Right-Price Recreation, LLC v. CPCC

Decision Date20 April 2001
Docket NumberNo. 25713-1-II.,25713-1-II.
Citation21 P.3d 1157,105 Wash.App. 813
PartiesRIGHT-PRICE RECREATION, LLC, a Washington Limited Liability Company, Respondent, v. CONNELLS PRAIRIE COMMUNITY COUNCIL, a Washington non-profit Corporation; Pierce County Rural Citizens Association, a Washington non-profit corporation; Jon Salisbury and Jane Doe Salisbury, husband and wife; William Wright and Jane Doe Wright, husband and wife; John Does 1-10 and Jane Does 1-10, Appellants.
CourtWashington Court of Appeals

Matthew Laurence Sweeney, Fircrest, for Respondent.

Shawn Timothy Newman, Olympia, for Appellants.

Jeffrey L. Fisher, Davis, Wright, Tremaine, Seattle, for American Civil Liberties Union, amicus curiae.


Two citizens' groups opposed a developer's proposal before Pierce County's hearing examiner and county council. The developer, alleging that the groups had made false statements about the proposal, sued for damages for slander, commercial disparagement, tortious interference, and civil conspiracy. When the developer sought discovery of all documents related to the citizens' groups, the groups claimed an associational privilege under the First Amendment. The developer moved to compel production, and the trial court ordered production for in camera review. In this discretionary review of the discovery order, we hold that there is some probability that the requested discovery will harm the groups' First Amendment rights and that the developer has not shown the materiality of the information or that the information could not be otherwise obtained with reasonable efforts. We reverse the discovery order.


Connell's Prairie Community Council (CPCC) and Pierce County Rural Citizens' Association (PCRCA) are citizens' groups (collectively, "the citizens' groups") that opposed two residential subdivisions in unincorporated Pierce County proposed by Right-Price Recreation LLC. After the citizens' groups stated their opposition to Right-Price's proposed developments before the Pierce County Hearing Examiner and the Pierce County Council, Right-Price sued the two groups and their members. The complaint alleged slander, commercial disparagement, tortious interference, and civil conspiracy. The trial court denied the citizens' groups' motion to dismiss. The groups then moved for summary judgment.

Right-Price sought discovery from both groups of all (1) past newsletters, bulletins, press releases or editorials, (2) past bank statements, financial statements, tax returns, and any other financial documentation, (3) membership lists, rosters, or mailing lists, (4) minutes of all meetings held, (5) correspondence sent by the citizens' groups, their officers, directors, and agents to public officials, elected officials, or decision makers, and (6) written correspondence sent by the citizens' groups. Right-Price also sought discovery, from CPCC only, of all (1) petitions and form letters CPCC circulated, (2) correspondence CPCC sent its officers, directors, and agents to other non-profit organizations, and (3) documents stored in any magnetic format generated by CPCC, its officers, directors, and agents.

The citizens' groups objected to these discovery requests, and Right-Price moved to compel production of the documents and information. The trial court ordered the citizens' groups to produce all of the requested documents and information to the court for in camera review. The trial judge concluded that this was necessary because she knew what Right-Price was looking for and needed to find out whether it was available:

[I]t's an unusual case, and I would not normally say I want to review everything in camera, but I feel that's the only recourse I have because ... I know what [Right-Price is] looking for. I don't know that [Right-Price is] going to find it in anything that [the citizens' groups] provide, but I think [Right-Price is] entitled to it. There's some kind of smoking gun there[.]

RP at 7. The court recognized that some of the information would be privileged, but it declined to define what would be privileged. The court also granted Right-Price's motion to continue the hearing on the citizens' groups' summary judgment motion. The citizens' groups obtained an emergency stay of the trial court's order from the Washington Supreme Court, and we granted discretionary review of the interlocutory discovery order.


The citizens' groups characterize this lawsuit as a "Strategic Lawsuit Against Public Participation" (SLAPP). A SLAPP is a lawsuit brought in retaliation against a party who has opposed the plaintiff's interests before a government agency. See GEORGE PRING & PENELOPE CANAN, SLAPPS: GETTING SUED FOR SPEAKING OUT 8 (1996). To help prevent such lawsuits, the legislature granted immunity from civil liability to parties who, in good faith, communicate a complaint to a government agency. RCW 4.24.510. The citizens' groups contend that Right-Price sued their groups and members to chill the exercise of their First Amendment rights. In addition to challenging the trial court's discovery order, the citizens' groups raise issues not designated in the notice for discretionary review, contending that the trial court has failed to recognize Right-Price's lawsuit as a SLAPP.

I. Issues Not Designated in Notice for Discretionary Review

Although we granted discretionary review solely on the discovery issue, the citizens' groups ask us to review whether the trial court erred by denying their motion to dismiss and by granting Right-Price's motion to continue the citizens' groups' summary judgment motion. The groups also ask this court to hold the good faith requirement of RCW 4.24.510 unconstitutional. The citizens' groups urge us to review these issues under RAP 2.4(b), RAP 2.2(a)(3), and RAP 2.5(a).

Under RAP 2.4(b), an appellate court will review an order or ruling "not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review." The "decision designated in the notice" is the order requiring CPCC to submit the requested documents for in camera review.

RAP 2.4(b) permits review of prior appealable orders "to avoid the problem of precluding review of an order which is not readily identifiable as appealable." Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 135, 750 P.2d 1257 (1988). In Adkins, the Supreme Court held that a ruling granting a motion for a mistrial prejudicially affected the final judgment in the second trial because otherwise the second trial would not have occurred. Adkins, 110 Wash.2d at 134, 750 P.2d 1257; see also Hwang v. McMahill, 103 Wash.App. 945, 949, 15 P.3d 172 (2000)

(order denying a motion for revision prejudicially affected a later default judgment); Behavioral Scis. Inst. v. Great-West Life, 84 Wash.App. 863, 869-70, 930 P.2d 933 (1997) (prior orders prejudicially affected the trial court's final order because the plaintiff's entitlement to relief under the final order was based on the court's earlier rulings). But the Supreme Court construed "prejudicially affected" in a more limited way in Franz v. Lance, 119 Wash.2d 780, 836 P.2d 832 (1992). There, the defendants appealed an order imposing sanctions under CR 11 and RCW 4.84.185. Franz, 119 Wash.2d at 782,

836 P.2d 832. The court held that the notice of appeal included the underlying judgment even though it was not included in the notice. Franz, 119 Wash.2d at 782,

836 P.2d 832. The court reasoned that the sanctions issue "must stand or fall based on the findings and conclusions ... in support of the ... judgment." Franz, 119 Wash.2d at 782,

836 P.2d 832. Thus, under Franz, the previous order prejudicially affects the order designated in the notice of appeal if the order appealed cannot be decided without considering the merits of the previous order. This requires some connection between the two other than that the appealed order would not have occurred if the earlier order had been decided differently. The issues in the two orders must be so entwined that to resolve the order appealed, the court must consider the order not appealed.

The citizens' groups ask us to review the trial court's order denying dismissal. The groups moved to dismiss under RCW 4.24.500, the Anti-SLAPP statute. The court treated the motion as one for judgment on the pleadings under CR 12(b)(6). If the court had granted the motion, the case would have ended. Thus, as Adkins applied the "prejudicially affected" test, the denial of the motion would be reviewable. But, for two significant reasons, we apply the more limited interpretation of "prejudicially affected" used in Franz.

First, Adkins was a direct appeal, not a discretionary, interlocutory appeal. In a direct appeal, if "prejudicially affected" is not construed broadly, the issue omitted from the notice will never be addressed. But in a discretionary review case, the parties still have the right to appeal a final judgment and include for review the trial court's interim rulings and orders, even appealable orders. See RAP 2.4(b); Kreidler v. Eikenberry, 111 Wash.2d 828, 836, 766 P.2d 438 (1989). Thus, a party who seeks discretionary review does not risk losing an issue not named in the notice. Second, if discretionary review includes all rulings that would have terminated the case even though not included in the notice, the scope of discretionary review would be greatly expanded. But discretionary review is not favored because it lends itself to piecemeal, multiple appeals. State v. State Credit Ass'n, Inc., 33 Wash.App. 617, 622, 657 P.2d 327 (1983). For this reason, we grant discretionary review only in limited circumstances. See RAP 2.3(b).1 If discretionary review included all of the trial court's decisions that could have terminated the action, we could not limit the scope of review as required by RAP 2.3.

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