Opinion
66401-8-I
06-11-2012
SEATTLE-TACOMA INTERNATIONAL TAXI ASSOCIATION, a Washington nonprofit association, Appellant, v. PORT OF SEATTLE, a municipal corporation; AIRPORT JOINT VENTURE RESPONSE PARTNERSHIP, LLC, an unincorporated entity; CHECKER CAB OF SEATAC CORPORATION, a Washington corporation; PUGET SOUND DISPATCH, LLC, dba Yellow Taxi Association, a Washington limited liability company; and RAINIER DISPATCH, LLC, a Washington limited liability company, Respondents.
UNPUBLISHED OPINION
Grosse, J.
Disbursement of the proceeds of a supersedeas bond obtained pending an appeal of an adverse judgment is appropriate when the judgment is affirmed on appeal and evidence supports the damages awarded to the party in whose favor the judgment originally lay. Here, the Port of Seattle submitted sufficient proof of the damages it suffered as a result of the two-month delay in implementing an exclusive contract for the airport taxi concession.
FACTS
Seattle-Tacoma International Taxi Association (STITA) brought suit against the Port of Seattle (Port) and other taxi companies for declaratory and injunctive relief, contending the request for proposal (RFP) under which the Port awarded the contract was illegal. STITA sought an injunction to prevent the Port from entering into a five-year contract with Puget Sound Dispatch (Yellow Cab) to provide on-demand taxi service at the airport. STITA had previously been the Port's on-demand taxi service provider, but lost the contract after a competitive public bidding process.
STITA filed its suit on January 29, 2010.
The trial court denied the restraining order on the ground that STITA had waived any right to challenge the validity of the RFP when it submitted a proposal. STITA filed an emergency motion for a stay, which a commissioner of this court granted on February 22, 2010. On March 29, 2010, the commissioner imposed a supersedeas bond on STITA in the amount of $144,000.00. In setting the amount of the bond, the commissioner reviewed the briefing submitted by the parties and assessed a potential loss of $4,800.00 per day as reasonable for a period of 30 days. The matter was set to be heard on April 27, 2010.
This court issued an unpublished opinion upholding the trial court's ruling denying STITA's preliminary injunction. This court lifted the stay 30 days following the filing of the opinion on June 7, 2010, unless STITA filed a petition for review in which case the stay would extend until the petition was rejected or further order of the Supreme Court. On July 6, 2010, STITA filed a cross-petition for review, which was denied by the Supreme Court on August 5, 2010.This court issued a mandate on September 24, 2010.
Seattle-Tacoma Int'l Taxi Ass'n v. Port of Seattle (STITA 1), noted at 156 Wn.App. 1025, 2010 WL 2283621.
Seattle-Tacoma Int'l Taxi Ass'n v. Port of Seattle, 169 Wn.2d 1016, 236 P.3d 895 (2010).
Meanwhile, in July 2010, the Port extended STITA's contract which had been scheduled to expire on August 31, 2010. Yellow Cab did not begin its service until November 1, 2010, two months after the parties had originally envisioned the start date.
The court granted the Port's motion to disburse the bond on October 1, 2010. Once the bond was disbursed, the Port made a "notice of presentation" for judgment to be entered on October 5, 2010. STITA opposed the proposed judgment and filed a motion for reconsideration of the trial court's decision to disburse the bond.
The trial court entered judgment for the Port on October 12, 2010, and denied STITA's motion for reconsideration on November 17, 2010. STITA timely appeals.
ANALYSIS
Under RAP 8.1(d)(2), "[u]pon the filing of a supersedeas bond . . . enforcement of a trial court decision against a party furnishing the bond . . . is stayed." A trial court's decision to grant an injunction and decision regarding the terms of the injunction are reviewed for an abuse of discretion. Similarly, the amount of bond is reviewed for an abuse of discretion. It is therefore appropriate to apply an abuse of discretion standard to our review of the trial court's order disbursing those proceeds.
Kucera v. State, Dep't of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000).
Jensen v. Torr, 44 Wn.App. 207, 212, 721 P.2d 992 (1986) (trial court's denial of a request to raise a bond's amount is reviewed for an abuse of discretion).
Contempt sanctions are reviewed for abuse of discretion. See State v. Berty, 136 Wn.App. 74, 83, 147 P.3d 1004 (2006) (fines and sanctions imposed for contempt are reviewed for abuse of discretion); Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995) (absent an abuse of discretion, an appellate court will not disturb a trial court's contempt order).
The purpose of a supersedeas bond is to supersede judgment against a party. Here, the trial court denied STITA's motion for injunctive relief. STITA posted the bond pursuant to a ruling from a commissioner. The bond had the effect of delaying the dismissal of STITA's claim, while at the same time protecting the Port from any damages it might suffer as a result of its inability to sign the contract in a timely fashion.
Lampson Universal Rigging, Inc. v. Washington Pub. Power Supply Sys., 105 Wn.2d 376, 378-79, 715 P.2d 1131 (1986).
STITA argues that the Port was not entitled to the proceeds of the bond because the Port failed to show actual damages. But this is not true. Because of the litigation, the Port extended its contract with STITA an additional two months-September and October 2010. Although the Supreme Court denied review in August 2010, Yellow Cab needed additional time to ramp up its fleet to take over the taxi cab concession from STITA. Under the Yellow Cab agreement, the Port was entitled to a minimum annual guarantee of $3,670,778.00, which was payable in equal monthly installments. Thus, had Yellow Cab started its contract on time, the Port would have received a minimum of $611,796.33 from Yellow Cab for those two months. The contract provided for additional monies to be paid to the Port in the event the 13% percentage fee was greater than the minimum annual guaranty paid to the Port. Thus, the monthly installment payments were the absolute minimum the Port was guaranteed. Based on 2009 figures, STITA's anticipated revenue would have resulted in payments to the Port of only $205,737.24, thus resulting in a loss of $406,059.09.
The 2010 figures for STITA were not available at the time the motion was filed, but in fact would have shown a figure lower than the $205,737.24, and thus, the Port's loss of revenue would be even greater had those 2010 figures applied.
STITA's argument that the Port could have reduced its damages had it immediately signed the contract with Yellow Cab is without merit. STITA argues that the Port knew in August that the Supreme Court refused review and then it could have required Yellow Cab to start servicing the airport in September as originally planned under the RFP. However, this ignores one of the primary reasons the Port issued the RFP so early in the process-to enable the winning bidder ample time (nine months) to ramp up its fleet to the Port's requirements. The Port had envisioned a nine-month leeway and in fact, because of STITAs litigation, was only able to grant a two-month leeway to Yellow Cab. STITA's position is also weakened by the September 1, 2003 exclusive concession agreement signed by the Port and STITA before the Supreme Court's denial of the petition for review, which extended STITA's contract for a fixed two-month period.
The trial court's disbursement of the bond proceeds is adequately supported by the record. The damages are readily apparent and exceed the proceeds of the bond. The trial court did not abuse its discretion.
STITA also argues that the trial court erred in not consolidating this matter with Rainier Dispatch, LLC's (Rainier) action and/or in not staying this matter until that action against the Port was resolved. This court reviews the denial of a motion to consolidate for an abuse of discretion. STITA asserts that the issue in Rainier was whether or not the Port's contract with Yellow Cab was ultra vires. If it is found to be ultra vires, STITA contends that there can be no damages because one cannot profit from a void contract. This argument, however, ignores the fact that the issue in this matter had come to a full and complete resolution with the Supreme Court's denial of the petition for review and our mandate to the trial court.
Washington Citizen Action v. Office of Ins. Comm'r, 94 Wn.App. 64, 72, 971 P.2d 527 (1999).
STITA waived its claim against the illegality of the RFP by submitting a proposal. In its unpublished opinion, this court noted that the basis of the trial court's refusal to issue the injunction was the waiver issue. This court held that the trial court did not abuse its discretion in denying the injunction. STITA now argues that the underlying issues (which were waived) are somehow resurrected if the court will permit it to amend its complaint or consolidate with another action. The trial court did not abuse its discretion in denying the motion to consolidate.
STITA 1, 2010 WL 2283621, at *8.
Lastly, STITA argues that the trial court erred in dismissing the complaint because of the Port's use of a "notice of presentation" to dismiss the judgment. The trial court entered the order pursuant to CR 54. CR 54(e) provides:
Preparation of Order or Judgment.
The attorney of record for the prevailing party shall prepare and present a proposed form of order or judgment not later than 15 days after the entry of the verdict or decision, or at any other time as the court may direct. Where the prevailing party is represented by an attorney of record, no order or judgment may be entered for the prevailing party unless presented or approved by the attorney of record. If both the prevailing party and his attorney of record fail to prepare and present the form of order or judgment within the prescribed time, any other party may do so, without the approval of the attorney of record of the prevailing party upon notice of presentation as provided in subsection (f)(2).
Subsection (f)(2) provides that opposing counsel be "given 5 days' notice of presentation." This the Port did. STITA had notice of the presentation of the dismissal judgment; it was afforded the opportunity to submit replies and objections to the judgment, which it did. Furthermore, this judgment was entered pursuant to a mandate from this court directing that the matter be dismissed in accordance with the opinion issued in STITA 1.
Affirmed.
WE CONCUR: