Opinion
No. 29812-1-II, Consolidated with No. 30609-3-II
Filed: January 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 97-2-07841-1. Judgment or order under review. Date filed: 11/27/2002. Judge signing: Hon. Terry Sebring.
Counsel for Appellant(s), David D. Gordon, Gordon Misner, 7525 Pioneer Way Ste 101, PO Box 1189, Gig Harbor, WA 98335-3189.
Richard E Sorrels (Appearing Pro Se), 9316 Glencove Road, Gig Harbor, WA 98329.
Counsel for Respondent(s), James Albert Densley, Pierce Co Pros Atty Ofc/Civil Div, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
Earl and Doris Sorrels, the R.E.S. Trust, and Conrad Velez, who were joined as defendants in an ongoing nuisance action against Richard Sorrels, appeal a default judgment entered against them when they failed to appear at trial. They argue that the trial court erred in: (1) considering Pierce County's amended complaint; (2) failing to honor their affidavits of prejudice; and (3) entering unsupported findings of fact. We affirm the judgment against Doris Sorrels, Velez, and the R.E.S. Trust, but we reverse the judgment against Earl Sorrels.
FACTS
Richard Sorrels owned three Pierce County parcels of land located at 9316, 9406, and 9410 Glencove where he stored vehicles, vehicle parts, tires, machinery, and other materials. In 1997, Pierce County (County) filed a complaint for a permanent injunction based on public nuisance regarding the 9316 and 9410 Glencove properties. In August 1997, Richard Sorrels and the County executed a temporary stipulated order (TSO) restricting further storage on the two parcels.
Later, after several hearings, the trial court found Richard Sorrels in contempt of the TSO and entered an abatement order. In January 2002, the County removed material from 9316 and 9410 Glencove under the abatement order. Also, in January 2002, the court set trial for November 12, 2002, on the County's complaint for a permanent injunction based on public nuisance.
In an unpublished opinion, Pierce County v. Sorrels, 117 Wn. App. 1035, 2003 WL 21464980 (Wash.App. Div. 2) (2003), we upheld the trial court's contempt finding that led to the January 2002 clean up.
On May 23, 2002, Suzanne Swanson, a trustee of the R.E.S. Trust, and Conrad Velez filed declarations claiming interests in the properties at issue. According to Velez, he leased a portion of the 9316 Glencove parcel from Richard Sorrels and stored his personal property on it. According to Swanson, the R.E.S. Trust owned the 9406 and 9410 Glencove parcels and most of the personal property on all three Glencove properties.
Based on these declarations, Richard Sorrels moved to dismiss the complaint for failure to join the R.E.S. Trust and Velez as necessary parties. In response, the County moved to amend its complaint to join the R.E.S. Trust and Velez. At a May 31, 2002 hearing, the trial court ruled that Velez and R.E.S. Trust were proper, but not indispensable parties to the existing action. The trial court did not otherwise act on the motion to amend. Nevertheless, on June 5, 2002, Pierce County filed the amended complaint that joined Earl and Doris Sorrels, Conrad Velez, and the R.E.S. Trust (collectively, the 'later joined defendants').
According to an October 8, 1998 statutory warranty deed, Earl and Doris Sorrels were part owners of 9406 Glencove property. They quitclaimed their interests to the R.E.S. Trust on May 15, 2002.
On September 12, 2002, Earl Sorrels filed an affidavit of prejudice seeking to remove the trial judge. On October 15, 2002, Conrad Velez filed an affidavit of prejudice seeking the judge's recusal. The trial court refused to disqualify itself, noting that it had previously entered discretionary rulings in the case, precluding the parties from seeking recusal through RCW 4.12.050.
The document is entitled, 'affidavit of prejudice,' but is formatted as a declaration. Clerk's Papers at 539. In it, Velez avers physical disability preventing his personal presentation. Instead, he asked that Richard Sorrels present it in open court.
We discern no difference between an affidavit and declaration for purposes of seeking a judge's recusal. Both subject the affiant/declarant to the potential of perjury.
The matter proceeded to trial as scheduled on November 12, 2002. The County moved to strike the R.E.S. Trust pleadings, arguing that as an entity, it could only appear in court through an attorney. The trial court granted the motion.
When Richard Sorrels, a non-attorney, sought to represent the trust, the trial court properly struck the trust's pleadings. Lloyd Enters., Inc. v. Longview Plumbing Heating Co., 91 Wn. App. 697, 701, 958 P.2d 1035 (1998), review denied, 137 Wn.2d 1020 (1999) ('Because corporations are artificial entities that can only act through their agents, . . . corporations appearing in court proceedings must be represented by an attorney.').
Richard Sorrels moved to dismiss under CR 40, arguing that the R.E.S. Trust, Earl and Doris Sorrels, and Velez never received notice of the trial date. The trial court did not grant the motion. In its later findings, the court noted that it had stricken the trust's pleadings and that the parties were served with the summons and complaint, but failed to appear, requiring default.
CR 40 provides, in part:
(1) . . . At any time after the issues of fact are completed . . . either party may cause the issues of fact to be brought on for trial, by serving upon the opposite party a notice of trial at least 3 days before any day provided by rules of court for setting causes for trial, which notice shall give the title of the cause as in the pleadings, and notify the opposite party that the issues in such action will be brought on for trial at the time set by the court. . . .
(2) . . . In case an issue of law raised upon the pleadings is desired to be brought on for argument, either party shall, at least 5 days before the day set apart by the court under its rules for hearing issues of law, serve upon the opposite party a like notice of trial. . . .
After a two-day bench trial, the court entered judgment against Richard Sorrels, Velez, Earl and Doris Sorrels, and the R.E.S. Trust for litigation and abatement costs. The trial court later entered an order limiting the financial responsibility of the later joined defendants to the extent of their interests in the property.
The later joined defendants appeal.
ANALYSIS
The County's Motion to Amend its Complaint
The later joined defendants first contend that the trial court improperly considered the County's amended complaint. They argue that under CR 19, no 'determination [was] made as to the appropriateness of adding additional parties at the late date of June 2002.' Appellant's Brief at 4. We disagree.
The later joined defendants do not argue that the County never moved to amend as required under CR 15 or that the trial court decided that only the R.E.S. Trust and Velez and not Earl and Doris Sorrels, were proper, but not indispensable parties. Thus, we address only their CR 19 argument.
Richard Sorrels filed a motion to dismiss based on CR 19. The trial court held a May 31, 2002 hearing. At the hearing, the trial court determined that Velez and the Trust were 'proper, but not indispensable part[ies]' who may be joined. Clerk's Papers (CP) 372. It otherwise denied Richard Sorrels' motion and the later joined defendants' argument fails.
Affidavits of Prejudice
The later joined defendants next contend that the trial court erred in entering rulings against them. They assert that the court had no authority to hear the case against them once they filed affidavits of prejudice.
The matter was set for trial on November 12, 2002. The amended complaint was filed on June 5, 2002. On September 12, 2002, Earl Sorrels filed an affidavit of prejudice seeking to remove the trial judge. On October 15, 2002, Conrad Velez filed an affidavit of prejudice. Neither filed a motion to disqualify the trial judge. The R.E.S. Trust and Doris Sorrels did not file motions or affidavits seeking disqualification of the trial court.
To disqualify a trial judge on the basis of prejudice, a party must comply with RCW 4.12.050, which provides:
RCW 4.12.040 provides, in part: 'No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established . . . that said judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause.'
Any party to . . . any action . . . in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion. . . .
But '[a]ny right under RCW 4.12.050 to seek disqualification of a judge will be deemed waived unless, in addition to the limitations in the statute, the motion and affidavit is filed with the court no later than thirty days prior to trial before a pre-assigned judge.' CR 40(f).
'Once a party timely complies with the terms of these statutes, prejudice is deemed established 'and the judge to whom it is directed is divested of authority to proceed further into the merits of the action.'' State v. Cockrell, 102 Wn.2d 561, 565, 689 P.2d 32 (1984) (citing State v. Dixon, 74 Wn.2d 700, 702, 446 P.2d 329 (1968)).
After considering Velez's and Earl Sorrels' affidavits, the trial court refused to disqualify itself because it had made discretionary rulings in the matter. Although it had made such rulings after the original action was filed, it had not made discretionary rulings as to the later joined defendants before Velez and Earl Sorrels filed their affidavits of prejudice. Thus, if any affidavit of prejudice was properly before it, the trial court should have recused itself from rendering a decision as to that party. We look at each later joined defendant separately.
The County also contends that RCW 4.12.050 mandates the filing of a motion to disqualify a trial judge. The later joined defendants did not file such a motion, and as a result, the County asserts, the trial judge properly refused to disqualify himself. However, according to RCW 4.12.050, the judge's prejudice may, not shall, be established by a motion; thus, the filing of a motion is not a mandatory procedural requirement.
First, no attorney filed an affidavit of prejudice on behalf of the R.E.S. Trust and the trial court retained authority over it. Second, Doris Sorrels did not file an affidavit of prejudice and the trial court retained jurisdiction over her. Third, Velez failed to file his affidavit more than thirty days before the trial date as required by CR 40 and the trial court retained jurisdiction over him. Only Earl Sorrels filed a timely and proper affidavit and the trial court erred in declining to recuse itself.
See footnote 4.
Next, we must determine the effect of the trial court proceeding as to all of the later joined defendants where it did not have jurisdiction over one of them. The later joined defendants implicitly argue that when one of the joined defendants files a proper affidavit of prejudice, the trial court judge loses jurisdiction over all the defendants. We disagree.
In State ex rel. Goodman v. Frater, 173 Wash. 571, 573, 24 P.2d 66 (1933), a third party defendant, who had been joined after a judgment and two days into the execution phase of the trial, moved to disqualify a trial judge. Our Supreme Court noted that a trial judge may retain jurisdiction over, and determine any questions which do not affect the rights of the defendant who moved to disqualify that judge. Thus, the trial court retained jurisdiction over the R.E.S. Trust, Doris Sorrels, and Velez. But it did not have the authority to decline to recuse itself as to Earl Sorrels. The trial court's rulings as to Earl Sorrels must be reversed.
Trial Date Notice
The later joined defendants contend that they failed to appear at trial because they did not receive a timely notice of the trial date. The County responds that the later joined defendants were provided with the proper notice of a trial date.
Under former RCW 4.44.020 (2002), all parties must be notified of a trial:
At any time after the issues of fact are completed in any case by the service of complaint and answer or reply when necessary . . . either party may cause the issues of fact to be brought on for trial, by serving upon the opposite party a notice of trial at least three days before any day provided by rules of court for setting causes for trial, which notice shall give the title of the cause as in the pleadings, and notify the opposite party that the issues in such action will be brought on for trial at the time set by the court; and the party giving such notice of trial shall, at least three days before the day of setting such causes for trial file with the clerk of the court a note of issue containing the title of the action, the names of the attorneys and the date when the last pleading was served; and the clerk shall thereupon enter the cause upon the trial docket according to the date of the issue.
A trial is premature, and judgment entered therein is a nullity, where case is tried without notice having been given of its setting. Tuschoff v. Westover, 60 Wn.2d 722, 725, 375 P.2d 254 (1962). A case may not be placed on a superior court trial docket until a notice of a trial has been served and filed at least three days before a day provided for setting cases for trial; and where no such notice has been served and filed, neither a clerk of court nor a court has the authority to set a cause for trial. State ex rel. Floe v. Studebaker, 17 Wn.2d 8, 13, 134 P.2d 718 (1943).
A notice served on fewer than all defendants does not validate notice of assignment for trial as to those defendants not served, where judgment for a plaintiff would hold the unnotified defendants individually liable. State ex rel. Woodworth Cornell v. Superior Court, 9 Wn.2d 37, 42, 113 P.2d 527 (1941).
Here, on October 15, 2002, the County provided the later joined defendants with a case schedule indicating a November 12, 2002 trial date. Also, in its October 31, 2002, settlement letter the County reminded the later joined defendants of the trial date. Therefore, the later joined defendants were properly notified of the trial date.
Substantial Evidence
The later joined defendants contend that the evidence presented at trial was insufficient to support certain findings of fact.
We review findings of fact to determine whether they are supported by competent and substantial evidence. Sunderland Family Treatment Servs. v. City of Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 (1995) (citing Freeburg v. City of Seattle, 71 Wn. App. 367, 371, 859 P.2d 610 (1993)). Under the substantial evidence standard, there must be a sufficient quantum of evidence in the record to persuade a reasonable person that the declared premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000) (citing Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 200-01, 940 P.2d 269 (1997)). Our deferential review requires us to view the evidence and reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority. Sunderland Family Treatment Servs., 127 Wn.2d at 788 (citing Freeburg, 71 Wn. App. at 371-72).
Ownership Evidence
Earl and Doris Sorrels contend that evidence was insufficient to show that they had an ownership interest in 9406 Glencove. But the trial court considered certified copies of the deeds maintained by the Pierce County Auditor that showed that, for the period immediately before the filing of the amended complaint, Earl and Doris Sorrels were part owners of 9406 Glencove. The trial court had evidence of the series of title transfers from defendant to defendant. Included in the title transfers were two deeds of trust executed by Doris and Earl Sorrels, one dated October 5, 1998, and the other dated March 7, 2000. This evidence was sufficient for the trial court to find that Earl and Doris Sorrels had a property interest in 9406 Glencove.
Nuisance Evidence
The later joined defendants contend that evidence was insufficient to find public nuisances because no organic waste was present on the parcels. According to RCW 7.48.140, it is a public nuisance:
(1) To cause or suffer the carcass of any animal or any offal, filth, or noisome substance to be collected, deposited, or to remain in any place to the prejudice of others;
(2) To throw or deposit any offal or other offensive matter, or the carcass of any dead animal, in any watercourse, stream, lake, pond, spring, well, or common sewer, street, or public highway, or in any manner to corrupt or render unwholesome or impure the water of any such spring, stream, pond, lake, or well, to the injury or prejudice of others.
However, organic refuse is not the sole definition of public nuisance. Thus, RCW 7.48.120 defines 'nuisance' as follows:
Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.
Also, in City of Bremerton v. Sesko, 100 Wn. App. 158, 160, 995 P.2d 1257, review denied, 141 Wn.2d 1031 (2000), we held that the properties maintained as junkyards were nuisances:
According to the trial court's findings, the Arsenal Way property is covered with vehicles, heavy equipment, litter, vending machines, portable toilets, appliances, lumber scraps, metal scraps, vehicle parts, boats, metal tanks, wooden pallets, paint cans, litter debris and various other objects which are not associated with residential use of the property.
A different trial court judge found that the Pennsylvania Avenue property is covered with old dilapidated vehicles, including boats, buses, and cars, tires, rusty tanks, rusty machine parts, junk piers, wooden pallets, concrete chunks, modular buildings, metal debris, storage tanks, old signs, the building on sled runners, old boats, a rusty barge, storage tanks, pontoons, a rusty breakwater float, mattresses, styrofoam floats, portable buildings, a crane, rusty metal objects, metal scraps, and wood scraps.
(citations omitted).
The description of the items found on the property at Sesko closely resembles the items found on the parcels in the present case. Here, the trial court's findings were based on the photographs depicting the items on the property and the testimonies of eye witnesses, Officer Mark Luppino and Sergeant Edward Herberholz.
First, Luppino observed an accumulation of old tires on the patio of 9316 Glencove and testified about the mosquito breeding danger caused by the old tires. Also, Luppino saw an accumulation of 15 to 20 vehicles, some with rusting bodies, contractor equipment, utility trailers, fencing, and a red barrel or tank that was positioned almost upside down. Next, Luppino and Herberholz observed a 12-foot-high electronic road construction sign and chiropractic business sign on the property; these signs did not belong on the residential property.
Luppino stated that the tires retain the water and the heat, thereby causing the larvae of the mosquito to hatch; the mosquitoes may spread the West Nile virus, which is dangerous to human health.
Luppino also testified as to a conversation with Richard Sorrels, wherein Richard Sorrels admitted bringing onto 9406 Glencove some of the vehicles previously stored at 9316 and 9410 Glencove.
Finally, Herberholz testified that he received complaints about the mud coming down a driveway between 9406 and 9410 Glencove, making the road dangerous to drive on. Luppino testified that excavation taking place behind 9406 Glencove, and the runoff caused by that activity, was going across the road causing muck; no barriers were put in place to prevent the runoff.
The later joined defendants contend that the tires left along the waterfront do not constitute a public nuisance as long as the mosquito infestation has not become noticeable. But the definition of a nuisance, RCW 7.48.120, includes an act or omission that endangers others' health or safety, and the potential of mosquito breeding problems could reasonably be considered by the trial court as the endangerment contemplated by the statute.
The later joined defendants also contend that the mudflows from the common driveway between 9406 and 9410 Glencove did not support the finding of a public nuisance. We disagree. The definition of public nuisance, RCW 7.48.120, specifically includes the act of rendering dangerous for passage any street or highway.
Overall, the trial was presented with substantial evidence on which to base its nuisances findings.
Responsibility for Nuisance Abatement
Finally, the later joined defendants contend that they had nothing to do with the accumulation of items constituting nuisances, and therefore, they should not be responsible for the abatement of these nuisances. We disagree.
RCW 7.48.170 places the duty to abate nuisances on the property owners: 'Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property caused by a former owner, is liable therefor in the same manner as the one who first created it.'
The record includes Velez's and Swanson's affidavits claiming personal and real property interests of Velez and the R.E.S. Trust in the parcels at issue. Also, the deeds showed Earl and Doris Sorrels as part owners of 9406 Glencove. Thus, substantial evidence supported the trial court finding that the later joined defendants were property owners responsible for the abatement of the public nuisances.
The trial court also limited the financial responsibility of the later joined defendants to the extent of their interests in the property.
Affirmed in part and reversed in part.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and ARMSTRONG, J., concur.