Dahl-Smyth, Inc. v. City of Walla Walla

64 P.3d 15
CourtWashington Supreme Court
DecidedMarch 6, 2003
Docket72282-0
StatusPublished
Cited by23 cases

This text of 64 P.3d 15 (Dahl-Smyth, Inc. v. City of Walla Walla) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dahl-Smyth, Inc. v. City of Walla Walla, 64 P.3d 15 (Wash. 2003).

Opinion

64 P.3d 15 (2003)
148 Wash.2d 835

DAHL-SMYTH, INC., a Washington corporation, Petitioner,
v.
CITY OF WALLA WALLA, a municipal corporation, Respondent.

No. 72282-0.

Supreme Court of Washington, En Banc.

Argued November 19, 2002.
Decided March 6, 2003.

*16 James Sells, Silverdale, Polly McNeill, Seattle, for Petitioner.

Richard Wernette, Walla Walla, for Respondent.

Robert Beaumier, Spokane, amicus curiae on behalf of City of Walla Walla.

Leslie Nellermoe, Seattle, amicus curiae on behalf of Waste Management of Wash.

Mary Spillane, David Wiley, Seattle, amicus curiae on behalf of Wash. Refuse and Recycling Ass'n.

BRIDGE, J.

This case requires us to determine how "measurable damages" should be calculated when a city annexes territory covered by the certificate of a private solid waste collection company. Former RCW 35A.14.900 (1996) provides that when a city annexes territory, the city may allow the territory's garbage hauler to continue to serve the territory for five years.[1] If the city so chooses, the city must pay "any measurable damages as a result of any annexation." RCW 35A.14.900. The Court of Appeals held that "measurable damages" do not include the loss in value to the certificate and that such damages must be capable of exact measurement. We reverse.

*17 I

FACTS

Dahl Smyth, Inc. (DSI) provided exclusive solid waste collection service in portions of Walla Walla County pursuant to a Certificate of Public Convenience and Necessity (commonly called a "G certificate") issued by the Washington Utilities and Transportation Commission (WUTC) as required by RCW 81.77.040. Private solid waste collection companies, such as DSI, are subject to the supervision and regulation of the WUTC. RCW 81.77.030. The WUTC sets the rates that a certificate-holder may charge and may suspend, revoke, alter, or amend the certificate for cause. Id.

Between 1982 and 2000, the City of Walla Walla (City) periodically annexed various portions of DSI's territory containing a total of 269 occupied housing units. Under former RCW 35A.14.900, all utility franchises are automatically cancelled upon annexation.[2] However, a city may elect to continue a garbage hauler's service after annexation. RCW 35A.14.900. In this case, DSI continued to serve the annexed territories for at least five years after the annexations occurred, although the City did not always grant DSI formal franchise extensions. Thereafter, the City chose to provide its own solid waste collection service, thus decreasing DSI's territory with each annexation.

In August 1985, DSI brought suit against the City in Walla Walla County Superior Court, seeking "measurable damages" as a result of the City's annexations of its territory between 1960 and 1984. By agreement of the parties, the City did not file an answer until July 1999 because both parties were awaiting a decision in a similar case involving DSI, the neighboring city of College Place, and many of the same issues. See Dahl-Smyth, Inc. v. City of College Place, No. 7102-2-III (Wash.Ct.App. Feb.5, 1987).[3] That case ultimately resulted in an unpublished Court of Appeals opinion. 46 Wash.App. 1049 (1987).

Both parties moved for partial summary judgment in 1999. Due to the College Place decision, the trial court found that DSI was collaterally estopped from arguing that the City was required to grant formal franchise extensions, and that "measurable damages" do not include lost profits.[4] Citing Metropolitan Services, Inc. v. City of Spokane, 32 Wash.App. 714, 649 P.2d 642, review denied, 98 Wash.2d 1008 (1982), the court also dismissed DSI's constitutional taking claim.[5] The only remaining issue for trial was the amount of "measurable damages," which, in accordance with College Place, was to be based on the decrease in the value of the certificate due to the annexations.

After a bench trial, the court ruled that DSI's certificate was a property right that has value distinct from lost profit and awarded DSI "measurable damages" in the amount of $425,000. The judge found DSI's two expert witnesses persuasive on the appropriate methodology of calculating "measurable damages." Both experts testified that the current method for calculating damages is to multiply the EBDIT or EBITDA times a multiplier of 7.6. (EBDIT consists of *18 earnings before depreciation, interest and taxes, while EBITDA is earnings before interest, taxes, depreciation and amortization.) Both of DSI's experts' calculations included an estimate of future revenue minus saved expenses. The City's expert, on the other hand, testified that DSI did not incur any "measurable damages" since it had the benefit of the five-year franchise extensions, but the trial court found this testimony unpersuasive.[6]

The City appealed to Division Three of the Court of Appeals, which reversed the damage award and remanded for further proceedings. Dahl-Smyth, Inc. v. City of Walla Walla, 110 Wash.App. 26, 38 P.3d 366 (2002). The Court of Appeals accepted Dahl-Smyth's proposition that the hauler's certificate is a property right and that damages for cancellation by annexation are governed solely by RCW 35A.14.900. Id. at 34, 38 P.3d 366. The court then held that "measurable damages" meant only "those claims that are directly connected to the cancellation of the franchise and capable of exact measurement." Id. at 35, 38 P.3d 366. According to the court, such damages do not include lost profits or loss in value; rather, they are limited to "incidental and consequential damages proximately caused by the cancellation of the franchise." Id.

DSI appealed to this court and we granted review.

II

ANALYSIS

The single issue before this court is whether the Court of Appeals erred in its determination of what is to be included in a calculation of "measurable damages." Because we find that there is no indication in the statute that "measurable damages" must be capable of exact measurement nor any indication that "measurable damages" are limited to incidental and consequential damages, we reverse the Court of Appeals.

If a city annexes territory covered by a garbage hauler's certificate, the city may retain the hauler's service or choose to provide its own solid waste collection service. RCW 35.21.120. However, if the city takes over collection, RCW 35A.14.900

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Bluebook (online)
64 P.3d 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dahl-smyth-inc-v-city-of-walla-walla-wash-2003.