Legal v. Monroe Sch. Dist.

• Decision Date: 13 August 2018
• Docket Number: No. 76814-0-I,76814-0-I
• Citation: 423 P.3d 915
• Parties: Creer LEGAL, d/b/a for attorney, Erica Krikorian, real party in interest, Appellant, v. MONROE SCHOOL DISTRICT, a political subdivision of the State of Washington, Respondent.
• Court: Washington Court of Appeals

423 P.3d 915

Creer LEGAL, d/b/a for attorney, Erica Krikorian, real party in interest, Appellant,

v.MONROE SCHOOL DISTRICT, a political subdivision of the State of Washington, Respondent.

No. 76814-0-I

Court of Appeals of Washington, Division 1.

FILED: August 13, 2018

Erica Krikorian, Creer Legal, 11900 Ne 1st St. Ste 300, Bellevue, WA, 98005-3049, Brian Haig Krikorian, Law Offices of Brian Krikorian PLLC, Po Box 6905, Bellevue, WA, 98008-0905, for Appellant.

Donald Franklin Austin II, Patterson Buchanan Fobes & Leitch, Inc., 2112 3rd Ave. Ste 500, Seattle, WA, 98121-2326, Timothy Hall Campbell, Attorney at Law, 2112 3rd Ave. Ste 500, Seattle, WA, 98121-2326, for Respondent.

PUBLISHED OPINION

Dwyer, J.

¶ 1 Over the course of her representation of Erica Miller, attorney Erica Krikorian made Public Records Act¹ (PRA) requests to the Monroe School District (the District). Krikorian then negotiated a settlement with the District in which Miller released any potential PRA claims. Krikorian, asserting that the PRA claims were hers, later filed suit against the District for an alleged denial of her opportunity to inspect requested records. The trial court granted summary judgment to the District on the theory that Krikorian lacked standing to prosecute this action. We affirm, holding that Krikorian, as Miller's agent, did not own the cause of action and could not prosecute it once it was released by Miller.

I

¶ 2 In December 2014, Erica Miller filed suit in the United States District Court against the District, alleging civil rights violations related to the seclusion and restraint of her autistic child. She was represented by Erica Krikorian of Creer Legal (Krikorian) and Brian Krikorian.² In the course of litigation, Krikorian sent the District two PRA requests on behalf of Miller. Krikorian e-mailed the first request on February 12, 2015. The District produced records to Miller's attorneys in installments. On April 27, 2015, Krikorian sent an e-mail to the District both requesting additional records and following up on the first request. Krikorian threatened to file a lawsuit under the PRA based on the District's failure to produce records responsive to the first request, noting that the records were necessary for depositions in the civil rights litigation. The District produced records to Miller's attorneys in installments.

¶ 3 On June 4, 2015, Miller filed a motion to show cause in federal district court, alleging that the District wrongfully withheld records from her under the PRA. The district court denied the motion.

¶ 4 On January 13, 2016, Miller filed another motion to show cause for a PRA violation. She requested that she be awarded $55,250 in attorney fees, noting that in the time since the original motion, "another 75 hours of attorney time has been invested." The court denied Miller's motion, but the District was ordered to produce any remaining responsive documents.

¶ 5 Miller's suit was tried in federal district court. The jury returned a defense verdict. Miller was ordered to pay $17,224.07 in costs to the District. Thereafter, she and the District entered into a settlement agreement in which the District agreed to waive execution on the cost bill in consideration for Miller waiving her right to appeal and releasing all claims, including those under the PRA. In so doing, Miller and the District agreed to

hereby release, acquit and forever discharge each other, their employees, agents, board members, attorneys in this litigation, and assigns of and from any and all claims, demands, actions, causes of action, or damages of whatever nature, known or unknown, to the date of the settlement, including, but not limited to ... claims brought pursuant to the Washington Public Records Act.... PLAINTIFF and DEFENDANTS individually represent and warrant that they individually are the sole owner of all such claims, demands, actions, causes of action, or damages released and discharged hereunder.

(Emphasis added.)

¶ 6 On October 25, 2016, Krikorian filed a PRA complaint in superior court against the District alleging violations related to the two requests made in the course of representing Miller. Both parties filed motions for summary judgment. On April 5, 2017, the trial court granted the District's motion for summary judgment, dismissing Krikorian's PRA claims on the basis that she lacked standing. The trial court did not rule on Krikorian's motion. Krikorian appeals.

II

¶ 7 This case presents two related questions. First, does the same alleged PRA violation support more than one cause of action? Second, who is entitled to prosecute a PRA cause of action?

A

¶ 8 We review summary judgment de novo. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wash.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999). We engage in the same inquiry as the trial court and consider the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Hertog, 138 Wash.2d at 275, 979 P.2d 400.

¶ 9 "The PRA ‘is a strongly worded mandate for broad disclosure of public records.’ " Yakima County v. Yakima Herald-Republic, 170 Wash.2d 775, 791, 246 P.3d 768 (2011) (internal quotation marks omitted) (quoting Soter v. Cowles Publ'g Co., 162 Wash.2d 716, 731, 174 P.3d 60 (2007) ). Under the PRA, all state and local agencies must promptly disclose any public record on request unless the record falls under a statutory exemption. RCW 42.56.520, .550(1); Wood v.Lowe, 102 Wash. App. 872, 876, 10 P.3d 494 (2000). "Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request." RCW 42.56.080(2).

B

¶ 10 Neither party in this case takes a position on our first inquiry, whether the same alleged PRA violation supports more than one cause of action. But we read the Act to provide for a single cause of action arising from an alleged PRA denial, regardless of how many individuals were involved in making the request.

¶ 11 If the agency fails to disclose records, then

[u]pon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records.

RCW 42.56.550(1). This provision authorizes any person to file "the motion" if that person was "denied an opportunity" to inspect requested records. This reference to "the motion" establishes the cause of action for a PRA violation. The statute then ties the cause of action to the alleged violation: "denied an opportunity to inspect." The PRA references a cause of action in the singular—the motion—and links that singular cause of action to the alleged denial while also linking the denial to the request. In so doing, RCW 42.56.550 provides that there is but one cause of action per alleged denial under the PRA.

C

¶ 12 Having established that the denial of an opportunity to inspect records gives rise to a single cause of action under the PRA, we turn to this question: who is authorized to bring that action? Both parties in this case argue that this is a question of standing. While this is an understandable viewpoint, given the existing appellate court opinions on the matter, a standing framework is not useful here. The question of ownership of the cause of action is the more appropriate inquiry. In this case, the question of ownership is resolved by resort to the law of agency.

¶ 13 The District's position is that Krikorian acted as Miller's attorney-agent with respect to the PRA request and litigation. The District contends that because Miller, Krikorian's principal, owned the cause of action and released that cause of action in her settlement with the District, Krikorian, as a mere agent, cannot maintain her PRA claims. The District is correct.

¶ 14 "Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." RESTATEMENT (THIRD) OF AGENCY § 1.01 ( AM. LAW INST. 2006). "The elements of common-law agency are present in the relationships between ... client and lawyer." RESTATEMENT (THIRD) OF AGENCY § 1.01 note c. The burden of establishing the agency relationship rests on the party asserting its existence. Hewson Constr., Inc. v. Reintree Corp., 101 Wash.2d 819, 823, 685 P.2d 1062 (1984).

¶ 15 The evidence in the record incontrovertibly supports the District's position that Krikorian acted as Miller's agent with respect to the records requests. In federal district court motions, Krikorian repeatedly represented that Miller made the PRA requests: "Miller has been requesting documents reflecting the subject communications since January 2015"; "Miller submitted a second PRA request"; "Miller has been requesting documents reflecting the subject communications." A second federal court PRA motion referenced "Miller's request" and "Miller's PRA request".

¶ 16 These motions also alleged that it was Miller who was harmed by the wrongful withholding of records, and requested penalties on her behalf: "Miller should have been given access to an electronic folder containing the requested emails." Alleging that the District wrongfully withheld records, "Miller respectfully requests an award of penalties against defendants in the amount of $27,200 - $100 per day for each of the 272 days [that] have lapsed since April 14."

¶ 17 Miller's PRA motions even requested an award of attorney fees. When arguing that "Miller is entitled to an award of attorneys' fees", the court was...