Marshall v. Thurston Cnty., 40933–0–II.

• Citation: 267 P.3d 491,165 Wash.App. 346
• Decision Date: 06 December 2011
• Docket Number: No. 40933–0–II.,40933–0–II.
• Court: Court of Appeals of Washington
• Parties: G. Eldon MARSHALL and Geraldine (Gerry) Marshall, husband and wife, Plaintiffs/Appellants, v. THURSTON COUNTY, a political subdivision of the State of Washington, Defendant/Respondent.

165 Wash.App. 346

267 P.3d 491

G. Eldon MARSHALL and Geraldine (Gerry) Marshall, husband and wife, Plaintiffs/Appellants,

v.THURSTON COUNTY, a political subdivision of the State of Washington, Defendant/Respondent.

No. 40933–0–II.

Court of Appeals of Washington, Division 2.

Dec. 6, 2011.

Mark O. Erickson, Attorney at Law, Olympia, WA, for Appellants.

Mark Robert Johnsen, Attorney at Law, Seattle, WA, Jeffrey George Fancher, Attorney at Law, Olympia, WA, for Respondent.

WORSWICK, A.C.J.

[165 Wash.App. 348] ¶ 1 G. Eldon Marshall and Geraldine Marshall appeal the dismissal on summary judgment of their claim against Thurston County, arguing that (1) a settlement agreement signed in 2003 did not release the County from damages incurring in 2009 and (2) res judicata does not bar their claim. We affirm, holding that although the release is ambiguous regarding liability for future flooding, res judicata bars the Marshalls' current claim.

FACTS

¶ 2 In 1992, the Marshalls purchased property in Lacey, Washington. Between February 1996 and December 1999, the Marshalls' property flooded three times. In 2000, the Marshalls learned that the County had installed a storm water diversion device in 1994. According to the Marshalls, the device redirected surface storm water from neighboring streets, causing excess amounts of storm water to accumulate on the Marshalls' property. On October 24, 2001, the Marshalls filed a claim for damages with the County (the 2001 claim). The 2001 claim listed the “date of incident” as February 8, 1996, January 3, 1997, and “Dec 1999.” Clerk's Papers (CP) at 84. In the space entitled “describe the cause of the injury or damage,” the claim stated that the County caused the flooding by installing the storm water diversion device without providing for adequate runoff. CP at 84. In the 2001 claim, the Marshalls requested compensation for furnace and insulation repair, pumps, installation of a drainage system, and the decrease in the property's value and saleability.

¶ 3 The County denied the 2001 claim and advised the Marshalls to file a complaint in superior court. In 2003, the Marshalls filed a complaint alleging negligence, trespass, and inverse condemnation. In the complaint, the Marshalls alleged that the County had caused the flooding by installing the storm water diversion device. The County agreed to settle the suit for $8,812 in exchange for the Marshalls' stipulating to dismissal of their claims with prejudice and signing a release of liability. The Marshalls signed the release and the trial court dismissed the lawsuit with prejudice.

¶ 4 The Marshalls' property flooded again in January 2009. On March 9, 2009, the Marshalls filed a claim against the County requesting compensation for expenses, “delay in saleability,” and “extreme value impairment.” CP at 88. The County rejected this claim. On June 2, 2009, the Marshalls filed a new complaint, again alleging negligence and trespass. They later amended this complaint to include a claim for inverse condemnation.

¶ 5 The County filed a motion for summary judgment arguing that the Marshalls' claims were barred by (1) their signed release of liability, (2) the doctrine of res judicata, and (3) the statute of limitations.¹ The trial court granted the County's motion for summary judgment on June 11, 2010, without specifying the basis for summary judgment. The Marshalls appeal.

ANALYSIS

I. Standard of Review

¶ 6 We review summary judgments de novo. Torgerson v. One Lincoln Tower, LLC, 166 Wash.2d 510, 517, 210 P.3d 318 (2009). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). “A material fact is one upon which the outcome of the litigation depends in whole or in part.” Atherton Condo. Apartment–Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990). We consider all facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Atherton, 115 Wash.2d at 516, 799 P.2d 250.

II. Release of Liability

¶ 7 The Marshalls contend that their signed release of liability shielded the County only from liability for the 1996, 1997, and 1999 floods.² We disagree.

¶ 8 We interpret settlement agreements in the same way we interpret other contracts. McGuire v. Bates, 169 Wash.2d 185, 188, 234 P.3d 205 (2010). This means that we attempt to determine the parties' intent by focusing on their objective manifestations as expressed in the agreement. McGuire, 169 Wash.2d at 189, 234 P.3d 205. The parties' subjective intent is generally irrelevant if we “can impute an intention corresponding to the reasonable meaning of the actual words used.” McGuire, 169 Wash.2d at 189, 234 P.3d 205.

¶ 9 Extrinsic evidence may be used to determine the meaning of specific words used, but not to show an intention independent of the instrument or to vary, contradict, or modify the words of the contract. State v. R.J. Reynolds Tobacco Co., 151 Wash.App. 775, 783, 211 P.3d 448 (2009), review denied, 168 Wash.2d 1026, 228 P.3d 18 (2010). Contract interpretation is only a matter of law when the interpretation does not depend on extrinsic evidence, or the extrinsic evidence permits only one reasonable interpretation. TransAlta Centralia Generation, LLC v. Sicklesteel Cranes, Inc., 134 Wash.App. 819, 826–27, 142 P.3d 209 (2006).

¶ 10 Contract terms are ambiguous if they are fairly susceptible to two different, reasonable interpretations. Wm. Dickson Co. v. Pierce County, 128 Wash.App. 488, 493–94, 116 P.3d 409 (2005). Summary judgment is not appropriate on an ambiguous contract. See Wm. Dickson Co., 128 Wash.App. at 495, 116 P.3d 409.

[165 Wash.App. 352] ¶ 11 The release of liability that the Marshalls signed provided, “This release is inclusive of damage to property, bodily injury or death growing out of or in any way related to the matter set forth in and described in [the 2001 claim].” CP at 103. The release further provided, “The undersigned hereby declares that the terms of this settlement are for the express purpose of precluding forever any further additional claims arising out of or in any way connected with the incident that is the subject of the above referenced cause of action.” CP at 103.

¶ 12 The release exculpates the County from liability related to the 2001 claim, as well as further claims arising from the “incident.” The dispute here turns on the meaning of the word “incident.” The 2001 claim suggests two reasonable interpretations of “incident.” The claim lists as the “date of incident,” the dates of the three floods that occurred between 1996 and 1999, suggesting that “incident” refers only to those particular floods. But the claim also describes the water diversion device installation as the cause of the flooding, suggesting that the “incident” was the County's storm water diversion device installation. The release is thus susceptible to two reasonable interpretations and is ambiguous. Therefore, summary judgment was not appropriate based on the meaning of the release.

III. Res Judicata

¶ 13 Alternatively, the County argues that res judicata bars the Marshalls' current claim. We agree.

¶ 14 “The threshold requirement of res judicata is a final judgment on the merits in the prior suit.” ³ Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 865, 93 P.3d 108 (2004).

Under the doctrine of res judicata, or claim preclusion, a prior judgment will bar litigation of a subsequent claim if the prior judgment has “a concurrence of identity with [the] 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.”City of Arlington v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 164 Wash.2d 768, 791–92, 193 P.3d 1077 (2008) (alteration in original) (internal quotation marks omitted) (quoting In re Election Contest Filed by Coday, 156 Wash.2d 485, 500–01, 130 P.3d 809 (2006)).

¶ 15 The Marshalls contest only the first and second factors. They assert that both the subject matter and causes of action differ between their two suits because their prior suit arose from the flooding between 1996 and 1999, while the current suit arose from the flooding in 2009. The Marshalls' argument fails.

A. Subject Matter

¶ 16 Washington courts have not articulated any precise test to determine when the subject matter of multiple claims is the same. See 14A Karl B. Tegland, Washington Practice: Civil Procedure § 35:25, at 526 (2d ed. 2009). Our Supreme Court has held that in determining the identity of subject matter, “ ‘[t]he critical factors seem to be the nature of the claim or cause of action and the nature of the parties.’ ” Hayes v. City of Seattle, 131 Wash.2d 706, 712, 934 P.2d 1179 (1997) (alteration in original) (quoting Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 812–13 (1985)). Courts generally focus on the asserted theory of recovery rather than simply the facts underlying the dispute. See, e.g., DeYoung v. Cenex Ltd., 100 Wash.App. 885, 892, 1 P.3d 587 (2000); Kuhlman v. Thomas, 78 Wash.App. 115, 118, 897 P.2d 365 (1995); Hisle, 151 Wash.2d at 866, 93 P.3d 108; Hayes, 131 Wash.2d at 712–13, 934 P.2d 1179.

¶ 17 Here, the underlying facts are identical in each lawsuit. The County installed a storm water diversion device that purportedly caused ongoing flooding and impairment of the land's value due to potential future flooding. The Marshalls clearly contemplated the risk of future flooding in their 2003 complaint, in which one cause of action was inverse condemnation. See Olympic Pipe Line Co. v. Thoeny, 124 Wash.App. 381, 393, 101 P.3d 430 (2004) (the measure of damages for an inverse condemnation claim...