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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
GARY LOWE, an individual, Appellant, v. CARL ROWE, JR., an individual, Respondent. ) No. ) 30282-2-III

) ) ORDER GRANTING ) MOTIONS TO PUBLISH ) ) ) )

THE COURT has considered the appellant's and third party's motions to publish the court's opinion of December 6, 2012, and the record and file herein, and is of the opinion the motions to publish should be granted. Therefore, IT IS ORDERED, the motions to publish are granted. The opinion filed by the court on December 6, 2012, shall be modified on page 1 to designate it is a published opinion and on page 13 by deletion of the following language: A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040. PANEL: Judges Korsmo, Sweeney, Brown DATED: BY A MAJORITY:

No. 30282-2-III Lowe v. Rowe

________________________________ KEVIN M. KORSMO Chief Judge

No. 30282-2-III Lowe v. Rowe

FILED DEC 06, 2012
In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE GARY LOWE, an individual, ) ) ) ) ) ) ) ) ) No. 30282-2-III

Appellant, v. CARL ROWE, JR., an individual, Respondent.

PUBLISHED OPINION

Korsmo, C.J. -- Gary Lowe sued Carl Rowe, Jr., after Mr. Rowe asked law enforcement to serve a trespass notice on Mr. Lowe. The trial court on summary judgment dismissed the ensuing defamation action on the basis of Washington's antiSLAPP1 statute, RCW 4.24.510. We uphold the application of the anti-SLAPP immunity to these facts, but remand the statutory damages for trial because a factual question exists

1

Strategic lawsuits against public participation.

No. 30282-2-III Lowe v. Rowe

that precludes summary judgment. FACTS This dispute has its genesis in a will. Mr. Vernon Marll died and left old vehicles valued at approximately $10,000 to his nephew, Mr. Lowe. Title to the inherited vehicles, which included a Model A Ford pickup truck, was transferred to Mr. Lowe on June 17, 2008. The vehicles were located on Mr. Marll's real property in Columbia County. Mr. Lowe also stored several personal vehicles, including tractors and trailers, on his uncle's property. Mr. Marll's estate entered into an agreement to sell the Columbia County realty to Mr. Rowe on April 28, 2008. Five days later, the estate wrote Mr. Lowe and asked him to remove the vehicles within 30 days due to the pending sale. The estate's attorney recognized that the time period might constitute a hardship for Mr. Lowe who wintered in Texas, but spends his summers in Dayton, Washington. Mr. Lowe did not remove the vehicles during the 30-day period. With the agreement of the estate, Mr. Rowe took over early possession of the land in April, although the sale did not close until October 31, 2008. Mr. Rowe later stated that he was told by a real estate agent that any cars left on the land after 30 days became his property. When the 30-day period expired, Mr. Rowe gave Mr. Lowe two more weeks to retrieve the vehicles. During July 2008, Mr. Lowe apparently retrieved some of

No. 30282-2-III Lowe v. Rowe

the vehicles and Mr. Rowe assisted by unlocking the gate to the property and by removing some blackberry bushes that had grown up around several of the vehicles. Mr. Rowe had several of the vehicles crushed and removed from the property on August 8, 2008. Mr. Lowe engaged a tow truck to remove a truck from the Marll property on August 12, 2008. Mr. Rowe claimed to have already sold the truck to a scrap man for $80 and obtained Mr. Lowe's promise to pay him $80 for the truck. Mr. Lowe removed the truck, but never paid the $80. Later that day, Mr. Rowe went to the Columbia County Sheriff's Office to have them serve a trespass notice on Mr. Lowe that prohibited him from returning to the property. As Mr. Rowe subsequently explained, "it made me mad, so I followed him right down the street and I got a restraining order [criminal trespass warning] against Gary to keep him off the property." Clerk's Papers (CP) at 173. Prohibited from returning to the property, Mr. Lowe turned to the courts. He filed an action against Mr. Rowe in February 2009, alleging conversion of the vehicles and defamation due to the trespass notice. The parties agreed in July 2010 that Mr. Lowe could remove the remaining vehicles that had not been destroyed; he promptly did so. Mr. Rowe moved to dismiss the complaint in June 2011, citing both CR 12(c) and CR 56(c). Specifically, he claimed that the conversion claim was barred by laches or waiver, while he was immune from the defamation claim by operation of RCW 4.24.510.

No. 30282-2-III Lowe v. Rowe

CP at 41. Materials submitted for consideration with the motion to dismiss included affidavits, exhibits, and portions of deposition testimony. The trial court dismissed the conversion claim for failure to timely claim the vehicles and the defamation claim on immunity grounds. The court also imposed statutory damages of $10,000 under the antiSLAPP statute and awarded Mr. Rowe his attorney fees for defense of the defamation claim under the same authority. Mr. Lowe timely appealed to this court. ANALYSIS Mr. Lowe contends that the anti-SLAPP statute was inapplicable to this case and that Mr. Rowe could not rely on the provision without first establishing that he acted in good faith, thus presenting a factual issue that prevented summary judgment. Mr. Lowe also argues that the court erred in dismissing the conversion claim as a matter of law because factual issues existed. We will address the two causes of action in turn. We review summary judgment rulings in accordance with well-settled standards. This court reviews summary judgments de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). "A material fact is one that affects the outcome of the litigation." Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 789, 108 P.3d

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1220 (2005). When considering a summary judgment motion, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). Once a moving party has made a showing that no material facts are in dispute, the party opposing summary judgment must come forward with specific facts in dispute; it cannot rely on conclusory statements or speculation to defeat summary judgment. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Dismissal under CR 12 is appropriate only where it appears beyond doubt that the plaintiff cannot prove any set of facts that would justify recovery. Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005). We review the trial court's decision on a motion on the pleadings de novo. Gaspar v. Peshastin Hi-Up Growers, 131 Wn. App. 630, 634, 128 P.3d 627 (2006). A motion to dismiss for failure to state a claim (CR 12(b)(6)) and a motion for judgment on the pleadings (CR 12(c)) raise identical issues and are subject to the same standard of review. Id. at 634-35. When the court considers matters outside of the pleadings, a motion to dismiss will be considered a motion for summary judgment. CR 12(c). That is what happened here. Because the court considered evidence, we will treat this ruling as a summary judgment. Anti-SLAPP Statute The arguments Mr. Lowe presents arise from the evolution of our statute. One

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commentator described the original 1989 statute as legislation that "more closely resembles a whistleblower immunity statute." Michael E. Johnston, A Better SLAPP Trap: Washington State's Enhanced Statutory Protection for Targets of "Strategic Lawsuits Against Public Participation," 38 Gonz. L. Rev. 263, 282 (2003). The description is apt. The original 1989 statement of intent was enacted as RCW 4.24.500 and remains unaltered to this day. After describing legislative findings that civil litigation could deter citizen reports to the government, the statute concludes with a statement that its purpose "is to protect individuals who make good-faith reports to appropriate governmental bodies." Id. The operative provision of the act to this case is RCW 4.24.510. As originally enacted that statute provided that any "person who in good faith" communicated to a government agency "any matter reasonably of concern" was "immune from civil liability" for claims based on that communication. Laws of 1989, ch. 234,

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