* Kebede Admasu Et Al, Petitioners V. Port Of Seattle, Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
KEBEDEADMASU, etal.,
Appellants,
PORT OF SEATTLE, a Washington
municipal corporation,
Respondent.
No. 70220-3-
ORDER GRANTING MOTION
TO PUBLISH OPINION
Respondent filed a motion to publish the court's opinion entered October 27,
2014. Appellant filed a response taking no position. After due consideration, the panel
has determined that the motion should be granted.
Now therefore, it is hereby
ORDERED that the Respondent's motion to publish the opinion is granted.
/ 0 	ciayof	Done this 	day of December, 2014.
FOR THE PANEL:
Ji 	hfA CD
m
CO
 	 	 	 	 	 	 	 	 	 	 	 	 	

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
KEBEDE ADMASU, etal.,
Appellants,
PORT OF SEATTLE, a Washington
municipal corporation,
Respondent.
No. 70220-3-1
PUBLISHED OPINION
FILED: 	October 27, 2014
Verellen, A.C.J. — A group of property owners seek compensation for the
diminished value of their properties due to the Port of Seattle's operation of the third
runway at the Seattle-Tacoma International Airport (Sea-Tac Airport).1 	The property
owners appeal from the trial court's order denying class certification and two orders
granting summary judgment in favor of the Port. 	The trial court did not abuse its
discretion in denying class certification because the plaintiffs failed to demonstrate
that common issues would predominate over individual issues and that a class action
was a superior method of adjudication of the controversy. 	The trial court also
properly granted summary judgment in favor of the Port for claims brought by
plaintiffs whose properties are burdened by an avigation easement2 and for claims for
1This case involves the claims of over 200 parties. Including each name in the
caption would take several pages. 	In the interest of brevity, we order abbreviation of
the caption to that set forth above for purposes of this opinion and any post-opinion
pleadings in this court.
2An easement allowing aircraft flights over the servient estate.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/2
damages caused by noise brought by plaintiffs who acquired their properties after a
noise exposure map was submitted under federal law. 	But the trial court erred by
granting summary judgment on claims for damages caused by toxic discharge,
fumes, and vibrations (whether or not related to low frequency noise) because the
Port's motion for summary judgment did not clearly extend to those claims.
Accordingly, we affirm in part and reverse in part.
FACTS
In November 2008, the Port began operations on its third runway. 	In June
2009, three property owners (Class Plaintiffs) filed an inverse condemnation action3
against the Port, alleging that they and thousands of other property owners in the
proximity of the Sea-Tac Airport have suffered diminished property values as a result
of airport operations on the Port's third runway.
In 2010, the Class Plaintiffs moved for class certification. 	Following a hearing
in January 2011, the trial court denied the motion without prejudice. 	In April 2011,
the Class Plaintiffs again moved for class certification. 	Following a two-day hearing,
the trial court denied class certification in April 2012.
After the trial court denied class certification, the plaintiffs filed a third
amended complaint asserting the consolidated claims of 291 individual plaintiffs. 	In
addition to asserting inverse condemnation, the complaint included trespass and
nuisance claims.
3 "A party alleging inverse condemnation must establish the following elements:
(1) a taking or damaging (2) of private property (3) for public use (4) without just
compensation being paid (5) by a governmental entity that has not instituted formal
proceedings." 	Phillips v. King County. 136 Wn.2d 946, 957, 968 P.2d 871 (1998).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/3
The Port brought its first motion for summary judgment against 126 plaintiffs
(Easement Plaintiffs) who each owned property burdened by an avigation easement
granted to the Port. Property owners participating in the Port's noise remedy
program under RCW 53.54.030 conveyed such easements primarily in exchange for
soundproofing.4 The Port argued that the easements precluded all of the claims
asserted by the Easement Plaintiffs. The trial court granted summary judgment in
favor of the Port.
The Port brought its second motion for summary judgment against 111
plaintiffs (NEM Plaintiffs) who purchased their property after the Port published notice
of its Federal Aviation Administration-approved noise exposure maps pursuant to the
federal Aviation Safety Noise Abatement Act of 1979, 49 U.S.C. 47506. The relevant
noise exposure maps were submitted in 1993 and in 2001. 	The Port argued that
federal law precluded damages claims based on noise unless particular noise levels
are reached. 	In April 2014, the trial court granted the motion in favor of the Port,
dismissing all of the NEM Plaintiffs' claims.
Subsequently, the trial court granted the 25 remaining plaintiffs' motion for
voluntary dismissal and entered a final judgment.
The property owners appeal, challenging the order denying class certification,
the order granting summary judgment in favor of the Port on the Easement Plaintiffs'
claims, and the order granting summary judgment in favor of the Port on the NEM
Plaintiffs' claims.
4 Some property owners also received transaction assistance, while others, in
places where soundproofing would not be effective, received monetary compensation.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/4
DECISION
Class Plaintiffs
The Class Plaintiffs contend that the trial court abused its discretion in denying
class certification.5 We disagree.
We review a trial court's class certification decision for manifest abuse of
discretion.6 	As our Supreme Court has noted, "The standard of review is paramount in
this case: 	it is not our place to substitute our judgment for that of the trial court. When
this court reviews a trial court's decision to deny class certification, that decision is
afforded a substantial amount of deference."7 We will uphold the trial court's decision
if the record shows that the court considered the CR 23 criteria and that the court's
decision is based on tenable grounds and is not manifestly unreasonable.8
CR 23(a) enumerates four prerequisites that a plaintiff seeking class
certification must satisfy: (1) numerosity, (2) commonality, (3) typicality, and (4)
adequacy of the representatives. 	In addition, as CR 23(b) is applied here, the
plaintiff has to satisfy both predominance and superiority requirements.9
5The proposed class action was to be divided into Class A and Class B. On
appeal, the Class Plaintiffs challenge only the trial court's decision on Class A.
6 Lacev Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wn.2d 40, 47, 905 P.2d 338
(1995).
7 Schnall v. AT&T Wireless Servs.. Inc., 171 Wn.2d 260, 266, 259 P.3d 129
(2011).
8 Lacev, 128 Wn.2d at 47. 	The trial court "must articulate on the record each of
the CR 23 factors for its decision on the certification issue." Schwendeman v. USAA
Cas. Ins. Co., 116Wn.App. 9, 19, 65 P.3d 1 (2003).
9 CR 23(b)(3). In making the predominance and superiority findings, the trial
court should consider, among other things, "the interest of members of the class in
individually controlling the prosecution or defense of separate actions," "the desirability
or undesirability of concentrating the litigation of the claims in the particular forum,"
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/5
The trial court here found that the Class Plaintiffs failed to satisfy the
predominance requirement "that the questions of law or fact common to the members
of the class predominate over any questions affecting only the individual members."10
The "predominance inquiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation."11 	This "requirement is not a rigid test, but
rather contemplates a review of many factors, the central question being whether
'adjudication of the common issues in the particular suit has important and desirable
advantages of judicial economy compared to all other issues, or when viewed by
themselves.'"12 "[T]he relevant inquiry is whether the issue shared by the class
members is the dominant, central, or overriding issue shared by the class."13
Here, the trial court found that individual issues would predominate over
common issues "because the evidence required to establish liability is necessarily
property-specific."14 	Under Washington law, the effects of airplane noise and related
impacts do not constitute a taking of an individual's property unless the property
and "the difficulties likely to be encountered in the management of a class action."
CR 23(b)(3).
10 CR 23(b)(3).
11 Amchem Prods.. Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231, 138 L
Ed. 2d 689 (1997).
12 Sitton v. State Farm Mut. Auto. Ins. Co., 116 Wn. App. 245, 254, 63 P.3d 198
(2003) (quoting 1 Herbert B. Newberg &Alba Conte, Newberg on Class Actions
§4.25, at 4-86 (3d ed. 1992)).
13 Miller v. Farmer Bros. Co.. 115 Wn. App. 815, 825, 64 P.3d 49 (2003); see
also Smith v. Behr Process Corp., 113 Wn. App. 306, 323, 54 P.3d 665 (2002) ("In
deciding whether common issues predominate over individual ones, the court is
engaged in a pragmatic inquiry into whether there is a common nucleus of operative
facts to each class member's claim." (citation and internal quotation marks omitted)).
14 Clerk's Papers at 2066.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/6
owner can prove a measurable diminution in the property's market value.15
Consequently, each affected property owner must establish that his or her property
has suffered a diminution in value because of the government action in order to
demonstrate liability. 	Moreover, a similar showing is required to establish the
appropriate amount of damages. 	Therefore, although the Port's general actions may
be common to all, liability can likely be established only after examination of the
circumstances surrounding each of the affected properties.
The Class Plaintiffs contend that common issues nevertheless predominate
because they can demonstrate a class-wide, aggregate diminution of property values
resulting from airport operations on the third runway, which can then be apportioned
to the individual properties. 	But the Class Plaintiffs' proposed approach for
accomplishing this objective involved only abstract concepts that give little confidence
that common issues would actually predominate over individual issues. 	The Class
Plaintiffs' valuation experts, Dr. Wayne Hunsberger and Dr. Ronald Throupe, did not
provide a concrete method for determining diminished value attributable to the third
runway airport operations.16 Instead, they primarily discussed general information
describing a variety of accepted techniques for analyzing properties affected by
15 See Highline School Dist. No. 401, King County v. Port of Seattle, 87 Wn.2d
6, 15, 548 P.2d 1085 (1976); Martin v. Port of Seattle, 64 Wn.2d 309, 318-20, 391
P.2d 540 (1964).
16 The Class Plaintiffs also retained Dr. Sanford Fidell, a noise expert, who
conducted a community noise impact study to measure community reaction to the
airport. Dr. Fidell's work does not purport to determine property value diminution, and
the valuation experts had not decided how Dr. Fidell's study would be incorporated
into their own research.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/7
disamenities such as airports.17 	Both experts clearly explain that they have not
considered in any detail the particular techniques they will utilize, the manner or
combination in which any technique will be utilized, the specific disamenities they
intend to measure, or the information they will need to conduct their studies. 	Beyond
the very general discussions of possible techniques and vague references to their
ability to account for a vast multitude of likely impacts on property value apart from
the third runway, the experts offer little assurance that the plaintiffs would be able to
prove a useful class-wide diminution of property values based on specific airport
operations attributable only to the third runway. 	For example, the experts provided
only a superficial explanation of how they would account for airport operations
attributable to the preexisting runways. Furthermore, the experts did not provide
specific information about how they would establish causation between any property
value diminution and the airport operations in general, and they did not explain how
they would establish causation for particular conditions associated with airport
operations.
Generalized evidence of diminished value and generalized proof that the
diminished value resulted from airport operations would not establish liability for
inverse condemnation. 	Instead, as the trial court determined, individual, property-
specific information would be required. The Class Plaintiffs proposed methodology
for demonstrating class-wide diminution in value is not sufficiently concrete to
17 These techniques include basic descriptive statistics, multivariate statistics,
paired sales analysis, case study analysis, and formal and informal survey research.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/8
persuade us or the trial court that common issues would predominate over individual
issues.18 The trial court did not abuse its discretion in this regard.
The trial court here also found that the Class Plaintiffs failed to satisfy the
superiority requirement, which requires "that a class action is superior to other
available methods for the fair and efficient adjudication of the controversy."19 It is "a
highly discretionary determination that involves consideration of all the pros and cons
of a class action as opposed to individual lawsuits."20 "[Wjhere individual claims of
class members are small, a class action will usually be deemed superior to other
forms of adjudication."21 	But "[i]f each class member has to litigate numerous and
substantial separate issues to establish his or her right to recover individually, a class
action is not 'superior.'"22
It was not unreasonable for the trial court to determine that many individual
issues will be involved in determining both whether a taking of a specific property
occurred and the measure of damages for individual property owners.23 The trial
court determined that certifying the claims as a class action would not promote the
efficient resolution of the class members' claims given the many individual inquiries
18 "Rule 23 does not set forth a mere pleading standard. A party seeking class
certification must affirmatively demonstrate his compliance with the Rule—that is, he
must be prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 	U.S. 	, 131 S. Ct.
2541, 2551, 180 L Ed. 2d 374 (2011).
19 CR 23(b)(3).
20 Miller, 115 Wn. App. at 828.
21 Id
22 Zinser v. Accufix Research Inst.. Inc., 253 F.3d 1180, 1192 (9th Cir. 2001).
23 "[Mjany courts that find common predominance lacking, also hold that the
prevalence of individual issues renders the case unmanageable for superiority
purposes." William Rubenstein, Newberg on Class Actions § 4:74 (5th ed. 2014).
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/9
that would be required to determine both liability and damages. This determination is
supported by the record, especially because the valuation experts' imprecisely
defined study required consideration of individualized information for purposes of
reaching any conclusions regarding diminution in value or causation.24 Moreover, the
trial court's decision is supported by persuasive authority concluding that a class
action often is not a superior method of litigating inverse condemnation cases
involving aircraft noise.25 The trial court did not abuse its discretion in determining
that a class action where the plaintiffs would likely allocate individual damages based
on a class-wide diminution in value is not superior to individual actions where the
plaintiffs would prove property-specific diminution in value.26
Because the Class Plaintiffs failed to satisfy the predominance and superiority
prerequisites required by CR 23(b), the trial court did not abuse its discretion in
denying class certification.27
24 For example, Dr. Throupe indicated that they might utilize an appraisal
method, and that "it could be hundreds. 	It could be thousands" of appraisals that
would be conducted. 	Clerk's Papers at 1691.
25 See, e.g., Bieneman v. City of Chicago. 864 F.2d 463, 465 (7th Cir. 1988);
Ario v. Metro. Airports Comm'n., 367 N.W.2d 509, 515-16 (Minn. 1985); City of San
Jose v. Superior Court, 12 Cal.3d 447, 525 P.2d 701, 710-11, 807-08 (1974); Alevizos
v. Metro. Airports Comm., 298 Minn. 471, 216 N.W.2d 651, 668 (1974).
26 Notably, there have been a number of inverse condemnation actions
precipitated by the development and prior expansions of the Sea-Tac Airport, but none
of these cases proceeded as class actions. See Highline School Dist.. 87 Wn.2d 6;
Anderson v. Port of Seattle, 66 Wn.2d 457, 403 P.2d 368 (1965); Martin, 64 Wn.2d
309; Cheskov v. Port of Seattle, 55 Wn.2d 416, 348 P.2d 673 (1960); Ackerman v.
Port of Seattle, 55 Wn.2d 400, 348 P.2d 664 (1960), abrogated by Highline School
Dist., 87 Wn.2d 6; Anderson v. Port of Seattle, 49 Wn.2d 528, 304 P.2d 705 (1956).
27 We need not evaluate the trial court's finding that the class representatives
were inadequate because a failure of proof on any one of the prerequisites is fatal to
certification. 	See Garcia v. Johanns. 444 F.3d 625, 631 (D.C. Cir. 2006); Valley Drug
Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003): Retired Chicago
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/10
Avigation Easement Plaintiffs
The Easement Plaintiffs contend that the trial court erred by granting summary
judgment in favor of the Port on the claims brought by plaintiffs whose properties are
burdened by an avigation easement. We disagree.
"Property is often analogized to a bundle of sticks representing the right to
use, possess, exclude, alienate, etc."28 	Easements give holders "rights that were
contained within the right of possession and carved out of it by the owner of the
possessory estate: sticks taken out of the bundle."29 As such, "[ejasements are
property rights or interests that give their holder limited rights to use but not possess
the owner's land."30 To the owner of the burdened estate, easements "are
subtractions from his full spectrum of rights, burdens on his title."31 	Generally,
avigation easements permit the easement holder to engage in "unimpeded aircraft
flights overthe servient estate[s]."32 Such easements deprive the landowners of their
rights to the stated property interest.
Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Milonas v. Williams,
691 F.2d 931, 938 (10th Cir. 1982V see also Pickett v. Holland Am. Line-Westours,
Inc., 145 Wn.2d 178, 188, 35 P.3d 351 (2001) (holding that because CR 23 is identical
to its federal counterpart, Fed. R. Civ. P. 23, federal cases interpreting the analogous
federal provision are highly persuasive).
28 Kielv v. Graves, 173 Wn.2d 926, 936, 271 P.3d 226 (2012).
2917 William B. Stoebuck & John W. Weaver, Washington Practice: Real
Estate: Property Law § 2.1, at 80 (2d ed. 2004).
30 State v. Newcomb, 160 Wn. App. 184, 191,246P.3d 1286 (2011): see City
of Olvmpia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986) ("'An easement is a
right, distinct from ownership, to use in some way the land of another, without
compensation.'" (quoting Kutschinski v. Thompson, 101 N.J.Eq. 649, 656, 138 A. 569
(1927)).
31 17 Stoebuck & Weaver, supra note 29, at 80.
32 Black's Law Dictionary 622 (10th ed. 2014).
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/11
Both versions of the avigation easements burdening the properties in this case
provide similar property interests for our purposes.33 The landowners bargained
away an easement authorizing "the use and passage of all types of aircraft" and
agreed to be burdened by those conditions "which may be alleged to be incident to or
to result from" those airport operations.34 Upon that conveyance, the granted
property interest can no longer be subject to a taking. The Port takes nothing from
them by using the easement granted for airport operations.35
Notably, the Easement Plaintiffs do not argue on appeal that the Port
exceeded the scope of the easement. 	Nor do they raise on appeal any of the
33 The Easement Plaintiffs each own land burdened by one of two versions of
avigation easement, one issued prior to 1993 and one issued after 1993 when the
legislature amended RCW 53.54.030. The pre-1993 easements provide, in relevant
part, that the grantor conveys and warrants to the Port, appurtenant to and for the
benefit of the airport and "any additions thereto," a permanent easement "for the free
and unobstructed use and passage of all types of aircraft.. . through the airspace
over or in the vicinity of [the grantor's real property], with such use and passage to be
unlimited as to frequency, type of aircraft, and proximity." Clerk's Papers at 2196
(1989 easement). The easement expressly states that "noise, vibrations, fumes,
deposits of dust or other particulate matter. .., fear, interference with sleep and
communication, and any and all other things which may be alleged to be incident to
or to result from" airport operations "shall constitute permanent burdens" on the
grantor's real property. 	Id. 	The grantor also waived "all damages and claims for
damages caused or alleged to be caused by or incidental to" airport operations. |g\
The scope of the post-1993 easements is substantially similar to the pre-1993
easements, except that the burden of noise associated conditions arising from airport
operations is limited to a certain average yearly noise exposure. 	See Clerk's Papers
at 2191 (1996 easement).
34 Clerk's Papers at 2191, 2196.
35 Accord Orion Corp. v. State. 109 Wn.2d 621, 641, 747 P.2d 1062 (1987) ("[A]
property right must exist before it can be taken." (citation and internal quotation marks
omitted)); Granite Beach Holdings. LLC v. State ex rel. Dep't of Nat. Res., 103 Wn.
App. 186, 207, 11 P.3d 847 (2000) ("The appellants' inverse condemnation claim was
properly dismissed because the property right the appellants claim was injured [to
cross adjoining state lands] does not exist.").
11
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/12
contract formation defenses such as unconscionability, misrepresentation, and
duress that might render the easements invalid.
Instead, the Easement Plaintiffs assert that the easements cannot frustrate
their claims because, at the time that they granted the easements, they did not
knowingly or voluntarily waive their federal and state constitutional rights to just
compensation for the diminished value of their property or their right to a jury trial to
determine just compensation.36 The concerns they express, that they had no choice
but to provide the easements because the noise was so stressful and that they did
not know the easements prevented them from suing the Port for a taking, are
encompassed within the contract defenses that they declined to raise on appeal. 	But
they seek to elevate these issues to a constitutional dimension by their waiver
argument.37
The Easement Plaintiffs cite no compelling authority applying constitutional
waiver requirements to any analogous situation, where a property owner conveys
property to a governmental entity. Their reliance on criminal cases and cases
36 See U.S. Const, amend. V; Wash. Const, art. I, § 16 (amend. 9). A
landowner is entitled to have a jury determine the amount of compensation. 	Sintra.
Inc. v. City of Seattle, 131 Wn.2d 640, 657, 935 P.2d 555 (1997) (quoting Wash.
Const, art. I, § 16 (amend. 9)); see also RCW 8.12.090. The Easement Plaintiffs
attempt to disconnect the right to compensation and a jury determination into separate
and distinct rights, but they are one and the same because the right to a jury
determination stems from the right to compensation when a taking occurs. 	See Wash.
Const, art. I, § 16 (amend. 9) ("No private property shall be taken or damaged for
public or private use without just compensation having been first made, . . . which
compensation shall be ascertained by a jury, unless a jury be waived.").
37 Of the 126 Easement Plaintiffs, 79 purchased their property subject to
previously-recorded easements. Those plaintiffs cannot assert waiver arguments.
See Wvatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001) ("It is axiomatic that
only persons with a valid property interest at the time of the taking are entitled to
compensation.").
12
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/13
involving First Amendment or parental rights is unavailing. Moreover, the Easement
Plaintiffs were engaged in commercial transactions when, in exchange for
compensation, they conveyed the avigation easements to the Port. It goes almost
without saying that, in order to waive a right, the right must exist.38 	Having clearly
granted permission for the Port to conduct airport operations, there is no remaining
claim for inverse condemnation based on that same activity. In other words, having
conveyed part of the bundle of sticksto the Port, the property owners are necessarily
and voluntarily precluded any claim for inverse condemnation based upon the Port's
authorized use of those sticks.39
Accordingly, the trial court properly granted summary judgment in favor of the
Port on those claims brought by the Easement Plaintiffs.
Noise Exposure Map Plaintiffs
The NEM Plaintiffs contend that the trial court erred by granting the motion for
summary judgment on all of their claims. We agree.
Federal law, through the Aviation Safety Noise Abatement Act of 1979
(ASNAA), imposes a general limitation on recovery ofdamages caused by noise
once a person has actual or constructive notice that noise exposure maps have been
38 see Bowman v. Webster. 44 Wn.2d 667, 669, 269 P.2d 960 (1954) ("The
right, advantage, or benefit mustexist at the time of the alleged waiver."); Tiart v.
Smith Barney, Inc., 107 Wn. App. 885, 899, 28 P.3d 823 (2001) ("Washington courts
recognize that a contracting party cannot waive a statutory right before the right
exists."). 	"The doctrine of waiver ordinarily applies to all rights or privileges to which a
person is legally entitled." 	Bowman, 44 Wn.2d at 669.
39 To the extent that the Easement Plaintiffs argue that they did not knowingly
and voluntarily waive their rights to past damages for takings that occurred prior to the
time they granted the easements, the express language ofthe easement waiving all
claims for damages caused by airport operations precludes such a claim. 	See Keves
v. Bollinger. 31 Wn. App. 286, 293, 640 P.2d 1077 (1982) ("[W]aiver may be
established by proof of an express agreement.").
13
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/14
submitted to the Secretary of Transportation.40 The NEM Plaintiffs do not dispute on
appeal that 49 U.S.C. § 47506 precludes their recovery of damages due to noise.
And the Port does not dispute that the ASNAA does not preclude the recovery of
damages caused by conditions other than noise. 	Instead, the parties dispute
whether the motion for summary judgment adequately addressed claims for damages
caused by other conditions described in the complaint, namely increased vibrations,
toxic discharge, and fumes.41
"It is the responsibility of the moving party to raise in its summary judgment
motion all of the issues on which it believes it is entitled to summary judgment."42
Further, "[allowing the moving party to raise new issues in its rebuttal materials is
improper because the nonmoving party has no opportunity to respond."43 Thus, "it is
incumbent upon the moving party to determine what issues are susceptible to
resolution by summary judgment, and to clearly state in its opening papers those
issues upon which summary judgment is sought."44 If the moving party fails to do so,
it may either strike and refile its motion for summary judgment or raise the new issues
40 See 49 U.S.C. § 47506. Under the statute, damages for noise attributable to
an airport are recoverable only if damages result from a significant change in the
airport layout, the flight patterns, or the type or frequency of aircraft operations, or if
there was an increase in nighttime operations.
41 Among other things, the plaintiffs alleged that "[t]he increase in air traffic
passing over the Plaintiffs' properties in close proximity to the properties has created
heightened noise pollution, increased vibration, and increased toxic discharge and
fumes." 	Clerk's Papers at 2076.
42 White v. Kent Med. Ctr., Inc., PS, 61 Wn. App. 163, 168, 810 P.2d 4 (1991).
43 id.
44 id, at 169; see Davidson Series &Assocs. v. City of Kirkland, 159 Wn. App.
616, 637-38, 246 P.3d 822 (2011).
14
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/15
in a new filing at a later date, but the moving party cannot prevail on the original
motion based on issues not raised therein.45
Here, the Port's motion for summary judgment requested that the trial court
dismiss all of the NEM Plaintiffs' claims. 	However, the motion discussed only
ASNAA's federal preemption over claims for damage caused by noise conditions.
The Port's motion did not address the plaintiffs' claims for damages caused by fumes
or toxic discharge. 	In fact, the motion did not even make a passing mention of fumes
or toxic discharge. 	And the plaintiffs' responsive memorandum discusses these
conditions only to emphasize that those claims were not a subject of the present
summary judgment motion. 	Contrary to the Port's assertions, a general request to
dismiss all claims, standing alone, is inadequate to raise those claims and issues not
discussed more fully within the motion for summary judgment.
Similarly, the Port argues that it adequately raised the issue whether ASNAA
precludes the NEM Plaintiffs' claims for vibration damages by briefly stating that the
"causes of action ... each depend on [an] alleged increase in operations and the
alleged 'heightened noise pollution' and vibrations (i.e., low frequency noise) caused
by those operations."46 	But this passing reference does not "clearly state" that this is
an issue "upon which summary judgment is sought."47 The Port's motion did not put
the NEM Plaintiffs on notice that they needed to address whether the ASNAA applies
45 See White, 61 Wn. App. at 169.
46 Clerk's Papers at 3849.
47 White. 61 Wn. App. at 169.
15
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70220-3-1/16
to damages from vibrations,48 and they had no opportunity to make an adequate
response.
Accordingly, summary judgment on those claims for damages caused by
increased vibrations, toxic discharge, and fumes was premature because they were
not adequately raised in the Port's motion for summary judgment.
We affirm in part and reverse in part.49 Specifically, we affirm the trial court's
order denying class certification and its order granting summary judgment based orv
the avigation easements. We affirm the trial court's order granting summary o 	71*
judgment in favor of the Port on the NEM Plaintiffs' claims for damages cause^by- .
noise, but we reverse the order to the extent that it dismisses the NEM Plaintiffs' 	-:
claims for damages caused by increased vibrations (whether or not related to IgSw 	:
frequency noise), toxic discharge, and fumes.
WE CONCUR:
^X,T. S*?J^e
48 We take no position here on the issue whether, or the extent to which, the
ASNAA limits recovery of damages for vibrations attributable to the airport.
49 We deny appellants' motion to strike portions of the amicus brief. 	"[A] motion
to strike is typically not necessary to point out evidence and issues a litigant believes
this court should not consider." Engstrom v. Goodman. 166 Wn. App. 905, 909 n.2,
271 P.3d 959 (2012). Rather, "the brief is the appropriate vehicle for pointing out
allegedly extraneous materials—not a separate motion to strike." 	Id To the extent the
briefing discusses evidence outside the record, we have not considered it. 	RAP 9.12.
16