IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STEVE SWINGER,Appellant,

v. DOUGLAS J. VANDERPOL, Respondent. No. 74703-7- DIVISION ONE

UNPUBLISHED OPINION FILED: December 27, 2016 r\5

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Becker, J. — This is an appeal from an order of summaryjudgment resolving a dispute between neighboring landowners concerning a boundary set by the meandering Nooksack River. Because appellant's claims are barred on procedural grounds and unsupported by the record, we affirm. 

### Respondent Douglas Vanderpol owns land in Lynden on the east bank of the Nooksack River. Appellant Steve Swinger owns a plot of land on the other side ofthe river, to the north and west ofVanderpol's property. Swinger applied to participate inthe federal Conservation Reserve Enhancement Program. The 

### program pays property owners to committheir land for preservation efforts, such
as planting vegetation along rivers to restore and protectfish habitat. The Whatcom Conservation District, which administers the program 

### locally, began developing a plan for preservation work on Swinger's property. The District created a map detailing where planting would occur. This mapNo. 74703-7-1/2
showed planting on the Nooksack's east bank, across the river from Swinger's plot. Swinger claims to own an area of land on the east bank through avulsion, a process that occurs when a river rapidly changes course. Property boundaries remain inthe center ofthe old river channel following avulsion. According to Swinger, the Nooksack abruptly changed course many years ago, causing land that was previously connected to his plot to become part ofthe east bank. In December 2011, Vanderpol sent a letter to the District through his attorney, asserting thatthe land on the east bank that Swingerwas attempting to commit for preservation belonged to Vanderpol. Whereas Swinger claimed to
own the land through avulsion, Vanderpol claimed to own the same area through accretion or reliction. Both terms describe gradual additions to the land bordering on a river due to slow changes inthe river's course. Vanderpol explained in his letterthat ifaccretion or reliction occurs, "the boundary line ofthe 

### property abutting the riveralso changes withthe rivercourse." He claimed he had been the "sole person occupying, maintaining and making use ofthe entire property at issue since 1989 when he first started using this area for a pasture
area for his cows." He asserted that a survey was necessary to determine property boundaries. The District suspended Swinger's application and did not proceed with the proposed planting. The District informed Swingerthat he would not receive funding for preservation work on the east bank untilthe ownership issue was resolved. Vanderpol sent a second letterto the District in February 2012,No. 74703-7-1/3 reasserting that he owned the area on the east bank that Swingerwas attempting to commit to the program. Around the same time, Swingerwas involved in a lawsuit he had filed against his title insurance company. He claimed, "Three acres ofthe property east ofthe river are not accessible by vehicle or pedestrian access. No notification ofthis covered risk was provided in the title report." The court dismissed this claim on the title company's motion for partial summaryjudgment
on October 14, 2011, because Swinger did not presentfacts that would prove his ownership ofthe three acres in question. Swinger did not attemptto obtain review ofthis ruling. The entire lawsuit against the title company was dismissed in March 2012, and Swinger expressly waived his right to appeal. In May 2012, Vanderpol commenced a quiet title action infederal court to determine ownership ofthe area in dispute on the east bank. Vanderpol named Swinger and the United States as parties. The United States owns property next to Vanderpol's, and Vanderpol believed the ownership interests ofthe United States were also affected by changes inthe Nooksack's course. Vanderpol conceded that the disputed area was previously connected to Swinger's plot. He argued that through accretion or reliction, either he or the United States was the current owner. Inthe alternative, he argued ownership by adverse possession. Swinger denied Vanderpol's ownership. He asserted a counterclaim for unjust enrichment based on Vanderpol's use ofthe disputed

area.No. 74703-7-1/4 

### The federal district court determined it had subject matterjurisdiction under 28 U.S.C. § 1346(f), which grants district courts original jurisdiction over quiet title actions "in which an interest is claimed by the United States." On 

### Vanderpol's motion for summaryjudgment, the court concluded that Swingerwas estopped from relitigating whether he owned land on the east bank because the issue was decided in his suit againstthe title insurance company. Vanderpol and the United States entered into a stipulation regarding their boundary lines. Swinger appealed. The Ninth Circuit Court ofAppeals concluded that subject matterjurisdiction was lacking because the United States never claimed
an interest inthe disputed land, as required under 28 U.S.C. § 1346(f). The court vacated the summaryjudgment order and remanded with instructions to dismiss. Acting pro se, Swingerthen filed the current action againstVanderpol in Whatcom County Superior Court. The complaint alleges unjust enrichment, tortious interference with a contract, and abuse of process. Vanderpol moved for summaryjudgment, seeking dismissal of Swinger's claims. After a hearing on February 5, 2016, the court granted Vanderpol's motion. Swinger's claims were dismissed with prejudice and Vanderpol was awarded attorney fees and statutory damages. Swinger appeals. We review summaryjudgment orders de novo. Lvbbert v. Grant County. 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). Allfacts and any reasonable inferences therefrom are viewed in the light most favorable to the nonmoving party. Lvbbert, 141 Wn.2d at 34. Summaryjudgment is properwhen there is no genuine issueNo. 74703-7-1/5



### as to any material fact and the moving party is entitled tojudgmentas a matter of law. Lvbbert. 141 Wn.2d at 34. We begin with Swinger's claim for unjust enrichment. The trial court 

### dismissed it upon finding itwas collaterally estopped bythe ruling inSwinger's earlier suit against his title insurance company. Inthat suit, the rulingwas made on a motion for partial summaryjudgmentto dismiss Swinger's claim ofaccess to property on the east side ofthe river. The court's written order stated the claims were "dismissed based on Plaintiff's lack ofownership ofsuch property." Swinger maintains that he owns the land on the Nooksack's east bank and 

### Vanderpol's use of this area forgrazing his cows constitutes unjust enrichment. He requests restitution plus interest. Vanderpol responds that the court properly dismissed the unjust enrichment claim based on collateral estoppel. A party claiming unjust enrichment must demonstrate: (1) the defendant received a benefit, (2) the benefitwas received atthe plaintiffs expense, and (3) the circumstances make it unjust for the defendant to retain the benefit without payment. Young v. Young. 164 Wn.2d 477, 484-85, 191 P.3d 1258 (2008). Here, Swinger's unjust enrichment claim relies on the premise that he owns property on the Nooksack's east bank. Ifhe does not own the disputed area, he cannot demonstrate thatVanderpol received a benefit—using another's land without payment—at Swinger's expense. The doctrine ofcollateral estoppel prevents Swingerfrom relitigating whether he owns land on the east bank if he already had a full and fair opportunity to present his case on this issue. Pederson v. Potter, 103 Wn. App.No. 74703-7-1/6 62, 69, 11 P.3d 833 (2000). review denied. 143 Wn.2d 1006 (2001). The 

### requirements for collateral estoppel are: (1) the issue decided in the prior action is identical to the issue inthe second action, (2) the prior action ended in a final 

### judgment on the merits, (3) the party to be estopped was a party orin privitywith a party in the prior action, and (4) application of the doctrine would not work an 

### injustice. Pederson, 103Wn. App. at 69, citing Hanson v. Cityof Snohomish. 121 Wn.2d 552, 561, 852 P.2d 295 (1993). 

### In Swinger's suitagainstthe title insurance company, the court determined Swinger lacked evidence to prove his asserted ownership interest in "property 

### lying across the Nooksack Riverto theeastofPlaintiffs property." This issue is identical to the issue raised inthe present case: whether Swingercan prove he
owns the land on the east bank, such that he can claim unjust enrichment 

### againstVanderpol for using that land. 

### Swingercontends the issue in his prior suit was "whether the title 

### company hadfailed to disclose defects in title, including an easementon the property on the east side of the river," whereas the issue here is "whether 

### Vanderpol benefited bythe use ofSwingers propertywithout payment." Briefof Appellant at 12. While it is true that the cause of action was different, each lawsuitdepended on Swinger's ability to prove the same factual issue: his ownership of land on the east bank. The first elementof collateral estoppel is satisfied. 

### Regarding the second element of collateralestoppel, a reviewing court mustdetermine whetherthe priorjudgment is sufficientlyfirm. "Factors for aNo. 74703-7-1/7

courtto consider in determining whetherthe requisite firmness is present include 

### whetherthe prior decision was adequately deliberated, whether itwas firm rather than tentative, whetherthe parties were fully heard, whetherthe court supported its decision with a reasoned opinion, and whetherthe decision was subjectto 

### appeal or in fact was reviewed on appeal." Cunningham v. State, 61 Wn. App. 562,567,811 P.2d 225 (1991). Swinger and the title insurance company submitted thorough briefing on 

### Swinger's claim ofownership on the east bank. The transcript of oral argument
on the company's motion for partial summaryjudgment shows that the court informed Swinger he had failed to prove ownership: 

### [THE COURT:] Idon'tthink that Ihave any evidence here that I can look at that's reliable that this Court could determine that that property belongs to you. 

### Again, Idon't thinkthere's sufficient evidence, and Ithink that the only option that this Court has at this point in time is to deny any further motions to amend the pleadings to add new claims orto 

### include that property across the river. There's no basis for it...
. MR. SWINGER: Do Inot own that property then? Is that what the Court is saying? THE COURT: You haven't proven to me that you do. You 

### may, but you haven't proven to me, you haven't given to me anything . . .that's reliable evidence that Ican look at that says you do. You don't have a document with a legal description that includes that property. . . .

... nobody sold you anything on the east side ofthe river. 

### There's no documents when you purchased the property that indicate that you purchased anything otherthan that property on the north side ofthe river. That's how your legal description reads. MR. SWINGER: Butthat legal description was made a 

### hundred years ago when that riverwas somewhere else. THE COURT: Idon't know that. Ihave no testimony to that effect at all. Ihave the legal description inyour deed. That's all I have.No. 74703-7-1/8 

### The written order on partial summaryjudgment, issued October 14, 2011,
was firm: The court denied Swinger's claim based on his "lack ofownership" of property across the river. And itwas not tentative. On March 1, 2012, the court reviewed and approved a stipulation for dismissal entered into between the parties, and dismissed the entire complaintwith a written order stating: 1. All of PlaintiffSteve Swinger's claims that have been asserted and/or that could have been asserted in this cause are hereby dismissed with prejudice and without costs; 2. Plaintiff Steven Swinger hereby waives any right of appeal that may arise out ofthese proceedings; 3. That each party shall beartheir own attorney's fees and costs incurred herein; 4. Thatthe Court's Order awarding attorney fees dated August 27, 2010 is hereby vacated. Swinger contends dismissal ofthe action against the title company on March 1, 2012, was the result of a settlement. Swinger asserts that because he settled with the title insurance company, his failure to appeal did not preclude him 

### from raising the same issue ofownership inthe present lawsuit against Vanderpol. See Marguardtv. Fed. Old Line Ins. Co., 33 Wn. App. 685, 689, 658 

### P.2d 20 (1983) ("collateral estoppel should not be applied tojudgments of dismissal.
. . when based on settlement agreements.") The reason settlement 

### agreements are ordinarily not preclusive isthat "the parties could settle for 

### myriad reasons not related to the resolution of the issues they are litigating." Marguardt. 33 Wn. App. at 689. Otherthan the orderquoted above, the record contains no evidence that 

### the titlecompany lawsuit was dismissed due to a settlement. Approval of a stipulation does not necessarily mean the parties settled. We might reasonably

8No. 74703-7-1/9

assume that the orderofdismissal reflects an undisclosed settlement whereby Swinger, in exchange for being excused from liability for the title company's attorney fees, agreed to give up his right ofappeal as well as a remaining claim for damages underthe policy that is mentioned inthe summaryjudgment order ofOctober 14, 2011. But even ifthat is what happened, the rule stated in Marguardt is not controlling. The estoppel operating inthe present case does not


### come from the finaljudgmententered inthe title company case on March 1, 

### 2012. The estoppel comes fromthe orderon partial summaryjudgmententered

on October 14, 2011. 

### Finality for the purposes ofcollateral estoppel, which is designed to 

### prevent more than one trial on the same claim, is different fromfinality for the purposes ofappeal, which is intended to discourage the piecemeal review of an action. Cunningham. 61 Wn. App. at 568. An order on partial summary 

### judgment may be sufficientlyfinal for collateral estoppel purposes even if it is not appealable. Cunningham. 61 Wn. App. at 570. That isthe case here. The order ofOctober 14, 2011, firmly dismissed the claims requiring proof ofSwinger's 

### ownership. The finalorderon March 1, 2012, did notchange that. The order of October 14, 2011, was sufficiently final to satisfythe second element of collateral estoppel. The third element is also satisfied. Swinger, the party to be estopped,
was a party to the earlier action. 

### In assessing the fourth element, whetherapplication of collateral estoppel would work an injustice, reviewing courts focus on whetherthe parties to theNo. 74703-7-1/10
earlier action were afforded a fulland fair opportunity to litigate theirclaim in a neutral forum. Nielson v. Spanawav Gen. Med. Clinic. Inc.. 135 Wn.2d 255, 264- 65, 956 P.2d 312 (1998). Swingercontends he was denied the opportunity to introduce evidence against the title insurance company. He also claims to have lacked sufficient motivation to litigate that action vigorously because he did not foresee the collateral estoppel consequences. Swinger states, "The courtdid not advise or take extra care in advising me ofthe implications of not providing all documents supporting my ownership ofthe disputed area." Brief ofAppellant at 14. The court was not obligated to advise Swinger ofthe consequences of not bringing an appeal. The role Swinger describes is that of a lawyer, not a judge. Swinger chose to act pro se in bringing this lawsuit and the action againstthe title company. In undertaking the role of a lawyer, pro se litigants assume the duties and responsibilities of a lawyer and are held accountable to the same standard of legal knowledge. Batten v. Abrams. 28 Wn. App. 737, 739 n.1, 626 P.2d 984, review denied. 95 Wn.2d 1033(1981). The superior courtwas a neutral forum for Swinger's case againstthe title company. The court considered thorough briefing by the parties and heard oral 

### argument. Swinger had a full and fair opportunity to litigate his claim that he owned the property on the east bank, and itwas decided against him. The elements of collateral estoppel are met here. The trial court properly dismissed Swinger's unjust enrichment claim as precluded by the decision inthe previous case.

10No. 74703-7-1/11 

### We turn next to Swinger's assertion of a claim that itwas an abuse of 

### process forVanderpol tofile the federallawsuit. He requests reimbursementfor the expenses he incurred in result of that litigation. Thetrial court dismissed Swinger's abuse ofprocess claim for lack of evidentiary support. 

### To prove an abuse of process, the claimant must demonstrate: (1) an 

### ulteriorpurpose toaccomplish an object notwithin the properscope ofthe 

### process and(2) an act notproperin theregularprosecution ofproceedings. Fite v, Lee, 11 Wn. App. 21, 27, 521 P.2d964. review denied. 84Wn.2d 1005(1974). For instance, an abuse ofprocess occurs when a party files numerous improper motions and discovery requests for the purpose ofharassing another party. 

### Hough v. Stockbridge. 152 Wn.App. 328, 346-47, 216 P.3d 1077 (2009), review 

### denied, 168 Wn.2d 1043 (2010). "The mere institution of a legal proceeding
even with a malicious motive does not constitute an abuse ofprocess." Fite, 11 

### Wn. App. at27-28; see alsoAbrams. 28Wn. App. at 749("filing a lawsuit, 

### although baseless orvexatious, is notmisusing process.") "There is no liability if nothing isdonewith thelawsuitotherthan carrying ittoits regularconclusion." Abrams, 28 Wn. App. at 749. 

### Swingerfirst argues Vanderpol's filing ofthefederal suitwas an abuseof process because thecourt lacked subjectmatterjurisdiction. Filing suitin acourt thatlacksjurisdiction does notby itselfsatisfy eitherelement ofan abuse of 

### process claim. There isno evidencethatVanderpol had anulteriormotive. The lawsuitwas carried to a regularconclusion when the appellate courtdismissed it for lack ofjurisdiction.

11No. 74703-7-1/12 

### Swinger nextargues itwas an abuse ofprocess for Vanderpol to include
an adverse possession claim in his federal court lawsuit when he had not paid the taxes on the subject property. Again, Swingerfails to identifyevidence 

### satisfying the elements of an abuse ofprocess claim. Assuming for the sake of argument that Vanderpol filed the adverse possession claim withoutthe evidence needed to prove it, that would make his claim baseless, but itwould not establish


### an abuse ofprocess. The trial court properly dismissed the abuse ofprocess claim. 

### Next, we address Swinger's claim thatVanderpol, through his communications with the District, is liable for a tortious interference with contract. 

### Swinger argues thatVanderpol interfered with Swinger's contract withthe Conservation Reserve Enhancement Program. Vanderpol's December 2011 

### letter to the Districtasserted that if planting occurred on his property without his consent, he would "pursue his full legal rights and remedies with regards to such
an intentional trespass." In his February 2012 letter, he reiterated that he would seek legal recourse if a trespass occurred. Swinger asserts that Vanderpol's "criticism and litigation threat letter" constitutes a tortious interference. He claims 

### damages of$54,370, the amount he would have received for participating in the
program. The information Vanderpol communicated to the District—that he allegedly owned the property Swingerwas attempting to commitfor preservation—was 

### relevantto the District's decision whetherto proceed with a project on Swinger's property. The District is a government agency. See RCW 89.08.020. The trial

12No. 74703-7-1/13
court properly dismissed Swinger's interference claim because Vanderpol has a statutory immunity from a suit based on his communications with a government agency. "Aperson who communicates a complaint or information to any branch
or agency offederal, state, or local government... is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably ofconcern to that agency or organization." RCW 4.24.510. The purpose ofthis statute is "to protect individuals who make 

### good-faith reports to appropriate governmental bodies," based on a finding that "the threat of a civilaction for damages can act as a deterrentto citizens who 

### wish to report information to federal, state, or local agencies." RCW4.24.500. The tortious interference claim was properly dismissed for an additional

reason. One element ofa tortious interference claim is the existence ofa valid contract. Calbom v. Knudtzon. 65 Wn.2d 157, 162, 396 P.2d 148 (1964). 

### Swinger's interference claim depends on his having a valid contractwiththe District. As discussed above in connection with the unjust enrichment claim, 

### Swinger is precluded from asserting that he owns land on the east bank. Swinger cannot prove he has a valid contractwith the District as to property on the east bank because he cannot prove he owns that property. Last, we considerthe issue ofattorney fees and costs. Relying on RCW 4.24.510, the trial court awarded Vanderpol $10,000 in statutory damages as well


### as the attorney fees he incurred inobtaining dismissal ofSwinger's claim of tortious interference with contract. Vanderpol requests an award ofattorney fees and costs for this appeal under the same statute.

13No. 74703-7-1/14
A person immune from suit under RCW4.24.510 "is entitled to recover 

### expenses and reasonable attorneys' fees incurred inestablishing the defense and inaddition shall receive statutory damages often thousand dollars. Statutory damages may be denied ifthe courtfinds thatthe complaint or information was communicated in bad faith." RCW 4.24.510. Swingercontends itwas errorfor the trial courtto award damages and fees underthe statute. He cites Gontmakherv. City of Bellevue. 120 Wn. App. 365, 366, 85 P.3d 926 (2004), for the proposition thatfor RCW 4.24.510 to apply, the information communicated to an agency must concern "potential wrongdoing." He contends that Vanderpol "did notflag" potential wrongdoing by Swingerwhen he communicated with the District. The phrase "potential wrongdoing" occurs in Gontmakher, where the opinion explains the background ofthe statute by quoting legislative findings. Gontmakher. 120Wn. App. at 371. The legislative findings are stated in RCW 4.24.500: Information provided by citizens concerning potential wrongdoing is vital to effective law enforcement and the efficient operation of government. The legislature finds that the threat of a civil action for damages can act as a deterrent to citizens who wish to report information to federal, state, or local agencies. The costs of defending against such suits can be severely burdensome. The purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies. The quoted language explains why the legislature saw fit to enactthe statute; itdoes not create a requirement or element. The operative language concerning immunity and attorney fees is found inthe next section ofthe statute, RCW4.24.510. This section does not require that the "complaint or information"
14No. 74703-7-1/15
communicated by the speaker must concern wrongdoing in orderfor immunity to attach.As discussed above, Vanderpol is immune from suit under RCW 4.24.510 with respect to the tortious interference claim. The court did notfind that Vanderpol communicated information to the District in bad faith. Therefore, the trial court did not err in awarding to Vanderpol the mandatory damages of $10,000 as well as the expenses and reasonable attorney fees he incurred to establish the defense of immunity. Subjectto compliance with RAP 18.1, Vanderpol is entitled to an award ofthe attorney fees and costs he incurred in this appeal that are related to the immunity defense under RCW 4.24.510. Affirmed.

WE CONCUR: 

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