Ralph v. Weyerhaeuser Co.

Opinion

This opinion was filed for record

IN CLERKS OFFICE at 'g',OOo.&.. on (}yl!j I uJ( lf IIJPREMe COU~T. STATE OF WASHINO'ION - ~~o-.L4-/- d /1 . ____. -~ c: .. --DEC -;·~~~~~;9- 2 9 2016 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON ) WILLIAM RALPH, individually, ) ) Petitioner, ) No. 91711-6 ) (consolidated with v. ) Nos. 91725-6, 91726-4, ) and 91727-2) WEYERHAEUSER COMPANY, a ) Washington Corporation; and GREEN ) DIAMOND RESOURCE COMPANY, a ) Washington Corporation, ) ENBANC ) Respondents. ) _______________________) WILLIAM RALPH, individually, ) Filed: DEC 2 9 2016 ) Petitioner, ) ) v. ) ) STATE OF WASHINGTON ) DEPARTMENT OF NATURAL ) RESOURCES, ) ) Respondent ) _______________________ ) WILLIAM FORTH, individually; GUY ) BAUMAN, individually; EILEEN ) BAUMAN, individually; LINDA ) STANLEY, individually and as personal ) representative IN RE THE ESTATE OF ) CORAL COTTEN; ROCHELLE ) Ralph, et al. v. Weyerhaeuser Co., et at., No. 91711-6

STANLEY, as personal representative IN ) RE THE ESTATE OF CORAL COTTEN; ) DONALD LEMASTER, individually; and ) DAVID GIVENS, individually, ) ) Petitioners, ) ) v. ) ) STATE OF WASHINGTON ) DEPARTMENT OF NATURAL ) RESOURCES, a Washington State Public ) Agency; WEYERHAEUSER COMPANY, ) a Washington Corporation; and GREEN ) DIAMOND RESOURCE COMPANY, a ) Washington Corporation, ) ) Respondents. ) _________________________) VIRGINIA CAREY, individually; JAMIE ) CAREY, individually; P ARADYCE ) INDUSTRIES, INC., d/b/a THE PRINT ) SHOP, a Washington Corporation, ) ) Petitioners, ) ) v. ) ) STATE OF WASHINGTON ) DEPARTMENT OF NATURAL ) RESOURCES; WEYERHAEUSER ) COMPANY, a Washington Corporation; ) and GREENDIAMOND RESOURCE ) COMPANY, a Washington Corporation, ) ) Respondents. ) _________________________)

2 Ralph, et al. v. Weyerhaeuser Co., eta!., No. 91711-6

YU, J.- These consolidated cases all arise from a 2007 flood of the

Chehalis River in Lewis County. This is the second time we have considered

questions relating to the appropriate forum. In our first review, we considered the

trial court's orders dismissing the cases for lack of subject matter jurisdiction

pursuant to RCW 4.12.010(1). Ralph v. Dep't of Nat. Res., 182 Wn.2d 242,245-

46, 343 P.3d 342 (2014) (Ralph I). A majority of this court held that "RCW

4.12.010 relates to venue, not jurisdiction" and therefore "reverse[d] and

remand[ed] for further proceedings." Id. at 246. On remand, the respondents 1

promptly moved to transfer venue to Lewis County in each case. Over the

petitioners' 2 objections, the trial court granted the respondents' motions. Those

orders are now before this court on direct discretionary review.

We hold that the respondents did not waive their objections to proper venue

for these actions, but that as a matter of statutory interpretation, RCW 4.12.010(1)

does not provide for exclusive proper venue in Lewis County. King County is

another possible proper venue in accordance with RCW 4.12.020(3) and

4. 12.025(3). We therefore reverse the trial court's orders transferring venue to

Lewis County to the extent those orders were based solely on exclusive proper

1 The respondents are defendants Department of Natural Resources, Weyerhaeuser Company, and Green Diamond Resource Company. 2 The petitioners are plaintiffs William Ralph, William Forth, Guy Bauman, Eileen Bauman, Linda Stanley, Rochelle Stanley, Donald LeMaster, David Givens, Virginia Carey, Jamie Carey, and Paradyce Industries Inc.

3 Ralph, eta/. v. Weyerhaeuser Co., eta/., No. 91711-6

venue. It is unclear if the trial court considered whether venue should be

transferred to Lewis County for the convenience to the witnesses, so we remand

for the trial court to exercise its discretion on that issue in a manner consistent with

this opinion.

FACTS AND PROCEDURAL HISTORY

The factual background is quoted from this court's decision in Ralph I:

In December 2007, heavy rains caused the Chehalis River to overflow its banks, resulting in widespread flooding in Lewis County. The properties of [the petitioners] were among those affected. [The petitioners] filed separate suits in King County Superior Court against [the respondents], alleging negligence; trespass; tortious interference with contractual relations and business expectancies; conversion; inverse condemnation; unlawful agency action; and violations of the Shoreline Management Act of 1971, chapter 90.58 RCW, and the State Environmental Policy Act, chapter 43.21C RCW. [The petitioners] assert that [the respondents'] poor forestry practices made its land unstable, thereby allowing landslides to form and debris to flow into the Chehalis River, which in turn displaced river water, flooded the river basin, and caused damage to their property.

!d. at 246 (citations omitted).

The respondents moved to dismiss each case, arguing that RCW 4.12.01 0(1)

vested exclusive jurisdiction in Lewis County, where all of the real property at

issue is located, and that the only remedy for this "jurisdictional defect" was

dismissal. Mot. for Discr. Review (MDR), App. at 115, 144, 173, 205. The trial

4 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

court granted the motions, and the Court of Appeals affirmed. 3 Ralph I, 182

Wn.2d at 246-47.

This court reversed. We unanimously rejected the petitioners' argument that

RCW 4.12.01 0(1) "encompass[ es] only injuries that affect title to real property and

not actions for monetary damages." !d. at 249; see also id. at 266 (Wiggins, J.,

dissenting). The court also acknowledged that "[c]ase law from the 1940s and

1950s held that RCW 4.12.010 is jurisdictional, so that an improperly commenced

action must be dismissed if filed in a superior court outside the local county." !d.

at 245-46 (citing Snyder v. Ingram, 48 Wn.2d 637, 639, 296 P.2d 305 (1956),

overruled in part by Ralph I, 182 Wn.2d 242; Cugini v. Apex Mercury Mining Co.,

24 Wn.2d 401, 409, 165 P.2d 82 (1946)). The trial court and Court of Appeals

decisions were thus correct applications of then-controlling precedent.

However, a majority of this court overruled that precedent in light of more

recent cases that "interpreted similar (though not identical) statutes to prescribe

only venue in light of article IV, section 6 of the Washington State Constitution,

which grants universal original subject matter jurisdiction to the superior courts."

3 In Carey v. Department of Natural Resources, the trial court denied the motion to dismiss, but stayed the proceedings pending the outcome of the appeals in "related cases." MDR App. at 235 (Order Staying Proceedings, Carey v. Dep 't ofNat. Res., No. 10-2-42011-8 (King County Super. Ct. Sept. 30, 2011)). The petitioners in Carey were thus not parties to Ralph I. This procedural variation does not affect the issues now presented.

5 Ralph, eta!. v. Weyerhaeuser Co., eta!., No. 91711-6

I d. at 246 (citing Young v. Clark, 149 Wn.2d 130, 134, 65 P.3d 1192 (2003); Shoop

v. Kittitas County, 149 Wn.2d 29, 37, 65 PJd 1194 (2003)). We thus held,

RCW 4.12.010 applies to tort actions seeking monetary relieffor damages to real property and relates to venue, not jurisdiction. If an action for injuries to real property is cmmnenced in an improper county, the result is not dismissal but rather a change of venue to the county in which the real property is located. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion.

I d. at 259.

On remand, the respondents promptly moved for a change of venue, arguing

that Lewis County is the exclusive proper venue pursuant to Ralph I and RCW

4.12.01 0(1 ), and alternatively arguing that Lewis County is a more convenient

forum for the witnesses. They also argued that if Lewis County is the exclusive

proper venue, RCW 4.12.090(1) requires the petitioners to bear the transfer costs.

The trial court granted the respondents' motions. We accepted direct discretionary

review of the trial court's orders and consolidated the actions.

ISSUES

A. Did the respondents waive the venue provisions ofRCW 4.12.010(1)?

B. IfRCW 4.12.010(1)'s venue provisions were not waived, did the trial

court properly grant the respondents' motions to change venue to Lewis County?

C. If the trial court properly granted the respondents' motions to change

venue, were the petitioners properly ordered to pay the transfer costs?

6 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

D. Are the respondents entitled to attorney fees on review?

ANALYSIS

Because our case law prior to Ralph I interpreted RCW 4.12.010 as a

jurisdictional statute, we have not previously interpreted its provisions through the

lens of venue. We must do so now, and we hold that RCW 4.12.010(1) does not

provide exclusive proper venue for these actions in Lewis County. There are other

equally specific, equally mandatory, and equally applicable venue statutes.

Because RCW 4.12.020(3) and 4.12.025(3) both clearly provide that King County

is also a possible proper venue, the respondents were not entitled to a change of

venue as a matter of right pursuant to RCW 4.12.030(1). However, it is not clear

from the record if the trial court decided whether venue should be changed to

Lewis County for the convenience of the witnesses pursuant to RCW 4.12.030(3).

We therefore reverse and remand for the trial court to exercise its discretion

in a manner consistent with this opinion. However, even if venue is ultimately

transferred to Lewis County as a matter of discretion, the petitioners will not have

to bear the transfer costs and the respondents are not entitled to costs or attorney

fees on review.

7 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

A. Threshold issues

Each party raises a threshold issue that might obviate the need to interpret

the venue statutes at issue here. However, due to the particular procedural history

of these cases, we reject these threshold arguments.

1. Waiver

The petitioners contend that when the respondents moved to dismiss for lack

of subject matter jurisdiction and argued that transfer to Lewis County was not an

available remedy, they waived their right to object to improper venue pursuant to

CR 12(h)(l). Ordinarily, the petitioners might be right, but there was no waiver

here because such an objection was legally unavailable before Ralph I.

The respondents contend that proper venue pursuant to RCW 4.12.010(1)

cannot be waived. However, the cases supporting that view explicitly rely on the

now-rejected interpretation ofRCW 4.12.010 as relating to jurisdiction rather than

venue. See Joint Br. ofResp'ts at 6 (citing Alaska Airlines, Inc. v. Molitor, 43

Wn.2d 657, 665, 263 P.2d 276 (1953); Miles v. Chinto Mining Co., 21 Wn.2d 902,

907, 153 P.2d 856 (1944)). In a case where the court rejected the parties'

stipulation to trial in a county other than that prescribed by a former version of

RCW 4.12.010(1), we acknowledged that

[i]t may be conceded that, if [the former version of 4.12.010(1) ( 1881 )] were a statute relating merely to venue, the parties could so stipulate. But it has not been so regarded or construed by our

8 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

decisions; on the contrary, it has been regarded as a statute affecting jurisdiction.

Miles, 21 Wn.2d at 904. After Ralph I, the statute does relate merely to venue and

its provisions may be waived in appropriate circumstances.

However, waiver pursuant to CR 12(h)(1) applies only to available defenses

and objections. Kahclamat v. Yakima County, 31 Wn. App. 464, 466, 643 P.2d

453 (1982). A venue-based objection to noncompliance with RCW 4.12.010 was

legally unavailable before this court's opinion in Ralph I, and the only appropriate

remedy for noncompliance was dismissa1. 4 Five Corners Family Farmers v. State,

173 Wn.2d 296,315 n.S, 268 P.3d 892 (2011). It cannot be said that the

respondents either implicitly or intentionally waived an objection to improper

venue by bringing a motion to dismiss that argued for a correct application of then-

controlling precedent.

Moreover, the respondents' motions to dismiss for lack of subject matter

jurisdiction were clearly sufficient to put the court and the petitioners on notice of

the basis for the respondents' objections to proceeding in King County. We have

already held that raising an objection to venue is sufficient to preserve the issue

4 The petitioners assert that "transfer of these cases to Lewis County was a viable alternative" even before Ralph I. MDR at 10 nJl. That is incorrect. Prior cases held that actions initially brought in the proper county pursuant to RCW 4.12.010 could later be transferred to another county, but not the other way around. Ralph I, 182 Wn.2d at 245, 255 (citing Snyder, 48 Wn.2d at 639; Cugini, 24 Wn.2d at 409; N. Bend Lumber Co. v. City of Seattle, 147 Wash. 330, 336,266 P. 156 (1928)).

9 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

even ifthe objecting party does not propose any remedy, much less one foreclosed

by controlling precedent. Eubanks v. Brown, 180 Wn.2d 590, 594-95, 327 P.3d

635 (2014). The respondents thus did not waive any venue-based objection here.

2. Scope of Ralph I

The respondents argue that this court already decided in Ralph I that Lewis

County is the exclusive proper venue for these actions, but they read Ralph I too

broadly. That opinion resolved the question of whether RCW 4.12.01 0(1) applies

to these actions at all, but not whether it applies exclusively. See Ralph I, 182

Wn.2d at 249-51. The remand was "for further proceedings consistent with this

opinion," not specifically for transfer to Lewis County. I d. at 259.

We also reject the respondents' view that pursuant to Ralph I, venue for

these actions must be transferred to Lewis County, but then might be transferred

back to King County for some discretionary reason. They contend that this

cumbersome process is required as a matter of policy to preserve the stability of

land titles, but this court already rejected that contention when it held that RCW

4.12.010 is not a jurisdictional statute. Jd. at 255-57. There is no indication that

the legislature has since taken responsive action or that the stability of land titles

has actually been undermined. Moreover, it is possible that a court could still

consider such an argument as applied to a specific case involving title to real

property in order to determine whether venue should be changed as a matter of

10 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

discretion. See RCW 4.12.030(3) (allowing discretionary change of venue where

"the ends of justice would be forwarded by the change").

Because we reject the parties' threshold arguments, we must now consider

whether Lewis County is the exclusive proper venue for these actions as a matter

of statutory interpretation.

B. Change ofvenue

The respondents' motions raised two bases for transferring venue to Lewis

County: transfer to the proper county as a matter of right pursuant to RCW

4.12.030(1 ), and transfer for convenience of the witnesses as a matter of discretion

pursuant to RCW 4.12.030(3). The trial court erred in granting the respondents'

motions on the first basis, and it is unclear whether it reached the second. We

therefore reverse and remand for further proceedings.

1. Transfer as a matter of right

Venue is governed primarily by statute. Eubanks, 180 Wn.2d at 595. While

as a general rule the initial choice of venue lies with the plaintiff, the plaintiff must

choose a venue that is statutorily authorized. Russell v. Marenakos Logging Co.,

61 Wn.2d 761, 765, 380 P.2d 744 (1963). "To determine venue, the court assumes

the allegations in the complaint are true." Eubanks, 180 Wn.2d at 596. If the

plaintiff files in an improper venue and the defendant does not waive the objection,

the defendant has the right to have the matter transferred to a proper venue. RCW

11 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

4.12.030(1), .060; Eubanks, 180 Wn.2d at 595. Changing venue under such

circumstances is not discretionary and is reviewed as a matter of law. Moore v.

Plateau, 154 Wn. App. 210,214,225 P.3d 361 (2010).

When interpreting venue statutes, this court has applied mandatory statutes

to the exclusion of permissive ones and specific statutes to the exclusion of general

ones. See Eubanks, 180 Wn.2d at 596 n.l (mandatory over permissive); Russell,

61 Wn.2d at 765 (specific over general). However, when confronted with two

equally applicable venue statutes, we have held that they may be interpreted as

"complementary," giving plaintiffs the option of which statute to proceed under.

Cassel v. Skagit County, 119 Wn.2d 434,437, 834 P.2d 609 (1992), overruled on

other grounds by Shoop, 149 Wn.2d at 37.

The petitioners contend that even though venue is proper in Lewis County

pursuant to RCW 4.12.010(1), RCW 4.12.020(3) and 4.12.025(3) also gave them

the option of filing their lawsuits in King County. We agree. Transfer to Lewis

County as a matter of right pursuant to RCW 4.12.030(1) was thus improper.

a. Venue for actions for injuries to the person or personal property

The petitioners argue that RCW 4.12.020(3) applies because they are

seeking damages for emotional distress and injuries to personal property, including

both tangible items and commercial interests. If it does apply, the petitioners

contend they had the option of bringing suit in King County based on the corporate

12 Ralph, eta/. v. Weyerhaeuser Co., eta/., No. 91711-6

respondents' residence and the allegation that "the cause of action arose at

Weyerhaeuser's headquarters in King County, where the policies and procedures

causing the negligent timber practices were born, cultivated, and ordered." Pet'rs'

Opening Br. at 16-17. We agree. This action is plainly seeking damages for

personal injuries in addition to damages for injury to real property, so both RCW

4.12.020(3) and 4.12.010(1) could apply. And both statutes are equally mandatory

and specific, so we interpret them as complementary.

As the respondents correctly note, RCW 4.12.010 provides in mandatory

terms that actions for injuries to real property "shall be commenced in the county

in which the subject of the action, or some part thereof, is situated." (Emphasis

added.) This court acknowledged that language in Ralph I by stating that RCW

4.12.010 "relates to mandatory venue, not jurisdiction." 182 Wn.2d at 257. We

did not, however, consider the possible application of other venue statutes with

equally mandatory language.

One such statute is RCW 4.12.020, which provides in relevant part,

Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose:

(3) For the recovery of damages for injuries to the person or for injury to personal property, the plaintiff shall have the option of suing either in the county in which the cause of action or some part thereof arose, or in the county in which the defendant resides, or ifthere be more than one defendant, where some one of the defendants resides, at the time of the commencement ofthe action.

13 Ralph, eta!. v. Weyerhaeuser Co., eta!., No. 91711-6

(Emphasis added.) Both statutes use the word "shall," and nothing about the plain

language of either statute indicates that one should apply to the exclusion of the

other. 5 The respondents point to the fact that RCW 4.12.010 prescribes where an

action "shall be commenced." (Emphasis added.) However, RCW 4.12.020(3)

prescribes where a plaintiff"shall have the option of suing," (emphasis added), and

the inescapable fact is that a plaintiff "suing" is the point at which an action is

"commenced." RCW 4.12.01 O's use of the word "commenced" thus does not

make its plain language any more mandatory than that ofRCW 4.12.020(3).

In addition to being equally mandatory, both statutes are equally specific.

RCW 4.12.01 0(1) prescribes venue for actions based on injuries to real property,

and RCW 4.12.020(3) prescribes venue for actions seeking damages for injuries to

the person or personal property. This case is thus unlike Eubanks, where we held

RCW 4.12.020(2), if applicable, would prevail over RCW 36.01.050. The former

statute is specific as to both the type of defendant (a public officer) and the basis

for the action (acts done in virtue of public office), while the latter is specific only

as to the type of defendant (a county). Eubanks, 180 Wn.2d at 595-96. Here, both

RCW 4.12.010(1) and 4.12.020(3) are specific only as to the basis for the action.

5 We note that such language would be possible if that were the legislature's intent. See ZDI Gaming, Inc. v. Wash. State Gambling Comm 'n, 173 Wn.2d 608, 619, 618, 268 P.3d 929 (2012) (holding that "[t]he legislature wanted to have cases involving the Gambling Commission heard in Thurston County" pursuant to a statutory provision that'" [n]o court of the state of Washington other than the superior court of Thurston county shall have jurisdiction over any action or proceeding against the commission"' (quoting RCW 9.46.095)).

14 Ralph, et al. v. Weyerhaeuser Co., eta!., No. 91711-6

The respondents contend that RCW 4.12.01 0(1) is the most specific

applicable statute because it allows only one choice of venue, Lewis County. That

contention is misleading. First, in order to give effect to RCW 4.12.020(3)'s

mandatory language, we must interpret it so that a plaintiff is actually able to

exercise the options it provides. Cf Russell, 61 Wn.2d at 767 ("[T]he legislature

not only did a useless but a silly thing, if it gave a plaintiff an option to sue in the

county where the cause of action arose or in the county where some one of the

defendants resides, if it must in any event be tried in the former."). Second,

depending on the particular facts at issue, RCW 4.12.010(1) might itself give

plaintiffs an option of more than one venue because it clearly contemplates actions

concerning real property that spans multiple counties, in which case the plaintiff

may choose where to file. RCW 4.12.010 (providing for venue "in the county in

which the subject of the action, or some part thereof, is situated" (emphasis

added)); Commercial Nat'! Bank of Seattle v. Johnson, 16 Wash. 536, 544, 48 P.

267 (1897). Thus, the number of venue options available in a particular case does

not resolve the question of which venue provision is more specific as a matter of

statutory interpretation.

Where, as here, one lawsuit seeks damages for injury to both real and

personal property, both RCW 4.12.010(1) and 4.12.020(3) apply, and RCW

4.12.020(3) gave the petitioners here the option of suing in King County.

15 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

b. Venue for actions against corporations

The petitioners further argue that they had the option of bringing their

lawsuits in King County pursuant to RCW 4. 12.025(3), which provides,

The venue of any action brought against a corporation, at the option of the plaintiff, shall be: (a) In the county where the tort was committed; (b) in the county where the work was performed for said corporation; (c) in the county where the agreement entered into with the corporation was made; or (d) in the county where the corporation has its residence.

(Emphasis added.) Again, we agree. It is undisputed that both Weyerhaeuser's

and Green Diamond's corporate residences are in King County, so ifRCW

4. 12.025(3)(d) applies, venue is proper in King County. See RCW 4. 12.025(1)

(defining corporate residence for venue purposes); RCW 4.92.010( 4) (venue for

actions against the state shall be "where the action may be properly commenced by

reason of the joinder of an additional defendant"). And like RCW 4.12.010 and

4.12.020, RCW 4.12.025(3)'s language is mandatory and specific as to one

particular aspect of the case (the corporate identity of the defendant).

The respondents, however, contend that RCW 4.12.025 is a general venue

statute that applies only where some other, more specific statute does not apply.

Joint Br. ofResp'ts at 4 (citing Moore, 154 Wn. App. at 214-15; Russell, 61 Wn.2d

at 765). That may be true ofRCW 4.12.025(1), but the same cannot be said for

RCW 4.12.025(3). When Russell was decided, RCW 4.12.025 contained only the

general venue provision "that the defendant has a right to have an action against

16 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

him commenced in the county of his residence." Russell, 61 Wn.2d at 765; see

also LAws OF 1927, ch. 173, § 1. It was not until two years later that the legislature

added the specific provisions now corresponding to RCW 4.12.025(3). LAWS OF

1965, ch. 53,§ 168. Furthermore, in 1998 the legislature added RCW 4.12.025(2),

which governs only the specific context of"[a]n action upon the unlawful issuance

of a check or draft." LAWS OF 1998, ch. 56, § 1. Thus, while RCW 4.12.025(1)

may still be characterized as a general default venue provision, the same cannot be

said ofRCW 4.12.025(2) and (3). See Moore, 154 Wn. App. at 214-15

(characterizing RCW 4.12.025 "as the default venue provision for civil actions in

this state," but quoting only RCW 4.12.025(1)).

RCW 4.12.010(1) provides that venue for these actions is proper in Lewis

County. RCW 4.12.020(3) and 4.12.025(3) provide that venue for these actions

may also be proper in King County. The language of all three statutes is equally

mandatory and specific, without any indication that one should apply to the

exclusion of the others. We therefore hold that Lewis County is not the exclusive

proper venue for this action and the respondents were not entitled to a change of

venue as a matter of right pursuant to RCW 4.12.030(1).

2. Transfer as a matter of discretion

In their motions to change venue, the respondents argued in the alternative

that venue should be transferred to Lewis County pursuant to RCW 4.12.030(3),

17 Ralph, eta/. v. Weyerhaeuser Co., eta/., No. 91711-6

which allows for a change of venue where "the convenience of witnesses or the

ends of justice would be forwarded by the change." Because it is not clear whether

the trial court reached this issue, we remand for the trial court to exercise its

discretion in a manner consistent with this opinion.

Changing venue for witness convenience "is a question to be addressed to

the discretion of the superior court of the county" where venue is proper. Andrews

v. Cusin, 65 Wn.2d 205, 210, 396 P.2d 155 (1964). Thus, the trial court here could

not have reached the issue of witness convenience unless it first denied the

respondents' motions based on improper venue. Davidson v. Weyerhaeuser Co., .

36 Wn. App. 150, 153, 672 P.2d 767 (1983). There is no clear indication that it did

so. In three of the cases, the trial court simply granted the respondents' motions

without elaboration, and in the fourth case, the trial court included a brief analysis

indicating it was actually relying solely on exclusive proper venue. Moreover, the

fact that all the parties believe the trial court ordered the petitioners to pay the

transfer costs indicates that it relied solely on exclusive proper venue. 6 If the

6 At oral argument, counsel for the petitioners indicated that trial court orders awarding costs could be found at clerk's papers 178 and 562. Wash. Supreme Court oral argument, Ralph v. Weyerhaeuser Co., No. 91711-6 (Sept. 8, 2016), at 38 min., 15 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. Those citations lead to the requests for costs in the respondents' motions to change venue, not to court orders granting them. In fact, none of the trial court's orders explicitly state whether the petitioners were or would be ordered to pay the transfer costs.

18 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

transfer were granted for any other reason, the respondents would have been

required to pay the costs as the moving parties. RCW 4.12.090(1).

It is thus unclear at best whether the trial court considered discretionary

transfer for the convenience of the witnesses. We therefore remand for the trial

court to exercise its discretion consistent with our opinion and the established

criteria for changing venue pursuant to RCW 4.12.030(3). See, e.g., State ex rel.

Conley v. Superior Ct., 106 Wash. 569,571-72, 181 P. 50 (1919); Hickeyv. City of

Bellingham, 90 Wn. App. 711, 719-20, 953 P.2d 822 (1998).

C. Costs for change of venue

RCW 4.12.090(1) provides that the costs for changing venue "must be paid

by the party at whose instance the order was made, except in the cases mentioned

in RCW4.12.030(1), in which case the plaintiff shall pay costs oftransfer."

Because venue for these actions should not have been transferred pursuant to RCW

4.12.030(1), the petitioners cannot be ordered to pay the transfer costs, even if the

trial comi transfers venue as a matter of discretion on remand.

D. Costs and attorney fees on review

We deny the respondents' request for costs and attorney fees on review

pursuant to RCW 4.12.090(1) and RAP 18.1(a) because we reverse the trial court's

orders changing venue as a matter of right.

19 Ralph, eta/. v. Weyerhaeuser Co., eta/., No. 91711-6

CONCLUSION

Following the decision in Ralph I, proper venue for these actions is a matter

of statutory interpretation and an issue of first impression. We hold that Lewis

County is not the exclusive proper venue for these actions, and we therefore

reverse and remand for further proceedings consistent with this opinion.

20 Ralph, et al. v. Weyerhaeuser Co., et al., No. 91711-6

)

WE CONCUR:

21 Ralph, eta/. v. Weyerhaeuser Co., et at., No. 91711-6

No. 91711-6

WIGGINS, J. (concurring)-! made clear my disagreement with the result in

Ralph I, in which a majority of the court held that RCW 4.12.01 0(1) "relates to venue,

not jurisdiction." Ralph v. Oep't of Nat. Res., 182 Wn.2d 242, 246, 343 P.3d 342 (2014).

Given that we now treat RCW 4.12.010 as a venue statute, rather than a jurisdictional

statute, I concur in the majority's result.