Admasu v. Port of Seattle

• Decision Date: 27 October 2014
• Docket Number: No. 70220–3–I.,70220–3–I.
• Citation: 340 P.3d 873,185 Wash.App. 23
• Court: Washington Court of Appeals
• Parties: Kebede ADMASU, et al., Appellants, v. PORT OF SEATTLE, a Washington municipal corporation, Respondent.

185 Wash.App. 23

340 P.3d 873

Kebede ADMASU, et al., Appellants

v.PORT OF SEATTLE, a Washington municipal corporation, Respondent.

No. 70220–3–I.

Court of Appeals of Washington, Division 1.

Oct. 27, 2014.

Publication Ordered Dec. 18, 2014.

Darrell L. Cochran, Kevin Michael Hastings Pfau Cochran Vertetis Amala PLLC, Tacoma, WA, Jason Paul Amala, Pfau Cochran Vertetis Amala PLLC, Seattle, WA, for Petitioner.

Timothy J. Filer, Patrick J. Mullaney, Samuel T. Bull, Adrian Urquhart Winder, Foster Pepper PLLC, Traci Marie Goodwin, Port of Seattle, Seattle, WA, for Respondent.

James A. Mc Devitt, Attorney at Law, Spokane, WA, Thomas R. Devine, Palmer & Dodge, Pablo O. Nuesch, Jessica R. Bell, Spiegel & McDiarmid, LLP, Washington, DC, Amicus Curiae on behalf of Airports Council International–North America.

Opinion

VERELLEN, A.C.J.

¶ 1 A group of property owners seek compensation for the diminished value of their properties due to the Port of Seattle's operation of the third runway at the Seattle–Tacoma International Airport (Sea–Tac Airport).¹ The property owners appeal from the trial court's order denying class certification and two orders granting summary judgment in favor of the Port. The trial court did not abuse its discretion in denying class certification because the plaintiffs failed to demonstrate that common issues would predominate over individual issues and that a class action was a superior method of adjudication of the controversy. The trial court also properly granted summary judgment in favor of the Port for claims brought by plaintiffs whose properties are burdened by an avigation easement² and for claims for damages caused by noise brought by plaintiffs who acquired their properties after a noise exposure map was submitted under federal law. But the trial court erred by granting summary judgment on claims for damages caused by toxic discharge, fumes, and vibrations (whether or not related to low frequency noise) because the Port's motion for summary judgment did not clearly extend to those claims. Accordingly, we affirm in part and reverse in part.

FACTS

¶ 2 In November 2008, the Port began operations on its third runway. In June 2009, three property owners (Class Plaintiffs) filed an inverse condemnation action³ against the Port, alleging that they and thousands of other property owners in the proximity of the Sea–Tac Airport have suffered diminished property values as a result of airport operations on the Port's third runway.

¶ 3 In 2010, the Class Plaintiffs moved for class certification. Following a hearing in January 2011, the trial court denied the motion without prejudice. In April 2011, the Class Plaintiffs again moved for class certification. Following a two-day hearing, the trial court denied class certification in April 2012.

¶ 4 After the trial court denied class certification, the plaintiffs filed a third amended complaint asserting the consolidated claims of 291 individual plaintiffs. In addition to asserting inverse condemnation, the complaint included trespass and nuisance claims.

¶ 5 The Port brought its first motion for summary judgment against 126 plaintiffs (Easement Plaintiffs) who each owned property burdened by an avigation easement granted to the Port. Property owners participating in the Port's noise remedy program under RCW 53.54.030 conveyed such easements primarily in exchange for soundproofing.⁴ The Port argued that the easements precluded all of the claims asserted by the Easement Plaintiffs. The trial court granted summary judgment in favor of the Port.

¶ 6 The Port brought its second motion for summary judgment against 111 plaintiffs (NEM Plaintiffs) who purchased their property after the Port published notice of its Federal Aviation Administration-approved noise exposure maps pursuant to the federal Aviation Safety Noise Abatement Act of 1979, 49 U.S.C. 47506. The relevant noise exposure maps were submitted in 1993 and in 2001. The Port argued that federal law precluded damages claims based on noise unless particular noise levels are reached. In April 2014, the trial court granted the motion in favor of the Port, dismissing all of the NEM Plaintiffs' claims.

¶ 7 Subsequently, the trial court granted the 25 remaining plaintiffs' motion for voluntary dismissal and entered a final judgment.

¶ 8 The property owners appeal, challenging the order denying class certification, the order granting summary judgment in favor of the Port on the Easement Plaintiffs' claims, and the order granting summary judgment in favor of the Port on the NEM Plaintiffs' claims.

DECISION

Class Plaintiffs

¶ 9 The Class Plaintiffs contend that the trial court abused its discretion in denying class certification.⁵ We disagree.

¶ 10 We review a trial court's class certification decision for manifest abuse of discretion.⁶ As our Supreme Court has noted, “The standard of review is paramount in this case: it is not our place to substitute our judgment for that of the trial court. When this court reviews a trial court's decision to deny class certification, that decision is afforded a substantial amount of deference.”⁷ We will uphold the trial court's decision if the record shows that the court considered the CR 23 criteria and that the court's decision is based on tenable grounds and is not manifestly unreasonable.⁸

¶ 11 CR 23(a) enumerates four prerequisites that a plaintiff seeking class certification must satisfy: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of the representatives. In addition, as CR 23(b) is applied here, the plaintiff has to satisfy both predominance and superiority requirements.⁹

¶ 12 The trial court here found that the Class Plaintiffs failed to satisfy the predominance requirement “that the questions of law or fact common to the members of the class predominate over any questions affecting only the individual members.”¹⁰ The “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”¹¹ This “requirement is not a rigid test, but rather contemplates a review of many factors, the central question being whether ‘adjudication of the common issues in the particular suit has important and desirable advantages of judicial economy compared to all other issues, or when viewed by themselves.’ ”¹² “[T]he relevant inquiry is whether the issue shared by the class members is the dominant, central, or overriding issue shared by the class.”¹³

¶ 13 Here, the trial court found that individual issues would predominate over common issues “because the evidence required to establish liability is necessarily property -specific.”¹⁴ Under Washington law, the effects of airplane noise and related impacts do not constitute a taking of an individual's property unless the property owner can prove a measurable diminution in the property's market value.¹⁵ Consequently, each affected property owner must establish that his or her property has suffered a diminution in value because of the government action in order to demonstrate liability. Moreover, a similar showing is required to establish the appropriate amount of damages. Therefore, although the Port's general actions may be common to all, liability can likely be established only after examination of the circumstances surrounding each of the affected properties.

¶ 14 The Class Plaintiffs contend that common issues nevertheless predominate because they can demonstrate a class-wide, aggregate diminution of property values resulting from airport operations on the third runway, which can then be apportioned to the individual properties. But the Class Plaintiffs' proposed approach for accomplishing this objective involved only abstract concepts that give little confidence that common issues would actually predominate over individual issues. The Class Plaintiffs' valuation experts, Dr. Wayne Hunsberger and Dr. Ronald Throupe, did not provide a concrete method for determining diminished value attributable to the third runway airport operations. ¹⁶

Instead, they primarily discussed general information describing a variety of accepted techniques for analyzing properties affected by disamenities such as airports.¹⁷ Both experts clearly explain that they have not considered in any detail the particular techniques they will utilize, the manner or combination in which any technique will be utilized, the specific disamenities they intend to measure, or the information they will need to conduct their studies. Beyond the very general discussions of possible techniques and vague references to their ability to account for a vast multitude of likely impacts on property value apart from the third runway, the experts offer little assurance that the plaintiffs would be able to prove a useful class-wide diminution of property values based on specific airport operations attributable only to the third runway. For example, the experts provided only a superficial explanation of how they would account for airport operations attributable to the preexisting runways. Furthermore, the experts did not provide specific information about how they would establish causation between any property value diminution and the airport operations in general, and they did not explain how they would establish causation for particular conditions associated with airport operations.

¶ 15 Generalized evidence of diminished value and generalized proof that the diminished value resulted from airport operations would not establish liability for inverse condemnation. Instead, as the trial court determined, individual, property-specific information would be required. The Class Plaintiffs proposed methodology for demonstrating class-wide diminution in value is not sufficiently concrete to persuade us or the trial court that common issues would predominate over individual issues.¹⁸ The trial court did not abuse its discretion in this regard.

¶ 16 The trial court here also found that the Class Plaintiffs failed to satisfy the superiority requirement,...