IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CITIZENS ALLIANCE FOR

PROPERTY RIGHTS LEGAL FUND,

A Washington non-profit corporation,

Appellant,

v.

SAN JUAN COUNTY, a Washington

and the SAN JUAN COUNTY CRITICAL

AREA ORDINANCE/SHORELINE

MASTER PROGRAM IMPLEMENTA

TION COMMITTEE, a subcommittee

of the San Juan County Council,

Respondents.

No. 70606-3-1

ORDER GRANTING MOTION

TO PUBLISH

Washington State Association of Municipal Attorneys filed a motion to

publish the unpublished opinion filed in the above mater on April 28, 2014. The

court called for an answer to the motion. Answers to the motion to publish was

filed by the appellants, by Allied Daily Newspapers of Washington, and

Washington Coalition for Open Government.

A majority of the panel has determined that the motion to publish should

be granted. Now, therefore, it is hereby

ORDERED that the motion to publish the opinion is granted.

DATED this \6 "day of \\jJ^— •2014

residing Jddge

P<5 CO o

—• r~i c. -i.-- ^>,~o c_

cr

-r> '

CD ~Z.Z-Q

T! CO P"i

:±:'j>

CO ;•;-) CO *•

ro .;;--:,~1
^^•'Jii I lit f

STATE Of

20IUPR28 AH 10: 30

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CITIZENS ALLIANCE FOR

PROPERTY RIGHTS LEGAL FUND,

A Washington non-profit corporation,

Appellant,

SAN JUAN COUNTY, a Washington

and the SAN JUAN COUNTY CRITICAL

AREA ORDINANCE/SHORELINE

MASTER PROGRAM IMPLEMENTA

TION COMMITTEE, a subcommittee

of the San Juan County Council,

Respondents.

No. 70606-3-1

DIVISION ONE

PUBLISHED OPINION

FILED: April 28. 2014

Spearman, C.J. — The central issue in this case is whether members of

the San Juan County Council (the Council) violated the Open Public Meetings

Act (OPMA) by attending a series of closed meetings as part of a working group

known as the San Juan County Critical Area Ordinance/Shoreline Master

Program Implementation Committee (CAO Team).1 Citizens Alliance for Property

Rights Legal Fund (CAPR) appeals the trial court's summary judgment dismissal

of its lawsuit against San Juan County (the County) and the CAO subcommittee,

1This group is referred to by several different names in the record, including CAO/SMP

Implementation Committee, CAO/SMP Implementation Team, CAO Facilitation Group, and Pete's

Implementation Team. Forsimplicity, it is referred to herein as the "CAO Team."
No. 70606-3-1/2

arguing that the trial court misinterpreted and misapplied several key provisions

of OPMA and erroneously ruled that there were no genuine issues of material

fact. Finding no error, we affirm.

FACTS

In 2010, San Juan County began the process of updating its Critical Area

Ordinances pursuant to the Growth Management Act, chapter 36.70A RCW. The

CAO Team, which included members of the County executive staff as well as

three of San Juan County's six councilmembers, was formed to facilitate and

coordinate the County's efforts in this regard. The CAO Team did not open its

meetings to the public.

In April 2012, San Juan County Prosecuting Attorney Randall Gaylord

issued a memorandum advising the Council that "no meetings of three council

members should occur without complying with the notice and other requirements

of the Open Public Meetings laws." Clerk's Papers (CP) at 452. Gaylord

acknowledged that the law in this regard is uncertain, but opined that "[e]ven if

the law is not clear, the better approach is to err on the side of following the Open

Public Meetings Act." CP at 452. The Council members followed Gaylord's

advice and immediately discontinued this practice.2

Ten months later, the Council adopted four critical areas ordinances. Prior

to adoption, the Council held approximately 75 public meetings to discuss the

2 In November 2012, the voters of the County changed the Council from a six to a three

member governing body, effective May 2013.
No. 70606-3-1/3

critical areas ordinance and provide opportunity for public comment. More than

30 of these meetings occurred after the CAO Team stopped meeting in April

2012.

In October 2012, CAPR filed a complaint against the County, the CAO

Team, and Councilmembers Richard Fralick, Patty Miller, and Lovel Pratt,

alleging that the CAO Team meetings violated the OPMA. CAPR requested (1)

nullification of all actions taken in violation of OPMA; (2) civil penalties against

each member that committed knowing violations of OPMA; (2) an award of costs

and attorney fees; and (4) injunctions enjoining future violations of OPMA and the

Growth Management Act. In an Amended Complaint filed in November 2012,

CAPR non-suited its Growth Management Act injunction action, dismissed its

claim against the individual Council members, and waived civil penalties.

The County moved for summary judgment, arguing that CAPR lacked

sufficient evidence to support its case. CAPR submitted voluminous evidence in

response.3 In a letter decision, the trial court concluded that CAPR had failed to

show that there was an issue of material fact regarding whether the CAO Team

meetings violated the OPMA, and granted summary judgment to the County. The

3CAPR argues that the trial court should have treated the County's summary judgment

motion as a motion for judgment on the pleadings under CR 12(c) because the County only

attacked allegations in CAPR's complaint and failed to submit affidavits or identify portions of the

record which demonstrate the absence of a genuine issue of material fact. This argument lacks

merit. Even assuming for the sake of argument that the County's motion was functionally a

motion for judgment on the pleadings, it was converted to a motion for summary judgment when

CAPR submitted evidence in response. CR 12(c); P.E. Systems, LLC v. CPI Corp., 176 Wn.2d

198, 206, 289 P.3d 638 (2012). We also note that both parties had a reasonable opportunity to

present materials relevant to a summary judgment motion within the CR 56(c) time for response.

-3
No. 70606-3-1/4

trial court also denied CAPR's subsequent motion for reconsideration.4 CAPR

appeals.5

DISCUSSION

This court reviews an appeal from summary judgment de novo. Bostains

v. Food Express. Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). Summary

judgment is appropriate only if"the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, ifany, show

that 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). All facts and reasonable

inferences are construed in the light most favorable to the nonmoving party.

Shoulberq v. Public Utility Dist. No. 1 of Jefferson Cv., 169Wn.App. 173, 177,

280 P.3d 491 (2012), rev. denied. 175 Wn.2d 1024 (2012).

"[A] partymoving for summaryjudgment can meet its burden by pointing

out to the trial court that the nonmoving party lacks sufficient evidence to support

its case." Guile v. Ballard Community Hosp.. 70 Wn. App. 18, 21, 851 P.2d 689

(1993). "After the moving party meets itsinitial burden to show an absence of

4CAPR contends that the trial court erred in dismissing CAPR's complaint in its entirety,

including its claims againstthe San Juan County Council's Budget Subcommittee, General

Governance Subcommittee, and SolidWaste Subcommittee, because the County's motion for

summary judgment only sought dismissal of allegations against the CAO Team. Thisargument

lacksmerit. CAPR's allegations and argumentsfocused solely on the CAO Team. CAPR made

some passing references to the othersubcommittees in its amended complaint and responseto

the County'smotion for summaryjudgment, but did not name those subcommittees as

defendants, include them in its claim for relief, or provide evidenceand argumentin supportof its

assertion that they violated OPMA.

5Allied Daily Newspapers ofWashington, Washington Newspapers Publishers

Association, and Washington Coalition for Open Government also filed an amicus brief.

4-
No. 70606-3-1/5

material fact, the inquiry shifts to the party with the burden of proof at trial. . .."

West v. Thurston Cv.. 169 Wn.App. 862, 866, 282 P.3d 1150 (2012) rev. denied.

176Wn.2d 1012 (2013). citing Young v. Kev Pharm.. Inc.. 112 Wn.2d 216, 225,

770 P.2d 182 (1989). "If the moving party is a defendant and meets this initial

showing, then the inquiry shifts to the party with the burden of proof at trial, the

plaintiff:" Young. 112 Wn.2d at 225. "If, at this point, the plaintiff 'fails to make a

showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial,' then

the trial court should grant the motion." Young, 112 Wn.2d at 225, quoting

Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986).

Email exchange

"[T]he OPMA is a comprehensive statute, the purpose ofwhich is to

ensure that governmental actions take place in public." Feature Realty. Inc. v.

City of Spokane. 331 F.3d 1082, 1086 (9th Cir. 2003). OPMA contains a strongly

worded statement of purpose: "The legislature finds and declares that all public

commissions, boards, councils, committees, subcommittees, departments,

divisions, offices, and all other public agencies of this state and subdivisions

thereof exist to aid in the conduct of the people's business. It is the intent of this

chapterthat their actions be taken openly and that their deliberations be

conducted openly." RCW 42.30.010. The statute mandatesliberal construction to

further its policies and purpose. RCW42.30.910.
No. 70606-3-1/6

To enforce OPMA's civil penalty provision, plaintiffs must show (1) that a

member of a governing body (2) attended a meeting of that body (3) where

action was taken in violation of OPMA and (4) the member had knowledge that

the meeting violated OPMA. Wood v. Battle Ground Sch. Dist.. 107 Wn. App.

500, 558, 27 P.3d 1208 (2001). Where, as here, plaintiffs are not seeking to

enforcethe civil penalties provision, the fourth factor is inapplicable.6

OPMA provides that "[a]ll meetings of the governing body of a public

agency shall be open and public and all persons shall be permitted to attend any

meeting ofthe governing bodyofa public agency, except as otherwise provided

in this chapter." RCW 42.30.030. A"governing body" is "themultimember board,

commission, committee, council, or other policy or rule-making body of a public

agency, or any committee thereof when the committee acts on behalf ofthe

governing body, conducts hearings, ortakestestimony or public comment." RCW

42.30.020(2). A"public agency" is "[a]ny county, city, school district, special

purpose district, or other municipal corporation or political subdivision ofthe state

ofWashington." See RCW 42.30.020(1 )(a). "Meeting" is defined as "meetings at

6There is some confusion in the case law regarding the proper standard to avoid

summary judgment dismissal ofan OPMA claim that does not involve civil penalties. In Eugster v.

Citv ofSpokane. 110Wn. App. 212, 222, 39 P.3d 380 (2002), Division Three citedWood in

stating that "[to] defeat summary judgment dismissal of an OPMA claim, the plaintiff must submit

evidence showing "(1) that a 'member' ofa governing body (2) attended a 'meeting' of that body (3) where 'action' was taken in violation ofthe OPMA, and (4) that the member had 'knowledge'

thatthe meeting violated OPMA." Wood. 107 Wn. App. at 558. However, theWood court was

specifically addressing a request to impose civil penalties under RCW 42.30.120(1), which

requires a showing that the member knowingly violated OPMA. The other three remedies

available under OPMA do notrequire proof ofknowledge. See RCW 42.30.060(1) (nullification of

action); RCW 42.30.120(2) (attorney fee award); RCW 42.30.130 (injunction). Thus, it is not

appropriate to graft a knowledge requirement onto the test for overcoming summary judgment

where civil penalties are not at issue.
No. 70606-3-1/7

which action is taken." See RCW 42.30.020(4). "Action" means "the transaction

of the official business of a public agency by a governing body including but not

limited to receipt of public testimony, deliberations, discussions, considerations,

reviews, evaluations, and final actions." See RCW 42.30.020(3).

Clearly, the Council is the "governing body" of a "public agency." However,

under Washington case law, a gathering that includes less than a majority of the

governing body does not violate OPMA. Wood, 107 Wn. App. at 564, citing In re

Recall of Beaslev. 128 Wn.2d 419, 427, 27 P.3d 878 (1996) and In re Recall of

Roberts. 115 Wn.2d 551, 554, 799 P.2d 734 (1990). At all times relevant to this

case, the Council had six members. Therefore, a gathering that includes three

councilmembers does not constitute a "meeting" of the Council for OPMA

purposes, regardless of whether "action" is taken.

CAPR contends that on November 14, 2011, four of six councilmembers

held a "meeting" in violation of OPMA by participating in an email and telephone

exchange in which they discussed CAO Team matters. The trial court properly

rejected this argument, both on the merits and because CAPR first advanced the

argument in its motion for reconsideration. "[T]he OPMA does not require the

contemporaneous physical presence of [members of the governing body] in order

to constitute a meeting." Eugster. 110 Wn. App. at 224. An exchange of emails

can constitute a "meeting" for OPMA purposes. Wood. 107 Wn. App. at 564.

However, "the mere use or passive receipt of e-mail does not automatically

constitute a 'meeting.'" Wood. 107 Wn. App. at 564. Viewed in the light most
No. 70606-3-1/8

favorable to CAPR, the record shows that at most three councilmembers

(Richard Fralick, Lovel Pratt, and Rich Peterson) participated in the active

discussion of issues by phone or email. The fourth councilmember, Patty Miller,

received a copy of the email, but there is no evidence that she responded or

actively participated in the discussion.

CAPR also vaguely asserts that four Council members were present at

other "meetings of the subcommittees" but fails to back up this claim with

argument or citations to the record. We need not consider it. State v. Dennison.

115Wn.2d609, 629, 801 P.2d 193(1990); RAP 10.3(a)(5).

Negative Quorum

CAPR argues that this court should create a new rule and hold that a

"meeting" occurs for the purposes of OPMA when the number of members

present issufficient to block action when the matter discussed comes up for a

vote before the governing body, thereby constituting a "negative quorum." In

support, CAPR cites a Wisconsin case, State ex rel. Newspapers. Inc. v.

Showers. 135 Wis.2d 77, 398 N.W.2d 154 (1987). In Showers, four members of

an eleven member body met to discuss budget measures. Showers. 135 Wis.2d

at 80. Passing the budget measure required a two-thirds vote, meaning that eight

out of eleven members had to approve the change. ]d. The Wisconsin Supreme

Court held that Wisconsin's Open Meeting Law applied because four members

could block the parent body's course of action regarding the proposal discussed

at the meeting byvoting together. Id. at 80. Prior to May 2013, the Council had

8
No. 70606-3-1/9

six members, with at least four votes necessary to pass ordinances. Therefore,

applying the reasoning of Showers. CAPR contends that a gathering of three

councilmembers constitutes a "negative quorum" to which OPMA requirements

should apply.

No Washington cases directly address the reasoning of the Showers case.

San Juan County Prosecutor Randall Gaylord cited Showers in his April 2012

memorandum advising the Council that OPMA requirements should be followed

when three of six councilmembers gather to discuss County business. Given the

OPMA's mandate for liberal construction, this argument is not frivolous.

Nevertheless, we decline to follow Showers. As an out-of-state case, it is not

binding on this court. Moreover, itwould carve out a significant exception to wellestablished Washington precedent holding that OPMA does not apply where a

majority of the governing body is not present. See Beasley. 128 Wn.2d at 427 (in

recall action, no meeting of majority of school board); Roberts. 115 Wn.2d at 554

(in recall action, no meeting of majority of town councilmembers). We also note

that, effective May 2013, San Juan County voters reduced the size of the Council

from six members to three, thereby eliminating the possibility that the negative

quorum issue could arise again in San Juan County.

Governing Body

CAPR next argues that it does not matter ifa majority of the Councilwas

not present at CAO Team meetings, because the CAO Team itselfwas a

"governing body" subject to OPMA requirements. The term "governing body"

9-
No. 70606-3-1/10

includes "the multimember board, commission, committee, council, or other

policy or rule-making body of a public agency," as well as "any committee thereof

when the committee acts of behalf of the governing body, conducts hearings, or

takes testimony or public comment." RCW 42.30.020(2). According to CAPR, the

CAO Team was a "governing body" because itwas a "committee" of the Council

that "acted on behalf of the Council.7 Therefore, CAPR contends that a

"meeting" occurred for OPMA's purposes each time the CAO Team met and

"acted on behalf of the Council, regardless of how many councilmembers were

present.

The OPMA does not define the phrase "acts on behalf of."8 OPMA defines

"action" as "the transaction of the official business of a public agency by a

governing body including but not limited to receipt of public testimony,

deliberations, discussions, considerations, reviews, evaluations, and final

actions." RCW 42.30.020(3). Applying common law principles of agency, amici

argue that a committee "acts on behalf of a governing body when it takes

"action" as defined in RCW 42.30.020(3) on behalf of the principal and under the

principal's control. CAPR and amici thus argue that the CAO Team "acted on

7 Because CAPR did not allege that the CAO Team ever conducted hearings or took

testimony or public comment, that portion of RCW 42.30.020(2) is not at issue.

8OPMA as originally passed in 1971 did not contain this phrase. The previous definition

of "governing body" was "the multimember board, commission, committee, council, or other policy

or rule-making body of a public agency." Former RCW 42.30.020 (1971). The statute was

amended in 1983 to add the phrase "or any committee thereof when the committee acts on behalf

of the governing body, conducts hearings, or takes testimony or public comment." RCW

42.30.020(3).

10
No. 70606-3-1/11

behalf of the Council because it took "action" by conducting ordinance-related

deliberations, discussions, considerations, and other business subject to the

Council's control.

There is no Washington case law directly addressing the circumstances

under which a committee "acts on behalf of a governing body.9 However, a 1986

Attorney General Opinion (AGO)10 specifically analyzed this question. The AGO

stated that there are two possible interpretations of the phrase "acts on behalf

of." First, "a committee might act on behalf of the governing body whenever it

performs a specified function in the interest of the governing body." AGO at 5.

Under this broad definition, a committee would be subject to the OPMA

whenever it meets and takes "action," just as governing bodies do. This is the

interpretation CAPR and amici urge us to adopt. Second, "a committee might act

on behalf of the governing body onlywhen it exerts power or influence or

produces an effect as the representative ofthe governing body." jd. Under this

narrower definition, "a committee acts on behalf of the governing body only when

it exercises actual or de facto decision making authority for the governing body."

\± This is the interpretation the County urges us to adopt.

9 InClark v. Citv of Lakewood. 259 F.3d 996, 1013 (9th Cir. 2001), the Ninth Circuit held

that OPMA applied to a taskforce that took public testimony, held hearings, and acted on behalf

ofthegoverning body. The court concluded that these activities placed it "squarely within the

ambit ofRCW 42.30.020(2) without addressingthe circumstances underwhich a committee "acts

on behalf of a governing body.

10 AGO 1986 No. 16.

11
No. 70606-3-1/12

The AGO acknowledged that the statutory mandate for liberal construction

supports the broad definition, but nevertheless concluded that "the narrower

construction correctly reflects the intent of the legislature." jd. First, the AGO

noted that the phrase "when the committee acts on behalf of the governing body,

conducts hearings, or takes testimony or public comment" would be superfluous

ifall committees were subject to the OPMA. The AGO observed that ifthe

legislature intended a broad interpretation of the phrase "acts on behalf of," it

would have used the word "action" instead of "acts" and added the words "or any

committee thereof to the definition of "governing body," thereby subjecting a

committee to the OPMA on the same basis as the governing body itself- when

"action" is taken, jd at 6. Second, the AGO carefully examined the legislative

history ofthe 1983 amendments to the definition of "governing body," which

suggest thatthe Legislature did not intend OPMA to apply to committees that "do

nothing more than deliberate the making of policy or rules." AGO at 6.

Mr. Isaacson: "What are the requirements with respect to

giving formal notice?"

Ms. Hine: "It's the intent of the legislation, we believe,

subject to the deliberations of the governing body, that this apply

only to deliberations of the governing body or subcommittees

which the governing body specifically authorizes to act on its

behalf, or which policy, testimony, or comments are made in its

behalf. In other words, it's when making policy or rules, not for

general comments or any kind of informal type meeting thev may

have. Those would not require the official formal notice. AGO at

7.

12
No. 70606-3-1/13

Thus, based on the narrower definition, the AGO concluded that "a committee

acts on behalf of the governing body when it exercises actual or de facto decision

making authority for the governing body. This is in contrast to the situation where

the committee simple provides advice or information to the governing body."

AGO at 7. Advisory committees would not be subject to OPMA. jd. at 8. We find

the AGO persuasive, and adopt its reasoning.

CAPR and amici argue that the trial court erred in relying on Loeffelholz v.

CLEAN.. 119 Wn. App. 665, 82 P.3d 1199 (2004) and concluding that the

CAO Team could not have "acted on behalf of the Council because there is no

evidence it had policy or rule making authority. In Loeffelholz. the plaintiff argued

that election workers were a "governing body" because the county canvassing

board delegated its authority to them. The court, citing Refai v. Central

Washington Univ.. 49 Wn. App. 1,13, 742 P.2d 137 (1987), held that the election

workers could not be a "governing body" unless they had "policy-making or rule

making authority." Loeffelholz. 119 Wn. App. at 704. According to CAPR and

amici, Loeffelholz is incorrect because Refai was based on the old definition of

"governing body," which was limited to a "board, commission, committee, council,

or other policy or rule-making body of a public agency. . .." Former RCW

42.30.020(2) (1983). The Refai court acknowledged in dicta that a "stronger

case" can be made for advisory bodies to be subject to OPMA under the new

definition of "governing body." ]d. at 14, n.5. To the extent that a committee might

exercise de facto decision making authority without being formally designated as

13
No. 70606-3-1/14

a policy or rule-making body, this argument does not lack merit. Ultimately,

however, it is irrelevant, because the trial court correctly relied on the 1986 AGO

and concluded there is no evidence that the CAO Committee exercised actual or

de facto decision making authority.

First, CAPR submitted no admissible evidence that the Council created

the CAO Team or delegated its decision making authority11. CAPR claims that

the County's public participation plan proves that the Council created the CAO

Team. This is incorrect. The plan merely includes a list of individuals responsible

for establishing the CAO Team, including the County administrator, the County

prosecutor, three members of the Council, and several other individuals. CAPR

also points to the testimony of San Juan County Planning Coordinator Shireene

Hale, who testified that the Council "would have created it." CP at 380. But the

trial court properly granted the County's motion to strike this statement as

hearsay, as there was no showing that she had personal knowledge to testify to

this belief. Furthermore, Council member Lovel Pratt testified that the County

Administrator created the CAO Team, and five Council Members submitted

11 CAPR's assertion that the trial court "determined that the Council created the CAO

Subcommittee" is plainly incorrect. Appellant's Reply Brief at 10.The trial courtsimply stated that

it"can further assume, for the sake of argument, and without deciding, that the committee was

established by the county council, as opposed to the county administrator. In point offact, there

appears to be no competentevidence in the record to indicate that the committee was

established by the county council " CP at 818. The trial court then stated thatitsdecision

would be the same regardless ofwhether the council or the county administrator created the

team.

14-
No. 70606-3-1/15

declarations stating that they took no action to create the Team or to delegate

authority to the Team.12

The trial court further concluded that even assuming for the sake of

argument that the County could direct the CAO Team to act on its behalf, there is

no evidence in the record indicating that it did so. CAPR contends that it did,

pointing to County Prosecutor Randall Gaylord's memo, in which he stated that

"[d]uring the course of committee meetings, ideas and policies are brought

forward, discussed, narrowed and discarded and approaches are formulated for

making presentations of subcommittee work to the entire Council." CP at 453.

CAPR also cites County planner Shireene Hale's statement that "this group was

trying to take care of some of the behind the scenes details so that the Council -

the full Council could focus on making policy decisions and having substantive

discussions and giving the staff direction on what they wanted to see." CP at 409.

Even viewed in the light most favorable to CAPR, these statements do not

provide evidence that the CAO Team exercised actual or de facto decision

making authority. Rather, they describe an advisory or information role.

12 CAPR contends that the trial court erred in granting the County's motion to strike

Hale's statement and denying its motion to strike the declarations of the County Council

members. We disagree. The County properly requested that the Court strike all inadmissible

hearsay from CAPR'sdeclarations, and Hale's statement was clearly hearsay. CAPR'sassertion

that the County's motion to strikewas not timely is particularly unconvincing, where the record

shows that CAPR requested and was granted a motion to shorten time in order to file its own

motion to strike, and the court considered the County's motion to strike at the same time. VRP

(4/19/2013) at 3-4. The trial courtalso properly deniedCAPR's motion to strike the Council

members' statements, as they did not conflict with previous testimony.

15-
No. 70606-3-1/16

In sum, we adopt the reasoning of the 1986 AGO and hold that a

committee "acts on behalf of a governing body when it exercises actual or de

facto decision making authority. Because CAPR submitted no evidence that a

majority of the Council attended CAO Team gatherings or that the CAO Team

exercised actual or de facto decision making authority, no "meeting" occurred for

OPMA purposes, and summary judgment was appropriate. Because CAPR is not

the prevailing party, it is not entitled to an award of attorney fees.

Affirmed.

WE CONCUR:

\du^^Ca> t

16