IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STEPHEN LUDWIG, a single man; No. 85537-9-I ROSS KLINGELE and ARRIETTE BURN, a marital community, DIVISION ONE Appellants,
v. UNPUBLISHED OPINION
CITY OF MOUNTLAKE TERRACE, a municipal corporation,
Respondent.
CHUNG, J. — Stephen Ludwig, Ross Klingele, and Arriette Burn
(collectively, the Homeowners) appeal the dismissal of their complaint against
the City of Mountlake Terrace (City). They also challenge the trial court’s award
of attorney fees and CR 11 sanctions. We conclude that the trial court properly
dismissed the Homeowners’ complaint on claim preclusion grounds and did not
abuse its discretion by awarding attorney fees and imposing sanctions. Thus, we
affirm.
FACTS
In February 2014, the Homeowners purchased a property on 226th Place
Southwest in Mountlake Terrace (the Property). The Property is adjacent to Hall
Creek, which the City uses as a stormwater conveyance. No. 85537-9-I/2
In 2017, the Homeowners sued the City. According to the Homeowners, 1
their complaint “alleged negligence on the part of the City for damage to the bank
armor that defended the west foundation wall of their house” from Hall Creek
(2017 Lawsuit). The matter was tried to the bench in September 2022. The court
found that “[a] bulkhead and rockery exist on the Property to protect the home
from migration of [Hall Creek] and from flooding.” It also found,
In 1969, the City contracted with [the Reid-Middleton firm (RMA)] to construct a concrete box culvert replacing an existing corrugated metal pipe culvert carrying Hall Creek beneath 226th Pl[ace]. The plan for this culvert called for existing rockery and the bulkhead to remain in place, the existing creek channel to be lowered by about one foot, and 150-pound rocks to be installed in a contiguous row along the creek banks. . . . The purpose of these 150-pound rocks was to confine the water at lower levels within the channel and to protect the existing bank.
The court found that the City did not install the row of 150-pound rocks as
specified by RMA.
The court also found that in April 2014, while conducting repairs on the
Property, one of the Homeowners “discovered the bulkhead had been
undermined and soil behind the bulkhead had been removed, creating a cavity
approximately sixteen feet long, three to four feet wide, and one to two feet deep
behind the bulkhead,” and “[i]t was later learned that this cavity had been created
by scouring of water from Hall Creek, which over time, allowed water to enter the
Property side of the bulkhead and create the cavity.” 2 Further, the court found
that the Homeowners then hired a professional engineer to design a repair;
“[h]owever, [the Homeowners] could not afford [the] repair as designed, and
1 The 2017 complaint is not in the record. 2 Bold face omitted.
2 No. 85537-9-I/3
decided to file suit against the City.”
The court concluded that “the City assumed a duty when it undertook the
[1970] project to install the box culvert pursuant to the [RMA] plans” and that the
City breached that duty. But it found that the Homeowners did not “prove th[e]
failure to properly install the 150-pound rocks proximately caused the damage to
the Property.” In particular, the court found that “the design of the bulkhead (no
footing, no reinforcement), along with the angle of the stormwater striking it,
could [have] themselves caused the damage.” And because the Homeowners
failed to prove proximate cause, their negligence claim failed. The court entered
its findings and conclusions in the 2017 Lawsuit on February 3, 2023.
On April 26, 2023, the Homeowners filed the instant lawsuit, seeking
injunctive relief. They alleged substantially the same background facts described
above, i.e., that (1) they purchased the Property in February 2014, (2) the
Property includes a portion of Hall Creek, which the City uses as a stormwater
conveyance, (3) the City undertook a culvert replacement project in 1970, (4) the
Homeowners discovered a sinkhole behind the bulkhead in 2014, which was
caused by scouring from Hall Creek, and (5) they sued the City in 2017 after the
remedy designed by their engineer was beyond what they could afford. They also
alleged,
The City . . . excavated a deeper channel . . . to accommodate the deeper culvert . . . . Plans for this work, provided by [RMA], specified that the banks of the deeper channel should be protected by rows of 150-pound rocks. As any reasonable person could surmise, a deeper channel would require deeper bank-protection. Yet the City, in breach of its duty to properly construct the channel changes . . . , neglected to install this protection. After failing to place the specified protection, the City then failed to provide any
3 No. 85537-9-I/4
protection at all for the deeper channel. Nor did the City perform any inspection, monitoring or maintenance to identify and prevent damaging scour along the vulnerable deeper banks at [the] [P]roperty.
The Homeowners alleged that “[l]acking any protection, the deeper channel bank
[on the Property side of the creek] has been entirely scoured away” and that the
scour “eventually undercut[ the] existing concrete bulkhead that had previously
protected the west foundation wall of [the Property],” causing damages to the
Homeowners. The Homeowners requested an injunction directing the City to
“cease and desist directing concentrated and damaging stormwater against Hall
Creek’s vulnerable east channel bank near [the Property], without also providing
proper protection for said bank” and to “immediately maintain, repair, or replace
Hall Creek’s already damaged bank armor along [the Property] to current
standards in accordance with its established duty.”
In May 2023, the City moved under CR 12(b)(6) to dismiss the
Homeowners’ complaint, arguing that it was time-barred, the 2017 Lawsuit
precluded the Homeowners’ claims herein, and those claims were also
foreclosed by laches. The trial court granted the City’s motion to dismiss as well
as its subsequent motion for an award of attorney fees and an additional $1,000
in CR 11 sanctions, for which the Homeowners and their attorney were jointly
and severally liable.
The Homeowners appeal.
ANALYSIS
I. Motion to Dismiss
The Homeowners argue that the trial court erred by dismissing their
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complaint. Because claim preclusion barred the complaint, we disagree. 3
Claim preclusion, historically referred to as res judicata, is an equitable
doctrine that precludes relitigation of already determined causes. Weaver v. City
of Everett, 194 Wn.2d 464, 472-73, 450 P.3d 177 (2019). It prevents relitigation
of an entire claim when a prior proceeding involving the same parties and issues
culminated in a judgment on the merits. Id. at 480. In addition to the threshold
requirement of a final judgment on the merits in the prior suit, the party asserting
claim preclusion has the burden to establish that the prior action and the
challenged action have “concurrence of identity” in four areas: (1) subject matter,
(2) cause of action, (3) persons and parties, and (4) quality of persons for or
against whom the claim is made. Id. All four elements must be satisfied to
establish claim preclusion. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,
866, 93 P.3d 108 (2004). “Because it is a question of law, we review a
determination that claim preclusion applies de novo.” Hassan v. GCA Prod.
Servs., Inc., 17 Wn. App. 2d 625, 633, 487 P.3d 203 (2021).
Here, it is undisputed that the 2017 Lawsuit ended in a final judgment on
the merits. It is also undisputed that the 2017 Lawsuit and the instant proceeding
involve the same parties and quality of persons. Additionally, although
“Washington law does not specify how precise[ly] the subject matter in the first
and second suit must coincide,” Eugster v. Wash. State Bar Ass’n, 198 Wn. App.
758, 787, 397 P.3d 131 (2017), the two proceedings plainly involve the same
subject matter, i.e., the City’s alleged responsibility to repair the damage that Hall
3 Because we affirm the dismissal on this ground, we need not decide whether dismissal was also proper based on the statute of limitations or laches.
5 No. 85537-9-I/6
Creek has caused to the Property. Cf. id. (disciplinary proceeding against
attorney involved the same subject matter as attorney’s later lawsuit claiming the
disciplinary process violates due process in that both proceedings “include[ ] the
[bar association’s] disciplinary process”).
The remaining question, then, is whether the 2017 Lawsuit and the instant
proceeding have concurrence of identity in cause of action. “[I]dentity of causes
of action ‘cannot be determined precisely by mechanistic application of a simple
test.’ ” Rains v. State, 100 Wn.2d 660, 663-64, 674 P.2d 165 (1983) (quoting
Abrahmson v. Univ. of Hawaii, 594 F.2d 202, 206 (9th Cir. 1979))). To aid in the
analysis, courts have considered the following four factors:
“(1) [W]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.”
Rains, 100 Wn.2d at 664 (alteration in original) (quoting Costantini v. Trans
World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982)). “These four factors are
analytical tools; it is not necessary that all four factors be present to bar the
claim.” Ensley v. Pitcher, 152 Wn. App. 891, 903, 222 P.3d 99 (2009). Ultimately,
the question is whether the later claim is one that “might or should have been
litigated [or that] was litigated” in the earlier proceeding. Hadley v. Cowan, 60
Wn. App. 433, 441, 804 P.2d 1271 (1991); see also Norris v. Norris, 95 Wn.2d
124, 130, 622 P.2d 816 (1980) (claim preclusion “acts to prevent relitigation of
claims that were or should have been decided among the parties in an earlier
proceeding” (emphasis added)).
6 No. 85537-9-I/7
The Homeowners assert that there is no identity in cause of action
because the 2017 Lawsuit involved “very specific allegations about construction
negligence,” whereas in the instant lawsuit, the Homeowners “claim that the City
has failed to maintain and repair their waterway and is in continuing breach of its
duty to properly maintain and repair the waterway today.” But these are both
claims that the City has breached a duty to maintain and/or repair the waterway.
Indeed, the Homeowners themselves specifically rely on the findings from the
2017 Lawsuit as having established the existence of that duty, stating that they
filed the second lawsuit “based on the Trial Court’s finding that the City did,
indeed, have a duty of care to repair and maintain the waterway.” While the
Homeowners now allege that the scope of the City’s duty was broader than a
duty of care in following RMA’s construction plans and, thus, the City breached
an ongoing duty by its failure to repair and maintain the waterway since, they
could have and should have brought this theory forward in the 2017 Lawsuit. See
Eugster, 198 Wn. App. at 790 (“Res judicata applies not only to points on which
the court was actually required by the parties to form an opinion and pronounce a
judgment, but to every point that properly belonged to the subject of the litigation,
and which the parties, exercising reasonable diligence, might have brought
forward at that time.” (emphasis added)); Sound Built Homes, Inc. v. Windermere
Real Estate/South, Inc., 118 Wn. App. 617, 630, 72 P.3d 788 (2003) (“ ‘The law
of res judicata now reflects the expectation that parties who are given the
capacity to present their entire controversies shall in fact do so.’ ” (internal
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quotation marks omitted) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 24(2)
cmt. a (AM. LAW INST. 1982))).
To this end, the Homeowners concede that they sought an injunction in
the 2017 Lawsuit based on the theory they allege herein, and that the court
denied it because there was an adequate remedy at law, i.e., monetary damages
for negligence. Considering the first Rains factor, whether rights or interests
established in the prior judgment would be destroyed or impaired by prosecution
of the second action, allowing the Homeowners to proceed in this lawsuit would
impair the City’s interest in maintaining the judgment in the 2017 Lawsuit that
concluded it was not liable to the Homeowners. Similarly, the third Rains factor,
whether the two suits involve infringement of the same right, in both suits, the
Homeowners allege an interest in redress for the City’s breach of a duty to
maintain and repair the Hall Creek waterway.
As to the second Rains factor, whether substantially the same evidence is
presented in the two actions, and the fourth factor, whether the two suits arise
out of the same transactional nucleus of facts, both lawsuits arise from and
depend on evidence of what the City has or has not done since it undertook the
1970 culvert installation project, which was the basis on which the trial court in
the 2017 Lawsuit found that the City “assumed a duty.” Indeed, although the full
record from the prior lawsuit is not before us, the Homeowners represented
below that in the 2017 Lawsuit, they “advanced facts that would have supported
their current claim,” and the court’s findings in the prior lawsuit are consistent
with this statement.
8 No. 85537-9-I/9
Yet the Homeowners now assert that because their negligence claim “was
denied at trial, but no final judgment was entered as to injunctive relief,” they may
maintain a claim for injunctive relief because it is “the only legally cognizable
cause of action left.” This assertion ignores that “an injunction is a remedy, not an
independent cause of action.” Markoff v. Puget Sound Energy, Inc., 9 Wn. App.
2d 833, 851, 447 P.3d 577 (2019) (emphasis added). Where the Homeowners
not only had an opportunity—but tried and failed—to prove their entitlement to
monetary relief against the City, they may not now pursue injunctive relief
premised on the same facts, which were known to them at the time of the earlier
lawsuit. See Eugster, 198 Wn. App. at 790 (“A matter should have been raised
and decided earlier if it is merely an alternate theory of recovery or an alternate
remedy.”); cf. 15 DOUGLAS J. ENDE, W ASHINGTON PRACTICE: CIVIL PROCEDURE
§ 44:2 (3d ed. Supp. 2023) (“If the substantive claim on which a request for
injunctive relief is based is dismissed, there is no longer a right that can be
vindicated or protected by an injunction.”).
In short, the Homeowner’s complaint seeks to relitigate the 2017 Lawsuit.
And although not addressed by the parties, as discussed above, consideration of
the Rains factors also supports a determination that claim preclusion applies.
The trial court did not err by dismissing the Homeowners’ complaint.
II. Attorney Fees and Sanctions
The Homeowners next argue that the trial court erred by awarding the City
its attorney fees under RCW 4.84.185 and imposing CR 11 sanctions. Again, we
disagree.
9 No. 85537-9-I/10
RCW 4.84.185 provides that a court in a civil action “may, upon written
findings by the judge that the action . . . was frivolous and advanced without
reasonable cause, require the nonprevailing party to pay the prevailing party the
reasonable expenses, including fees of attorneys, incurred in opposing such
action.” CR 11(a) provides that an attorney or party signing a pleading, motion, or
legal memorandum certifies that they have read it and that it is, to the best of the
attorney or party’s knowledge, information, and belief, formed after a reasonable
inquiry, well grounded in fact, warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law or the establishment of
new law, not interposed for any improper purpose. “If a pleading, motion, or legal
memorandum is signed in violation of this rule, the court . . . may impose upon
the person who signed it, a represented party, or both, an appropriate sanction.”
CR 11(a).
We review awards under RCW 4.84.185 and CR 11 for abuse of
discretion. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d
64 (1998). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or reasons. Sw. Suburban Sewer
Dist. v. Fish, 17 Wn. App. 2d 833, 838, 488 P.3d 839 (2021).
Here, the trial court had a tenable basis to award attorney fees and
impose a sanction. There was evidence in the record that after the Homeowners
filed a pre-suit tort claim with the City, counsel for the City wrote to them,
It appears from your tort claim form that you are making an identical claim for damages (“to repair and maintain bank armor”) that has already been adjudicated in the [2017 L]awsuit. As you recall, the Superior Court, after a full trial, found that you did not meet your
10 No. 85537-9-I/11
burden to prove the City proximately caused damage to your property’s bank armor/bulkhead.
The City attached a copy of the findings and conclusions from the 2017 Lawsuit,
as well as an order denying the Homeowners’ subsequent motion for
reconsideration. The City also explained that the Homeowners’ attempt to
relitigate their claim was prohibited by the doctrine of claim preclusion. And, the
City notified the Homeowners that if they proceeded to file suit, the City would
pursue sanctions under both RCW 4.84.185 and CR 11. Yet the Homeowners
pressed on, pleading a claim for an alternate remedy that even they
acknowledged was premised on the same facts they advanced in the 2017
Lawsuit.
Furthermore, as the City accurately observes, the Homeowners’ claim in
this lawsuit fundamentally arises from allegations of negligence: The
Homeowners assert that the City breached a duty of care with regard to the
maintenance and repair of the Hall Creek waterway. Cf. Callahan v. Keystone
Fireworks Mfg. Co., 72 Wn.2d 823, 826, 435 P.2d 626 (1967) (negligence
connotes a “failure of duty to exercise due care”). This claim is subject to RCW
4.16.130’s two-year statute of limitations. Wallace v. Lewis County, 134 Wn. App.
1, 13, 137 P.3d 101 (2006) (“An action for negligent injury to real property is
subject to a two-year statute of limitations.” (citing RCW 4.16.130)). And it
accrued at the latest in 2014, when the Homeowners undisputedly discovered
the damage to the Property. See id. at 13 (action for negligent injury to real
property “accrues when the plaintiff suffers some form of injury to his real
property,” and “[w]here there is a delay between the injury and the plaintiff’s
11 No. 85537-9-I/12
discovery of it, the court may apply the discovery rule”). Yet the Homeowners did
not file this lawsuit until April 2023, some nine years later.
The City pointed this out in its motion to dismiss and also asserted that at
best, the Homeowners’ claim was subject to the three-year limitations period in
RCW 4.16.080. 4 It also gave notice, again, that it intended to seek an award of
attorney fees and CR 11 sanctions. The Homeowners responded by asserting
that “[o]ngoing inaction in the face of ongoing damage . . . may constitute a
‘wrong of a continuing nature.’ ” 5 But the Homeowners provided no legal support
for such a rule, much less any analysis as to why it applies here. When pressed
on this in relation to the City’s later motion for fees and sanctions, the
Homeowners cited only a criminal law treatise and a handful of non-Washington
criminal cases, again without any analysis as to why those authorities apply here.
The Homeowners also argued that “the case at bar is a logical continuation of the
[2017 Lawsuit], and therefore a legitimate inheritor of that case’s timely filing.”
But they cited absolutely no authority for this “logical continuation” theory, which
if anything, bolstered the trial court’s conclusion that claim preclusion applies.
See Spokane Rsch. & Def. Fund v. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d
4 On appeal, the Homeowners contend that “because no proof of the applicability of any one of the stated statutes is offered,” and because the City did not “properly repl[y] to [their] assertion concerning tolling of the statute of limitations,” the City did not meet its burden to show that the Homeowners’ complaint was time barred. This contention is without merit. The City demonstrated that however characterized, the Homeowners’ claims were subject to, at most, a three-year limitations period. The Homeowners’ failure to specify the nature of their claims does not amount to an argument that neither a two- or three-year statute of limitations applies. And it was the Homeowners, not the City, who bore the burden to show that tolling applied. See Rivas v. Overlake Hosp. Med. Ctr., 164 Wn.2d 261, 267, 189 P.3d 753 (2008) (“A plaintiff . . . carries the burden of proof if he or she alleges that the statute [of limitations] was tolled and does not bar the claim.”). 5 Emphasis added.
12 No. 85537-9-I/13
1117 (2005) (“Res judicata, or claim preclusion, is intended to prevent piecemeal
litigation and ensure the finality of judgments.”). Under the circumstances, the
trial court did not abuse its discretion by finding that the Homeowners’ complaint
was not well grounded in law or fact and was frivolous and advanced without
reasonable cause.
The Homeowners disagree and point out that in a declaration in support of
dismissal, the City’s counsel stated the nature of the Homeowners’ claims was
“essentially that the City caused flooding of [the Property].” The Homeowners
assert that because they “have never claimed damages for ‘flooding,’ ” the
attorney fee award was unreasonable. But where both of the Homeowners’
lawsuits alleged that stormwater runoff was damaging the Property, the trial court
was within its discretion to reject the Homeowners’ hypertechnical focus on the
use of the term “flooding” to describe the essence of the Homeowners’ claims.
The Homeowners also argue that the CR 11 sanctions were manifestly
unreasonable because “[i]n essence, having been unsuccessful in its earlier
attempt to hold the City liable for negligence in the construction of the culvert
changes at [the P]roperty, the only legally cognizable action left to . . . seek
redress for the ongoing harm was and is a suit in equity for an affirmative
injunction.” But as discussed, this argument mischaracterizes injunctive relief as
an independent cause of action, as distinct from a remedy. The Homeowners fail
to show that the trial court erred in awarding attorney fees to the City and
imposing CR 11 sanctions.
13 No. 85537-9-I/14
III. Fees on Appeal
As a final matter, the City requests an award of fees on appeal.
“Washington State courts follow the ‘American Rule’—even as to a prevailing
party, ‘attorney fees are not available as costs or damages absent a contract,
statute, or recognized ground in equity.’ ” LK Operating, LLC v. The Collection
Grp., 181 Wn.2d 117, 123, 330 P.3d 190 (2014) (quoting City of Seattle v.
McCready, 131 Wn.2d 266, 275, 931 P.2d 156 (1997)). The City requests fees
under RCW 4.84.185, but that statute does not authorize an award of fees on
appeal. Bill of Rights Legal Found. v. Evergreen State Coll., 44 Wn. App. 690,
697, 723 P.2d 483 (1986); see also Hanna v. Margitan, 193 Wn. App. 596, 614,
373 P.3d 300 (2016) (“Because RCW 4.84.185 requires written findings to
support an award of attorney fees . . . , and appellate courts do not make
findings, RCW 4.84.185 does not authorize an award of fees on appeal.”).
Accordingly, we deny the City’s request for an award of fees on appeal.
We affirm.
WE CONCUR: