                                                                       FILED
                                                                  COURT OF APPEALS
                                                     DIVISION II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                              20Ihi MAY 13 All 9 : 13'
                                   DIVISION II


GERALD G. RICHERT, on behalf of                  No. 43825 -9 -II Pt
SKOKOMISH FARMS INC., a Washington
corporation; GERALD F. RICHERT and
SHIRLEY RICHERT, husband and wife, and
the marital community thereof; THE ESTATE
OF JOSEPH W. BOURGAULT; NORMA
BOURGAULT, a single woman; ARVID
HALDANE JOHNSON, on behalf of
OLYMPIC EVERGREEN, LLC, a
Washington limited liability company; ARVID
HALDANE JOHNSON and PATRICIA
JOHNSON, husband and wife, and the marital
community thereof; SHAWN JOHNSON and
SHELLOY JOHNSON, husband and wife, and
the marital community thereof; JAMES M.
HUNTER, on behalf of the HUNTER
FAMILY FARMS LIMITED
PARTNERSHIP, a Washington partnership;
JAMES M. HUNTER and JOAN HUNTER,
husband and wife, and the marital community
thereof; JAMES C. HUNTER and SANDRA
HUNTER, husband and wife, and the marital
community thereof; GREGORY HUNTER and
TAMARA HUNTER, husband and wife, and
the marital community thereof; DAVID
KAMIN and JAYNI KAMIN, husband and
wife, and the marital community thereof;
WILLIAM O. HUNTER, on behalf of
HUNTER BROTHERS STORE, a
Washington partnership; PAUL B. HUNTER,
on behalf of HUNTER BROTHERS, LLC, a
Washington limited liability company;
WILLIAM O. HUNTER and CAROL
HUNTER, husband and wife, and the marital
community thereof; PAUL B. HUNTER
and LESLIE HUNTER, husband and wife,
and the marital community thereof;
WILLIAM O. HUNTER, JR. and LUAYNE
HUNTER, husband and wife, and the
marital community thereof; DOUGLAS
RICHERT, a single man; EVAN TOZIER, on
behalf of RIVERSIDE FARM, a Washington
No. 43825 -9 -II




partnership; ARTHUR TOZIER, a single man;
MAXINE TOZIER, in her individual capacity;
and EVAN TOZIER, a single man,

                                   Respondents,


       v.

                                                               ORDER GRANTING
TACOMA POWER UTILITY, a Washington                     MOTION FOR RECONSIDERATION

Utility, and the CITY OF TACOMA, a
Washington municipality,

                                   Appellants.



        APPELLANT, City of Tacoma, has moved for reconsideration of the published

opinion    filed in this   case.   After due consideration, the court grants the motion and


amends the March 4, 2014 opinion with the attached Order Amending Opinion.

          IT IS SO ORDERED.

                           2 "
                                                                                     2014.
          Dated this                day of

          PANEL:       Jj. Worswick, Hunt, Penoyar

          FOR THE COURT:




                                                  2
                                                                     FILED
                                                              COUPi i OF APPEALS
                                                                   DIVISION II

                                                            2014 MAY 13     AN 9: 13

                                                             Sir      Ar   6, SF ` 4GTQN
  IN TIIE COURT OF APPEALS OF THE STATE OF          WASHIN        T


                                     DIVISION II

GERALD G. RICHERT, on behalf of                    No. 43825 -9 -II
SKOKOMISH FARMS INC., a Washington
corporation; GERALD F. RICHERT and
SHIRLEY RICHERT, husband and wife, and
the marital community thereof; THE ESTATE
OF JOSEPH W. BOURGAULT; NORMA
BOURGAULT, a single woman; ARVID
HALDANE JOHNSON, on behalf of
OLYMPIC EVERGREEN, LLC, a
Washington limited liability company; ARVID
HALDANE JOHNSON and PATRICIA
JOHNSON, husband and wife, and the marital
community thereof; SHAWN JOHNSON and
SHELLOY JOHNSON, husband and wife, and
the marital community thereof; JAMES M.
HUNTER, on behalf of the HUNTER
FAMILY FARMS LIMITED
PARTNERSHIP, a Washington partnership;
JAMES M. HUNTER and JOAN HUNTER,
husband and wife, and the marital community
thereof; JAMES C. HUNTER and SANDRA
HUNTER, husband and wife, and the marital
community thereof; GREGORY      HUNTER and
TAMARA HUNTER, husband, and wife, and
the marital community thereof; DAVID
KAMIN and JAYNI KAMIN, husband and
wife, and the marital community thereof;
WILLIAM O. HUNTER, on behalf of
HUNTER BROTHERS STORE, a
Washington partnership; PAUL B. HUNTER,
on behalf of HUNTER BROTHERS, LLC, a
Washington limited liability company;
WILLIAM O. HUNTER and CAROL
HUNTER, husband and wife, and the marital
community thereof; PAUL B. HUNTER
and LESLIE HUNTER, husband and wife,
and the marital community thereof;
No. 43825 -9 -II



WILLIAM O. HUNTER, JR. and LUAYNE
HUNTER, husband and wife, and the
marital community thereof; DOUGLAS
RICHERT, a single man; EVAN TOZIER, on
behalf of RIVERSIDE FARM, a Washington
partnership; ARTHUR TOZIER, a single man;
MAXINE TOZIER, in her individual capacity;
and EVAN TOZIER, a single man,


                                   Respondents,


        v.




TACOMA POWER UTILITY, a Washington
Utility, and the CITY OF TACOMA, a
Washington municipality,                                            ORDER AMENDING OPINION


                                   Appellants.




        It is hereby ORDERED that this court' s opinion filed on March 4, 2014 is
amended as follows:


        On page 2, paragraph 1, the following text shall be deleted:

               In this class action lawsuit for property damage caused by
        increased water flow, the City of Tacoma makes an interlocutory appeal of
        the superior court' s two rulings on cross summary judgment motions. The
        first ruling granted a motion for partial summary judgment that served to
        strike one of Tacoma' s affirmative defenses against the claims of Gerald
        Richert    and    the    members    of   his   class   involved   in this   appeal (   the

        Richerts).




 The following language shall be inserted in its place:

                In this lawsuit for property damage caused by increased water
        flow, the City of Tacoma makes an interlocutory appeal of the superior
        court' s   two   rulings on cross   summary judgment      The first ruling
                                                                     motions.

        granted a motion for partial summary judgment that served to strike one of
        Tacoma' s affirmative defenses against the claims of Gerald Richert and
        the   other plaintiffs   involved in this   appeal ( the   Richerts).
No. 43825 -9 -II



And   on page   3,   immediately following   the " S"   in the   heading "   FACTS,"   the following

text shall be added in a footnote:


        Because both of the superior court orders on review concerned whether
        the Richerts' claims were precluded as a matter of law, we write the facts
        in the light most favorable to the Richerts. See Witt v. Young, 168 Wn.

        App. 211, 213, 275 P. 3d 1218, review denied, 175 Wn.2d 1026, 291 P. 3d
        254 ( 2012).


And on page 7, paragraph 1, the following text shall be deleted:

                 Gerald Richert and the members of his class involved in this
        appeal are owners of 88 of the Type Two parcels, whose riparian and
        water rights, but not land rights, were condemned by Tacoma in Funk.


The following language shall be inserted in its place:

                   Gerald Richert and the other plaintiffs in this appeal are owners of
        88 of the Type Two parcels, whose riparian and water rights, but not land
        rights, were condemned by Tacoma in Funk.

The footnote that follows the sentence ending in " condemned by Tacoma in Funk" shall
remain.




          DATED this             day   of                                      2014.

                                            Rely

I concur:
                                                             FILED
                                                       COU T: OF APPEALS
                                                           DIVISION II

                                                      201 yMAR - 4   AM 9: 17

                                                      STATE •QF WASHINGTON

                                                        Y.




   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

GERALD G. RICHERT, on behalf of                       No. 43825- 9- 11
SKOKOMISH FARMS INC., a Washington
corporation; GERALD F. RICHERT and
SHIRLEY RICHERT, husband and wife, and
the marital community thereof; THE ESTATE
OF JOSEPH W. BOURGAULT; NORMA
BOURGAULT, a single woman; ARVID
HALDANE JOHNSON, on behalf of
OLYMPIC EVERGREEN, LLC, a
Washington limited liability company; ARVID
HALDANE JOHNSON and PATRICIA
JOHNSON, husband and wife, and the marital
community thereof; SHAWN JOHNSON and
SHELLOY JOHNSON, husband and wife, and
the marital community thereof; JAMES M.
HUNTER, on behalf of the HUNTER
FAMILY FARMS LIMITED
PARTNERSHIP, a Washington partnership;•'
JAMES M. HUNTER and JOAN HUNTER,
husband and wife, and the marital community
thereof; JAMES C. HUNTER and SANDRA
HUNTER, husband and wife, and the marital
community thereof; GREGORY HUNTER and
TAMARA HUNTER, husband and wife, and
the marital community thereof; DAVID
KAMIN and JAYNI KAMIN, husband and
wife, and the marital community thereof;
WILLIAM 0. HUNTER, on behalf of
HUNTER BROTHERS STORE, a
Washington partnership; PAUL B. HUNTER,
on behalf of HUNTER BROTHERS, LLC, a
Washington limited liability company;
No. 43825- 9- 11




WILLIAM O. HUNTER and CAROL
HUNTER, husband and wife, and the marital
community thereof; PAUL B. HUNTER
and LESLIE HUNTER, husband and wife,
and the marital community thereof;
WILLIAM O. HUNTER, JR. and LUAYNE
HUNTER, husband and wife, and the
marital community thereof; DOUGLAS
RICHERT, a single man; EVAN TOZIER, on
behalf of RIVERSIDE FARM, a Washington
partnership; ARTHUR TOZIER, a single man;
MAXINE TOZIER, in her individual capacity;
and EVAN TOZIER, a single man,

                                         Respondents,


        v.



TACOMA POWER UTILITY, a Washington
Utility, and the CITY OF TACOMA, a
Washington municipality,                                                          PUBLISHED OPINION


                                         A. pellants.


        WoRSwICK, C. J. —           In this class action lawsuit for property damage caused by increased

water flow, the City of Tacoma makes an interlocutory appeal of the superior court' s two rulings

 on cross summary judgment motions. The first ruling granted a motion for partial summary
judgment that served to strike one of Tacoma' s affirmative defenses against the claims of Gerald

 Richert   and   the   members of       his   class   involved in this   appeal ( the   Richerts).   The second ruling

 denied Tacoma' s motion for summary judgment for dismissal of the Richerts' claims. The

 superior court' s two rulings summarily determined one limited legal issue in favor of the

 Richerts:             of Tacoma        Funk, No. 1651 ( Mason           County   Super. Ct., Sept. 11, 1920) — a 1920
             City                  v.



 condemnation action in which Tacoma condemned the Richerts' riparian and water rights so as
No. 43825 -9 -II




to   allow   Tacoma to build two dams        on   the Skokomish River —did      not preclude the Richerts'


claims for flood and groundwater damage as a matter of law. In this interlocutory appeal,

Tacoma argues that Funk precludes the Richerts' claims as res judicata. We affirm the superior

court, because Tacoma has failed to meet its burden of proving that the Richerts' claims have a

concurrence of identity with Funk' s final judgment.

                                                        FACTS


A.       Background


         The Skokomish River' s main stem is fed by three tributaries: the North Fork, the South

Fork, and Vance Creek. Water flows through the main stem and into the Hood Canal.

         Tacoma has operated two dams on the North Fork of the Skokomish River since 1926.

These dams today operate under Federal Energy Regulatory Commission (FERC) licenses.
Tacoma' s dams prevent most of the North Fork' s water from flowing to the main stem. Prior to

the existence of Tacoma' s dams, the,North Fork contributed 800 cubic feet per second ( cfs) of

water to.the main stem, which wass_one third of the main stem' s_water.

B.           Funk Condemnation


             In 1923, Tacoma condemned the property rights•that the dams' construction and

 operation would damage in Funk. The Funk condemnation action condemned the property rights

 of over 80 parcels of real property. In Funk, Tacoma condemned the property rights of two

 different                                       how          damage the dams   would cause   the   parcels.
              parcel   types,   depending   on         much
No. 43825- 9- 11




        First, Tacoma condemned in their entirety those parcels on the North Fork that the dams'

construction and    operation would either    occupy     or overflow with water ( Type       One   parcels).   The


Type One parcels constituted a combined total of 730 acres.

        Second, Tacoma condemned the riparian and water rights, but not the land rights, of

those parcels located       below the dam, primarily    on   the main   stem ( Type   Two   parcels).   Tacoma


condemned only the riparian and water rights of the Type Two parcels because the dams'

construction and operation took water away from these parcels but did not occupy or overflow

them. In its condemnation petition, Tacoma stated the following as to its reason for condemning

the Type Two parcels' water rights:


        That   with   the   construction of [the   dams] ...   a portion of the waters of [the North
        Fork] will be diverted from the present channel thereof and used by [ Tacoma] .. .
        and the volume of water in said river below said dam will be diminished and by
        reason thereof it is and will be necessary and convenient for said City of Tacoma
        to take    and acquire ...    the water rights, riparian rights, easements, privileges and
        other facilities upon said river below said dam, necessary and adequate for the
        proper development, construction, operation and maintenance of said power plant.


 Clerk' s Papers ( CP) at 1382.( emphasis added)...

         In Funk, Tacoma paid compensation for the entire Type One parcels and the riparian and

 water rights of the Type Two parcels. The Funk court determined these compensation awards

 individually for each owner. Many parcel owners received their individualized compensation

 awards by jury verdict; while other parcel owners received their compensation awards under

 stipulation agreements.



         The Type One parcel owners received a combined total of $90,200, in approximately 7

 individual compensation awards, for their 730 acres of parcels, averaging $ 123. 56 per acre. The




                                                          4
No. 43825 -9 -II




Type Two parcel owners received a combined total of $50, 670. 30, in approximately 40

individual compensation awards, for their riparian and water rights ( which were attached to

6, 360. 6   acres),   averaging $7. 95 per acre. After Tacoma paid these compensation awards, the

Funk superior court entered two separate decrees condemning the land rights of the parcels.

            The decree condemning the land rights of the Type One parcels for Tacoma' s use stated:

            I]t is hereby ORDERED AND DECREED that there is hereby appropriated and
            granted   to   and vested   in fee   simple   in [ Tacoma] ...   for the construction, operation
            and maintenance of an hydro -electric power plant on and along the North Fork of
            the Skokomish River and on and along Lake Cushman in Mason County,
            Washington, as set forth in the petition herein on file, the lands, real estate,
            premises, water rights, easements, privileges and property, including the right to
            divert the North Fork of the Skokomish River located in Mason County,
            Washington, hereinafter described, of the [ Type One parcels].

CP at 3660.


            On the same day, the Funk superior court entered a decree condemning the riparian and

water rights of the Type Two parcels stating:

             I]t is hereby ORDERED AND DECREED that there is hereby appropriated and
            granted   to   and vested   in fee   simple   in [ Tacoma] ... for the construction, operation
            and maintenance of an hydro electric power plant on and along the North Fork of
            the Skokomish river and on and along Lake Cushman in Mason County,
            Washington, as set forth in the petition herein on file, the waters, water rights,
            riparian rights, easements and privileges, including the right to divert the waters
            of the North Fork of the Skokomish River located in Mason County, Washington,
            appertaining and appurtenant to the [ Type Two parcels].



             I] t is further ORDERED AND DECREED that [ Tacoma] ...                       is hereby granted
            the right, at any time hereafter, to take possession of, appropriate and use all of
            the waters, water rights, riparian rights, easements and privileges appertaining and
             appurtenant to the lands, real estate and premises hereinabove described, together
             with the right to divert the waters of the North Fork of the Skokomish River, and
             the same is hereby appropriated and granted unto, and the title shall vest in fee


                                                                5
No. 43825- 9- 11




        simple in [ Tacoma] as of the 1 lth day of September, 1920, and its successors
        forever; the same being for a public use.[ 13
CP at 3650, 3656.


C.      Tacoma' s Increase in Water Flow

        From 1926 until 1988, Tacoma' s dams diverted most of the North Fork' s water flow out

of the river, resulting in an average of only 10 cfs released from the North Fork and into the main
stem.



        In 1988, FERC required Tacoma to increase the flows to 30 cfs as part of its water quality

certification for the project. In 1998 FERC began requiring Tacoma to release even more water

through the dams, for the purpose of preserving fish and the environment. Litigation with FERC

regarding minimum water flow required Tacoma to increase the flow to 60 cfs in 1999 and to
240 cfs in 2008. In 2010, an amendment to Tacoma' s 1998 FERC license created a schedule for

releasing different amounts of water at different times throughout the year. However, the 2010
 amendments to the license required Tacoma to maintain an average flow that was significantly

higher than the 10 cfs released by the dams through - ost of their history.
                                                    m

         Since 1988, Tacoma increased water flow to and through the main stem, increasing the

 amount of water that flowed alongside the Richerts' parcels. This increase of water is the subject

 of the Richerts' lawsuit against. Tacoma.




 1 Tacoma limits its appeal to the riparian and water rights granted by Funk, and explicitly states.
 that it makes no claims on appeal related to the easements that Tacoma condemned in Funk.


                                                    6
No. 43825- 9- 11




D.        The Richerts' Lawsuit


          Gerald Richert and the members of his class involved in this appeal are owners of 88 of

the Type Two parcels, whose riparian and water rights, but not land rights, were condemned by

Tacoma in Funk.2 The Richerts' parcels are located below the dams and primarily on the main

stem.




          The Richerts sued Tacoma, alleging that the increased amount of water that Tacoma' s

dams released overflowed the main stem, causing the water to invade and damage the Richerts'

parcels.




           The dams' diversion of water away from the main stem, from 1926 until 2008, prevented

the water from naturally washing accumulating gravel out of the main stem. The Richerts
claimed that over the decades this failure to wash out the gravel caused aggradation: the slow

building up of gravel in a river bed that greatly reduces the amount of water that a river can
 contain.




           The Rcherts alleged that by2008, the.main stem had suffered aggradation to the point

 that it could not contain Tacoma' s sudden increase of water flow into the main stem, which

 caused the main stem to overflow. The Richerts claim that the increased water flow overflowed

 the banks of the main stem and additionally has caused a continuing rise in the groundwater

 table.




 2
     Twenty -two additional parcels are included in the superior court case, but are not included in
 the eighty -eight Type Two parcels relevant-to this appeal, .because the twenty -two parcels were
 not involved in Funk.


                                                    7
No. 43825 -9 -II




E.        Procedural History

          The Richerts sued Tacoma for ( 1) violation of riparian rights, (2) failure to provide a

proper outflow      for   channeled surface waters, (      3) violation of RCW 4. 24. 630 ( liability for damage

to land   and   property), ( 4)   trespass and continuing trespass, ( 5) nuisance and continuing nuisance,

 6)   negligence, (     7) inverse condemnation by flooding, and ( 8) inverse condemnation by

groundwater. Tacoma asserted as an affirmative defense that Funk' s decrees constitute a final

judgment barring the Richerts' claims as res judicata.

          The Richerts filed a motion for partial summary judgment, asking the superior court to

dismiss Tacoma' s affirmative defense related to Funk. Tacoma also filed a motion for summary

judgment, asking the superior court to dismiss the Richerts' claims in their entirety.

          The superior court granted the Richerts' motion for partial summary judgment,

dismissing Tacoma' s affirmative defense. The superior court determined that the Richerts'

claims were " not within          the   contemplation of   the Funk litigants or the Funk   court."   Verbatim


Report of Proceedings. (June 8, 2012) at 8. The superior court denied Tacoma' s motion for

summary judgment.

          The superior court entered a very limited final judgment to facilitate our interlocutory

review under       CR 54( b), RAP 2.2( d),      and   RAP 2. 3( b)( 4). The superior court limited its final


judgment to the issue of whether the Funk condemnation action precluded the Richerts' ability to

 pursue their claims. The superior court stated that its final judgment " does not apply to any of

 the   other   issues   adjudicated on     summary judgment." CP at 63. Tacoma appeals the superior




                                                              8
No. 43825 -9 -II




court' s partial summary judgment, arguing that Funk' s final judgment precludes the Richerts'

claims as res judicata.

                                                    ANALYSIS


         Tacoma argues that res judicata bars the Richerts' claims because these claims share a


concurrence of identity with Funk' s final judgment. We disagree.

         We     review   summary judgments de        novo.    Michak   v.   Transnation Title Ins. Co., 148.


Wn.2d 788, 794, 64 P. 3d 22 ( 2003).           Summary judgment is appropriate if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56( c).

In this case, the parties agree that no genuine issue of material fact exists on the limited issue of

the effect of the Funk judgment on the Richerts' ability to pursue their claims.

                                                   I. RIPARIAN RIGHTS


         The ownership of a parcel adjacent to a watercourse gave that parcel owner riparian

rights in the watercourse. Dep' t ofEcology v. Abbott, 103 Wn.2d 686, 689, 694 P. 2d 1071

  1985).. Washington State .abolished riparian rights in . 917, but maintained those riparian rights
                                                         1


 existing prior to 1917. Abbott, 103 Wn.2d at 692. These rights existing before 1917 can still be
 condemned under eminent             domain. See Former RCW 90. 03. 040 ( 1917); Lummi Indian Nation v.


 State, 170 Wa.2d        247, 253,   241 P. 3d 1220 ( 2010).      The State abolished all preexisting but

 unused riparian rights in 1932. Abbott, 103 Wn.2d at 695 -96.

          Where     riparian rights still exist,   the   riparian owner     has the   right "(   1) to have the stream


 flow   past   his property in its    natural condition ... (    generally speaking, the owner above cannot

 divert or pollute the stream and the owner below cannot raise the level of the water by dams or




                                                             9
No. 43825- 9- 11




other obstructions); (     2) to such use of the water as it flows past his land as he can make without

                                      the   common right of other riparian owners; (       3) to whatever the water
materially    interfering   with



produces, such as       ice."   DeRuwe        v.   Morrison, 28 Wn.2d 797, 805, 184 P. 2d 273 ( 1947). A


riparian owner may not divert water in a natural watercourse without facing liability for damages
caused to other riparian owners. See Fitzpatrick v. Okanogan County, 169 Wn.2d 598, 608, 238

P. 3d 1129 ( 2010).      Riparian owners have a right to not have their water levels raised or lowered.

DeRuwe, 28 Wn.2d at 808.


          Rights to water use can be condemned by eminent domain. Former RCW 90.03. 040;

Lummi Indian Nation, 170 Wn.2d at 253. However, where one has a right to use water, one still

may not overflow the river and flood parcels without compensation. See RCW 90. 03. 030
 person with right to use river water may not increase water in river above ordinary high - ater
                                                                                          w

mark); see also Thompson v. Dep' t ofEcology, 136 Wn. App. 580, 586, 150 P. 3d 1144 (2007)
                            mark "` represent[ s]          the point at which the water prevents the growth of
 ordinary high -
               water


                             3).. •
terrestrial   vegetation.. "'



                                                          II. RES JUDICATA


          Whether res judicata bars a party from pursuing an action is a matter of law reviewed de
 novo.    Martin   v.   Wilbert, 162 Wn.           App.   90, 94, 253 P. 3d 108 ( 2011). Res judicata' s purpose is


 to   prevent parties   from relitigating          claims.   Loveridge   v.   Fred Meyer, Inc., 125 Wn.2d 759, 763,


 887 P. 2d 898 ( 1995).         Res judicata bars the relitigation of claims that were litigated to a final



 3
     Quoting Frank E. Maloney, The Ordinary High Water Mark: Attempts at Settling an Unsettled
 Boundary Line, 13 LAND & WATER L. REV. 465, 470 ( 1978).



                                                                  10
No. 43825- 9- 11




judgment or could have been litigated to a final judgment in a prior action. Loveridge, 125

Wn.2d     at   763; Hisle   v.   Todd Pac. Shipyards          Corp., 151 Wn.2d 853, 865, 93 P. 3d 108 ( 2004).

However, when considering whether res judicata precludes a party from litigating a claim, we are

careful   to   not "'   deny the   litigant his   or   her   day   in   court.'"   Hisle, 151 Wn.2d at 865 ( quoting

Schoeman        v.   N.Y. Life Ins. Co., 106 Wn.2d 855, 860, 726 P. 2d 1 ( 1986)).                Res judicata applies


not just to those claims that a prior case' s final judgment actually resolved, but also to claims that

were not resolved but that reasonably diligent parties should have raised in that prior litigation.

Hisle, 151 Wn.2d at 865.


          For res judicata to preclude a party from litigating a claim, a prior final judgment must

have a concurrence of identity with that claim in (1) subject matter, (2) cause of action, (3)

persons and parties, and (4) quality of the persons for or against whom the claim is made.

Spokane Research &            Def.Fund v. City ofSpokane, 155 Wn.2d 89, 99, 117 P. 3d 1117 ( 2005);
Loveridge, 125 Wn.2d at 763. The party asserting res judicata, in this case Tacoma, bears the

burden of proof. Hisle, 151. Wn.2d at 865...

           Regarding the second element of this four -part res judicata test, to determine whether two
 causes   of action are     the    same, we consider whether "(              1) prosecution of the later action would


 impair the rights established in the earlier action, (2) the evidence in both actions is substantially

 the   same, (   3) infringement of the same right is alleged in both actions, and ( 4) the actions arise

 out of   the   same nucleus of       facts."     Civil Service Comm' n v. City ofKelso, 137 Wn.2d 166, 171,

 969 P. 2d 474 ( 1999).




                                                                        11
No. 43825 -9 -11




            M. APPLICATION OF RES JUDICATA IN THE CONTEXT OF RIPARIAN RIGHTS

        Tacoma argues that Funk' s final judgment bars the Richerts' claims as res judicata. We

disagree, because Tacoma has failed to prove that Funk' s final judgment shares a concurrence of


identity with the Richerts' claims or that reasonably diligent parties should have thought to
petition the Funk court to resolve the Richerts' claims in Funk' s final judgment.4

A.      Funk' s Final Judgment and the Richerts' Claims


        Tacoma argues that the Richerts' claims are precluded by res judicata, because these

claims share a concurrence of identity with Funk' s final judgment. We disagree.

        In Funk, Tacoma condemned the right to take away the use of the Type Two parcels'

water, but it did not condemn the right to invade the Richerts' parcels with water. This is

evidenced by Tacoma' s petition for condemnation in Funk.

        Although the decrees constitute Funk' s final judgment, Tacoma' s petition reveals the

scope of Funk' s subject matter (i.e., the scope of what rights Tacoma was condemning) and its

cause of action (i.e., the scope of what   Tacoma   was   asking the   court   to decide).   Thus, Tacoma' s


petition helps explain the scope of the action below, which allows this court to compare Funk

with the Richerts' claims to determine if they share a concurrence of identity of subject matter or

 cause of action.




 4 Tacoma argues on policy grounds that if we do not hold that res judicata precludes the
 Richerts' claims, every dam will, in the future, face potential lawsuits from plaintiffs whose
 property rights were previously condemned. But Tacoma' s policy argument does not overcome.
 long standing res judicata law.


                                                    12
No. 43825- 9- 11




          Tacoma' s petition in Funk requested condemnation of the Type Two parcels because " the

volume of water      in   said river   below   said   dam   will   be diminished." CP at 1382. This shows that


Tacoma sought only the right to deprive the Type Two parcels below the dam of their use of the

main stem' s water, not the right to overwhelm the Type Two parcels with the main stem' s water.

Thus,. Funk' s decrees condemned only the right to the Richerts' parcels' use of the main stem' s

water that Tacoma actually requested in Funk.

          The Richerts     make claims     for ( 1)   violation of riparian rights; ( 2)      failure to provide a


proper outflow      for   channeled surface waters, (       3) violation of RCW 4.24. 630 ( liability for damage

to land   and   property), ( 4) trespass, ( 5)   nuisance, (       6)   negligence, (   7) inverse condemnation by

flooding,, and ( 8) inverse condemnation by groundwater. More important than the names of the

Richerts' claims is what they concern. All of the Richerts' claims concern the recent flooding
and a rise in the groundwater table on the Richerts' parcels, allegedly caused by Tacoma' s

release of too much water into the main stem.5

          1.   Concurrence. ofIdentity with Subject Matter

          Regarding the first element of res judicata' s test, concurrence of identity of subject

 matter, the Richerts' alleged invasion of water onto their parcels does not have the same subject

 matter with the claims litigated to a final judgment in Funk. This is because Funk' s final

 judgment dealt with only deprivation of the parcels' water use, rather than flood or groundwater



 5 Tacoma argues that Funk precludes the Richerts' claims as res judicata because some, but not
 all, of the Richerts' predecessors in interest filed various individual motions in Funk stating
 broad requests for any and all damages that Tacoma' s darns would cause. But the final judgment
 controls, and random filings from various predecessors in interest cannot illuminate the scope of
 those decrees.



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damage to the parcels themselves. 6 See RCW 90. 03. 030; see. also Austin v. City ofBellingham,

69 Wash. 677, 679, 126 P. 59 ( 1912).

         2. Concurrence ofIdentity with Cause ofAction

         Regarding the second element, concurrence of identity with cause of action, Tacoma has

failed to meet its burden of proving that the Richerts' claims constitute the same cause of action

as Funk. This is because in Funk, Tacoma condemned only the right to deprive the parcel

owners of their ability to use water, as revealed by Tacoma' s petition. The Richerts now claim

that their parcels are being damaged by floods and high water tables, with some land taken in its

entirety. Thus Funk' s final judgment and this case do not ( 1) impair the same rights (right to
water use vs. right     to land   use), (   2) deal with the same evidence. (loss of water use vs. flooding,

groundwater       tables, and   aggradation), (   3) allege an infringement of the same rights ( right to use


water vs. right to use land), or (4) arise out of the same nucleus of facts as the prior action

 deprivation of water use vs. deprivation of land use). 7




 6 Tacoma argues that the Richerts concede that they limited their claims to riparian rights
 violations, citing CP at 4018 -19, 4023; Br. of Appellant at 20. However the cited pages in the
 record contain no such concession.



 7 Even beyond this, Funk' s final judgment was limited to condemnation, and the Richerts make a
 series of claims     that have nothing to do with condemnation: (        1) failure to provide a proper
 outflow for channeled surface waters, ( 2) violation of RCW 4.24. 630 ( liability for damage to
 land   and   property), ( 3) trespass, ( 4)   nuisance, and ( 5) negligence. Thus, these five claims, on
 their face, do not constitute the same " cause of action" as litigated in Funk. This is because none
 of these causes of action were considered by the Funk court, as Funk was limited to the cause of
 action of condemnation.




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No. 43825 -9 -11




          Tacoma has failed to prove that the Richerts' claims for invasion of water share a


concurrence of identity with Funk' s final judgment in terms of subject matter or cause of action.

See Loveridge, 125 Wn.2d at 763. For res judicata to preclude the Richerts' claims, Tacoma

must prove that the Richerts' claims meet all four elements of res judicata: Because Tacoma

cannot prove that the Richerts' claims for invasion of water share a concurrence of identity with

Funk' s final judgment in terms of subject matter or cause of action, Tacoma cannot prove either

of   the first two   elements of res   judicata. See Loveridge, 125 Wn.2d   at   763. Thus, we need not


consider elements three and four of res judicata.8

B.        The Claims that Reasonably Diligent Parties Should Have Raised in Funk.

          Tacoma argues that the Richerts' claims are precluded by res judicata, even if they were

not raised in Funk, because reasonable parties should have raised them in Funk. We disagree.

          Res judicata applies to claims that were not resolved in a prior litigation' s final judgment,

where reasonably diligent parties should have raised those unresolved claims in the prior

litigation. Hisle, 151 Wn.2d at 865- 66.. However, in this case, the Funk litigants could not have

reasonably brought the Richerts' claims at the time of Funk for three reasons.

          First, the Richerts based their claims on alleged aggradation that occurred. over the past

 eight decades, which reduced the amount of water that the main stem could handle. The Funk

 litigants could not have reasonably predicted such aggradation over eight decades and, thus,



 8 As a part of its res judicata argument, Tacoma argues that because it acquired the Richerts'
 riparian rights in Funk, that this gave Tacoma the right to raise the water level up to its natural
 flow, even if it flows over the Richerts' parcels. We disagree, because as discussed above,
 Tacoma condemned only the Richerts' parcels' use of water, not the right to cause flood or
 groundwater damage to their land. See RCW 90. 03. 030; see also Austin, 69 Wash. at 679.


                                                       15
No. 43825 -9 -II




reasonable litigants could not have predicted such a phenomenon would combine with the dams

to cause water to overflow and damage the Richerts' parcels.

        Second, the dams' increased water flow resulted from requirements imposed on Tacoma

by FERC litigation for the purpose of water quality and environmental protection, starting in
1988. No reasonable litigant in the 1920' s could have predicted the rise of modern

environmental protection, nor could a reasonable party have predicted that starting in 1988, a

federal agency would require Tacoma to increase the water flow through its dams for water

quality and preservation of fish and the environment.

        Third, Tacoma explicitly stated in its Funk petition that it needed to condemn the Funk

litigant' s riparian rights because " the volume of water in said river below said dam will be

diminished." . CP   at 1382. Thus, Tacoma' s petition put the parties on notice only that their

parcels would lose the ability to use the river' s water, not that their parcels would suffer flood

and groundwater damage from an overabundance of water. For these reasons, the Funk litigants

could not have reasonably .
                          predicted that Tacoma would overwhelm the main stem with water

and cause water damage to their parcels eight decades after Funk. We hold that Tacoma has




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No. 43825- 9- 11




failed to prove that Funk bars the Richerts' claims as res judicata.9 See Loveridge, 125 Wn.2d at

763.


            Affirmed.




9 The Richerts argue that Tacoma should be estopped from arguing that the Funk litigants could
have predicted aggradation because Tacoma argued the opposite in an unpublished case. See
Indemnity Ins. Co. of N. Am. v. City ofTacoma, noted at158 Wn. App. 1022, 2010 WL 4290648,
 at *   3 - * 4 ( 2010).   We do not address this issue because the superior court did not resolve this
 issue in its final judgment and, thus, the issue is outside the scope of this appeal of that final
judgment. -


         Tacoma argues alternatively that even if res judicata did not preclude the Richerts'
 claims, Tacoma has no duty to maintain its dams' artificial diversion of water away from the
 main stem and, thus, it cannot face liability for merely decreasing the amount of water that its
 dams divert away from the main stem. We do not address this issue because it concerns
 Tacoma' s general duty,to maintain its artificial diversion of water from the main stem. This does
 not relate to the effect of Funk on the Richerts' claims, and is thus outside this appeal' s limited
 scope.




             Finally, we do not decide all " issues with regard to Tacoma v. Funk" as requested by the
 superior court' s final judgment, because that would constitute an impermissible advisory
 opinion. CP at 63- 64; see To -Ro Trade Shows v. Collins, 144 Wn.2d 403, 416 -17, 27 P. 3d 1149
  2001).



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