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Richert v. Tacoma Power Utility

Court of Appeals of Washington, Division 2

March 4, 2014

Gerald G. Richert et al., Respondents ,
v.
Tacoma Power Utility et al., Petitioners

Oral Argument December 5, 2013

As amended by order of the Court of Appeals May 13, 2014.

Reconsideration granted and opinion amended May 13, 2014.

Date filed: 07/02/2012.

Page 883

Appeal from Mason County Superior Court. Docket No: 10-2-01058-4.Judge signing: Honorable Ronald Castleberry.

Fred B. Burnside and Roger A. Leishman (of Davis Wright Tremaine LLP ); Matthew A. Love and Tyson C. Kade (of Van Ness Feldman LLP ); and Elizabeth A. Pauli, City Attorney, and William C. Fosbre, Assistant, for petitioners.

Karen A. Willie and Bradley E. Neunzig (of Terrell Marshall Daudt & Willie PLLC ), for respondents.

AUTHOR: Lisa Worswick, C.J. We concur: J. Robin Hunt, J., Joel Penoyar, J.P.T.

OPINION

Page 884

Worswick, C.J.

[179 Wn.App. 696] ¶ 1 In this lawsuit for property damage caused by increased water flow, the city of Tacoma makes an interlocutory appeal of the superior court's two rulings on cross summary judgment motions. The first ruling granted a motion for partial summary judgment that served to strike one of Tacoma's affirmative defenses against the claims of Gerald Richert and the other plaintiffs involved in this appeal (the Richerts). The second ruling denied Tacoma's motion for summary judgment for dismissal of the Richerts' claims. The superior court's two rulings summarily determined one limited legal issue in favor of the Richerts: City of Tacoma v. Funk, No. 1651 (Mason County Super. Ct., Sept. 11, 1920)--a 1920 condemnation [179 Wn.App. 697] action in which Tacoma condemned the Richerts' riparian and water rights so as to allow Tacoma to build two dams on the Skokomish River--did not preclude the Richerts' claims for flood and groundwater damage

Page 885

as a matter of law. In this interlocutory appeal, Tacoma argues that Funk precludes the Richerts' claims as res judicata. We affirm the superior court because Tacoma has failed to meet its burden of proving that the Richerts' claims have a concurrence of identity with Funk 's final judgment.

FACTS [1]

A. Background

¶ 2 The Skokomish River's main stem is fed by three tributaries: the North Fork, the South Fork, and Vance Creek. Water flows through the main stem and into the Hood Canal.

¶ 3 Tacoma has operated two dams on the North Fork of the Skokomish River since 1926. These dams today operate under Federal Energy Regulatory Commission (FERC) licenses. Tacoma's dams prevent most of the North Fork's water from flowing to the main stem. Prior to the existence of Tacoma's dams, the North Fork contributed 800 cubic feet per second (cfs) of water to the main stem, which was one third of the main stem's water.

B. Funk Condemnation

¶ 4 In 1923, Tacoma condemned the property rights that the dams' construction and operation would damage in Funk . The Funk condemnation action condemned the property rights of over 80 parcels of real property. In Funk, Tacoma condemned the property rights of two different parcel types, depending on how much damage the dams would cause the parcels.

[179 Wn.App. 698] ¶ 5 First, Tacoma condemned in their entirety those parcels on the North Fork that the dams' construction and operation would either occupy or overflow with water (Type One parcels). The Type One parcels constituted a combined total of 730 acres.

¶ 6 Second, Tacoma condemned the riparian and water rights, but not the land rights, of those parcels located below the dam, primarily on the main stem (Type Two parcels). Tacoma condemned only the riparian and water rights of the Type Two parcels because the dams' construction and operation took water away from these parcels but did not occupy or overflow them. In its condemnation petition, Tacoma stated the following as to its reason for condemning the Type Two parcels' water rights:

That with the construction of [the dams] a portion of the waters of [the North Fork] will be diverted from the present channel thereof and used by [Tacoma] and the volume of water in said river below said dam will be diminished and by reason thereof it is and will be necessary and convenient for said City of Tacoma to take and acquire ... the water rights, riparian rights, easements, privileges and other facilities upon said river below said dam, necessary and adequate for the proper development, construction, operation and maintenance of said power plant.

Clerk's Papers (CP) at 1382 (emphasis added).

¶ 7 In Funk, Tacoma paid compensation for the entire Type One parcels and the riparian and water rights of the Type Two parcels. The Funk court determined these compensation awards individually for each owner. Many parcel owners received their individualized compensation awards by jury verdict, while other parcel owners received their compensation awards under stipulation agreements.

¶ 8 The Type One parcel owners received a combined total of $90,200.00, in approximately 7 individual compensation awards, for their 730 acres of parcels, averaging $123.56 per acre. The Type Two parcel owners received a combined total of $50,670.30, in approximately 40 individual [179 Wn.App. 699] compensation awards, for their riparian and water rights (which were attached to 6,360.6 acres), averaging $7.95 per acre. After Tacoma paid these ...


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