# Dore v. Kinnear > Washington Supreme Court · October 14, 1971 · 79 Wash. 2d 755 URL: https://www.frixlaw.com/law-library/cases/9551802 ## Case - **Full name:** Fred H. Dore Et Al., Appellants, v. George Kinnear Et Al., Respondents - **Court:** Washington Supreme Court - **Decided:** October 14, 1971 - **Citations:** 79 Wash. 2d 755; 489 P.2d 898; 1971 Wash. LEXIS 649 - **Precedential status:** Published - **Opinion:** Dissent by Stafford - **Judges:** Hunter, Finley, Neill, Stafford - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9551802 ## Opinion text Stafford, J. (dissenting) — A great portion of the thrust and breadth of the majority opinion has been achieved by characterizing this as a class action. A review of the record reveals that position is incorrect. Subsequent to the filing of their complaint, plaintiffs moved to maintain the cause as a class action. The trial court entered a conditional order 4 , pursuant to CR 23(c) (1), allowing plaintiffs to proceed as representatives of a class'. However it specifically reserved for later determination the delineation of the common questions of fact to be resolved 5 and the form of notice to be given the members of the class. 6 *782 There can be no question but that the trial court assumed, by its order, that notice should be furnished to all members of the class since the issue left open was the form of notice, not whether notice should he furnished. Thereafter, the case was preassigned for trial. The court, acting pursuant to the prior order, ruled .that the only common issue to be determined by a class action was the form of a “short form assessment protest” requested by the plaintiffs. The original order was amended, as authorized by CR 23(c) (1), to reserve for later determination, during the trial on the merits, all remaining issues including the question of whether there were issues of sufficient substance to merit converting the matter into a class action. 7 The cause proceeded to hearing and, with exceptions unimportant here, the plaintiffs’ complaint was dismissed with prejudice. The trial court at no time converted the suit into a class. action although it had reserved the power to do so. Further, no class was ever determined upon which a judgment, favorable or unfavorable, would be binding; no form of notice was prescribed; and no form of notice was disseminated to prospective members of any class regardless of their designation. In short, those things that were required to he done, both by court rule and court order, to finally convert the case into a class action, were deemed unnecessary and thus were not done. As pointed out in 3B, J. Moore, Federal Practice ¶[ 23.55, at 1152-59 (2d ed. 1969), notice is a matter of due process *783 in all class actions brought under CR 23 (b) (3) because there is no jural relationship between the members. They are merely fellow travelers related only by some common question of law or fact with a right to opt out of the class. The mandatory notice informs them of that right. Although the plaintiffs’ complaint denominated the lawsuit a class action and despite the fact that plaintiffs have referred to it as such in their brief, none of their 12 assignments of error remotely touch upon the trial court’s eventual refusal to take those final steps necessary to convert the case into a class action pursuant to CR 23(c) (2). Having failed to assign error to the trial court’s action, if it was error, this court cannot properly consider the matter. ROA 1-43. The plaintiffs belatedly raised the subject in their reply brief. We have held consistently, however, that an appellant may not present contentions or urge in his reply brief any grounds for reversal not clearly pointed out in his original brief. Fosbre v. State, 70 Wn.2d 578 , 424 P.2d 901 (1967); Johnson v. Phoenix Assurance Co., 70 Wn.2d 726 , 425 P.2d 1 (1967); Dickson v. United States Fid. & Guar. Co., 77 Wn.2d 785 , 466 P.2d 515 (1970). Furthermore, ROA 1-41 (1) provides: But the appellant shall not be permitted to urge in any such reply brief . . . or on the hearing, any grounds for reversal not clearly pointed out in his original brief. Thus, whether the trial court committed error in this regard is not properly before us even though mentioned in the reply brief. As the record now stands, one can only conclude that the case was never converted into a class action; that the issue is not before us; and that it was incorrect for the majority opinion to have extended its holding beyond the 11 plaintiffs in the case. Assuming that a class action is properly before the court, the majority has held, incorrectly, that it was brought pursuant to the provisions of CR 23 (b) (2) rather than CR 23(b) (3). The record is. wholly devoid of support for such holding. Even the plaintiffs have not made that contention *784 in their brief. The assertion is volunteered by the majority. Although the plaintiffs’ complaint generally has denominated this a class action, they moved, pursuant to CR 23, to have the trial court declare the suit a class action and “to provide for giving notice to members of the class”. The motion provided further: numerous questions of fact and law pertaining to the eleven plaintiffs’ reappraisals and reassessments are typical of the other reassessments and reappraisals on other parcels in the area, some 70,000 in number. That the questions of law and fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. That the plaintiffs respectfully request that the plaintiffs and their attorneys be authorized to give notice of such class action through the publication of the suit in the three weekly newspapers that are circulated in the area . . . (Italics mine.) Comparison of the italicized language with the language of CR 23(b) (3) reveals that the motion was couched in the exact words of CR 23 (b) (3) which reads as follows: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (3) The court finds that the questions of law or fact ■ common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. (Italics mine.) Thus, plaintiffs’ own pleadings make it graphically clear that the majority is incorrect in holding that the action was brought pursuant to CR 23(b)(2) rather than CR 23 (b) (3). The difference between having brought the case under CR 23(b) (3) rather than CR 23(b) (2) is significant. The rules make notice mandatory in all cases brought pursuant *785 to CR 23(b) (3), but make notice merely discretionary in cases brought pursuant to CR 23(b) (2). 8 CR 23 (c) (2) provides that in all cases brought under CR 23(b) (3) the trial court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. CR 23 (c) (2) provides further: The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel. (Italics mine.) The rationale behind the mandatory notice requirement for class actions brought pursuant to CR 23(b) (3) is readily apparent in this case, and was recognized by plaintiffs in their motion when they requested authorization to give notice. Lack of notice does great disservice, as well as denies due process of law, to property owners whom the majority opinion forces into this lawsuit without notice either that an action exists or that they are parties thereto. It is to protect prospective members of a class from just such consequences that CR 23(c) (2) requires that they be informed of their right to be excluded from the action; that if they do not request exclusion, any judgment that is *786 rendered will be res judicata; and if one does not choose exclusion, he may enter an appearance through his own counsel. The majority places little significance upon the due process requirement of notice. Acting with 20/20 hindsight, the majority has assumed that the class is obvious; that no one would refuse to be bound by a favorable result; that inasmuch as the opinion is favorable to the plaintiffs, it is therefore favorable to the owners of the 27,000 parcels of land, and thus: no rights of these plaintiffs [i.e., the owners of the 27,000 parcels of land] have been prejudiced or adversely affected by their being included in the action. We hold this to be a valid class action and that all the plaintiff owners of the 27,000 parcels in phase one . . . are entitled to the relief afforded by this decision. The foregoing assumptions are totally unwarranted. It is obvious that had the majority opinion been adverse to the plaintiffs on the appeal, few property owners would admit to having been a member of the unsuccessful class. They would have complained, with justification, that: (1) they had been incorrectly included as a member of the class; (2) that they were not given proper notice or opportunity to opt out of the action; or at least (3) ¡that they were not allowed to choose their own attorney. Merely to state the logic of the situation is to refute the majority’s position. CR 23 (c) (2) has carefully spelled out the protections to which the public, who may be unwittingly drawn into a proposed class action under CR 23(b) (3), are entitled. The plaintiffs failed to comply with the rule. Thus, the class action could not be properly maintained. Furthermore, not all property owners in the area, or in similar areas of King County, will benefit by the decision. The record is clear that the assessed valuation of many parcels of land was reduced in the challenged reassessment. The majority opinion runs counter to the interest of all those who own such property. Their decision imposes upon these property owners the older and higher assessed valuation *787 because under CR 23 (c) (3) the judgment in a class action brought under CR 23(b)(2), as the majority holds this action was, includes all those whom the court finds to be members of the class, whether or not the judgment , is favorable to the class or individual members thereof. There are no provisions in CR 23 which expressly allow the members of a class, in an action brought under CR 23 (b) (2), to request exclusion from the class or to be separately represented. However, such members can be protected by a court order insuring that the representation is fair and adequate. CR 23(d)(2) provides that the court may make appropriate orders: (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action [.] Nevertheless, the majority has failed to require that even this minimal protection be given. Even if the majority deems it unimportant for the above mentioned class of property owners to have been given a chance to opt out, at least they should have been given an opportunity to appear through their own counsel. All 11 plaintiffs have an interest that is antagonistic to the landowners whose assessed valuation was lowered by the recent revaluation. This class of landowner would have every reason to oppose the assessment “roll back” proposed by the 11 plaintiffs. Therefore, even if the majority is correct in holding that this is a class action brought pursuant to CR 23(b) (2), the; plaintiffs had no right to maintain a class action in which their interests were antagonistic to those persons whom they purport to represent. Hansberry v. Lee, 311 U.S. 32, 44-45 , 85 L. Ed. 22 , 61 S. Ct. 115 , 132 A.L.R. 741 (1940); Brotherhood of Locomotive Firemen v. Graham, 175 F.2d 802, 807 (D.C. Cir. 1948), rev’d on other *788 grounds, 338 U.S. 232 , 94 L. Ed. 22 , 70 S. Ct. 14 (1949); 3B, J. Moore, Federal Practice ¶ 23.07, at 401 (2d ed. 1969); see also Schy v. Susquehanna Corp., 419 F.2d 1112, 1117 (7th Cir. 1970). This commonsense rule is particularly applicable to the instant situation. . The majority, in their attempt to apply the impact of this decision beyond the 11 plaintiffs, by classifying the cause as one brought under CR 23(b)(2), subverts the class action rules and the clear characterization of this action by the plaintiffs in their original motion. The effect of the majority decision is to destroy the protections built into CR 23. Therefore, I dissent and concur with the dissent of Justice Neill. Neill and Wright, JJ., concur with Stafford, J. Petition for rehearing denied December 9, 1971. The order of August 7, 1970 reads in pertinent part as follows: “. . . it is “Ordered, Adjudged and Decreed that the plaintiffs’ Motion to Maintain Class Action be and it is hereby granted. It is further “Ordered, Adjudged and Decreed that the above captioned cáse shall be directed to be returned back to the presiding judge with instructions to have it pre-assigned to a particular judge and that such judge delineate and set forth the common questions of fact to be resolved in the class action and the form of the notice that should be prescribed, in giving notice to the various members of the class in the affected area.” (Italics mine.) CR 23(b) (3) reads as follows: “(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: “(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” (Italics mine.) CR 23(c) (2) reads as follows: “(2) In any class action maintained under paragraph (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will *782 exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.” (Italics mine.) The order of September 3, .1970 read in part as follows: “With respect to the remaining issues, .the determination as. to whether or not such issues are proper for a class action pursuant to CR 23 will be determined during the trial on the merits ... In the event it appears at any time during the trial on the merits that there are issues of sufficient substance to merit a class action, the trial will be interrfipted so as to allow conversion of the action into a class action, with respect to remaining issues.” As pointed, out in 3B, J. Moore, Federal Practice if 23.72(2) (2d ed. 1969), at 1421: To place (d) (2) notice in proper perspective attention should be given to other provisions of Rule 23 dealing with notice. Under (c) (2), notice to all the members of a class in an action maintained under (b) (3) must be given in order to give them an opportunity to request exclusion from the class, to inform them that the judgment will include them if they do not opt out, and to inform them that they may enter an appearance through counsel. . . . Notice under (d) (2) is discretionary and may be used to supplement the mandatory notice required in (b) (3) class actions, as well as to give notice in (b) (1) and (b) (2) class suits. (Footnotes omitted. Italics mine.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9551802. Public record. Not legal advice.