Oral Argument October 24, 2013
Appeal from Pierce County Superior Court. Docket No: 10-2-15634-3. Date filed: 05/08/2012. Judge signing: Honorable Edmund Murphy.
Joan K. Mell (of III Branches Law PLLC ), for appellants.
Stephen M. Lamberson and Raymond F. Clary (of Etter McMahon Lamberson Clary & Oreskovich PC ); Jennifer C. Underwood (of Lukins & Annis PS ); and Carol A. Morris (of Morris Law PC ), for respondent.
AUTHOR: Lisa Worswick, C.J. We concur: J. Robin Hunt, J., Jill M Johanson, J.
[180 Wn.App. 153] ¶ 1 Steve Fabre appeals the summary judgment dismissal of his claims against the Town of Ruston after it passed two ordinances--one taxing social card games and one prohibiting house-banked social card games--which Fabre claims drove his Point Defiance Cafe [180 Wn.App. 154] and Casino out of business. Fabre argues that the superior court erred by dismissing his claims because (1) the public duty doctrine does not bar Fabre's claims, and (2) Ruston is not entitled to immunity. We affirm because the public duty doctrine bars Fabre's claims for negligence and negligent misrepresentation and legislative immunity bars his claim for intentional interference with business expectancy.
A. General Background
¶ 2 Ruston is a small town with a population under 1,000. At the time of the actions that precipitated this lawsuit, Ruston had a mayor/council form of government with five council members.
¶ 3 Fabre opened The Point Defiance Cafe and Casino in Ruston in 2003. Fabre's casino began to operate social card games, a form of gambling, in 2004. Fabre's gambling activities consisted of pull-tabs, as well as " house banked" social card games (where the players bet against the casino) and social card games that were not " house banked" (where the players did not bet against the casino). Fabre was the only business within Ruston to operate social card games. However,
other businesses within Ruston had other forms of gambling such as pull tabs.
¶ 4 After Fabre opened his casino, he came into conflict with two of Ruston's organizations: the Chinese Christian Church and a local newsletter called The Ruston Connection . Clerk's Papers (CP) at 436-37. Fabre sued the Chinese Christian Church and The Ruston Connection for defamation on August 24, 2007, alleging that both organizations wrongly defamed him by accusing him of stealing electricity. To support his lawsuit against these two organizations, [180 Wn.App. 155] Fabre had asked Ruston to disclose certain records, which led Fabre to file a complaint against Ruston for violations of public disclosure laws. Fabre settled all of the above claims.
¶ 5 Following these settlements, in 2008, Mayor Everding and four new council members assumed office: Dan Albertson, Jane Hunt, Bradley Huson, and Jim Hedrick. The only remaining council member was Wayne Stebner. Beyond the tension created between Fabre and Ruston based on Fabre's public disclosure action, Fabre alleges that these office holders had three individual, additional sources of bias against Fabre. Specifically, Fabre alleges that (1) Mayor Everding and some of the council members had connections to the organizations that Fabre sued for defamation, (2) Wayne Stebner was motivated to shut Fabre's casino down, and (3) Bradley Huson expressed his strong personal dislike for Fabre in his deposition.
B. Ruston's Original Tax on Social Card Games
¶ 6 When Fabre's casino opened in 2003, Ruston had adopted a tax on social card games. The tax rate resulted from direct negotiations between Fabre and Ruston's then-Mayor Kim Wheeler. During these negotiations, Mayor Wheeler committed to Fabre that Ruston would allow him to operate his casino.
¶ 7 Ruston's 2003 tax required casinos operating social card games to pay a low, graduated tax rate based on the total revenue from social card games. This graduated tax rate increased in relation to the casino's gross monthly card game revenue. The tax ...