Pnspa v. City of Sequim

• Decision Date: 12 October 2006
• Docket Number: No. 76109-4.,76109-4.
• Citation: 144 P.3d 276,158 Wn.2d 342
• Parties: PACIFIC NORTHWEST SHOOTING PARK ASSOCIATION, a Washington nonprofit corporation, and Lawrence J. Witt, Petitioners, v. CITY OF SEQUIM, a municipal corporation within the State of Washington, and Sequim Police Chief Bryon Nelson, Respondents.
• Court: Washington Supreme Court

Page 276

144 P.3d 276

158 Wn.2d 342

PACIFIC NORTHWEST SHOOTING PARK ASSOCIATION, a Washington nonprofit corporation, and Lawrence J. Witt, Petitioners, v. CITY OF SEQUIM, a municipal corporation within the State of Washington, and Sequim Police Chief Bryon Nelson, Respondents.

No. 76109-4.

Supreme Court of Washington, En Banc.

Argued September 27, 2005.

Decided October 12, 2006.

John D. Black, John D. Black, PLLC, Port Angeles, WA, Richard M. Stephens, Groen Stephens & Klinge LLP, Bellevue, WA, for Petitioners.

Robert L. Christie, Christie Law Group, PLLC, Seattle, WA, for Respondents.

FAIRHURST, J.

¶ 1 Petitioners Pacific Northwest Shooting Park Association (PNSPA), a nonprofit corporation, and Lawrence Witt, a federally licensed firearms collector, seek reversal of an unpublished Court of Appeals decision affirming the trial court's grant of summary judgment to the city of Sequim. PNSPA brought suit against the city and its police chief, Byron Nelson, alleging tortious interference with a contractual relationship or business expectancy between PNSPA and the city to use the city's convention center for a gun show. It also claimed that the city's actions violated RCW 9.41.290 and .300. PNSPA later argued that the city interfered with its business expectancies with vendors and the general public, but it failed to amend its complaint to add this claim. We hold that the question of interference with PNSPA's contractual relationships or business expectancies with vendors and the general public is not properly before us and do not decide the question. We also find that the city did not violate either RCW 9.41.290 or .300. Accordingly, we affirm the Court of Appeals.

I. FACTS

¶ 2 On April 3, 2002, PNSPA applied to the city for a temporary use permit to hold a gun show at the Guy Cole Convention Center from April 13 to April 14, 2002. The purpose stated on the application was for a gun show that was to include sales and "Display of Merchandise." Suppl. Clerk's Papers (SCP) at 8. On the application form, PNSPA was required to indicate what the property would be used for and the application stated that approval was subject to any attached conditions. The city distributed the application form, along with a separate memorandum, to Clallam County Fire District No. 3, the police department, public works, and the city manager soliciting their comments or conditions. The public works department and the city manager each returned a copy of the separate memorandum with handwritten comments and questions. The fire district and the police department provided separate memoranda with their conditions.

¶ 3 An undated document entitled "Special Conditions of Approval" was attached to the permit application. SCP at 13. It listed five conditions.¹ Only the first of these "special" conditions, the attached conditions from the police department, is at issue here.

¶ 4 Chief Nelson sent two memoranda to the city planning department, one dated April 9, 2002, and a second dated April 11, 2002, that superseded the April 9, 2002, memorandum. Only the second memorandum is at issue. April 11, 2002, is the date on which the city gave final approval to the permit application. The April 11, 2002, memorandum had 15 conditions, only three of which are being contested. The conditions required that (1) only dealers could "dispose of" handguns and then only to state residents, (2) only dealers could purchase or acquire firearms from unlicensed individuals, and (3) unlicensed dealers could not sell firearms at all. SCP at 18.

¶ 5 It is not clear from the record whether PNSPA received a copy of the April 9, 2002, memorandum, nor is it clear whether PNSPA received copies of the approved permit with all the referenced attachments on April 11, 2002, the date it was approved. Nevertheless, it seems clear that the conditions were imposed as part of a routine internal process for approval of applications to use the convention center, and PNSPA was aware in advance that the city might impose conditions on that use. Further, PNSPA does not allege that it failed to receive timely the documents containing the permit conditions. PNSPA merely alleges that Chief Nelson acted improperly by coming to the convention center on April 12, 2002, the day before the show, and "announcing" the conditions of use to the participants. Clerk's Papers (CP) at 80. As a result of Chief Nelson's "announcement," PNSPA claims that many vendors packed up and left the show and attendance by the public was significantly lower than expected. Id.

II. PROCEDURAL HISTORY

¶ 6 PNSPA filed suit against the city and Chief Nelson, as an employee and agent acting on behalf of the city, claiming that Chief Nelson tortiously interfered with the contractual relationship between PNSPA and the city. The complaint did not specifically allege interference with business expectancies between PNSPA and gun show participants, although it did refer to the negative effect Chief Nelson's actions had on "sellers and potential gun-show participants." CP at 81. PNSPA further alleged that the city violated RCW 9.41.290 and .300 by imposing unauthorized restrictions on private party gun sales at the gun show. Witt, a member of PNSPA, filed suit soon after alleging tortious interference with an unexplained relationship between himself and the city. SCP at 63. PNSPA and Witt subsequently moved for consolidation of their cases which was granted.

¶ 7 The city moved for summary judgment, arguing that the claim of interference with a contractual relationship or business expectancy failed because the plaintiffs failed to establish the elements of the tort. It argued principally that the defendants were parties to the contract and could not be liable for interference with their own contract. The city further argued that plaintiffs' second claim, violation of RCW 9.41.290 and .300, failed because there is no private cause of action under RCW 9.41.300 and neither statute was violated. In its response PNSPA specifically alleged, for the first time, that the city had interfered with its expectancies with vendors and the general public. PNSPA attached only the declaration of Louis Huber, PNSPA's president, for this claim. PNSPA also conceded that its contract with the city had not been interfered with per se. In reply, the city contested PNSPA's new argument and responded that PNSPA did not present any evidence supporting expectancies with the vendors and general public.

¶ 8 PNSPA filed a motion for leave to amend its complaint to add a claim for breach of contract, but it never filed an amended complaint. PNSPA did not request leave to amend the tortious interference claim to include a reference to the expectancies between PNSPA, the vendors, and the general public.

¶ 9 Following oral argument, the trial court granted summary judgment to the city. Although the trial court order shows that it considered the motion for leave to amend, and the affidavit in support thereof, the record does not reflect that any action was taken on the motion to amend. The trial court dismissed both the claims of tortious interference with a contractual relationship or business expectancy and violation of RCW 9.41.290 and .300 in their entirety with prejudice. In a memorandum opinion, the trial court held that: (1) "[t]he City passed no ordinances contrary to RCW 9.41.290," (2) "[t]he conditions imposed by Police Chief Nelson were a part of the contract between the City and Plaintiff Shooting Park," and (3) "[p]laintiffs presented no evidence that those conditions were improper under the police powers of the City or that the Defendants in any way breached the contract in any manner." CP at 9.

¶ 10 PNSPA appealed to the Court of Appeals, Division Two, arguing that the city interfered with the business expectancies between PNSPA, the vendors, and the general public and that the city acted improperly by violating RCW 9.41.290 and .300. The city responded that PNSPA had pleaded only interference with the contractual relationship between the city and PNSPA—not business expectancies with vendors and the general public. The city also argued that, in any event, PNSPA failed to present admissible evidence supporting expectancies with the vendors and general public.

¶ 11 In an unpublished opinion, the Court of Appeals affirmed the trial court, holding that (1) PNSPA's argument that the city and Chief Nelson had interfered with a contract between the city and PNSPA failed because a party cannot tortiously interfere with its own contract; (2) PNSPA's argument that the city and Chief Nelson unlawfully interfered with a business expectancy between it and the gun show vendors failed because PNSPA did not explain why Chief Nelson's actions were unlawful and Chief Nelson had merely imposed and enforced valid permit conditions; (3) PNSPA's argument that RCW 9.41.290 preempted the city "from enacting laws or ordinances on the possession of firearms" failed because the city did not enact a law or ordinance and, even if it had, nothing in the statute creates a private cause of action; and (4) PNSPA's argument that the permit conditions imposed by the city through Chief Nelson violated RCW 9.41.290 and .300 failed because nothing in either statute affects permit conditions and, even if it did, neither statute creates a private cause of action. Pac. Nw. Shooting Park Ass'n v. City of Sequim, noted at 123 Wash.App. 1014, 2004 WL 1987254 at *2, 2004 Wash. App. LEXIS 2023, at *6.

¶ 12 PNSPA and Witt sought review of only two issues: (1) whether the city tortiously interfered with contractual relationships or business expectancies between PNSPA, Witt, the vendors, and the general public, and (2) whether the city violated RCW 9.41.290 and .300. We granted review. Pac. Nw. Shooting Park Ass'n v. City of Sequim, 154 Wash.2d 1019, 120 P.3d 953 (2005).

III. ISSUES

A. Did the city tortiously interfere with contractual relationships or business expectancies...