Gary Lowe v. Carl Rowe, Jr. - includes an Order
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GARY LOWE, an individual,
Appellant,
v.
CARL ROWE, JR., an individual,
Respondent.
) No.
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30282-2-III
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) ORDER GRANTING
) MOTIONS TO PUBLISH
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THE COURT has considered the appellant’s and third party’s motions to publish the
court’s opinion of December 6, 2012, and the record and file herein, and is of the opinion the
motions to publish should be granted. Therefore,
IT IS ORDERED, the motions to publish are granted. The opinion filed by the court on
December 6, 2012, shall be modified on page 1 to designate it is a published opinion and on page
13 by deletion of the following language:
A majority of the panel has determined that this opinion will not be printed
in the Washington Appellate Reports but it will be filed for public record pursuant
to RCW 2.06.040.
PANEL: Judges Korsmo, Sweeney, Brown
DATED:
BY A MAJORITY:
No. 30282-2-III
Lowe v. Rowe
________________________________
KEVIN M. KORSMO
Chief Judge
No. 30282-2-III
Lowe v. Rowe
FILED
DEC 06, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GARY LOWE, an individual,
Appellant,
v.
CARL ROWE, JR., an individual,
Respondent.
No. 30282-2-III
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PUBLISHED OPINION
Korsmo, C.J. — Gary Lowe sued Carl Rowe, Jr., after Mr. Rowe asked law
enforcement to serve a trespass notice on Mr. Lowe. The trial court on summary
judgment dismissed the ensuing defamation action on the basis of Washington’s antiSLAPP1 statute, RCW 4.24.510. We uphold the application of the anti-SLAPP immunity
to these facts, but remand the statutory damages for trial because a factual question exists
1
Strategic lawsuits against public participation.
No. 30282-2-III
Lowe v. Rowe
that precludes summary judgment.
FACTS
This dispute has its genesis in a will. Mr. Vernon Marll died and left old vehicles
valued at approximately $10,000 to his nephew, Mr. Lowe. Title to the inherited
vehicles, which included a Model A Ford pickup truck, was transferred to Mr. Lowe on
June 17, 2008. The vehicles were located on Mr. Marll’s real property in Columbia
County. Mr. Lowe also stored several personal vehicles, including tractors and trailers,
on his uncle’s property.
Mr. Marll’s estate entered into an agreement to sell the Columbia County realty to
Mr. Rowe on April 28, 2008. Five days later, the estate wrote Mr. Lowe and asked him
to remove the vehicles within 30 days due to the pending sale. The estate’s attorney
recognized that the time period might constitute a hardship for Mr. Lowe who wintered in
Texas, but spends his summers in Dayton, Washington. Mr. Lowe did not remove the
vehicles during the 30-day period.
With the agreement of the estate, Mr. Rowe took over early possession of the land
in April, although the sale did not close until October 31, 2008. Mr. Rowe later stated
that he was told by a real estate agent that any cars left on the land after 30 days became
his property. When the 30-day period expired, Mr. Rowe gave Mr. Lowe two more
weeks to retrieve the vehicles. During July 2008, Mr. Lowe apparently retrieved some of
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the vehicles and Mr. Rowe assisted by unlocking the gate to the property and by
removing some blackberry bushes that had grown up around several of the vehicles.
Mr. Rowe had several of the vehicles crushed and removed from the property on
August 8, 2008. Mr. Lowe engaged a tow truck to remove a truck from the Marll
property on August 12, 2008. Mr. Rowe claimed to have already sold the truck to a scrap
man for $80 and obtained Mr. Lowe’s promise to pay him $80 for the truck. Mr. Lowe
removed the truck, but never paid the $80. Later that day, Mr. Rowe went to the
Columbia County Sheriff’s Office to have them serve a trespass notice on Mr. Lowe that
prohibited him from returning to the property. As Mr. Rowe subsequently explained, “it
made me mad, so I followed him right down the street and I got a restraining order
[criminal trespass warning] against Gary to keep him off the property.” Clerk’s Papers
(CP) at 173.
Prohibited from returning to the property, Mr. Lowe turned to the courts. He filed
an action against Mr. Rowe in February 2009, alleging conversion of the vehicles and
defamation due to the trespass notice. The parties agreed in July 2010 that Mr. Lowe
could remove the remaining vehicles that had not been destroyed; he promptly did so.
Mr. Rowe moved to dismiss the complaint in June 2011, citing both CR 12(c) and
CR 56(c). Specifically, he claimed that the conversion claim was barred by laches or
waiver, while he was immune from the defamation claim by operation of RCW 4.24.510.
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CP at 41. Materials submitted for consideration with the motion to dismiss included
affidavits, exhibits, and portions of deposition testimony. The trial court dismissed the
conversion claim for failure to timely claim the vehicles and the defamation claim on
immunity grounds. The court also imposed statutory damages of $10,000 under the antiSLAPP statute and awarded Mr. Rowe his attorney fees for defense of the defamation
claim under the same authority.
Mr. Lowe timely appealed to this court.
ANALYSIS
Mr. Lowe contends that the anti-SLAPP statute was inapplicable to this case and
that Mr. Rowe could not rely on the provision without first establishing that he acted in
good faith, thus presenting a factual issue that prevented summary judgment. Mr. Lowe
also argues that the court erred in dismissing the conversion claim as a matter of law
because factual issues existed. We will address the two causes of action in turn.
We review summary judgment rulings in accordance with well-settled standards.
This court reviews summary judgments de novo. Hisle v. Todd Pac. Shipyards Corp.,
151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate if “there is
no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” CR 56(c). “A material fact is one that affects the outcome
of the litigation.” Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 789, 108 P.3d
No. 30282-2-III
Lowe v. Rowe
1220 (2005). When considering a summary judgment motion, the court must construe all
facts and reasonable inferences in the light most favorable to the nonmoving party.
Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). Once a moving party
has made a showing that no material facts are in dispute, the party opposing summary
judgment must come forward with specific facts in dispute; it cannot rely on conclusory
statements or speculation to defeat summary judgment. Ranger Ins. Co. v. Pierce
County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
Dismissal under CR 12 is appropriate only where it appears beyond doubt that the
plaintiff cannot prove any set of facts that would justify recovery. Burton v. Lehman, 153
Wn.2d 416, 422, 103 P.3d 1230 (2005). We review the trial court’s decision on a motion
on the pleadings de novo. Gaspar v. Peshastin Hi-Up Growers, 131 Wn. App. 630, 634,
128 P.3d 627 (2006). A motion to dismiss for failure to state a claim (CR 12(b)(6)) and a
motion for judgment on the pleadings (CR 12(c)) raise identical issues and are subject to
the same standard of review. Id. at 634-35.
When the court considers matters outside of the pleadings, a motion to dismiss will
be considered a motion for summary judgment. CR 12(c). That is what happened here.
Because the court considered evidence, we will treat this ruling as a summary judgment.
Anti-SLAPP Statute
The arguments Mr. Lowe presents arise from the evolution of our statute. One
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commentator described the original 1989 statute as legislation that “more closely
resembles a whistleblower immunity statute.” Michael E. Johnston, A Better SLAPP
Trap: Washington State’s Enhanced Statutory Protection for Targets of “Strategic
Lawsuits Against Public Participation,” 38 Gonz. L. Rev. 263, 282 (2003). The
description is apt. The original 1989 statement of intent was enacted as RCW 4.24.500
and remains unaltered to this day. After describing legislative findings that civil litigation
could deter citizen reports to the government, the statute concludes with a statement that
its purpose “is to protect individuals who make good-faith reports to appropriate
governmental bodies.” Id.
The operative provision of the act to this case is RCW 4.24.510. As originally
enacted that statute provided that any “person who in good faith” communicated to a
government agency “any matter reasonably of concern” was “immune from civil liability”
for claims based on that communication. Laws of 1989, ch. 234, § 2. The act also
provided that the individual could recover “costs and reasonable attorneys’ fees.” Id.
After a 1999 amendment2 to add reports to self-governing organizations, the statute was
again amended in 2002. Laws of 2002, ch. 232, § 2. It then assumed its current form:
A person who communicates a complaint or information to any branch or
agency of federal, state, or local government, or to any self-regulatory
organization that regulates persons involved in the securities or futures
business and that has been delegated authority by a federal, state, or local
government agency and is subject to oversight by the delegating agency, is
2
Laws of 1999, ch. 43, § 1.
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Lowe v. Rowe
immune from civil liability for claims based upon the communication to the
agency or organization regarding any matter reasonably of concern to that
agency or organization. A person prevailing upon the defense provided for
in this section is entitled to recover expenses and reasonable attorneys’ fees
incurred in establishing the defense and in addition shall receive statutory
damages of ten thousand dollars. Statutory damages may be denied if the
court finds that the complaint or information was communicated in bad
faith.
RCW 4.24.510 (2002).3
The 2002 amendments eliminated the “good faith” reporting language of the 1989
law and created statutory damages of $10,000, which could be denied if the
communication was made in bad faith. There was no amendment to the statement of
intent found in RCW 4.24.500.
The 2002 legislation did have its own intent section, which clearly identified
SLAPP actions as the target of the expanded statute, and identified those cases in terms of
actions taken against individuals who had communicated “on a substantive issue of some
public interest.” Laws of 2002, ch. 232, § 1. Citing this language, Mr. Lowe argues that
the dispute between the two men did not present an issue of public interest and, therefore,
the anti-SLAPP statutes do not reach this case.
This argument ignores both the stated intent codified in RCW 4.24.500 to protect
individuals and the operative language of subsection 510 that an individual who
3
The legislature added RCW 4.24.525 in 2010. That provision creates a summary
motion practice designed to lead to early dismissal of SLAPP suits; it also awards costs,
attorney fees, and $10,000 in statutory damages. Laws of 2010, ch. 118, § 2.
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Lowe v. Rowe
communicates to local government
is immune from civil liability for claims based upon the communication to
the agency or organization regarding any matter reasonably of concern to
that agency or organization.
The language of the section broadly grants immunity for civil liability for
communications to an agency concerning a matter “reasonably of concern to that
agency.” There is no doubt that enforcement of the state criminal laws is a matter of
concern for the Columbia County Sheriff’s Office. Mr. Rowe’s communication, asking
that the agency notify Mr. Lowe he was no longer welcome on the Rowe property, was
clearly a matter within the concerns of that agency.
Although the scope of RCW 4.24.510 is broader than the traditional SLAPP suit,
that situation has arisen from the development of our statute over time as the legislature
has responded to litigation developments. The 2002 amendments clarify legislative intent
to reach SLAPP actions while maintaining the original protection afforded individuals
who communicate with government agencies. The trial court correctly determined that
Mr. Rowe was immune from liability for his communication to the sheriff’s office that
Mr. Lowe was no longer welcome on his property.4
4
Reports to law enforcement regularly have been afforded immunity under this
statute. See Dang v. Ehredt, 95 Wn. App. 670, 977 P.2d 29 (1999) (bank employee who
communicated possible forged check to police); Loeffelholz v. Citizens for Leaders with
Ethics and Accountability Now (C.L.E.A.N.), 119 Wn. App. 665, 82 P.3d 1199 (2004)
(citizen reports to police concerning an officer).
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Mr. Lowe also argues that Mr. Rowe failed to establish that the communication to
the sheriff was made in good faith. This court has already answered that question. In
Bailey v. State, 147 Wn. App. 251, 260-63, 191 P.3d 1285 (2008), we rejected a similar
argument after noting that the 2002 amendments removed the original good faith
reporting requirement. Nonetheless, Mr. Lowe, as did Ms. Bailey, argues that the intent
specified in RCW 4.24.500 references protection for “good faith” reports and that such an
element continues to exist despite the amendment of RCW 4.24.510. It does not. As
explained in Bailey, intent statements do not control over the express language of an
otherwise unambiguous statute. 147 Wn. App. at 262-63. The legislative decision to
remove a good faith reporting requirement cannot be undone by its failure to similarly
amend the intent section. Id. All that needed to be established to obtain immunity was
for Mr. Rowe to demonstrate that he communicated to law enforcement concerning a
matter within their responsibility. He did so; the trial court correctly concluded that the
statutory immunity applied to that communication.
However, the removal of the good faith reporting requirement was coupled with
the addition of a statutory penalty that was available unless the report was made in bad
faith. The trial court resolved this matter at summary judgment, a determination that
meant there were no factual issues in dispute. However, the question of whether Mr.
Rowe acted in bad faith by requesting the trespass notice does appear to present
No. 30282-2-III
Lowe v. Rowe
unresolved factual questions that could not be decided by summary judgment.
The portion of the deposition quoted previously established that Mr. Rowe
contacted law enforcement because he was mad at Mr. Lowe and expected payment for
one of Mr. Lowe’s trucks that was removed from the property. We think this evidence
leaves the question of Mr. Rowe’s motivation up in the air. Was he seeking government
aid in banning Mr. Lowe from the property because he was protecting his land from an
unwanted trespasser, or was he seeking to claim the vehicles as his own and/or solicit
payments from Mr. Lowe? On this record, the evidence conflicts and could not be
resolved at summary judgment.
Accordingly, we affirm the trial court’s dismissal of the defamation claim on the
basis of the immunity conveyed by RCW 4.24.510. The unresolved question of whether
the report was made in bad faith precludes the award of statutory damages at this time.
We reverse that award and remand the matter to the trial court for further proceedings.
Conversion Claim
The trial court dismissed the conversion claim on the basis that Mr. Lowe had
“ample time and opportunity” to remove the vehicles and forfeited them by failing to
remove them. In essence, the trial court concluded that the 3½-month period allotted Mr.
Lowe to remove his inheritance was sufficient as a matter of law. Since there is no
contrary evidence in the record suggesting this was unreasonable, we affirm.
No. 30282-2-III
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Conversion is the willful interference with another’s property without lawful
justification, resulting in the deprivation of the owner’s right to possession. Brown v.
Brown, 157 Wn. App. 803, 817, 239 P.3d 602 (2010). Abandonment of property is a
complete defense to the tort of conversion. Jones v. Jacobson, 45 Wn.2d 265, 267, 273
P.2d 979 (1954).
Mr. Lowe argues that he did not abandon the vehicles because he was continuing
to remove them up to the point where Mr. Rowe crushed some of them and then barred
him from the property. While that evidence may indicate he did not intend to abandon
the property, it does not answer the question of whether he had already done so by his
dilatory actions over the summer. This court many times has upheld trial court
determinations of abandonment where a property owner with notice of the need to
retrieve property failed to do so in a timely manner even while claiming the property as
his own. E.g., Excelsior Mortg. Equity Fund II v. Schroeder, No. 30333-1-III (Wash. Ct.
App. Oct. 18, 2012); Lamar Outdoor Adver. v. Harwood, 162 Wn. App. 385, 254 P.3d
208 (2011); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 225 P.3d 266
(2009).
In essence, despite being awarded the property under the will, Mr. Lowe never
took possession of it. Instead, he left it on Mr. Rowe’s property. The estate gave him 30
days to remove the property, a time period that we assume in the absence of contrary
No. 30282-2-III
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evidence was sufficient to accomplish the task. The property’s new owner permitted him
another two weeks, but actually allowed him nearly ten more weeks. The task was still
not accomplished. The record does not reflect that more time was genuinely needed or
that some factor beyond Mr. Lowe’s control such as bad weather prevented him from
taking possession of his property.
Control over the land is part of the bundle of sticks associated with land ownership
and use. Excelsior, slip op. at 11. Mr. Rowe was not required to maintain the old
vehicles on his land indefinitely and could act when Mr. Lowe declined to meet the
deadlines provided him. We do not believe he was required to set a specific final date for
the removal to be completed. There was no evidence presented that the time allotted by
first the estate and then by Mr. Rowe was insufficient to remove the vehicles to Mr.
Lowe’s own property. The fact that he had not removed the vehicles is not proof that he
could not have done so.
The order granting summary judgment on the conversion claim is affirmed.
Mr. Rowe also seeks attorney fees on appeal. RAP 18.1. He is entitled to attorney
fees under the anti-SLAPP statute for successfully defending his immunity on the
defamation charge. In light of the fact that we are remanding to the trial court for further
proceeding, the trial judge shall award reasonable attorney fees for defense of the
defamation claim in this court. There is no basis for awarding fees on the conversion
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claim.
Affirmed in part, reversed in part, and remanded.
_______________________________
Korsmo, C.J.
WE CONCUR:
________________________________
Sweeney, J.
________________________________
Brown, J.
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