Marino Property Co. v. Port Com'rs of Port of Seattle

• Decision Date: 13 May 1982
• Docket Number: 47739-6,Nos. 47508-3,s. 47508-3
• Citation: 644 P.2d 1181,97 Wn.2d 307
• Court: Washington Supreme Court
• Parties: MARINO PROPERTY COMPANY, a Washington corporation, and Rodger W. Benson, individually and as a joint venturer d/b/a Marino-Benson Joint Venture, Appellants, v. The PORT COMMISSIONERS OF the PORT OF SEATTLE, Respondents.

Page 307

97 Wn.2d 307

644 P.2d 1181

MARINO PROPERTY COMPANY, a Washington corporation, and

Rodger W. Benson, individually and as a joint

venturer d/b/a Marino-Benson Joint

Venture, Appellants, v. The PORT COMMISSIONERS OF the PORT OF SEATTLE, Respondents.

Nos. 47508-3, 47739-6.

Supreme Court of Washington, En Banc.

May 13, 1982.

Smith, Smart, Hancock & Tabler, Walter S. Tabler, J. Dimmitt Smith, Seattle, for appellant.

Preston, Thorgrimson, Ellis & Holman, Michael B. Crutcher, Holly K. Towle, Seattle, for respondent.

UTTER, Justice.

Appellant Marino Property Company makes numerous challenges to the Port of Seattle's attempt to convey certain tidal lands to the City. The Port claims most of Marino's claims are barred by the doctrine of res judicata. We hold the doctrine dispenses with most of Marino's claims. As to the questions Marino raises that are not barred, those involving the surplus property statute, RCW 39.33.010, we hold the statute is constitutional and the trial court's finding the property at issue is surplus was not arbitrary, capricious or contrary to law.

Since respondent Port of Seattle raises a res judicata defense to most of appellant Marino's claims, the history of this case is important. This is the second time the parties are before us to dispute the disposition of a 24-acre parcel of tideland (referred to as parcel A). The Port is attempting to convey to the City restricted legal title to parcel A and Marino is challenging its authority to do so. The facts until 1977 are adequately summarized in our first opinion dealing with this controversy. Marino Property Co. v. Port of Seattle, 88 Wash.2d 822, 567 P.2d 1125 (1977) (Marino I). In Marino I, we affirmed the trial court's summary judgment for the Port (the nature of this affirmance is critical to the res judicata question and will be developed more fully in the analysis of that issue). In Marino I, we stated the Port's pending gift to the City was a " 'transfer' within the contemplation of RCW 39.33.010." 88 Wash.2d at 834, 567 P.2d 1125. We also specifically declined to decide if the "transfer of title is authorized as surplus property" under RCW 39.33.010 since the hearing required under that statute had not yet occurred. 88 Wash.2d at 834, 567 P.2d 1125.

On October 28, 1980, after public hearing, the Port approved resolution 2797, which declared parcel A surplus, and attached a proposed quitclaim deed to the City. It then sought approval of its declaration in superior court pursuant to RCW 39.33.010. Marino moved to intervene in the RCW 39.33 proceeding and served interrogatories upon the Port. The Port resisted and the court held Marino had the power to appear at the hearing held pursuant to RCW 39.33.010, cross-examine Port witnesses, call its own witnesses, make opening and closing statements, review the Port's documentary evidence prior to hearing, and the right to notice of all actions in the case. The trial court, however, denied Marino's request to serve interrogatories, take depositions or subpoena witnesses.

The hearing authorized by RCW 39.33.010 took place on March 24-25, 1981. The trial court judge ruled parcel A was surplus and entered a decree authorizing the transfer. The court also refused to address the question of illegal motivation, holding it irrelevant to a "declaration of surplus" proceeding.

Concurrent with the above proceedings, Marino sued the Port in a separate action to enjoin the above proceeding and have the proposed transfer declared illegal and unconstitutional. The trial court found the illegality charges barred by the doctrine of res judicata in light of our holding in Marino I, despite Marino's claims that the new deed and resolution 2797 presented new facts. The trial court refused to issue the injunction. This is a consolidation of both appeals.

Marino makes numerous arguments contending the Port's transfer of the property to the City is illegal. They are:

(1) The transfer would illegally bind future port commissioners.

(2) The transfer was based on illegal motivation.

(3) The Port must create parks pursuant to RCW 53.08.260-.270, and may not avoid such responsibilities by transferring the property "in trust" to the City.

(4) Marino should have been granted full intervention rights in the RCW 39.33.010 proceeding.

(5) Marino has a right to review of the trial court's declaration of "surplus".

(6) The property is not surplus.

While the Port argues claims Nos. 1-5 are barred by the doctrine of res judicata, only Nos. 1-3 are appropriate for consideration under that doctrine.

In Marino I, the trial court held not ripe, inter alia, the issues of the legality of the conveyance of parcel A, the unlawful restraint claim, and whether the parcel is surplus. The court held in the alternative that if the questions of legality and unlawful restraint were ripe they were without merit. ¹

On appeal, Marino argued the above issues were ripe and the Port argued they were not ripe. Claiming they were justiciable, Marino briefed the following related issues:

(a) The pending gift to the City is illegal.

(b) The Port has no statutory power to give the land to the City.

(c) The proposed gift of parcel A is an illegal restraint on future port commissions.

We affirmed the trial court's summary judgment on appeal. The parties differ in their interpretation of our holding in Marino I. The Port argues we deemed the above matters ripe and disposed of them favorably to the Port by affirming the trial court's summary judgment. Marino argues that in affirming the trial court we simply affirmed its finding that the issues were not ripe and that therefore the Port was entitled to summary judgment.

In reaching our affirmance, we reasoned:

Under the unique and limited circumstances of this case, i.e., the conveyance by the Port of restricted legal title to a small portion of tidelands that is an integral part of the entire Pier complex which the Port was contractually obligated to purchase, we hold that the gift to the City is a "transfer" within the contemplation of RCW 39.33.010.

88 Wash.2d at 833-34, 567 P.2d 1125. We deemed ripe the issues concerning the legality of the conveyance. Otherwise, we would not have stated "the gift to the City is a 'transfer' within the contemplation of RCW 39.33.010." Id. If the issue were not ripe, such language would have been extraneous.

We must nevertheless address the extent to which our holding in Marino I disposed of all the issues in that case, and correspondingly, the extent to which that holding is res judicata of Marino's present claims.

The doctrine of res judicata ensures finality of judgments.

The doctrine of res judicata rests upon the ground that a matter which has been litigated, or on which there has been an opportunity to litigate, in a former action in a court of competent jurisdiction, should not be permitted to be litigated again. It puts an end to strife, produces certainty as to individual rights, and gives dignity and respect to judicial proceedings....

Walsh v. Wolff, 32 Wash.2d 285, 287, 201 P.2d 215 (1949).

By holding the gift was a "transfer" in Marino I, by necessity we decided there was statutory authority for the conveyance. While we did not specifically address the questions of illegal restraint and illegal motivation in Marino I, those issues were implicitly addressed through our disposition of the case. Marino's present claims in this regard (Nos. 1 and 2, supra) are thus barred by res judicata. The interim period has presented no new facts that change the issues as they were presented to this court in 1977.

Marino's claim that the Port must create parks pursuant to RCW 53.08.260-. 270 (No. 3, supra) is less easily disposed of by res judicata. In Marino I, Marino claimed the Port was using its bonding power to establish a park, and that the provisions of RCW 53.08.260 had not been satisfied. We held this assertion confused reacquisition of Terminal 91 (of which parcel A is a part) with subsequent disposition of parcel A. We thus realized that Marino's claim concerning RCW 53.08.260 should have been framed as it is now framed. Thus framed, the claim should have been brought in Marino I, and is ostensibly barred by res judicata.

Nevertheless, Marino argues the Port's resolution 2797 presents new facts that preclude application of the doctrine. Section 2(d) of the resolution states:

d. Use of the Property in an undeveloped state as a park is necessary to fully utilize existing docks and warehouses, and future redevelopment activity, at Terminal 91.

RCW 53.08.260 states: "A port district may ... maintain, and operate public park and recreation facilities when such facilities are necessary to more fully utilize boat landings ..." The inclusion of the word "necessary" does not create a new issue, however. In Marino I, we acknowledged the reversion clause of the proposed conveyance made it necessary for the City to keep parcel A undeveloped to retain title. 88 Wash.2d at 825-26, 567 P.2d 1125. At the same time, we acknowledged the Port retained "most of the indicia of ownership." Id. at 832, 567 P.2d 1125. To pursue the activities the Port reserved to itself, the preservation of parcel A in a "natural and undeveloped state", id. at 827, 567 P.2d 1125, was "necessary" even in Marino I.

Marino also argues the language of the proposed deed-that the City will keep the property "in trust"-creates a new issue. That language is simply a description of the proposed disposition of parcel A before us in Marino I. Marino's claim regarding RCW 53.08.260 is barred by res judicata. It should have been raised directly in Marino I when Marino challenged the statutory authority for disposing of parcel A.

The Port also argues Marino's claims for rights of full intervention and appeal from the RCW 39.33.010 proceeding (claims Nos. 4 and 5, supra) are barred by res judicata since Marino briefed the question of the adequacy of RCW 39.33.010...