DeYoung v. Cenex Ltd.

• Decision Date: 25 March 2000
• Docket Number: No. 18404-8-III.,18404-8-III.
• Citation: 1 P.3d 587,100 Wash.App. 885
• Court: Washington Court of Appeals
• Parties: Dennis DeYOUNG and Marilyn DeYoung, husband and wife, Appellants, v. CENEX LTD. d/b/a Full Circle Part and d/b/a Full Circle Marketing Dept., a Minnesota corporation, and Larry Schaapman and Jane Doe Schaapman, husband and wife, Respondents.

1 P.3d 587

100 Wash.App. 885

Dennis DeYOUNG and Marilyn DeYoung, husband and wife, Appellants, v. CENEX LTD. d/b/a Full Circle Part and d/b/a Full Circle Marketing Dept., a Minnesota corporation, and Larry Schaapman and Jane Doe Schaapman, husband and wife, Respondents.

No. 18404-8-III.

Court of Appeals of Washington, Division 3, Panel Three.

March 25, 2000.

C.E. "Monty" Hormel, Ephrata, for Appellants.

Michael R. Tabler, Schultheis & Tabler, Ephrata, for Respondents.

BROWN, A.C.J.

This is the second appeal by Dennis and Marilyn DeYoung arising from damage claims against Cenex, Ltd. and Larry and "Jane Doe" Schaapman over the use of off-label chemicals on the DeYoungs' farm in Grant County in 1990. In an unpublished opinion, we affirmed the summary judgment dismissal of various claims and reversed solely on issues of negligence and waste. After remand, the trial court granted the DeYoungs' summary judgment for nuisance liability. The jury rejected waste liability, but found Cenex negligent. Even so, the jury rejected proximate cause for damage for both negligence and nuisance.

We affirm after discussing: (1) dismissal of a statutory hazardous waste claim, (2) denial of a CR 60(b) motion, (3) a juror misconduct claim, (4) denial of venue change, (5) exclusion of an expert's discovery deposition, (6) exclusion of portions of a testifying expert witness' cumulative report, and (7) an irrelevant damage instruction.

FACTS

In March 1990, Mr. DeYoung leased his 100 acre irrigated circle to Mr. Schaapman for the 1990 growing season in exchange for $12,500. Concurrently, Mr. Schaapman entered into a side-agreement splitting profit with Cenex and reimbursing Mr. Schaapman for all farming expenses related to the circle. Cenex was to dispose of its rinsate pond as an off-label or out-of-label source for chemical applications on the circle. The rinsate pond chemicals consisted of the rinsed residue of various fertilizers and pesticides sold by Cenex. The rinsate theoretically caused crop damage and to some degree soil contamination in 1990. Cenex then leased the circle from Mr. DeYoung for the 1991 crop year in exchange for bringing current the DeYoungs' underlying mortgage debt, approximately $46,000, with Travelers Insurance Company. Mr. DeYoung additionally was required to execute a $130,000 note secured by a second mortgage that represented the DeYoungs' debt with Cenex. The 1991 crop was again theoretically harmed due to the chemical contamination.

In 1992, Mr. DeYoung decided he was unable to farm, sell, or lease his farm due to Cenex's chemical applications. He failed to pay Travelers; it foreclosed. Cenex redeemed the property; the DeYoungs did not. Instead, the DeYoungs sued both Cenex and the Schaapmans, alleging various theories including improper use and disposal of pesticides. Cenex counterclaimed on the promissory note. A first appeal resulted from successful summary judgments in favor of the respondents dismissing all of DeYoungs' claims and granting judgment to Cenex on the DeYoung note. In an unpublished opinion, we reversed for trial solely on the issues of negligence and waste. DeYoung v. Cenex, No. 14802-5-III, 81 Wash.App. 1031, (May 2, 1996). We affirmed the trial court's judgment in favor of Cenex on the note.

After remand, the DeYoungs amended their complaint to include private nuisance and violation of Washington State's Hazardous Waste Management Act, RCW 70.105. The DeYoungs received summary judgment on nuisance liability with damage issues reserved for trial. Cenex received summary judgment on the hazardous waste claim under theories of res judicata and collateral estoppel. The trial court for similar reasons denied the DeYoungs' CR 60(b) request for relief from judgment on the note.

At trial, the DeYoungs intended to call Harper Grimes as an expert. Mr. Grimes informed the DeYoungs about 10 days before trial that he might not be able to testify because of a family emergency. The defense was not informed in a timely way. On the second day of trial, the DeYoungs informed the court of their problem and unsuccessfully asked that the Grimes discovery deposition be published. The court cited late notice and a failure to establish Mr. Grimes' expertise in the deposition as reasons for denying publication. The trial court indicated it would allow the DeYoungs to reopen if Mr. Grimes became available.

Calvin Briggs, a retired supervisor in the Washington Department of Agriculture, testified for the DeYoungs. The DeYoungs sought to introduce his entire investigative report as a business or public record. The trial court excluded all but two pages, reasoning the witness could and did testify to the rest.

Neither party introduced evidence regarding the cost of restoring the property to its condition prior to Cenex's chemical applications. The court instructed the jury, over objection from both sides, that it could consider the restoration costs when calculating damages.

In 1998, a jury found Cenex solely negligent, but the negligence and directed liability for nuisance were not the proximate cause of any damage. The DeYoungs unsuccessfully moved for new trial and/or reconsideration partly alleging juror misconduct by one juror who used a lap top computer during the trial. The DeYoungs brought this appeal.

ANALYSIS

A. Dismissal of Hazardous Waste Claim

The issue is whether the trial court erred by granting summary judgment of dismissal on the DeYoungs' statutory hazardous waste claim and concluding it was precluded by the first appeal on principles of res judicata.

In their original complaint, the DeYoungs alleged that Cenex had violated "Washington laws regarding the handling and application of pesticides and other hazardous materials." This court affirmed the dismissal of the claims regarding Cenex's application of pesticides and other hazardous materials.

On remand, the DeYoungs amended their complaint to include a statutory cause of action for private nuisance and a violation of Washington's Hazardous Waste Management Act (HWMA). See RCW 70.105.097 (permitting an individual harmed by a violation of the Act to bring an action for damages). Cenex successfully moved for partial summary judgment on the hazardous waste claim, arguing the HWMA claim was precluded by res judicata. The court reasoned:

This court is of the opinion plaintiffs are barred from litigating any causes of action based upon violation of the Washington Hazardous Waste Management Act. Clearly, the original allegations dismissed by this court were unfortunately very broad and inclusive of the Washington Hazardous Waste Management Act. No specific arguments were advanced either to the trial court or evidently to the Court of Appeals concerning the trial court's original dismissal of claims arising out of allegations contending violation of Washington law regarding the handling of pesticides and chemicals and other hazardous materials. To simply specify the violation of a particular act at this time without alleging any new or different circumstance or facts is simply to repackage the same issue previously dismissed.

The standard of review is de novo, with the appellate court engaging in the same inquiry as the trial court. Brower v. State, 137 Wash.2d 44, 52, 969 P.2d 42 (1998), cert. denied, 526 U.S. 1088, 119 S.Ct. 1498, 143 L.Ed.2d 652 (1999). Summary judgment is proper if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (quoting CR 56(c)).

"`For [res judicata] to apply, a prior judgment must have a concurrence of identity with a subsequent action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made.'" Civil Service Comm'n of City of Kelso v. City of Kelso, 137 Wash.2d 166, 171, 969 P.2d 474 (1999) (quoting Loveridge v. Fred Meyer, Inc., 125 Wash.2d 759, 763, 887 P.2d 898 (1995)). Res judicata applies to matters that were actually litigated and those that "could have been raised, and in the exercise of reasonable diligence should have been raised, in the prior proceeding." Kelly-Hansen v. Kelly-Hansen, 87 Wash. App. 320, 328-29, 941 P.2d 1108 (1997). A grant of summary judgment is a final judgment on the merits with the same preclusive effect as a full trial. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Northwest Youth Services, 97 Wash.App. 226, 233, 983 P.2d 1144 (1999) (collateral estoppel), review denied, 139 Wash.2d 1020, 994 P.2d 845 (2000).

Here, the subject matter is the same. The DeYoungs sought money damages for the alleged injury to the land, focusing on Cenex's use of hazardous chemicals causing the land harm.

With regard to the second factor, we consider:

(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Kuhlman v. Thomas, 78 Wash.App. 115, 122, 897 P.2d 365 (1995). Here, the same core facts are involved in both claims. No new facts were alleged in the amended complaint or at summary judgment. Both claims also involve the DeYoungs' deprivation of the beneficial use of their property. The rights established in the previous judgment would also be impaired.

Significantly, the DeYoungs alleged in their original complaint that Cenex had violated Washington laws regarding the "handling and application of pesticides and other hazardous materials." In the first appeal we noted: "DeYoungs seem to allege as a separate cause of action the `improper application of chemicals.' However, they did not cite any authority or common law authorities to support their allegation in the trial court, nor do so on appeal." The DeYoungs merely...