zoning code. On August 15, 2016, the Yakama Nation sued
Okanogan County and alleged that the county’s comprehensive plan, zoning code, and
other actions violated the State Environmental Policy Act (SEPA) chapter 43.21C RCW,
the Growth Management Act (GMA) chapter 36.70A RCW, and the Planning Enabling
Act of the State of Washington (PEA) chapter 36.70 RCW. This 2016 suit is the case
now on appeal.
Less than one year later, the Yakama Nation and Okanogan County reached a
resolution of the lawsuit. The county agreed to adopt a new comprehensive plan and
zoning ordinance, with input from the Nation, by the end of 2018, and the Nation agreed
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to dismiss its suit without prejudice. On March 20, 2017, the Yakama Nation and
Okanogan County executed a stipulated agreement and order of dismissal without
prejudice in the lawsuit. The stipulated agreement read, in part:
1. This Stipulation is made for the dismissal of the above-captioned
action, which concerns [Okanogan County’s zoning ordinance]. The
dismissal is made without prejudice to any future claims or defenses by any
Party in any subsequent proceeding that concerns the Zoning Ordinance
(either in its present form, or as amended), or any associated environmental
review. This includes, without limitation, any future claims based on
Okanogan County’s (“County”) actions or failures to act.
2. Within sixty (60) days from the date of the execution of this
Stipulation and associated Order, the County shall take all necessary
action(s) to initiate a review of:
a. Okanogan County’s Comprehensive Plan. . . ; and
b. Okanogan County’s [zoning ordinance] . . . ; and
c. The environmental review of the Comprehensive Plan and the
Zoning Ordinance under Washington’s State Environmental Policy Act and
applicable county ordinances. Such environmental review shall be “ab
initio” to the commencement of the environmental review process leading
to the adoption of the current Comprehensive Plan and Zoning Ordinance,
meaning that any conclusions drawn in prior environmental review
documents shall be open to new review in any subsequent proceeding.
3. In conducting its reviews of the Comprehensive Plan and Zoning
Ordinance, the County hereby affirms its intention to give serious
consideration to all issues raised by the Yakama Nation, along with any
issues raised by the general public, other governments, or County staff or
officials.
4. During the County’s review of its Comprehensive Plan and
Zoning Ordinance, the County will continue to process land use permits
and other development applications under the applicable County ordinances
presently in place, and as amended. Plaintiff reserves any rights it may
have to appeal any land use permit or development application
determinations made by the County under such ordinances[.] . . . The
County agrees to promptly implement an online, public permit tracking
system identifying all land use applications as received, and any associated
decisions or scheduled hearings.
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5. No later than December 31, 2018, the County shall take final
legislative action(s) to (a) repeal, in their entirety, the current
Comprehensive Plan . . . and current Zoning Ordinance . . . , and (b) adopt
a new Comprehensive Plan and new Zoning Ordinance. . . . The County’s
obligation to repeal in full the current Comprehensive Plan and Zoning
Ordinance, and to take final legislative action to adopt a new
Comprehensive Plan and Zoning Ordinance, is intended by the Parties to
avoid any and all prejudice or limitation to the Parties’ future claims and
defenses; and shall not be interpreted to obligate the County to make any
specific changes or updates to the Comprehensive Plan or Zoning
Ordinance.
Clerk’s Papers (CP) at 37-39 (emphasis added).
The parties appended an order of dismissal without prejudice to the stipulated
agreement. The order went beyond the standard order of dismissal and copied much of
the language from the stipulated agreement. The order signed by the court read in part:
Pursuant to the foregoing Stipulation and under the authority of Civil
Rule 41(A), the Court hereby:
ORDERS that the above-entitled action is DISMISSED in its
entirety, without prejudice and without costs as to any party; and
ORDERS that the forgoing Stipulation preserves certain rights to the
Parties, which shall be protected for all Parties for all purposes; and
ORDERS that within sixty (60) days from the date of the execution
of this Order of Dismissal, the County shall lake all necessary action(s) to
initiate a review of:
(1) Okanogan County’s Comprehensive Plan; and
(2) Okanogan County Code Title 17A; and
(3) An “ab initio” environmental review of each under Washington’s
State Environmental Policy Act and applicable County ordinances; and
ORDERS that, no later than December 31, 2018, the County shall
take final legislative action(s) to (a) repeal, in their entirety, the current
Comprehensive Plan and Zoning Ordinance . . . , and (b) adopt a new
Comprehensive Plan and new Zoning Ordinance. . . ; and
ORDERS that the County may continue to process land use permits
and development applications under applicable County ordinances, as
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presently in place or as may be amended through the legislative process,
without prejudice to any associated claims of any Party.
CP at 41 (emphasis added).
Okanogan County failed to adopt a new comprehensive plan and zoning ordinance
by December 31, 2018. The County also failed to implement a public tracking system to
identify received land use petitions, petition hearing dates, and related decisions as
required under the stipulation. The county asserts that it has engaged in good faith efforts
to enact a new plan and ordinance.
PROCEDURE
On July 10, 2019 and as a result of Okanogan County’s failure to comply with the
2017 agreement’s and order of dismissal’s deadlines, the Yakama Nation filed a motion,
in this 2016 suit, to vacate the March 21, 2017 order of dismissal. The motion also
sought to reinstate the 2016 lawsuit, procure a new order requiring compliance with the
2017 stipulated order of dismissal, hold the county in contempt, impose sanctions against
Okanogan County, and grant reasonable attorney fees and costs to the Nation. In its
motion, the Yakama Nation argued that the stipulated commitments by Okanogan County
were essential to the Nation’s earlier dismissal of this case. The Nation contended that a
party’s failure to perform a material condition of an agreement that serves as the basis for
an order of dismissal constitutes an extraordinary circumstance that justifies vacature of
the order under CR 60(b)(6) and (11).
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In response to the Yakama Nation’s motion to vacate the order of dismissal and
for contempt, Okanogan County emphasized that, although it did not meet the deadlines
for adopting a new comprehensive plan and zoning ordinance, the county diligently
worked to complete the tasks. Okanogan County, in turn, argued that the Nation lacked a
cause of action against the county since no justiciable controversy existed when the
county continued to process revisions to its plan and ordinance. The county asked the
superior court to deny the motion to vacate because a valid underlying cause of action is a
condition for vacation under RCW 4.72.050.
In a declaration opposing the motion to vacate, Perry Huston, former director of
the Okanogan County Office of Planning and Development, conceded that the county
failed to meet the December 31, 2018 deadline, but he averred the county continued to
finish the tasks required in the stipulation agreement. Huston concluded that Okanogan
County worked “as quickly as reasonably possible.” CP at 104. The declaration is long
on the steps taken by Okanogan County, but does not explain why the county could not
have completed individual steps quicker. Huston avowed that the county kept the
Yakama Nation informed of its progress in adopting a new comprehensive plan and
zoning ordinance.
In his declaration, Perry Huston stated that Okanogan County anticipated adopting
the new comprehensive plan at the end of 2019 or early 2020. The adoption of the new
zoning ordinance would follow shortly thereafter. Okanogan County still has not adopted
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a new ordinance or plan.
At the conclusion of an August 12, 2019 hearing, the trial court denied the
Yakama Nation’s CR 60 motion to vacate the 2017 order of dismissal. The court
observed that, rather than earlier staying the action, the Yakama Nation chose to dismiss
the case. The court emphasized that the order of dismissal contained no language
reserving the right to enforce its terms by vacating the dismissal. The trial court reasoned
that the Nation could institute a separate lawsuit to gain relief for any alleged violation of
the 2017 agreement.
The Yakama Nation filed a motion for reconsideration. The Nation argued that
the trial court retained “jurisdiction” to enforce settlement terms and the terms of its own
orders despite an order of dismissal. In response, Okanogan County repeated its
contention that the Yakama Nation failed to show a meritorious underlying cause of
action as demanded under CR 60 and RCW 4.72.050 because no “justiciable” dispute
existed between the parties.
The trial court entertained argument on the motion for reconsideration. At the
conclusion of oral argument, the trial court denied the motion for reconsideration because
the 2017 order of dismissal precluded further proceedings within the same suit. The
court commented that it possessed jurisdiction, but agreed with Okanogan County’s
position that the Nation presented no justiciable dispute because the county continued to
work toward adoption of new comprehensive plan and zoning ordinance.
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LAW AND ANALYSIS
On appeal, the Yakama Nation repeats its contention that the superior court should
have vacated the 2017 order of dismissal and enforced the substantive portions of the
dismissal order. In turn, Okanogan County maintains that the Nation possesses no valid
cause of action, a condition precedent to vacation of the order. The county conflates this
argument with the contention that it has not violated the March 2017 agreement and order
by failing to adopt a new comprehensive plan and a zoning ordinance by December 31,
2018, because the county has worked in good faith to complete both. Okanogan County
also asks this court to decline review of the Nation’s appeal because the Nation failed to
assign error to the trial court’s ruling that no justiciable dispute lay before the court.
Preservation of Error
We first analyze whether we should address the substance of the Yakama Nation’s
contention that the superior court should have vacated the 2017 order of dismissal. In its
appeal brief, the Yakama Nation penned one assignment of error:
The Superior Court erred in entering the order of August 12, 2019,
denying the Yakama Nation’s Motion to Vacate Order of Dismissal,
entered on March 21, 2017.
Br. of Appellant at 5. In turn, the Nation framed the sole issue on appeal as:
The Superior Court issued an Order of Dismissal incorporating the
material terms of a stipulated settlement agreement between the Yakama
Nation and Okanogan County. Okanogan County violated the terms of the
Order of Dismissal and the associated settlement agreement. Does a court
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retain jurisdiction to enforce its own orders after dismissal when the terms
of the order are unquestionably violated?
Br. of Appellant at 5 (emphasis added).
Okanogan County contends the primary, if not sole, issue on appeal is whether a
justiciable issue between the parties exists. The county asserts that the Yakama Nation’s
framing of the issue as one of jurisdiction does not raise an assignment of error with
regard to justiciability, particularly when the superior court ruled that it held subject
matter jurisdiction to address the motion to vacate. The county maintains that the Nation
failed to comply with RAP 10.3, which requires an assignment of error for each alleged
mistake of the trial court.
RAP 10.3 declares, in relevant part:
(a) Brief of Appellant or Petitioner. The brief of the appellant or
petitioner should contain under appropriate headings and in the order here
indicated:
....
(4) Assignments of Error. A separate concise statement of each error
a party contends was made by the trial court, together with the issues
pertaining to the assignments of error.
We decline to dismiss the Yakama Nation’s appeal based on RAP 10.3(a)(4).
We construe the rules of appellate procedures liberally to promote justice and
facilitate the decision of cases on the merits. RAP 1.2(a); State v. Olson, 126 Wn.2d 315,
318, 893 P.2d 629 (1995); State v. Turner, 156 Wn. App. 707, 711, 235 P.3d 806 (2010).
We promote substance over form. State v. Olson, 126 Wn.2d 315, 318. When the nature
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of the appeal is clear and when the parties submit argument to the relevant issues in the
body of the brief so that the respondent suffers no prejudice, this court should exercise its
discretion to consider the merits of the case or issue. State v. Olson, 126 Wn.2d 315, 318
(1995); State v. Turner, 156 Wn. App. 707, 711 (2010).
The briefing of the parties addresses the critical issues of this appeal and the
Yakama Nation’s contentions with regard to those issues. The Nation contends that it
can enforce the 2017 stipulated agreement and the order of dismissal. The Yakama
Nation further argues that the trial court continued to possess authority to enforce the
terms of the order of dismissal, despite the language in the order dismissing the suit
without prejudice. These contentions relate to the Nation’s assignment of error that the
court erred when refusing to grant the Nation’s motion to vacate.
The Nation framed the issue on appeal as one of jurisdiction, although the trial
court based its decision, in part, on justiciability. Nevertheless, as we examine later, the
Washington Supreme Court has often confused or conflated the two concepts and
declared that a court lacks jurisdiction unless the parties present a justiciable issue.
Washington Education Association v. Washington State Public Disclosure Commission,
150 Wn.2d 612, 622, 80 P.3d 608 (2003); High Tide Seafoods v. State, 106 Wn.2d 695,
702, 725 P.2d 411 (1986); Alim v. City of Seattle, 14 Wn. App. 2d 838, 847-50, 474 P.3d
589 (2020). The Yakama Nation’s confusing of justiciability with jurisdiction has
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harmed Okanogan County none. The county has understood and fully responded to the
contentions of the Nation.
Justiciable Dispute
The trial court, at least in response to the Yakama Nation’s motion for
reconsideration, ruled that no justiciable dispute lay before it. The court based the
absence of justiciability on the fact that the Nation could not sustain a cause of action
against Okanogan County because the county continued to work toward the adoption of a
comprehensive plan and a zoning ordinance. Presumably, based on this theory, the trial
court would also dismiss any separate action brought by the Yakama Nation to enforce
the March 2017 agreement. In turn, Okanogan County, on appeal, devotes much of its
brief in support of affirming the trial court’s ruling that no justiciable controversy existed
before the trial court because the county is in the midst of revising its comprehensive plan
and zoning ordinance. The county characterizes the Yakama Nation’s motion to vacate
as an interlocutory challenge to its governmental process.
Okanogan County cites Save Our Scenic Area v. Skamania County, 183 Wn.2d
455, 352 P.3d 177 (2015) and State ex rel. Friend & Rikalo Contractor v. Grays Harbor
County, 122 Wn.2d 244, 857 P.2d 1039 (1993) for the proposition that one cannot
challenge a government entity’s processing of ordinances and plans until a final adoption
of the plan or ordinance. Those cases support the proposition for which the county cites
them. Nevertheless, none of the decisions address the question pending before this court.
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In the cited decisions, none of the government entities had entered a contract agreeing to
adopt a comprehensive plan or a zoning ordinance by a definite deadline. In the cited
cases, no superior court had ordered the government entity to adopt a comprehensive plan
or zoning ordinance by a certain date. Okanogan County presents no decision that
concludes no justiciable issue exists when a party seeks to enforce an agreement or a
court order, under which a municipality agreed to adopt a comprehensive plan or an
ordinance by an established deadline.
The plaintiff must present the court a justiciable claim. A justiciable controversy
means (1) one presenting an actual, present, and existing dispute, or the mature seeds of
one, as distinguished from a possible, dormant, hypothetical, speculative, or moot
disagreement, (2) between parties having genuine and opposing interests, (3) involving
interests that are direct and substantial, rather than potential, theoretical, abstract, or
academic, and (4) of which a judicial determination will be final and conclusive.
Diversified Industries Development Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137(1973); Alim v. City of Seattle, 14 Wn. App. 2d 838, 847 (2020). A current dispute exists
between Okanogan County and the Yakama Nation as to whether the Nation may gain
relief because of the county’s failure to abide by the 2017 agreement and order of
dismissal and as to whether the Nation may vacate the order of dismissal without
prejudice. Okanogan County and the Yakama Nation have genuine, direct, and opposing
interests. The superior court can grant a conclusive ruling regardless of whether
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Okanogan County continues to work toward adopting a comprehensive plan and zoning
ordinance.
The superior court need not have employed the doctrine of justiciability to issue its
second ruling that Okanogan County’s continued work on a comprehensive plan and
zoning ordinance precluded vacation of the 2017 order of dismissal. We view the ruling
as one that denied the Yakama Nation’s motion to vacate the order of dismissal because
the Nation lacked a viable cause of action on the merits against Okanogan County. We
now proceed to decide whether a party, who reaches an agreement with a county for the
adoption of a comprehensive plan or zoning ordinance by a certain deadline, may enforce
the agreement if and when the county fails to adopt the plan and ordinance by the due
date. We also proceed now to decide whether a party may enforce a court order that
compels a municipal corporation to adopt a comprehensive plan and zoning code by an
established date. We later decide whether the Nation may enforce its rights in this 2016
lawsuit when the superior court earlier dismissed the suit without prejudice, or,
conversely, whether it must file a second suit.
Breach of Contract and Violation of Court Order
In the March 20, 2017 agreement between the Yakama Nation and Okanogan
County, the county agreed to, no later than December 31, 2018, take final legislative
action to repeal the current comprehensive plan and zoning ordinance and adopt a new
comprehensive plan and zoning ordinance. This duty, however, did not obligate the
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county to make any specific changes to the present plan or ordinance. The undisputed
facts establish that Okanogan County breached the agreement. To date, the county has
yet to adopt a new comprehensive plan and zoning ordinance.
Okanogan County emphasizes the testimony of its former planning official Perry
Huston that the county has engaged in ongoing and serious efforts to repeal and replace
the comprehensive plan and zoning code. The county may thereby impliedly argue that
diligent efforts excused its nonperformance of the agreement terms. Nevertheless,
Okanogan County does not expressly forward this argument, provide legal authority in
support of the argument, or analyze the facts in light of court decisions. Nor does the
county argue that it lacked authority to enter into the 2017 agreement.
Although Okanogan County does not argue the point, we recognize that a county
may not contract away the prerogative to render decisions on the content of county-wide
planning policies and comprehensive plans. City of Burien v. Central Puget Sound
Growth Management Hearings Board, 113 Wn. App. 375, 388 n.13, 53 P.3d 1028(2002). This rule follows the general principle that no municipal government has the
power to make contracts that control or limit it in the exercise of its legislative powers
and duties, including adoption of planning and zoning rules. Neeman v. Town of
Warwick, 184 A.D.3d 567, 570, 125 N.Y.S.3d 143 (2020); Wallingford v. Moab City,
2020 UT App 12, 459 P.3d 1039, 1046, cert. denied, 466 P.3d 1073 (Utah 2020). The
test to determine if the municipality lacks authority to enter a contract is whether the
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agreement commits the municipality to a specific course of action with respect to the
legislative action. Neeman v. Town of Warwick, 184 A.D.3d 567, 570 (2020).
The agreement between Okanogan County and the Yakama Nation did not
obligate the county to any particular content in its new comprehensive plan or zoning
ordinance. Instead, the county reserved the right to exercise its discretion in adopting the
plan or ordinance. Thus, the 2017 agreement did not conflict with any restriction on a
county’s prerogative in adopting the contents of planning and zoning polices.
We also note that, while the March 2017 written agreement does not expressly
provide that time is of the essence, a delay in performance may be adjudged not to be a
material breach depending on the surrounding circumstances. Cartozian & Sons, Inc. v.
Ostruske-Murphy, Inc., 64 Wn.2d 1, 5-6, 390 P.2d 548 (1964). But Okanogan County
does not contend such circumstances exist here. The county has fallen two years behind
schedule and has not even complied with the schedule that its former official planner set
in his declaration opposing the Yakama Nation’s motion to vacate. We observe that the
county possessed intimate knowledge of the process of and time required for preparing
and passing a comprehensive plan and zoning code when it entered the 2017 agreement.
The county could have refused to enter the agreement if it did not consider the deadline
realistic.
Throughout its briefing, Okanogan County ignores that, in addition to its signing
of an agreement in 2017, the superior court entered an order demanding that the county
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adopt a comprehensive plan and zoning ordinance by December 31, 2018. Yakama
Nation’s case does not simply concern the breach of a contract, but also violation of a
court order. During oral argument, Okanogan County conceded that it has violated the
order. Wash. Court of Appeals oral argument, Confederated Tribes and Bands of the
Yakama Nation v. Okanogan County, No. 37129-8-III (Dec. 9, 2020), at 16 min., 02 sec.
to 16 min., 10 sec. (on file with court). The county also conceded that no language in the
order excused its breach of the deadline if it works with due diligence. Wash. Court of
Appeals oral argument, supra, at 16 min., 35 sec. to 17 min., 10 sec.
We expect municipal corporations to obey court orders, just as we expect private
citizens to comply with court orders. If Okanogan County deemed it needed more time to
meet the December 31, 2018 deadline, the county could have and should have requested,
before the end of 2018, the court to modify the order. Instead, Okanogan County has
flouted the order. Even assuming Okanogan County lacked authority to enter the 2017
agreement, no decision suggests that a party cannot enforce a court order that compels a
government entity to adopt a land use plan or ordinance by a firm date.
Subject Matter Jurisdiction
We next consider whether a trial court may grant a motion vacating an order of
dismissal after the plaintiff voluntarily dismissed lawsuit claims without prejudice. The
Yakama Nation phrases this question in terms of whether the trial court retained
jurisdiction to enforce the terms of the order of dismissal. Since the Nation sued in
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Okanogan County Superior Court and Okanogan County’s principal place of business is
Okanogan County, the court possessed personal jurisdiction over both parties. Thus, the
Nation must refer to subject matter jurisdiction.
We conclude that the question of whether the superior court can enforce the 2017
order of dismissal does not implicate subject matter jurisdiction of the court. Recent
decisions of the United States Supreme Court, the Evergreen State Supreme Court, and
this court have recognized confusion resulting from earlier courts’ use of the word
“jurisdiction” or the phrase “subject matter jurisdiction” to extend to concepts other than
subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998); Marley v. Department of Labor &
Industries, 125 Wn.2d 533, 539, 886 P.2d 189 (1994); Cole v. Harveyland, LLC, 163 Wn.
App. 199, 208, 258 P.3d 70 (2011). In other settings, the United States Supreme Court
has employed colorful language about “profligate” courts misusing the concept of subject
matter jurisdiction and engaging in “‘drive-by jurisdictional rulings’” about subject
matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 510-11, 126 S. Ct. 1235, 163
L. Ed. 2d 1097 (2006). Subject matter jurisdiction simply refers to the court, in which a
party files a suit or a motion, being the correct court for the type of suit or character of a
motion. The critical concept in determining whether a court has subject matter
jurisdiction is the “type of controversy.” Marley v. Department of Labor & Industries,
125 Wn.2d at 539; In re Marriage of McDermott, 175 Wn. App. 467, 480-81, 307 P.3d
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717 (2013). If the type of controversy is within the subject matter jurisdiction, then all
other defects or errors go to something other than subject matter jurisdiction. Marley v.
Department of Labor & Industries, 125 Wn.2d at 539; In re Estate of Reugh, 10 Wn.
App. 2d 20, 48, 447 P.3d 544 (2019), review denied, 194 Wn.2d 1018, 455 P.3d 128(2020).
The Yakama Nation seeks to enforce a settlement agreement confirmed by a court
order entered by the Okanogan County Superior Court. In order to enforce the
settlement, the Nation filed a motion to vacate the order of dismissal without prejudice.
The pending motion is the type of motion to be heard by the county superior court. Thus,
the Okanogan County Superior Court held jurisdiction. The original order of dismissal
had been entered by the superior court. Whether the law authorizes the trial court to
vacate an order of dismissal without prejudice in order to enforce its terms is a distinct
question not implicating jurisdiction.
Motion to Vacate Order of Dismissal
Whether the superior court should have granted the motion to vacate involves two
discrete questions. First, may a court vacate a voluntary order of dismissal? Second, has
the Yakama Nation presented sufficient grounds for vacature under CR 60? We conflate
the two questions. We answer both in the affirmative.
The Yakama Nation relies on subsections 6 and 11 of CR 60(b) when asking to
vacate the order of dismissal without prejudice. CR 60 reads, in relevant part:
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(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the court
may relieve a party or the party’s legal representative from a final
judgment, order, or proceeding for the following reasons:
....
(6) it is no longer equitable that the judgment should have
prospective application;
. . .; or
(11) Any other reason justifying relief from the operation of the
judgment.
(Boldface omitted.)
In turn, Okanogan County principally relies on RCW 4.72.050, when arguing that
the trial court correctly denied the motion to vacate because the Yakama Nation lacked a
meritorious claim against the county. The statute reads in part:
The judgment shall not be vacated on motion or petition until it is
adjudged that there is a valid defense to the action in which the judgment is
rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of
action.
We have already ruled that the Nation possess a valid cause of action.
A proceeding to vacate a default judgment is equitable in character and relief is to
be afforded in accordance with equitable principles. Griggs v. Averbeck Realty, Inc., 92
Wn.2d 576, 581, 599 P.2d 1289 (1979). The trial court should exercise its authority
liberally, as well as equitably, to the end that substantial rights be preserved and justice
between the parties be fairly and judiciously done. Griggs v. Averbeck Realty, Inc., 92
Wn.2d at 582; White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968).
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Confederated Tribes and Bands of the Yakama Nation v. Okanogan County
We review a trial court’s ruling under CR 60(b) for an abuse of discretion. Haller
v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978). A trial court abuses its discretion
when applying the wrong legal standard. Gilmore v. Jefferson County Public
Transportation Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018). Here the
superior court applied the wrong legal standard when ruling that no justiciable issue was
before it and, as concluded later, when ruling that the Yakama Nation needed to file a
separate action to enforce the 2017 settlement agreement and court order. We agree with
the Yakama Nation that the circumstances of Okanogan County’s breach of the
settlement agreement and defying the 2017 court order call for the application of equity
and present other justifiable reasons for vacating, under CR 60(b)(6) and (11), the order
of dismissal without prejudice.
A party may vacate an order of dismissal in order to enforce the terms of a
settlement agreement or in order to enforce conditions of the order of dismissal. Condon
v. Condon, 177 Wn.2d 150, 157, 298 P.3d 86 (2013). A court retains the inherent
authority to enforce its own orders. Condon v. Condon, 177 Wn.2d 150, 160. The courts
prefer that the party seek to vacate the order in the same litigation rather than subjecting
the courts to separate actions in order to enforce the settlement, on which the parties
based the dismissal. Condon v. Condon, 177 Wn.2d 150, 158. Jurisdiction may exist
following dismissal of a settlement in order to protect the court’s proceedings and
vindicate the court’s authority. Condon v. Condon, 177 Wn.2d at 158.
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In Condon v. Condon, the Washington Supreme Court followed the United States
Supreme Court’s enunciation of federal law with regard to vacations of orders of
dismissal. In Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375,
381, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994), the Court wrote:
[I]f the parties’ obligation to comply with the terms of the settlement
agreement had been made part of the order of dismissal—either by separate
provision (such as a provision “retaining jurisdiction” over the settlement
agreement) or by incorporating the terms of the settlement agreement in the
order. In that event, a breach of the agreement would be a violation of the
order, and ancillary jurisdiction to enforce the agreement would therefore
exist.
In Condon v. Condon, 177 Wn.2d 150 (2013), the court addressed whether the
trial court retained jurisdiction to enforce a settlement after a stipulated dismissal of
claims. Vanessa Condon and Fely Condon agreed, in open court, to terms which would
resolve Vanessa’s claims against Fely. The parties never placed the terms in writing,
however. They executed a stipulated settlement and order of dismissal, and the trial court
entered an order dismissing Vanessa’s claims against Fely with prejudice. Fely sent
Vanessa a receipt and release of claims form which Vanessa refused to sign. Fely
brought a post-dismissal motion to enforce the settlement and require the signing of the
receipt and release. Vanessa responded that she never agreed to sign a release as part of
the settlement and, further, the order of dismissal with prejudice ended all litigation. The
trial court agreed with Fely that a release should be required as part of the settlement. It
entered an order deeming the release signed.
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On review, in Condon v. Condon, Vanessa Condon argued to the Supreme Court
that a dismissal with prejudice ends all litigation and removes a court’s jurisdiction over
the matter. Our high court acknowledged that “a voluntary dismissal under CR 41(a)(1)
generally divests a court of jurisdiction to decide a case on the merits.” Condon v.
Condon, 177 Wn.2d at 158 (quoting Hawk v. Branjes, 97 Wn. App. 776, 782, 986 P.2d
841 (1999)). The court also observed that the “best practice” is for a trial court to
“expressly retain jurisdiction for purposes of enforcement or to enter a conditional or
delayed dismissal.” Condon v. Condon, 177 Wn.2d at 161. In circumstances when that
does not occur, however, a party can move to vacate the original dismissal under
appropriate grounds and bring a motion to reinstate and enforce the settlement. In the
alternative, the party may file a separate action.
The Yakama Nation may have improved its legal position by inserting language
into the 2017 order of dismissal that the court retained authority to enforce the terms of
the order. Nevertheless, because of the detailed and extensive provisions of the order that
imposed duties on Okanogan County, we conclude, based on precedent, that the court
may vacate the dismissal order for purposes of enforcing the order’s provision and the
parties’ contract.
Other Washington decisions support our ruling. In Vaughn v. Chung, 119 Wn.2d
273, 283, 830 P.2d 668 (1992), our state high court held that a trial court retained
jurisdiction to consider a motion to vacate an involuntary order of dismissal, without
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prejudice, for want of prosecution under CR 41(b)(2). The court observed that case law
from other states as well as federal case law supported this conclusion.
In re Marriage of Thurston, 92 Wn. App. 494, 963 P.2d 947 (1998) dealt with the
vacation of a decree. Former spouses, Martyna Mandel and Robert Thurston, each
appealed the trial court’s entry of a 1995 decree characterizing and dividing their
property. The trial court entered the 1995 decree after partially vacating an earlier 1989
decree. The 1989 decree was based on a settlement between Mandel and Thurston that
had been read into the record. Pursuant to the settlement, Mandel was to receive two
units of a limited partnership. Mandel moved to vacate the decree under CR 60(b)(11)
because she never received the partnership units. The trial court granted the motion to
vacate and thereafter entered a new decree.
On appeal, in In re Marriage of Thurston, this court considered whether
extraordinary circumstances existed, under CR 60(b)(11), to vacate the 1989 decree.
This court observed that, at the time of the 1989 decree, the trial court and counsel for
each side believed that the transfer was a requirement for settlement, and, absent transfer
of the units, settlement would not occur. Accordingly, the condition was a material
condition of the parties’ settlement. Thus, the trial court did not err by setting aside the
decree under CR 60(b) because of the extraordinary circumstances of a material condition
of the parties’ decree failing.
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Finally, Keeling v. Sheet Metal Workers International Association, Local Union
162, 937 F.2d 408 (9th Cir. 1991), supports the position that the trial court should vacate
an order of dismissal, under CR 60(b)(6), when one party breaches an agreement on
which the parties based the dismissal.
The Yakama Nation wished to challenge the current comprehensive plan and
zoning ordinance of Okanogan County when it filed its 2016 suit. The Nation would not
have dismissed its suit without the county agreeing to vacate the plan and ordinance and
adopt a new plan and ordinance, with input from the Nation. Compliance with the court
order was a condition to dismissing the suit.
Okanogan County argues that the Yakama Nation’s cited authority pertains to
motions to vacate default judgments, not motions to vacate voluntary dismissals. We
disagree. The decisions we review involved orders of dismissal. Also, Okanogan County
cites no case wherein the appeals court ruled that the trial court lacked authority to
enforce substantive terms of an order of dismissal without prejudice when one of the
parties to the order breaches its terms.
Cases relied on by the trial court include Wachovia SBA Lending, Inc. v. Kraft,
165 Wn.2d 481, 200 P.3d 683 (2009) and State v. Taylor, 150 Wn.2d 599, 80 P.3d 605(2003). In Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 492, our high court
concluded that a voluntary dismissal is not a final judgment as contemplated under RCW
4.84.330, a statute that affords reasonable attorney fees and costs to a party when a
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contract allows the award. The Supreme Court reasoned, that, unlike a final judgment, a
voluntary dismissal leaves the parties as if the action had never been brought.
In State v. Taylor, 150 Wn.2d 599, 602 (2003), the Washington Supreme Court
considered whether dismissal of a criminal prosecution without prejudice is a final order
for purposes of an appeal. The Taylor court concluded that an order of dismissal without
prejudice does not fit within this court’s definition of “final judgment.” The court
reasoned that the order of dismissal does not resolve legal and substantive issues. The
dismissal without prejudice left the parties in the same condition as before the
prosecution began.
We might follow the teaching of State v. Taylor and Wachovia SBA Lending, Inc.
v. Kraft but for the many cases that allow vacation of an order of dismissal based on one
party’s failure to comply with an agreement or court order. In contrast to the cited
decisions, the settlement agreement between the Nation and Okanogan County imposed
obligations on the county. The order of dismissal did not leave the parties in the same
position as before litigation was initiated. An order of dismissal does not ascend to the
lofty position of the Ark of the Covenant that cannot be touched or function as the law of
the Medes and Persians that cannot be altered.
Because Okanogan County violated the terms of a court order, the trial court could
have and should have vindicated its authority and required compliance with its lawful
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order by vacating the portion of the order dismissing lawsuit claims. Vacating the order
promotes judicial economy over requiring the Yakama Nation to file a second suit.
As part of its appellate court presentation, the Yakama Nation contends that, with
a vacation of the 2017 order of dismissal, it may proceed with the claims it asserted in its
2016 complaint in addition to proceeding to enforce the order of dismissal. We question
whether the Nation can proceed with the causes of action as stated in its complaint. The
complaint alleges that the current comprehensive plan and zoning ordinance fails to meet
the standards of SEPA, GMA, and PEA. The settlement agreement, however, suggests
that the Nation relinquished its claims that the current plan and ordinance violated the
law, in exchange for Okanogan County agreeing to adopt a new plan and ordinance. The
agreement read that the dismissal was without prejudice to any “future claims or defenses
by any party.” CP at 205. The agreement did not reserve the right to challenge the
current comprehensive plan and zoning ordinance of Okanogan County. An agreement
that only expressly reserves future claims impliedly waives past or pending claims.
The Yakama Nation’s release of any rights to challenge the pending
comprehensive plan and zoning ordinance may lack any practical impact on the Nation’s
rights. The Nation reserved future rights such that, if any future comprehensive plan and
zoning ordinance violates the SEPA, GMA, or PEA, the Nation may still litigate its rights
under the Acts. Since the parties did not brief the extent to which the 2017 stipulated
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agreement and order of dismissal precludes past claims of the Yakama Nation, not arising
out of the agreement, we issue no ruling on the question.
Attorney’s Fees
Okanogan County requests an award of reasonable attorney fees and costs on
appeal on the basis that the Yakama Nation’s appeal is frivolous. Since we rule in favor
of the Yakama Nation, we conclude the Nation’s appeal is not frivolous.
CONCLUSION
We remand to the superior court to vacate the 2017 order of dismissal and to
enforce the terms of the order.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, A.C.J.
______________________________
Lawrence-Berrey, J.
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