William G. Hulbert, Jr. and Clare Mumford Hulbert Revocable Living Trust v. Port of Everett
| Decision Date | 18 January 2011 |
| Docket Number | No. 64102-6-I.,64102-6-I. |
| Citation | 159 Wash.App. 389,245 P.3d 779 |
| Court | Washington Court of Appeals |
| Parties | WILLIAM G. HULBERT, JR. AND CLARE MUMFORD HULBERT REVOCABLE LIVING TRUST, William G. Hulbert, Jr., III; Tanauan Hulbert Martin, and David Francis Hulbert, Appellants, v. PORT OF EVERETT, a Port District Under the Laws of the State of Washington, Respondent, v. William Hulbert Mill Co. Limited Partnership, a Washington Limited Partnership; Ameron International Corporation, a Delaware Corporation; and Oldcastle Precast, Inc., a Washington Corporation. Third Party Defendants. |
Thomas Harding Wolfendale, Kymberly Kathryn Evanson, K & L Gates LLP, Seattle, WA, for Appellants.
Mark S. Nadler, Liberty Waters, The Nadler Law Group PLLC, Seattle, WA, for Respondent.
Lynn Tadlock Manolopoulos, David Joseph Ubaldi, Davis Wright Tremaine LLP, Bellevue, WA, for Other Parties.
¶ 1 This appeal arises from the 1991 sale of thirty acres of land by Appellants (the Hulberts) to the Port of Everett through an Agreement of Purchase and Sale (Agreement). An exhibit to the Agreement provided for the Hulberts to indemnify the Port, for three years after the date of sale, for any liability incurred by the Port arising from the discovery and clean-up of hazardous substances existing on the Property before the date of sale. Approximately 15 years later, in 2006, the Port notified the Hulberts that they were potentially liable parties under the Model Toxics Control Act (MTCA), chapter 70.105D RCW. The Hulberts brought a claim in superior court seeking a declaration that the Agreement barred any MTCA contribution action by the Port. The trial court ruled that the Agreement did not bar a contribution action under the MTCA and entered summary judgment in favor of the Port. The Hulberts appeal the trial court's ruling on summary judgment, its certification of the ruling under CR 54(b), and its award of attorney fees to the Port. We hold that the Agreement did not manifest a mutual intent to allocate MTCA liability after the termination of the three-year period of indemnity, and that the evidence did not create a genuine issue of material fact. Accordingly, we affirm the trial court's ruling on summary judgment. We also affirm the trial court's certification of its summary judgment ruling under CR 54(b) and its award of attorney fees to the Port. We award attorney fees on appeal to the Port based on theAgreement and remand for a determination of the amount.
¶ 2 The underlying lawsuit arises from the sale of thirty acres of land in Everett (Property) by Appellants to the Port of Everettin 1991. The William Hulbert Mill Company, Inc. began milling operations on the Property in the early 1920s, shutting down operations around 1960. The company leased portions of the Property to various industrial operations until 1986, when it dissolved and transferred the Property to the William Hulbert Mill Company LP. From 1986 to 1990, the Property was leased to various commercial and industrial tenants. In 1990, a portion of the Property was transferred to William G. Hulbert, Tanauan Hulbert Martin, and David Francis Hulbert. The three owned the Property as tenants in common along with the William G. Hulbert, Jr. and Clare Mumford Hulbert Revocable Living Trust, while William Hulbert Mill Company LP owned the remaining portion (these owners are the Appellants in this case).
¶ 3 In 1991, a representative for the Hulberts approached the Port about selling the Property. The parties were aware that the Property likely had environmental issues, so the Port requested the Hulberts to indemnify it against any environmental liability arising from the site. The Hulberts agreed to indemnify the Port against liability involving hazardous substances for three years after the date of sale. The parties had a Phase I Environmental Site Assessment performed. The resulting report, referred to by the parties as the Kleinfelder Report, identified certain areas of environmental concern and recommended that the Port perform additional investigations. The parties agreed that the Hulberts would fund all environmental investigation and remediation that the Kleinfelder Report recommended.
¶ 4 On March 8, 1991, for a purchase price of $9.5 million, the Hulberts conveyed the Property to the Port through the Agreement. The Agreement included an addendum entitled "Additional Environmental Testing and Clean Up Activities" and a "Certificate and Indemnity Regarding Hazardous Substances." The Certificate recited the Hulberts' obligations during the three-year indemnity period. It also set forth the Hulberts' representations that they had "no notice from any governmental agency or other party and except asset forth in the Kleinfelder Report ... no knowledge ..." of any hazardous substance on the Property, nor of any discharges of hazardous substances on the Property, nor of any violation of any laws relating to hazardous substances. The Agreement had an integration clause.
¶ 5 An escrow account was established for the Hulberts' obligations with funds from the purchase price. The Hulberts performed the additional clean-up activities required under the Agreement, and in 1992, the escrow funds were released to them. The Port did not ask the Hulberts to perform any additional activities under the Agreement or request indemnity for other costs during the three-year period.
¶ 6 In 2006, the Washington State Department of Ecology required the Port to perform additional remedial investigation and cleanup work on the Property. The Port, complying with the notice requirements of the MTCA, sent letters to all potentially liable parties. In May 2006, the Hulberts were notified that they were potentially liable for costs incurred in the investigation and remediation of the land under the MTCA.
¶ 7 On September 8, 2006, in response to the letters, the Hulberts filed a complaint for injunction, declaratory, and other relief in Snohomish County Superior Court, seeking a declaration that the Agreement barred any claims by the Port for MTCA contribution and seeking to enjoin the Port's investigation and remediation on the land pending the court's determination of the Hulberts' liability under the Agreement or the MTCA. The Hulberts claimed that the Port's right to seek contribution from them under the MTCA ended when the Hulberts' obligation to indemnify the Port for environmental liabilities terminated on March 8, 1994.
¶ 8 The trial court orally denied the Hulberts' request for injunctive relief, and the parties began conducting discovery. ThePort answered and counterclaimed for MTCA contribution. The parties then cross-moved for partial summary judgment on the issue of whether the Agreementbarred the Port's MTCA contribution claim. The trial court granted the Port's motion on December 10, 2007, concluding that the Agreement did not bar MTCA liability. 1 On May 12, 2009, the Port moved for bifurcation of the "contract claims" from the environmental allocation matters under CR 42 and for an award of attorney fees under the Agreement. The Port argued that all causes of action arising from the Agreement were decided and requested entry of final judgment. As an alternative to bifurcation, the Port sought certification of the court's December 10 order under CR 54(b). The Hulberts opposed the motion. The trial court denied the Port's motion for certification because the Port failed to provide the requisite findings for entry of a CR 54(b) order. The court ordered the Port to prepare proposed findings and resubmit its request for attorney fees, after eliminating certain fees that the trial court found were unreasonable. The Hulberts opposed the Port's proposed findings and its second request for fees. On July 27, 2009, the court granted the Port's motion to certify its December 10 order. The court also entered final judgment against the Hulberts in the amount of $111,101.87, reflecting its award of attorney fees to the Port. The Hulberts appeal.
¶ 9 The Hulberts appeal the trial court's ruling on summary judgment that the Agreement did not bar MTCA liability, its certification of its summary judgment ruling under CR 54(b), and its award of attorney fees to the Port. We affirm the rulings of the trial court and award attorney fees on appeal to the Port.
¶ 10 The court reviews summary judgment decisions de novo, engaging in the same inquiry as the trial court. Michak v. Transnation Title Ins. Co., 148 Wash.2d 788, 794-95, 64 P.3d 22 (2003). Summary judgment is proper if, viewing the facts and reasonable inferences most favorably to the nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c); Versuslaw, Inc. v. Stoel Rives LLP, 127 Wash.App. 309, 319-20, 111 P.3d 866 (2005). A genuine issue of material fact exists where reasonable minds could differ regarding the facts controlling the outcome of the litigation. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).
¶ 11 In essence, the Hulberts argue that the Certificate provided a ceiling on the Hulberts' liability, while the Port argues that it provided a floor. The Hulberts advance four main points in support of their argument that the Agreement precludes MTCA liability. First, focusing on the express terms of the Agreement, they argue that Article 4 conditioned the Port's acceptance of the Property on the limitations in the Certificate and that the inclusion of 15 environmental statutes evidences the parties' intent to allocate all environmental liability. Second, pointing to the context in which the Agreement was made, they argue that the subject matter, objective circumstances at execution, and subsequent acts of the parties demonstrate the parties' intent to preclude future MTCA liability. Third, the Hulberts argue that the trial court's reliance on Southland Corp. v. Ashland Oil, Inc., 696 F.Supp. 994 (D.N.J.1988) is misplaced. Fina...
To continue reading
Request your trial
-
Target Nat'l Bank v. Higgins
...fees under RCW 4.84.250. ¶ 13 This court reviews the legal basis for an award of attorney's fees de novo. Hulbert v. Port of Everett, 159 Wash.App. 389, 407, 245 P.3d 779 (2011). In Washington, attorney's fees may be awarded only when authorized by a private agreement, a statute, or a recog......
-
Davis ex rel. Olympia Food Coop. v. Cox
...an award of attorney fees de novo and the reasonableness of the amount of an award for abuse of discretion.” Hulbert v. Port of Everett, 159 Wash.App. 389, 407, 245 P.3d 779 (2011). ¶ 70 Without deciding whether the anti-SLAPP statute does, in fact, conflict with these derivative action sta......
-
Beres v. United States
...show a "party's subjective, unilateral intent as to the contract's meaning." See William G. Hulbert, Jr. & Clare Mumford Hulbert Revocable Living Tr. v. Port of Everett, 245 P.3d 779, 784 (Wash. Ct. App.) (citing Hearst Commc'ns, Inc. v. Seattle Times Co., 115 P.3d at 267-67), review denied......
-
Janaszak DDS v. State
...2.Michak v. Transnation Title Ins. Co., 148 Wash.2d 788, 794–95, 64 P.3d 22 (2003). 3.CR 56(c); Michak, 148 Wash.2d at 794–95, 64 P.3d 22. 4.Hulbert v. Port of Everett, 159 Wash.App. 389, 398, 245 P.3d 779,review denied,171 Wash.2d 1024, 257 P.3d 662 (2011). 5.Howell v. Spokane & Inland Emp......
-
Table of Cases
...616, 508 P.2d 632 (1973): 17.7(1) William G. Hubert Jr. & Clare Mumford Recoverable Living Trust v. Port of Everett, 159 Wn.App. 389, 245 P.3d 779, review denied, 171 Wn.2d 1024 (2011): 10.3(6), 10.3(6)(a) Wilson v. Key Tronic Corp., 40 Wn.App. 802, 701 P.2d 518 (1985): 11.3, 11.5, 11.6(3) ......
-
§ 4.3 Superior Court Decisions that May Be Appealed
...enters findings supporting the determination that there is no just reason for delay. Hulbert v. Port of Everett, 159 Wn. App. 389, 405-06, 245 P.3d 779, review denied, 171 Wn.2d 1024 In determining whether there is "no just reason for delay," the trial court should consider the following fi......
-
Table of Cases
...of, 128 Wn. App. 650, 116 P.3d 1042 (2005), review denied, 156 Wn.2d 1031 (2006): 7.5(1) Hulbert v. Port of Everett, 159 Wn. App. 389, 245 P.3d 779, review denied, 171 Wn.2d 1024 (2011): 4.3(16) Humbert/Birch Creek Constr. v. Walla Walla County, 145 Wn. App. 185, 185 P.3d 660 (2008): 21.14(......
-
§10.3 - Tools of the Trade
...544, 874 P.2d 868 (1994) William G. Hulbert, Jr. & Clare Mumford Hulbert Revocable Living Trust v. Port of Everett, 159 Wn.App. 389, 399,245 P.3d 779, 784 (a) Indemnity provisions Indemnities contractually allocate the risk associated with a particular liability. For example, a seller who a......