Right-Price Recreation v. Connells Prairie
| Decision Date | 16 May 2002 |
| Docket Number | No. 71099-6.,71099-6. |
| Citation | 46 P.3d 789,146 Wash.2d 370 |
| Court | Washington Supreme Court |
| Parties | RIGHT-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, Petitioners. |
Bricklin & Gendler, Michael Gendler, Seattle, Shawn Newman, Olympia, for Petitioners.
Matthew Sweeney, Tacoma, Sharon Gain, Bonney Lake, for Respondent.
Two citizens' groups sought review of a Court of Appeals' decision which held that the trial court's order compelling production of the groups' information for in camera review violated their First Amendment privileges. Finding that the Court of Appeals should also have considered the trial court's refusal to dismiss the case, and further, that the case should have been dismissed on summary judgment, we remand for dismissal and for a determination concerning attorney fees.
Under RAP 2.4(b), the appellate court reviews orders or rulings not designated in the notice for discretionary review if they prejudicially affect the decision designated in the notice. In this case, granting the motion to dismiss would have terminated the action and precluded the designated discovery order. Therefore, we review the dismissal order herein.
Right-Price Recreation, LLC, proposed to develop two residential subdivisions in rural Pierce County. Connells Prairie Community Council and Pierce County Rural Citizens Association, two nonprofit corporations (collectively, "citizens' groups") opposed the developments. After members of the citizens' groups spoke before the Pierce County Council and the Pierce County Hearing Examiner, Right-Price sued the groups, as well as named officers of the groups and their spouses and additional unnamed individuals.
The matter commenced in April 1999. Right-Price's complaint alleged slander and commercial disparagement; tortious interference with binding sewer agreements; tortious interference with the hearing process; and civil conspiracy.
In September 1999, Right-Price brought a motion to compel production of documents. Right-Price sought discovery from both groups of (1) newsletters, bulletins, press releases, or editorials generated; (2) bank statements, financial statements, tax returns, and any other financial documentation relating to the groups; (3) membership lists, rosters, or mailing lists; (4) minutes of all meetings held; and (5) correspondence generated by the citizens' groups to public officials, elected officials, or decision makers. Right-Price sought discovery from Pierce County Rural Citizens Association of all correspondence and written documents exchanged with other nonprofit organizations. Right-Price also sought discovery from Connells Prairie Community Council of (1) written correspondence generated; (2) petitions and form letters created; (3) correspondence generated to other nonprofit organizations; and (4) documents to other nonprofit organizations generated or possessed by the group that are stored in any magnetic format.
The citizens' groups then filed a motion for protective order and a "special" motion to dismiss, claiming that they were immune from civil suit under former RCW 4.24.510 (1999), that they enjoyed common law immunity, and that the constitutional right to petition the government also provides immunity from the suit. The trial court characterized the special motion as a CR12(b)(6) motion.
Following oral argument, the trial court ordered discovery stayed and continued the hearing. Right-Price was ordered to "provide the court with sufficient affidavits and evidence of facts and claims to justify the merits of the complaint." Clerk's Papers at 78. After reviewing the materials submitted by Right-Price, the trial court denied the motion to dismiss and allowed the case to proceed.
When Right-Price renewed its motion to compel, the trial court ordered the citizens' groups to produce all of the requested materials to the court for in camera review.
The citizens' groups filed an emergency motion for stay of the trial court's order, arguing that the requests for production violated the groups' constitutional rights. The Court Commissioner of the Supreme Court granted the stay, and the notice for discretionary review was transferred to the Court of Appeals.
The citizens' groups also filed a motion for summary judgment, which the trial court continued pending resolution of interlocutory review.
The Court of Appeals granted discretionary review on the discovery issue, holding "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." Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 105 Wash.App. 813, 816, 21 P.3d 1157 (2001). The Court of Appeals reversed the discovery order.
In briefing to the Court of Appeals, the citizens' groups also requested review as to whether the trial court erred by denying their motion to dismiss and by continuing their summary judgment motion. These issues were not designated in the notice for discretionary review. The Court of Appeals concluded they were unreviewable.
This Court granted the citizen groups' petition for review of the Court of Appeals' decision. Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 145 Wash.2d 1001, 35 P.3d 381 (2001).
The following issues are raised by the citizens' groups in their petition for review:
(1) Whether Petitioners are entitled to interlocutory dismissal of the suit by means of a statutory writ of review or constitutional writ of certiorari;
(2) Whether the Court of Appeals erred by declining to review the denial of Petitioners' motion to dismiss and the trial court's order continuing the motion for summary judgment when neither action was designated in the notice for discretionary review; and
(3) Whether the "good faith" requirement of RCW 4.24.500 is an unconstitutional prior restraint on speech.
The citizens' groups assert that they are entitled to interlocutory dismissal of the suit by means of a statutory writ of review or constitutional writ of certiorari.
"A court will issue a statutory writ of review, pursuant to chapter 7.16 RCW, if the petitioner can show that (1) an inferior tribunal or officer (2) exercising judicial functions (3) exceeded its jurisdiction or acted illegally, and (4) there is no other avenue of review or adequate remedy at law." Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wash.2d 840, 845, 991 P.2d 1161 (2000).
The writ of certiorari provided for in article IV, section 6 of the Washington Constitution is available in narrower circumstances. Id. A court will not ordinarily grant a constitutional writ unless no other avenue of appeal, such as a statutory writ or direct appeal, is available. Saldin Sec., Inc. v. Snohomish County, 134 Wash.2d 288, 292-93, 949 P.2d 370 (1998).
Review under either writ is not available in the instant case because the citizens' groups sought the alternate avenue of discretionary review, which was granted by the Court of Appeals. The citizens' groups are not entitled to dismissal by means of a statutory or constitutional writ.
The citizens' groups argue that the Court of Appeals should have reviewed the trial court's denial of their motion to dismiss and the trial court's order continuing their motion for summary judgment, even though neither was designated in the notice for discretionary review. We agree that the denial of the motion to dismiss should have been considered.
Generally, an appellate court will "review the decision or parts of the decision designated in the ... notice for discretionary review and other decisions in the case as provided in sections (b), (c), (d), and (e). RAP 2.4(a) (emphasis added). Section (b), which applies in this case, provides as follows:
The appellate court will review a trial court 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 trial court denied the motion to dismiss on October 28, 1999. The discovery order designated in the notice for discretionary review was filed on March 10, 2000. The order continuing the motion for summary judgment was filed on March 23, 2000. The Court of Appeals granted discretionary review on August 11, 2000. Because both of the undesignated decisions, as well as the order designated in the notice, occurred before the appellate court accepted discretionary review, the second requirement of RAP 2.4(b) is satisfied.
Reviewability of the undesignated decisions (denial of the motion to dismiss and continuance of the motion for summary judgment) then turns on whether they "prejudicially affect" the designated discovery order.
In Adkins v. Aluminum Co. of America, an action resulting from personal injuries, the first trial resulted in a favorable verdict for the plaintiff, but the court then granted a mistrial due to juror misconduct. The second trial resulted in a defense verdict, from which the plaintiff appealed. One of the issues on appeal was whether the appellate court should review the ruling granting the mistrial when the plaintiff had appealed from the judgment entered on the second jury's verdict. Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 133, 750 P.2d 1257 (1988), 756 P.2d 142 (1988). The Adkin...
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