STEPHENS, J.
¶1 — Justice Richard B. Sanders sued the attorney general's office (AGO) for inadequately responding to his public records request and for withholding nonexempt documents in violation of the Public Records Act (PRA), chapter 42.56 RCW. Resolving the suit requires an examination of numerous topics under the PRA, including the form of the request, the adequacy of AGO's disclosure, the adequacy of AGO's production, the appropriate penalty, and the award of costs and fees at trial and on appeal. One major issue is whether AGO violated the PRA by failing, in its response to Justice Sanders's PRA request, to provide a brief explanation of how its claimed exemptions applied to the records with-held, and what remedy follows from such a violation. We hold that AGO's failure to provide a brief explanation violated the PRA and should be considered as an aggravating factor when setting penalties for withholding nonexempt documents. Other issues pertain to the attorney-client and work product privileges and their use to claim exemptions under the PRA. We hold that the trial court correctly interpreted the work product privilege and do not reach its interpretation of the attorney-client privilege.
TERMINOLOGY
¶2 This case involves interpretation and application of the PRA. Because PRA analysis uses technical terms that are sometimes confusing, we begin by identifying the terminology used throughout this opinion:
At the time of Justice Sanders's records request, the PRA was called the public disclosure act and was codified at chapter 42.17 RCW. Former ch. 42.17 RCW (2003). Effective July 1, 2006, the act was renamed and recodified as chapter 42.56 RCW. LAWS OF 2005, ch. 274. The 2003 version is applicable to Justice Sanders's request. See, e.g., Zink v. City of Mesa, 140 Wn. App. 328, 332 n. 1, 166 P.3d 738 (2007). The current and former statutes are identical as to the provisions at issue in this case, however. For ease of reference, we cite the current PRA and merely cross-reference the former act.
¶3 1. Records are either "disclosed" or "not disclosed." A record is disclosed if its existence is revealed to the requester in response to a PRA request, regardless of whether it is produced.
¶4 2. Disclosed records are either "produced" (made available for inspection and copying) or "withheld" (not produced). A document may be lawfully withheld if it is "exempt" under one of the PRA's enumerated exemptions. A document not covered by one of the exemptions is, by contrast, "nonexempt." Withholding a nonexempt document is "wrongful withholding" and violates the PRA. Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 429, 98 P.3d 463 (2004) ( Yousoufian II).
¶5 3. A document is never exempt from disclosure; it can be exempt only from production. An agency withholding a document must claim a "specific exemption," i.e., which exemption covers the document. RCW 42.56.210(3). The claimed exemption is "invalid" if it does not in fact cover the document.
Former RCW 42.17.310(4) (2003).
FACTS AND PROCEDURAL HISTORY
¶6 On January 27, 2003, Justice Sanders visited the Special Commitment Center on McNeil Island. Sanders v. State, 166 Wn.2d 164, 168, 207 P.3d 1245 (2009). This visit led to an inquiry by the Commission on Judicial Conduct (CJC). Id. Justice Sanders believed that he was entitled to have AGO defend him before the CJC at public expense and sued to compel AGO to do so. Id.
¶7 Separately, on June 15, 2004, Justice Sanders delivered a written public records request to AGO pursuant to the PRA, requesting all records pertaining to his visit to McNeil Island and the related CJC action. Clerk's Papers (CP) at 475, 478-79. AGO had already compiled a response to a broader request for similar materials from the Building Industry Association of Washington (BIAW). To expedite Justice Sanders's request, an AGO representative contacted Justice Sanders's attorney, Kurt Bulmer, to ask if he "wished to expand [his] request for documents to those which were disclosed to . . . BIAW." CP at 171, 187. Mr. Bulmer agreed to accept the additional documents. CP at 475-76. AGO sent Justice Sanders a copy of its response to the BIAW request on July 8, 2004. CP at 481-84. BIAW never objected to, or sued to supplement, the response AGO gave it. CP at 170.
¶8 AGO's response included some 1,000 pages of material and an entire document index (EDI). CP at 171, 187-224. The EDI disclosed the 334 documents that AGO was producing, producing in redacted form, or withholding, and provided information about them such as their author, recipient, and date of creation. CP at 1717, 187-224. It also specified AGO's claimed exemptions for the 144 documents redacted or withheld. Id. The EDI did not contain any facts or explanation of how its claimed exemptions applied to each document withheld. Id. Justice Sanders did not contact AGO to object to any of the withholding or to request further explanation. CP at 171. On July 21, 2005, he sued in Thurston County Superior Court, claiming that AGO had violated the PRA by failing to provide a brief explanation of how its claimed exemptions applied to each record withheld and by withholding nonexempt documents. CP at 5, 7.
¶9 Upon notice of the suit, AGO hired outside counsel to review the disputed documents. CP at 1763. AGO's counsel refined the claimed exemptions for several documents, as it continued to do during this litigation. CP at 1084-1125; see also CP at 127-54 (State's "Appendix A" addressing each document in detail). Outside counsel also determined that AGO considered several disputed documents "innocuous," and so counsel produced them for Justice Sanders despite AGO's claim that the documents were exempt, nonresponsive, or previously produced. CP at 1763-64, 1084-88. The productions either expressly disclaimed waiver or proceeded as if AGO continued to claim that the documents were exempt. CP at 115, 378, 1090-91, 1093, 1113. The parties refer to these documents, which were produced subsequent to litigation, as the subsequent-production documents (SPDs). See Opening Br. of Hon. Richard B. Sanders (Sanders's Opening Br.) at 6-7 n. 3; cf. Br. of Resp't Cross-Appellant State of Wash. (Br. of Resp't) at 10 n. 34. The SPDs are distinguished from those documents that AGO never produced, which the State submitted to the trial court for an in camera determination of whether they were exempt (in camera documents). CP at 1719-20.
¶10 Justice Sanders sought discovery regarding how AGO's claimed exemption applied to each document it withheld. He noted a CR 30(b)(6) deposition, requesting that AGO supply an expert who could testify as to "[t]he grounds for each exemption claimed" and details about the privileges underlying the exemptions. CP at 499-501. At the deposition, however, the State's expert could do no more than read the EDI. CP at 564-65. Justice Sanders eventually obtained a full explanation of how each claimed exemption applied when the State moved for summary judgment. The State submitted an Appendix A, summarizing each document and arguing why it was exempt from disclosure. CP at 127-54. It also made all of the disputed documents available for in camera review. See CP at 1724 (describing the process for litigating the exemptions in the trial court). Justice Sanders had the opportunity to review all of the in camera documents and to respond to Appendix A. Id. Justice Sanders objected to Appendix A as unsworn testimony and argument based on facts not in evidence, but the trial court rejected this argument. CP at 382-89; see CP at 1724 (considering App. A). The trial court incorporated the summaries of the disputed documents, both sides' arguments, and its own rulings into trial court's Appendix A, CP at 1375-1434 (in camera documents), and trial court's Appendix B, CP at 1435-37 (SPDs).
References to "Appendix A" are to the State's Appendix A.
¶11 Both parties moved for summary judgment. The State argued that Justice Sanders agreed to narrow his request to accept only those documents produced for BIAW, and even if not, AGO had complied with the PRA and withheld only exempt documents. CP at 106-26. Justice Sanders argued that (1) he agreed to expand his request to include additional documents but never agreed to narrow his request, (2) AGO had failed to provide a brief explanation of how its claimed exemptions applied to the records withheld and thus waived exemption or was estopped from arguing that the documents were exempt, (3) AGO waived exemption by producing the SPDs or was estopped from arguing that they were nonexempt, and (4) AGO continued to wrongfully withhold some records. CP at 391-415. For these alleged violations of the PRA, Justice Sanders requested costs and attorney fees, as well as statutory per diem penalties. Id.
¶12 The trial court viewed the dispute over the alleged narrowing of Justice Sanders's request as a dispute over the legal sufficiency of AGO's search and disclosure. CP at 1713-17. Because Justice Sanders could not identify any documents that AGO should have disclosed but did not, and because AGO's search responded to BIAW's broader request, the trial court ruled that AGO's search for documents was legally sufficient. Id. The dispute over disclosure, the trial court concluded, was irrelevant to the issue of production. CP at 1716.
¶13 The trial court determined that AGO's response to Justice Sanders's request violated the PRA. Although the EDI specifically identified AGO's claimed exemptions, it failed to contain a brief explanation of how the claimed exemptions applied to each record withheld. CP at 1718. The remedy for this violation was not waiver or estoppel, however, but consideration when imposing penalties for wrongfully withholding records. CP at 1718-19. Nor had AGO waived or been estopped from claiming exemption for any of the SPDs. CP at 1719-20. The question was whether any SPD or in camera document had been withheld wrongfully and what fees, costs, and penalties award should follow. Id.
¶14 The trial court examined each disputed document and ruled on whether it was exempt from production. CP at 1373-74, 1375-1437. The relevant exemptions were the attorney-client privilege, under RCW 42.56.070(1) and RCW 42.56.290, and the work product privilege, under the latter provision. In making its rulings, the trial court held that the attorney-client privilege protects all communications arising from the attorney-client relationship, once formed, not merely those pertaining to legal advice. CP at 1724. It also held that, under the "common interest" doctrine, AGO could claim certain documents were privileged even if it shared them with other agencies. Id. Furthermore, it implicitly held that the work product privilege could apply to documents that did not on their faces specify the controversy to which they were relevant, if the controversy could be determined from the context. E.g., CP at 1395 (describing the dispute over in camera document 35). Finally, the trial court held that several documents were work product relevant to some controversy and so were exempt. CP at 1375-1437. However, a few documents were nonexempt and AGO's withholding of them had violated the PRA. CP at 1724-25.
Former RCW 42.17.260(1) (1997). RCW 42.56.070(1) exempts anything exempted under some "other statute." In this case, the "other statute" is the attorney-client privilege statute, RCW 5.60.060(2)(a). See Hangartner v. City of Seattle, 151 Wn.2d 439, 452-53, 90 P.3d 26 (2004) (recognizing RCW 5.60.060(2)(a) as an "other statute" under the PRA).
Former RCW 42.17.310(1)(j) (2003). RCW 42.56.290 exempts records relevant to a "controversy" to which the agency is a party if the records would not be available in civil discovery.
¶15 Because Justice Sanders prevailed on some of his claims and showed that about 5 percent of the withheld documents were nonexempt, the trial court awarded him $55,443.12, which was 37.5 percent of his costs and attorney fees. CP at 1845-48. It also imposed a penalty against AGO for wrongfully withholding the documents, which the trial court grouped into two broadly categorized "records." CP at 1847. Finding that AGO acted in good faith throughout the process, the trial court imposed a penalty of $5 per day that the records were withheld, plus an additional $3 per day for AGO's failure to explain how the claimed exemptions applied to the records withheld, for a total of $8 per day per record. Id. Over the State's objection, the trial court included the number of days it took to adjudicate the case in its per diem calculation. Id. The total penalty came to $18,112.00. Id.
Justice Sanders requested that the attorney fees award be multiplied by 1.5 because his attorneys took the case on contingency. The trial court declined, CP at 1858.
¶16 Both parties appealed. Justice Sanders challenges several aspects of the trial court's disposition of the case, as outlined below. The State responds to each of those contentions and cross-appeals on its claim that it is entitled to summary judgment because Justice Sanders agreed to accept only the production given to BIAW. The Court of Appeals certified the case directly to this court, and we accepted review. Wash. Supreme Court Order Accepting Certification, Sanders v. State, No. 82849-1 (Mar. 26, 2009).
ISSUES
The legal issues in this case are numerous, as a consequence of which the opinion is lengthy. For ease of reading, we indicate our disposition on each issue and cross-reference our analysis of it.
¶17 1. Is there a genuine issue of material fact precluding summary judgment as to whether Justice Sanders's attorney agreed to accept the production given to BIAW as full satisfaction of his PRA request?
Conclusion: Yes. The trial court is affirmed on different grounds. See infra pp. 844-46.
¶18 2. Did AGO's response violate the PRA if it did not contain a brief explanation of how its claimed exemptions applied to the records withheld, and if so, what is the remedy for such a violation?
Conclusion: Yes. The remedy is consideration when awarding costs and fees or when imposing penalties for failure to produce nonexempt records. The trial court is affirmed. See infra pp. 846-48.
¶19 3. Did AGO's subsequent production of the SPDs waive objection to or admit the proposition that the SPDs were nonexempt?
Conclusion: No. The trial court is affirmed. See infra pp. 849-49.
¶20 4. For each document withheld, was the failure to produce that document a PRA violation, i.e., was each document exempt from production?
¶21 a. Did the trial judge abuse its discretion by considering the State's Appendix A?
Conclusion: No. The trial court is affirmed. See infra pp. 850-52.
¶22 b. Does the attorney-client privilege protect every confidential communication between lawyers and clients, once the attorney-client relationship exists?
Conclusion: We assume, without deciding, that the privilege protects only legal advice, and that the trial court interpreted the privilege too broadly. See infra pp. 852-53.
¶23 c. Did the trial court err in relying on the "common interest" doctrine, allowing AGO to claim exemptions for documents it had shared with other agencies?
Conclusion: No. The trial court is affirmed. See infra pp. 853-54.
¶24 d. Did the trial court misinterpret the law when applying the work product privilege? Conclusion: No. The trial court is affirmed. See infra pp. 854-57.
¶25 e. Did the court err in determining that some documents were exempt?
Conclusion: Yes, four documents were nonexempt. The trial court is reversed as to these four documents and affirmed as to all others. See infra pp. 857-58.
¶26 5. Did the trial court abuse its discretion in setting AGO's penalty?
¶27 a. Did the trial court abuse its discretion in assessing the "brief explanation" penalty as a $3 per day aggravator to the penalty for wrongfully withholding documents?
Conclusion: No. The trial court is affirmed. See infra pp. 859-61.
¶28 b. Did the trial court abuse its discretion in setting the penalty for failure to produce nonexempt documents at the bottom of the statutory range?
Conclusion: No. The trial court is affirmed. See infra pp. 861-62.
¶29 c. Did the trial court err when, for the purposes of calculating the penalty, it included the number of days the court took to adjudicate the case?
Conclusion: No. The trial court is affirmed. See infra pp. 863.
¶30 d. Did the court err in treating the 6-9 wrongfully withheld documents as two "records" for the purposes of penalties?
Conclusion: No. The trial court is affirmed. See infra p. 864.
¶31 e. What penalty applies to the documents deemed nonexempt on appeal?
Conclusion: The trial court's penalty is appropriate. See infra p. 864.
¶32 6. Did the trial court abuse its discretion in awarding Justice Sanders 37.5 percent of his fees and costs and in refusing to multiply his fees by 1.5? Conclusion: No. The trial court is affirmed. See infra pp. 865-69.
¶33 7. Is Justice Sanders entitled to fees and costs on appeal?
Conclusion: Yes, to some extent. See infra pp. 869-70.
ANALYSIS
1. Agreement To Alter PRA Request
¶34 The State argues that it is entitled to summary judgment because Justice Sanders's attorney, Mr. Bulmer, agreed to accept the production given to BIAW as a full response to Justice Sanders's records request. Because Justice Sanders got everything he requested, the State contends, he cannot seek additional production. Justice Sanders counters that Mr. Bulmer agreed to expand his request to accept additional documents but never agreed to narrow his request in any respect. The trial court avoided this issue by viewing the debate as one over the legal sufficiency of AGO's search for records in response to Justice Sanders's request. Since BIAW's request was broader and Justice Sanders did not identify any documents that should have been disclosed to him but were not, the trial court held the search to be sufficient. But, it denied the State's motion for summary judgment because the search and disclosure issue was independent of the production issues making up the rest of the case.
¶35 From the parties' refinement of their argument on appeal, it appears that the dispute is not over whether AGO searched for the appropriate records. The question on summary judgment is whether Mr. Bulmer agreed to accept the production given to BIAW or the disclosure given to BIAW. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). In reviewing a motion for summary judgment, we construe the facts in the light most favorable to the nonmoving party. Id. Our review is de novo. Id.
¶36 The record shows that Mr. Bulmer agreed to modify his PRA request to match BIAW's. CP at 171, 187. But, there is a genuine issue of fact as to what this modification meant. The State argues that Mr. Bulmer agreed to accept the production given to BIAW. When considered in the light most favorable to Justice Sanders, however, the evidence suggests that Mr. Bulmer agreed only to accept the disclosure given to BIAW. See id. (AGO employee quoting Mr. Bulmer as saying that he "wished to expand [his] request for documents to those which were disclosed to . . . BIAW" (emphasis added)). Therefore, Justice Sanders could rightfully object to AGO's failure to produce some of the disclosed documents, even if BIAW did not do so. See CP at 475-76 (including Mr. Bulmer's statement that he never agreed to waive production of any requested documents). The trial court's denial of summary judgment on this issue was appropriate.
2. Brief Explanation Requirement and Remedy
¶37 Justice Sanders argues that AGO violated the PRA because its response to his records request (the EDI) did not provide a brief explanation of how the claimed exemptions applied to the records withheld. The State argued in the trial court that it had "explained" the claimed exemptions by identifying each withheld document's author, recipient, date of creation, and broad subject matter along with its specification of the exemption. See CP at 1069-70 (using an example from the EDI to illustrate). The trial court disagreed. CP at 1717-18. It construed the PRA to require an agency claiming an exemption to "'include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.'" CP at 1717 (quoting RCW 42.56.210(3) (emphasis added)). The EDI was "devoid of any explanation," and so violated the brief explanation requirement. CP at 1718.
Former RCW 42.17.310(4).
¶38 The trial court's interpretation of the statute is correct: an agency withholding or redacting any record must specify the exemption and give a brief explanation of how the exemption applies to the document. RCW 42.56.210(3). The State's argument that the EDI "explains" the application of each claimed exemption is untenable, which may explain why the State has not renewed it on appeal. The identifying information about a given document does not explain, for example, why it is work product under the PRA's "controversy" exemption. See CP at 187-224 (claiming the controversy exemption for numerous records without specifying details such as the controversy to which each record is relevant). Allowing the mere identification of a document and the claimed exemption to count as a "brief explanation" would render the brief-explanation clause superfluous.
id.
¶39 Furthermore, we have consistently enforced the PRA's disclosure requirements to advance its policy of public access. See Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 269-71, 884 P.2d 592 (1994) ( PAWS II) (declaring "silent withholding" illegal and noting that an "agency's compliance with the Public Records Act is only as reliable as the weakest link in the chain"); Rental Hous. Ass'n v. City of Des Moines, 165 Wn.2d 525, 540, 199 P.3d 393 (2009) (relying on PAWS II to conclude that failure to require an indication of "whether there is a valid basis for a claimed exemption for an individual record" would "defeat[] the very purpose of the PRA"). Claimed exemptions cannot be vetted for validity if they are unexplained. Thus, AGO's failure to explain its claimed exemptions violated the PRA.
¶40 The remedy for such a violation is a more difficult issue. Justice Sanders argues that the remedy is waiver or estoppel. See Sanders's Opening Br. at 36-41; CP at 1718-19. In other words, by failing to adequately explain a claimed exemption, AGO either waived the right to claim the exemption or is estopped from arguing an explanation other than one found in the EDI. Since the EDI contained no explanation, AGO would be estopped from offering any explanation. Id. The State's position is that the only remedy for the brief explanation violation is to compel the agency to explain. Br. of Resp't at 48-49. This is because an agency can meet the explanation requirement in court submissions. See id. (citing PAWS II). The trial court adopted neither position. It concluded that an exempt public record does not lose its exemption because of an inadequate response to a request. CP at 1718. Rather, the PRA gives the requester the right to sue and authorizes the imposition of penalties against an agency for wrongfully withholding the record. Id. The trial court therefore held that the remedy for a brief explanation violation is consideration when awarding costs, attorney fees, and penalties. CP at 1719.
¶41 We have already rejected the waiver or estoppel argument that Justice Sanders advances. In PAWS II, the agency initially explained its claimed exemptions to the requester but then sought to argue different explanations during litigation. 125 Wn.2d at 253. We held that a court may consider an agency's new explanations, expressing concern that agencies' responses to PRA requests would be too slow if their initial responses were binding. Id. If Justice Sanders's view of the law were correct, the initial, incorrect explanation would have led to waiver or estoppel and the State would not have been able to argue new explanations in court. This is exactly the outcome we wished to avoid in PAWS II.
¶42 On the other hand, the State's interpretation contravenes the PRA's purpose. If the only remedy for a failure to explain is to sue to compel explanation, the agency has no incentive to explain its exemptions at the outset. This forces requesters to resort to litigation, while allowing the agency to escape sanction of any kind. Cf. Spokane Research Def. Fund v. City of Spokane, 155 Wn.2d 89, 103-04, 117 P.3d 1117 (2005) (refusing to allow agencies to resist complying with the PRA until after a suit is filed without facing a penalty).
¶43 The trial court's conclusion reflects a fair middle ground under the PRA: the agency's failure to provide a brief explanation should be considered when awarding costs, fees, and penalties, but the agency is not foreclosed from offering a satisfactory explanation. Such an interpretation serves the PRA's policy of disclosure by providing incentives for the agency to explain its claimed exemptions, while avoiding the negative consequences warned of in PAWS II. Cf. Rental Hous. Ass'n, 165 Wn.2d at 540 (requiring a detailed privilege log based on similar considerations).
¶44 The interpretation also follows from the PRA's text. The PRA entitles a prevailing party in an action "seeking the right to inspect or copy any public record or the right to receive a response to a public record request" to costs and reasonable attorney fees. RCW 42.56.550(4) (emphasis added). The "brief explanation" requirement is one aspect of the "response[s]" referred to in this provision. See RCW 42.56.210(3) (" Agency responses refusing, in whole or in part, inspection of any public record shall include . . . a brief explanation of how the exemption applies to the record withheld." (emphasis added)).
Former RCW 42.17.340(4) (1992).
Former RCW 42.17.310(4).
¶45 In addition, as discussed below in part 5, an agency's failure to explain its claimed exemptions is relevant to the agency's "lack of strict compliance . . . with all the PRA procedural requirements," which may aggravate the penalty for wrongfully withholding public records. Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 467, 229 P.3d 735 (2010) ( Yousoufian V).
¶46 In sum, AGO's failure to provide a brief explanation of its claimed exemptions violated the PRA. The remedy for the violation is consideration when awarding costs, fees, and penalties.
3. Subsequent Production
¶47 Justice Sanders contends that AGO waived its right to claim that the SPDs were exempt when it produced them after suit was filed. He urges us to hold that agencies may not force a requester to sue and then escape penalties by producing the documents after litigation begins. AGO responds that it has always maintained that the documents were exempt, but, after outside counsel reviewed them, AGO determined that it considered several of the documents "innocuous" and so produced them in a good-faith effort to narrow the area of dispute. The trial court found that the State had disclaimed waiver and had maintained that the documents were exempt. CP at 1720. It therefore held that the State had not waived the right to claim exemptions, nor was it estopped from doing so. Id.
¶48 The determination of waiver is a mixed question of law and fact. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440-41, 191 P.3d 879 (2008). The record supports the trial court's crediting of the State's claim that it did not intend to relinquish its claimed exemptions. CP at 115, 378, 1090-91, 1093, 1113. AGO simply determined that it did not care if certain documents were produced and so it produced them. We decline to penalize agencies that cooperate with PRA litigants in this manner by construing such cooperation as a waiver.
¶49 Nor do we believe that production of documents after the requester files suit ipso facto admits that the initial withholding of the documents was wrongful. The PRA's purpose is to increase access to government records. See RCW 42.56.030. If an agency were deemed to concede wrongdoing simply because it produced documents during litigation, it would reduce the incentive for agencies to produce the documents. This outcome would be antithetical to the legislative intent. Rather, the appropriate inquiry is whether the records are exempt from disclosure. If they are exempt, the agency's withholding of them was lawful and its subsequent production of them irrelevant. If they are nonexempt, the agency wrongfully withheld the records and the appropriate penalty applies for the numbers of days the record was wrongfully withheld — in other words, until the record was produced. This interpretation of the PRA provides an incentive for agencies to produce records for which claims of exemption may fail in an effort to reduce their exposure to potential penalties. This was the approach followed by the trial court in this case, CP at 1720, and we affirm its resolution of this issue.
Former RCW 42.17.251 (1992).
4. Evaluation of Claimed Exemptions
¶50 Justice Sanders challenges the trial court's rulings on each of AGO's claimed exemptions. He points to four distinct legal issues, asserting that the trial court misapplied the law in each instance. He then asks this court to determine de novo the validity of the claimed exemption for each document. The State, on the other hand, defends the trial court's rulings of law on each document.
a. State's Appendix A
¶51 Preliminarily, Justice Sanders argues that the trial court should not have considered the State's Appendix A, filed with the State's motion for summary judgment. He claims that Appendix A contains facts not in the record and amounts to unsworn testimony by AGO's attorneys. Sanders's Opening Br. 35 n. 25. Moreover, Justice Sanders asserts, the State may not contradict the deposition testimony of its CR 30(b)(6) expert. Id. The expert was retained to testify about how each claimed exemption applied to the record withheld, but in fact could do no more than read the EDI. As a sanction for this alleged subversion of the discovery process, Justice Sanders argues that Appendix A should have been rejected. Id.
¶52 The State responds that Appendix A is not unsworn testimony; it is analogous to a series of cover sheets. Each cover sheet summarizes the contents of a disputed document and AGO's argument for why the document is exempt, in an effort to reduce or eliminate the need for extensive oral argument on each document. As to its CR 30(b)(6) expert, the State maintains that its expert was the person most qualified to discuss the procedure for amassing the total response to Justice Sanders's records request, not the specifics of any given document. The State therefore argues that it did not subvert the discovery process.
¶53 The trial court evidently adopted the State's view, as it created its own appendices incorporating the State's Appendix A, Justice Sanders's responding arguments, and the court's rulings on each document.
¶54 A trial court may exercise reasonable control over the orderly presentation of argument and evidence. See, e.g., ER 611(a) (granting the court authority to make the "presentation effective for the ascertainment of the truth" and to "avoid needless consumption of time"); State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969) ("Because the trial court has a duty to conduct the trial fairly, expeditiously and impartially, it has a corresponding power to adopt practices and procedures reasonably designed to secure such ends."). When considering a procedure "not regulated or covered by statute, formal rule or precedent," we review in light of that "wide discretion." Id.
¶55 Appendix A contains summaries of the disputed documents and arguments for why each is exempt, usually predicated on the fact that the document is relevant to some controversy. See CP at 127-54. The disputed documents in a PRA case may be reviewed in camera by the court to determine whether they are exempt. RCW 42.56.550(3). Because these documents were in the record, summaries of them would be permissible under ER 1006 (allowing summaries of voluminous documents if the originals are also made available). The existence of the controversies was evidenced by affidavits, see CP at 1721-22 (discussing the affidavits identifying controversies), or by the disputed documents themselves, e.g., CP at 129 ("The `controversy' is the Thorell and Spink cases, which are referenced in the letter itself"). The rest of the material in Appendix A is the State's arguments for why the documents are exempt. PAWS II allows a court to hear these arguments even if the agency did not previously assert them to explain claimed exemptions. 125 Wn.2d at 253. Thus, the trial court had no reason to think that any portion of Appendix A violated the law. Justice Sanders had the opportunity to respond to it and to review all of the in camera documents. In effect, Appendix A simply moved along a process that otherwise would have required extensive oral argument on each document. Considering Appendix A was within the trial court's wide latitude to control the presentation of argument and evidence.
Former RCW 42.17.340(3).
In re Det. of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).
In re Det. of Spink, 112 Wn. App. 287, 48 P.3d 381 (2002).
b. Scope of Attorney-Client Privilege
¶56 Justice Sanders objects to the trial court's interpretation of the attorney-client privilege. The trial court held that "[o]nce an attorney-client relationship exists, any communication arising from that relationship is privileged, unless waived or controlled by a recognized exception to the privilege." CP at 1724. It applied this understanding when determining whether the disputed documents were exempt. Id. Justice Sanders argues that the privilege protects only communications pertaining to legal advice and urges us to hold that if the client is not seeking legal advice when communicating with the attorney, the communication is not privileged. Otherwise, he maintains, "every phone call" from AGO to a government agency will be privileged. Sanders's Opening Br. at 34.
¶57 It is unnecessary to decide whether Justice Sanders's interpretation of the attorney-client privilege is correct. If the issue were dispositive as to any document withheld in this case, we would determine the proper scope of the attorney-client privilege and, if the trial court applied the wrong legal standard, remand to the trial court for application of the proper standard. However, we have reviewed all of the disputed documents as part of our analysis of the work product privilege, discussed below. In the interest of judicial economy, we also reviewed each claim of attorney-client privilege. In doing so we assumed, without needing to decide, that the attorney-client privilege protects only communications pertaining to legal advice. The result in this case is the same irrespective of whether we adopt the trial court's analysis of the attorney-client privilege or the analysis advocated by Justice Sanders. Our conclusions are set forth below in part e.
c. "Common Interest" Doctrine
¶58 Justice Sanders argues that the trial court erroneously exempted several documents under the "common interest" doctrine. This doctrine is not one of the enumerated PRA exemptions, he notes, and the courts are not empowered to fashion new exemptions. Even if the doctrine is part of the exemptions based on privileges, Justice Sanders contends that the legislature did not intend for the courts to wield authority over broad exceptions to disclosure, and so the common law "common interest" doctrine should not be interpreted to apply to the PRA. The State responds that the "common interest" doctrine is merely a common law exception to waiver of privilege that applies when parties share a common interest in litigation. The trial court agreed. CP at 1724. So do we.
¶59 The "common interest" doctrine provides that when multiple parties share confidential communications pertaining to their common claim or defense, the communications remain privileged as to those outside their group. Broyles v. Thurston County, 147 Wn. App. 409, 442, 195 P.3d 985 (2008); accord Morgan v. City of Federal Way, 166 Wn.2d 747, 757, 213 P.3d 596 (2009) (citing Broyles). Justice Sanders argues that the doctrine is an unwarranted expansion of the PRA exemptions, but we have already recognized its application to attorney-client privilege in the PRA context. See Morgan, 166 Wn.2d at 757 (applying the doctrine in a PRA case). Furthermore, the "common interest" doctrine is not an expansion of the privilege at all; it is merely an exception to waiver. See id. ("The presence of a third person during the communication waives the privilege, unless the third person is necessary for the communication, or has retained the attorney on a matter of `common interest.'" (citations omitted) (quoting Broyles, 147 Wn. App. at 442)). And in any event, documents that fall under the common interest doctrine are not discoverable in civil cases and so are exempt under the controversy exemption. Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007) ("Any materials that would not be discoverable in the context of a controversy under the civil rules of pretrial discovery are also exempt from public disclosure under [the PRA]."). The trial court did not err by applying the "common interest" doctrine, where relevant, to the disputed documents.
d. Work Product Privilege and Controversy Exemption
¶60 Justice Sanders argues that the trial court incorrectly ruled that some documents were privileged work product even though they (1) did not specify on their face the controversy to which they were relevant, (2) did not pertain to the three controversies specifically mentioned by the trial court in its opinion, or (3) were created well before litigation to have been created in reasonable anticipation of the litigation.
¶61 RCW 42.56.290 exempts records from disclosure if they are "relevant to a controversy to which an agency is a party but . . . would not be available to another party under the rules of pretrial discovery." The "'controversy'" must be completed, existing, or reasonably anticipated litigation. Morgan, 166 Wn.2d at 754.
Former RCW 42.17.310(1)(j).
¶62 (1) Controversy Not Facially Apparent. Nowhere does the statute say that the "controversy" must appear on the face of the record claimed exempt. Indeed, the use of the term "relevant" evokes the conce, 35 So.2d 225 (La. 1947). Furthermore, although such a deed conveys only such title or interest that the grantor had at the time it is given, it is sufficient to support a plea of acquisitive prescription. Id. These rulings have now been included in the revision of the law of Sale, and new Article 2502 of the Civil Code provides:
Such a transfer does not give rise to a presumption of bad faith on the part of the transferee and is just title for purposes of acquisitive prescription.
From these principles, it follows that a quitclaim deed would be a sufficient transfer of rights so that the public records doctrine provision of Civil Code Article 3338(1) applies to the recorded quitclaim deed.
Critical to the public records doctrine and the notice which is given by a recorded instrument is the description of the immovable which is the subject of such instrument. Louisiana jurisprudence has not established precise criteria to determines what description in the public records is sufficient to place third persons on notice;, and such determination is to be made on a case by case basis. Nitro Energy, L.L.C. v. Nelson Energy, Inc., 45,201 (La.App.2d Cir. 4/14/10), 34 So.3d 524, quoting Consolidated Ass'n of Planters of Louisiana v. Mason, 24 La. Ann. 518 (1872). in Hargrove v. Hodge, 9 La.App. 434, 121 So. 224. 225 (La.App. 2d Cir. 1928), it was determined that the property description in the instrument must be such that the property intended to be conveyed could be located and identified, and the general rule is that the description must fully appear within the four corners of the instrument itself, or that the instrument should refer to some map, plat, or deed as a part of the description, so that the same may be clear. It is not permissible to indulge in speculation when interpreting deeds to real property. Id.
In reference to the sectional subdivision of public lands in the official plats of the governmental surveys, the courts have said that the "description [of a governmental quarter/quarter section] is mathematically certain and calls for no extrinsic evidence to explain the intention of the parties as to the tract intended to be conveyed." Haas v. Fontenot, 132 La. 812, 61 So. 831 (1913). On the other hand, certain omnibus or similar descriptions have been uniformly held not to put third parties on notice of the location and identity of the property which is the subject of an instrument. Williams v. Bowie Lumber Co., 214 La. 750, 38 So.2d 729 (1948) (It seems to be settled now by the jurisprudence in Louisiana that such a vague and indefinite description, in an instrument purporting to convey title to real estate, as all of the land owned by the seller in a named parish, is not sufficiently specific to give notice to third parties thereafter dealing with the seller.) Blevins v. Manufacturers Record Pub. Co., 235 La. 708, 105 So.2d 392 (1957) (A sale by given bounds conveys only the property within such bounds, and acreage designations appended to such specific descriptions do not enlarge or restrict the grant described by the specific bounds.) W.B. Thompson Co. v. McNair, 199 La. 918, 7 So.2d 184 (1942) (Innocent third purchasers cannot be held to the necessity of ascertaining whether or not the land remaining to their vendors is equal in area to the body of land purchased.)
Considering the two property descriptions contained in the deeds conveyed by the Succession, we agree with Loutre's counsel that the Loutre Deed does not describe any lands in Section 10 so as to place a third party on notice that Loutre had acquired from the Succession any interest in the Disputed Tract. The Loutre Deed only describes, by referencing the governmental survey, the 100 Acres in Sections 2 and 3. Additionally, the deed's omnibus expression of a transfer of "all rights of prescription, whether acquisitive or liberative, to which vendor may be entitled," does not direct a third party viewing the Loutre Deed to the Disputed Tract where the Morgans' right of ownership by thirty-years acquisitive prescription had accrued. Nevertheless, Loutre's claim for ownership is now argued to rest on something beyond a recorded written conveyance to Loutre with a description of the Disputed Tract. Loutre claims rights afforded it under Article 794.
Article 794 is contained in Book II of the Civil Code which deals with "The Different Modifications of Ownership." One of those modifications concerns "Boundaries" between contiguous lands, Book II, Title VI, and the "Effect of Titles, Prescription or Possession" in a boundary dispute as addressed in Title VI, Chapter 2 of Book II. La.C.C. arts. 784 et seq.
Article 794 is best understood, therefore, by reviewing the first three articles of Chapter 2 dealing with the boundary action, which provide:
La.C.C. art. 792. Fixing of boundary according to ownership or possession
The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.
La.C.C. art. 793. Determination of ownership according to titles
When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author preference shall be given to the more ancient title.
La.C.C. art. 794. Determination of ownership according to prescription
When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.
These articles concern the boundary action where the court considers recorded titles and possible acts of adverse possession to "fix the boundary according to the ownership of the parties." The boundary is the line of separation between contiguous lands. La.C.C. art. 784. Therefore, the conflict is between one landowner against an adjacent neighbor. As in this case, the conflict may involve one party and the facts of possession concerning the ancestors in his chain of title on one side of an ideal boundary against the neighboring party and the facts concerning her ancestors in her title chain. The two ancestral title chains therefore usually describe a common or ideal boundary, as in this case.
Turning specifically to Article 794 and its final sentence, the rule calls the court to credit the proof by one of the adjacent landowners of the acts of adverse possession for over 30 years which occur on land extending beyond the ideal boundary to a "visible bound" (hereinafter the "Extra Land"). According to Article 794, that landowner, who makes the claim of ownership to the Extra Land attributable to adverse possession of over 30 years, need not have been in possession himself for 30 years but may rely upon or "tack" the possession of his ancestors in title. Moreover, if those "ancestors in title" executed previous deeds or transfers to the tract, describing land only to the ideal boundary and not including the Extra Land, the lack of a descriptive and juridical link or "particular title" to the Extra Land does not prevent the current landowner's proof of acquisitive prescription through evidence of the combined acts of possession of himself and all his ancestors. Such proof by the tacking of possession allows for a judicial recognition of the ownership of the Extra Land from which the court shall fix the new boundary. On the whole, the final sentence of Article 794 provides a litigant an evidentiary proof allowance in the trial of a boundary action.
The important benefit of Article 794's boundary tacking, therefore, is that the established visible bound that has existed for over 30 years becomes the new boundary superseding the ideal boundary expressed in the adjacent landowners' titles. The Extra Land becomes owned by the landowner who has used and employed that land through acts of corporeal possession up to the visible bound even though his use and adverse possession extended beyond his title. Finally, an erroneously fixed visible boundary may in many instances only involve a few feet and a minimal quantity of land so that neither of the adjoining landowners may have been alerted to the problem over a lengthy passage of time. This means that from the prior transfers of the land the party in possession of the Extra Land may not have had it transferred to him from his ancestors in title by a particular title with an appropriate metes and bounds description of the Extra Land. Therefore, upon its employment for proof in the boundary action, the boundary tacking rule of Article 794 operates as an exception to the general rule of Civil Code Article 3441 which otherwise requires a "particular title" for the transfer of possession. Brown v. Wood, 451 So.2d 569 (La.App. 2d Cir. 1984), writ denied 452 So.2d 1176 (La. 1984).
On the other hand, if the misplaced visible boundary involves more than a few feet, runs a course totally different from the ideal boundary, or involves a large expanse of Extra Land as a possessory encroachment upon a neighboring tract of land, it becomes more difficult to understand why the chain of transfers by the parties with adverse possession does not include in their transfers the Extra Land by a metes and bounds description. As emphasized by this court in Loutre I, there arises a question of the intent of the parties to such transfer, or as in this case, whether the Succession intended to transfer only 100 acres for $750 per acre or 115 acres. On remand, the evidence showed that the parties intended a $750 per acre price, yet the Succession was only paid $75,000 by Loutre.
Article 3441 provides that "[p]ossession is transferable by universal title or by particular title." La.C.C. art. 3441. Thus, in a case where a party has obtained the right to possess (La.C.C. art. 3422) through adequate acts of corporeal possession over the land of another and that party has no title to adjacent lands, the party must appropriately describe in an instrument the land in his possession in order to transfer his right to possess by "particular title." This principle is the general rule for the transfer and tacking of possession in a non-boundary' setting. See, La.C.C. art. 3442. Likewise, if that same party's possession had extended in time for over thirty years so that he had acquired ownership by acquisitive prescription, the party's transfer of that ownership would require a "particular title" describing the property which would then allow the transferee the protection of the public records doctrine by the recordation of that title.
Article 794's beneficial effect was memorably expressed by the Louisiana Supreme Court in Opdenwyer v. Brown, 155 La. 617, 626-627, 99 So. 482 (1924), where the court explained the source articles to present Articles 794 and 3441, holding that boundary tacking is an exception to the general rule, as follows:
[I]f perchance it should be discovered that Bienville had misread the plan of his engineer and located his "place d'armes" a few hundred feet higher up. or lower down, the Mississippi than such plan calls for, there is no title to a foot of land in the city of New Orleans, which would not call for correction; and since the land which each successive purchaser took possession of would not be the same land which his title called for, it follows (if we accept the Le Rosen Case) that he could not "tack" onto his own possession that of his supposed author, and thus could not protect his boundaries, by the prescription of 30 years. That would be against all common sense; and law is common sense, as far as legislators, courts and men of law will let it remain so.
Nevertheless, there are significant aspects of this boundary dispute which are not specifically addressed in Article 794. Most importantly, the "ancestors in title" expression in the article concerns the predecessors/transferors of the landowner/litigant who is asserting ownership to the Extra Land derived in part from the acts of corporeal possession of those predecessors who had also previously possessed beyond their title to the visible bound. Thus, Loutre's "ancestor in title" for purposes of Article 794 is the Succession which conveyed by particular title only the lands in Sections 2 and 3. Nevertheless, the benefit of the boundary tacking rule of Article 794 is now claimed by Loutre as attendant to the Succession's sale extending to Loutre the Succession's rights in the Extra Land, which in this case is the Disputed Tract. The peculiarity of this case, however, is that the Succession is also the "ancestor in title" to Roberts. Clearly, under Article 794, when a landowner/litigant asserts his ancestor in title's adverse possession, that "ancestor in title" is not understood as also an "ancestor in title" to the neighboring and opposing landowner. The Succession's unusual dual role as an "ancestor in title," or an owner who purportedly conveyed the same land to both adjacent landowner claimants immediately before this boundary dispute, suggests that something other than Article 794 must be considered for the ranking of these competing transfers of rights in the immovable from the same transferor.
Loutre has argued to this court that Brown v. Wood, supra, presents "almost exactly the same facts" as the present dispute. This is incorrect. In that case the defendants, the Woods, had possessed the extra land beyond that called for in their title. Their title was acquired from Oliveaux 26 years prior to the suit, and Oliveaux also had previously been in possession of the extra land for over four years. Therefore, utilizing Article 794, the Woods proved that they and their ancestor in title had possessed the extra land for over 30 years, and their ownership was recognized by this court. Additionally, immediately prior to the suit, Oliveaux had executed a second transfer, a quitclaim deed, to the Woods specifically describing the extra land. The quitclaim was unnecessary for the ruling since the Woods had acquired the extra land by virtue of the operation of the tacking rule of Article 794 and the earlier deed from Oliveaux. Likewise, unlike the present case, Oliveaux made no quitclaim transfer to the other party in the boundary dispute, the Browns. The only case Loutre cites with apparently similar facts is McIlwain v. Manville Forest Products Corp., 499 So.2d 1138 (La.App. 2d Cir. 1986). However, in that ruling the public record doctrine was never addressed by the court.
Second, Article 794 addresses the effect of the combined possessions of the party claimant in the boundary action and his "ancestors in title" when cumulatively amounting to thirty years of uninterrupted possession. In this case, Loutre did not need to tack the mere possession of the Morgans to its own possession to effect an accrual of the thirty years for acquisitive prescription through their combined adverse possession. The Morgans alone had amassed thirty years of possession and thus ownership through acquisitive prescription at the time of the sale to Loutre. In that sense, a deed by particular title describing the Disputed Tract from the Succession to Loutre would have conveyed ownership to the Disputed Tract, and with recordation of such title, Loutre could have resolved this boundary dispute in its favor without the need for the possession tacking rule of Article 794.
This is not to say, as explained below, that Loutre was not entitled to have immediately instituted a boundary action against Roberts alter its acquisition from the Succession and before the Quitclaim Deed, to have asserted the ownership of I he Disputed Tract as transferred to Loutre by the Succession, and to have had the court fix the boundary line between the two tracts.
In summary. Article 794 allows for a special mode of proof for the determination of thirty-year acquisitive prescription, and thus ownership, in a boundary action between neighboring landowners. The "ancestor in title" of one party whose prior acts of adverse possession serve to contribute to that party's proof of acquisitive prescription is generally understood not to also be the "ancestor in title" of the neighboring and opposing landowner. However, if two successive sales are made by that ancestor in title after the time that the adverse possession of the ancestor has occurred, such double sale in our opinion brings into play the application of the public records doctrine to determine which of the two transferees shall prevail. The fact that Article 794 is a special evidentiary rule for proof in a court proceeding to establish acquisitive prescription does not mean that the policy principles for the transfer of ownership of an immovable under the public records doctrine are in conflict with Article 794 or, in any way, superseded by Article 794.
The trial court's concern expressed in its oral ruling, quoted above, is a concern that sellers sometimes sell an immovable twice because of unscrupulous conduct, error, or some other cause. This is what the public records doctrine addresses; yet such double dealing, particularly misconduct or fraud, is not the subject matter of Article 794. A seller, who intends to sell all of his rights in a tract within existing visible bounds and who warrants that sale, would generally be expected to understand that he is breaching that sales contract and its warranties by executing a second sale. Yet, when the rare double sale occurs, the public records doctrine will have application for the determination of the competing claims of the vendees.
The interplay between the public records doctrine and Article 794 in this case was clearly illuminated in a hypothetical illustration upon which the trial court remarked in the parties' oral argument, as follows:
Obviously, as Mr. Hoychick pointed out if the Morgan Estate had sold Mr. Ed [Roberts] that 14.6 acres before it sold to Loutre . . . that would be a legitimate and valid sale of . . . a property acquired . . . by acquisitive prescription.
This illustration correctly acknowledges that the Succession could have intended to sell the Disputed Tract and the 100 Acres separately to different parties. If so, the deeds in such illustration would describe the separate properties in exactly the same manner as the separate deeds in this case — the Quitclaim Deed and the Loutre Deed — describing respectively the 14.6 acres in Section 10 and the 100 Acres in Sections 2 and 3. Therefore, since the recorded descriptions reflect on the face of each deed separate transfers of differently described immovables, it does not matter which deed occurred first or was recorded first. Moreover, it is clear under the public records doctrine that if a deed to Loutre had described all 114.6 acres (the 100 Acres and the Disputed Tract) but not been recorded, a second sale by the Succession of the 14.6 acres to Roberts gains the protection of the public records doctrine after its recordation; and the prior transfer to Loutre is "without effect" as to the rights acquired by Roberts. La.C.C. art. 3338. From yet another perspective, after the recordation of the Loutre Deed which occurred first in this case, Roberts as a third party to the Loutre Deed may consider that the Succession intended only to sell the 100 Acres as identified in that deed and to retain the 14.6-acre Disputed Tract. If a contrary intent existed between the Succession and Loutre, a third party seeking to purchase the Disputed Tract was not bound by such secret equity between the parties that was not expressed by the inclusion of a description of the Disputed Tract in the recorded Loutre Deed. La.C.C. art. 3342.
This does not mean that Loutre was unprotected at the time of its purchase nor that it could not have brought a boundary action against Roberts and asserted the acquisitive prescription obtained by acts of the Morgan family over the Disputed Tract. Clearly, a complete assessment of the lands involved in the proposed sale from the Succession to Loutre would have revealed the sizable tract of land of the Morgan farm that extended into Section 10. As shown by the survey data presented at trial, the Disputed Tract is obviously not in Sections. 2 and 3. The southern boundary of the 100 Acres stretches east to west one-half mile running in a straight line along the south section lines for Sections 2 and 3. Yet, the Disputed Tract extends some 400 feet off of that line to the south. The Loutre Deed neglected to describe this unusually large tract extending beyond the Ideal Boundary into the Section 10 Tract over which the Roberts family held record title. Thus, the first protection available to Loutre was the execution and recordation of a deed accurately describing the entire 115-acre tract which it claims to have purchased from the Succession.
Nevertheless, even with the inadequate description contained in the Loutre Deed, Loutre could have immediately instituted a boundary action and proven the acquisitive prescription by which its ancestor in title had acquired ownership of the Disputed Tract. Such suit would have allowed Loutre to establish the Morgans' ownership of the Disputed Tract and itself as successor to the Morgans. With the recordation of a notice of lis pendens of the real action under La.C.C.P. arts. 3751, et seq., such action would also prevent the possibility of the double sale by the Succession which later occurred. In proving the acquisitive prescription of its predecessors, the Morgans, Loutre would be meeting the burden of proof in the boundary action of the first sentence of Article 794 without the need for the tacking rule of its second sentence for the accumulation of a thirty-year period of possession between multiple parties.
In conclusion, the facts of this boundary dispute are unusual. The misplaced boundary is not one which merely strayed slightly off course from the ideal boundary called for in the title deeds of the two adjacent landowners. In such case, double sales involving a minimal strip and quantity of land would not be expected. The misplaced boundary in this case is some 400 feet south of the Ideal Boundary. The attorney representing the Succession was apparently unclear whether the sizable 15 to 18-acre tract in Section 10 had been sold to Loutre. So the Succession sold again. This is therefore not a case of the proof of an ownership change caused by acquisitive prescription along a boundary line where Article 794 resolves the dispute. This is a case of the transfer of that ownership by parties with two competing deeds from the same prior owner of the immovable where the public records doctrine must govern. Under our law of registry, Roberts's deed was the superior deed recorded in the conveyance records, and he therefore proved that he acquired ownership from the previous owner.
Conclusion
For the above reasons, we reverse the trial court's judgment. It is hereby ordered, adjudged and decreed that Edward W. Roberts is the owner of the Disputed Tract which is described as that portion of the Northeast Quarter of the Northeast Quarter of Section 10, Township 16 North, Range 8 East, lying north of the old fence shown on the two surveys presented at trial. Although the surveys of the parties appear to coincide and place the Ideal Boundary in approximately the same location, there is apparently no visible boundary along the section line between Sections 3 and. 10. Therefore, the case is remanded to the trial court to fix the boundary visibly by reference to markers on the ground between the parties' adjacent tracts in accordance with the two surveys and with Roberts's ownership as recognized herein. Additionally, we find nothing in the record to support Roberts's claim for damages and that claim is dismissed.
Costs of appeal are assessed to Loutre Land and Timber Company.
REVERSED AND REMANDED.
BROWN, C.J., concurs with written reasons.
DREW, J., concurs for the reasons assigned by Judge BROWN.
MOORE, J., dissents and with written reasons.