Opinion
No. 52060-1-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 00-2-07980-8. Judgment or order under review. Date filed: 02/25/2003. Judge signing: Hon. Ronald X Castleberry.
Counsel for Appellant(s), John Spoelstra (Appearing Pro Se), 5732 60th St. SE, Everett, WA 98290.
Sharla Ann Spoelstra (Appearing Pro Se), 5732 60th St. SE, Everett, WA 98205.
Counsel for Respondent(s), Thomas M. Fitzpatrick, Snoh Co Aty Ofc Civil Division, 2918 Colby Ave Ste 203, Everett, WA 98201-4011.
John and Sharla Ann Spoelstra challenge the dismissal on summary judgment of their claims against Snohomish County. We agree that summary judgment was properly entered on all but one of the Spoelstras' claims. We reverse the trial court's dismissal of the claim based on a 2001 incident and remand for further proceedings.
The Spoelstras own a 140-acre farm that is located along the Ebey Slough near Everett in Snohomish County. The Ebey Slough is one of several channels of the Snohomish River that empty into Puget Sound. The lower river valley is a flood plain and historically has been subject to regular flooding.
The Spoelstras purchased the farm in 1998 for $185,000 from the Farmers Home Administration (FmHA), but have lived on the property since 1979. In their brief, the Spoelstras allege, without reference to any evidence in the record, that the purchase price reflected a settlement of the Spoelstras' lawsuit against the FmHA. Over the years, the Spoelstras have operated a dairy farm and raised various crops, but did not farm the property from 1987-1994.
The Spoelstras' farm lies within former Drainage District 6 (DD6), which encompassed 453 acres running generally east-west along the Ebey Slough. DD6, which was created in 1923, constructed a system of dikes and levees along the river to control flooding; behind the levee, a series of ditches channel water to the river. Water channeled from the protected area then flows through several tide gates into the river. But by design, water can flow through the tide gates and into the river only when the water level in the river is lower than the water level in the protected area. Consequently, water cannot flow through the system when the river level is elevated because of flooding or high tide. The Snohomish County Council suspended the operation of DD6 on December 9, 1998, and dissolved it on August 28, 2002.
Prior to 1990, DD6 also operated a pump to control the water level behind the levee. The Spoelstras have acknowledged that the pump was used throughout the year to control the water level in the protected area and that it was particularly important in the spring to keep the fields dry enough for farming. In 1990, the pump was damaged during a flood and has not operated since.
Two of the tide gates in DD6 are at issue in this appeal. DD6 installed a 36-inch tide gate in the levee near the eastern boundary of the Spoelstras' property in 1997 (the 1997 tide gate). Tide gate B, located at the northeast corner of DD6, was partially obstructed in 1995 by rocks placed to reinforce the dike during a flood. The evidence in the record is undisputed that DD6 installed a second tide gate next to the rock-filled culvert in 1996.
The Spoelstras characterize the County's contention that a second tide gate was installed next to the damaged tide gate B as "a bold face lie." Reply Brief, at 11. But in his declaration, John Engle, a supervisor for the Snohomish County Department of Public Works, unambiguously states that DD6 installed a second tide gate "next to the rock-filled culvert" in 1996. The Spoelstras have failed to identify any controverting evidence.
In 1992, the Snohomish County Council adopted the Snohomish River Comprehensive Flood Control Management Plan. The Plan recommended the acquisition of DD6 for flood control and for habitat restoration. In 1993, the County Council authorized the acquisition of land for the restoration project. Among other things, the project proposed breaching the dike to allow off-channel flood storage in DD6 and enhance wetlands, consistent with similar projects in the lower Snohomish River.
As originally conceived, the project would have restored the entire area of DD6. But for various reasons, the County eventually issued a shoreline substantial development permit for restoration of about one-half of DD6. The County began acquiring land in DD6 in 1994, but was unable to reach an agreement with the Spoelstras, who had an option to purchase the farm at the time. As modified, the project proposed to strengthen the existing levee along the Spoelstras' property and to construct a cross-levee to protect the property from the restored area.
After purchasing the property in 1998, the Spoelstras have been granted a series of boundary line adjustments that have created more than 20 buildable lots outside of the flood plain. In 1999, the Spoelstras challenged the County's issuance of the substantial development permit, arguing, among other things, that the permit should be conditioned on replacement of the DD6 pump that had not operated since 1990.
The Shoreline Hearings Board rejected the challenge, concluding that the Spoelstras had failed to demonstrate "any nexus between any drainage problems they may have and this project." Clerk's Papers, at 567. The superior court later dismissed the Spoelstras' petition for review.
On November 1, 2000, the Spoelstras filed this action against Snohomish County, DD6, and various individuals, including former DD6 commissioners Kenneth Anderson and Larry Clark. The complaint alleged that the County, DD6, and others had conspired to keep the area of DD6 in a flooded condition that would eventually destroy the Spoelstras' farming operation and force them to sell the property at below market value, thereby facilitating the conversion of the land into a wetland habitat. The complaint also alleged claims of negligence, unlawful taking of property, and intentional infliction of emotional distress.
The defendants moved for summary judgment. On November 18, 2002, the trial court dismissed all claims against Kenneth Anderson, Larry Clark, and the other individual defendants, concluding that they were immune from suit and noting that the Spoelstras had failed to submit responsive materials or identify any evidence suggesting that the commissioners had failed to act within the scope of their duties or had failed to act in good faith.
After the dismissal of the individual defendants, the Spoelstras submitted materials alleging the following specific actions as the basis for their claims: (1) that in the winter of 1995, DD6 and County agents dumped several truckloads of crushed rock along the dike, plugging a culvert, damaging tide gate B, and causing flooding of the Spoelstras' property; (2) that in the spring of 1996, after the Spoelstras had cleaned out the culvert and repaired tide gate B, DD6 and County agents again dumped crushed rock, damaging the tide gate and causing flooding of the Spoelstras' property; (3) that in April 1997, DD6 agents installed a new tide gate near the northeast corner of the Spoelstras' property that was placed too high to drain properly; (4) that in the summer of 1997, the Spoelstras discovered that the tide gate near the DD6 pump house had been tied open, intentionally flooding DD6; (5) that in 1999, Kenneth Anderson had plugged a drainage ditch on the Spoelstras' property by dumping hay into it; and (6) that in September 2001, a County agent removed a portion of a dam that the Spoelstras had built on their property. In his declaration, John Spoelstra summarized his claims as follows:
The overt acts of the County on plugging the tide gates combined with the dereliction of duty of the Commissioners of DD6 and DD6 in not performing routine maintenance from 1994 to present caused my property to be inundated. The presence of the water set in motion a destructive process. I lost substantial hay production. Grass died. Sedges have begun to appear. Wetland conversion has started. The economic viability of my farm has been taken away. The County has taken and damaged my farm causing me hundreds of thousands of dollars in losses together with costs to restore my farm as a viable farm. Fair market value of the farm has been negated.
Clerk's Papers, at 248.
On January 16, 2003, the trial court granted summary judgment and dismissed all claims, except for one, against the County and DD6. The court concluded that except for inverse condemnation, all of the Spoelstras' claims were tort claims and therefore subject to a three-year statute of limitations. See RCW 4.16.080. Accordingly, the court ruled that all claims based on County actions occurring before November 1, 1997, i.e., three years prior to the filing of the Spoelstras' complaint, were time barred. The court further ruled that the County was immune from suit under RCW 86.12.037 for maintenance-related activities after November 1, 1997.
The court dismissed without prejudice any claims against DD6 because the district was suspended at the time the Spoelstras' action was filed. In the alternative, the court ruled that any claims against DD6 for separate torts arising after October 23, 1997, the date on which the Spoelstras filed a claim, were barred for failure to file a claim. The court dismissed the inverse condemnation claim, finding that because the Spoelstras had not purchased the property until 1998, long after their awareness of the alleged flooding damage and the alleged conspiracy to destroy the property's value, there was no evidence establishing any loss of property value attributable to the County's actions. The court also dismissed the Spoelstras' outrage claim.
Finally, the court ruled that the County was not immune under RCW 86.12.037 for its actions in breaching a portion of a dam on the Spoelstras' property in August 2001. The court therefore declined to dismiss the claim based on that incident, but ruled the County could file a new motion for summary judgment if it desired.
The Spoelstras moved for reconsideration. On February 25, 2003, the court denied reconsideration, but also dismissed the 2001 claim. The Spoelstras now appeal.
Standard of Review
When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). We may affirm a summary judgment order on any ground that the record and pleadings support, regardless of whether the trial court relied on that ground. East Wind Express, Inc. v. Airborne Freight Corp., 95 Wn. App. 98, 102, 974 P.2d 369 (1999).
Analysis
Initially, we note that the Spoelstras have not presented any argument challenging the trial court's dismissal of the individual defendants or the dismissal without prejudice of all claims against DD6. Accordingly, we do not address the propriety of those rulings.
The Spoelstras first contend that the trial court erred in ruling that the three-year statute of limitations, RCW 4.16.080, barred all tort claims based on alleged incidents occurring prior to November 1, 1997, three years before the Spoelstras filed this action. They argue that the facts alleged in opposition to the County's summary judgment motion establish a "continuing tort" for which the statute of limitations has not yet expired. This argument fails for several reasons.
The Spoelstras' claim of a "continuing tort" is raised for the first time on appeal. In opposition to summary judgment, the Spoelstras argued that their claims were governed by the six-year statute of limitations applying to "improvements upon real property" under RCW 4.16.310 or, in the alternative, that the discovery rule tolled the statute of limitations until 1998. Clerk's Papers, at 308-09. The Spoelstras have abandoned both of these arguments on appeal.
Generally, this court will not consider arguments raised for the first time on appeal. Wilson v. Steinbach, 98 Wn.2d 434, 440, 656 P.2d 1030 (1982). The Spoelstras have not suggested any reason why we should depart from the rule in this case. See RAP 2.5(a).
The Spoelstras' contention that they raised the continuing tort theory in their motion for reconsideration is without merit. In their motion for reconsideration, the Spoelstras asserted that the defendants' acts "should be construed as a single tort and not as multiple torts" and explained that they were advancing a theory recognized in Washington "under the doctrine of aggregation through a continuing course of conduct on the part of the defendants based on a common larcenous scheme or plan that started as far back as the early 1990's and is continuing to the present date which must be treated as a single tort." Clerk's Papers, at 23.
To support this proposition, the Spoelstras relied solely on two criminal cases, State v. Garman, 100 Wn. App. 307, 984 P.2d 453 (1999), and State v. Mermis, 105 Wn. App. 738, 20 P.3d 1044 (2001), the same authorities cited in their appellate brief. But Garman addressed the need for a unanimity instruction when a prosecution for theft was based on the aggregation of a series of transactions. See Garman, 100 Wn. App. at 315. Mermis involved the issue of whether a series of thefts were part of "a single, continuing criminal impulse or intent" for purposes of determining when a crime was complete. See Mermis, 105 Wn. App. at 745. Consequently, neither Garman nor Mermis provides any support for the Spoelstras' claim of a continuing tort. Under the circumstances, the Spoelstras' arguments cannot reasonably be construed as having alerted the trial court to their theory of a continuing tort.
Moreover, even if we assume that the Spoelstras' motion for reconsideration sufficiently alerted the trial court to their theory, we would decline to address the issue further on appeal. Although the Spoelstras make a passing reference in their brief to theories of nuisance and trespass, they have failed even to identify the alleged continuing tort on which they rely or to present any meaningful legal argument. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will generally decline to address issues unsupported by adequate argument and citation to relevant authority).
Much of the Spoelstras' argument to the trial court and in their opening brief was devoted to the alleged existence of an ongoing conspiracy by the County, DD6, various federal agencies, and certain individuals. But in their reply brief, the Spoelstras ask that we "disregard the conspiracy issue as not being germane to this appeal." Reply Brief, at 14. Accordingly, we will not address any conspiracy claims.
The Spoelstras next contend that the trial court erred in dismissing all claims against the County arising from its post-November 1997 conduct (except for the August 2001 dam breach) on the basis that the County was immune under RCW 86.12.037. RCW 86.12.037 provides immunity to counties "even where their negligence in the construction and maintenance of flood control devices results in damage to private property during floods and other periods of high water." Paulson v. Pierce Cy., 99 Wn.2d 645, 649, 664 P.2d 1202 (1983).
RCW 86.12.037 provides: "No action shall be brought or maintained against any county alone or when acting jointly with any other county under any law, its or their agents, officers or employees, for any noncontractual acts or omissions of such county or counties, its or their agents, officers or employees, relating to the improvement, protection, regulation and control for flood prevention and navigation purposes of any river or its tributaries and the beds, banks and waters thereof."
Citing Hamilton v. King County, 195 Wn. 84, 79 P.2d 697 (1938), the Spoelstras argue that their claims are not based on the maintenance of flood control devices, but rather arise "out of drainage or lack of it," and that therefore RCW 86.12.037 does not apply. In Hamilton, a mink rancher filed suit after the county constructed a large drainage ditch across the rancher's property during the whelping season, causing a severe loss to the mink population. The court summarily declined to consider an earlier version of RCW 86.12.037 because the county's actions involved a drainage ditch and not a flood control project. Hamilton, 195 Wash. at 91.
But in this case it is undisputed that the facilities of DD6, which include dikes, levees, culverts, and drainage ditches, were all constructed as part of a flood control system. The trial court did not err in ruling that the County was immune for its post-November 1997 actions related to the maintenance of the DD6 facilities.
The Spoelstras also appear to argue that the County's post-1997 actions cannot be characterized as maintenance but rather involved the intentional destruction of DD6 facilities. This argument rests on the claim that every year from 1995 through December 2001 Spoelstra would clean crushed rock from the tide gate that was meant for drainage for DD6 into the Ebey slough and every year the defendants would bring in truckloads of crushed rock not to fix the dikes but to dump onto the tide gates plugging the drainage. Brief of App., at 20. But no admissible evidence in the record supports these allegations.
In resisting summary judgment, the Spoelstras relied on declarations from Don Nopson, Jim Chase, and John Spoelstra. Don Nopson claimed to have seen County trucks dumping crushed rock in 1995 and 1996. But after 1996, Nopson claimed only that he helped John Spoelstra clean out crushed rock several times; Nopson does not allege to have seen any dumping during that period. Jim Chase states only that in September or October 2001, he helped John Spoelstra clean out crushed rock that "appeared to be purposely dumped to plug the culverts." Clerk's Papers, at 112. Chase does not claim to have observed any dumping.
In his declaration, John Spoelstra asserts that he observed County and DD6 trucks drive up in 1995, but he did not see the dumping; nor does Spoelstra claim that he observed dumping on any other occasion. In 1999, Spoelstra saw Kenneth Anderson dump hay in a drainage ditch, but there is no evidence suggesting that Anderson was acting as a County agent. Finally, no evidence in the record supports the Spoelstras' assertions that the County tied open the tide gate in 1997, installed or authorized the 1997 tide gate, bribed Anderson and Larry Clark, or somehow prevented the repair or operation of the DD6 pump after 1990.
Even when viewed in the light most favorable to the Spoelstras, the foregoing evidence fails to raise an inference that the County or its agents deliberately damaged the drainage facilities of DD6.
The Spoelstras next contend that the trial court erred in dismissing their claim for outrage. They first argue that the trial court's reasoning was flawed because they raised a claim of intentional infliction of emotional distress, not outrage. But outrage and intentional infliction of emotional distress are synonyms for the same tort. Kloepfel v. Bokor, 149 Wn.2d 192, 193, n. 1, 66 P.3d 630 (2003).
The trial court dismissed the claim in part because the Spoelstras had failed to present any evidence of objective symptomology of severe emotional distress. But after the trial court's decision, our Supreme Court held that such evidence is not required in order to maintain a claim for outrage. Kloepfel, 149 Wn.2d at 198. But the trial court also ruled that the claim should be dismissed because the alleged conduct of the County did not satisfy "any standard of the tort of outrage."
The tort of outrage requires proof of three elements: (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) severe emotional distress. Kloepfel, 149 Wn.2d at 195. Such claims must be based on behavior "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Kloepfel, 149 Wn.2d at 196 (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)). Whether certain conduct is sufficiently outrageous to support a claim of outrage is generally a question for the trier of fact, but the trial court must first determine that reasonable minds could differ on whether the conduct has been sufficiently extreme and outrageous to result in liability. Spurrell v. Block, 40 Wn. App. 854, 862-63, 701 P.2d 529 (1985).
The Spoelstras' claim of outrage is based on allegations that after November 1997, the County and its agents repeatedly and intentionally plugged and damaged the facilities of DD6 in order to flood and destroy their property. But as detailed above, the Spoelstras failed to submit any evidence to support a reasonable inference that the County committed the alleged acts or that the conduct was intended to inflict emotional distress. Based on the evidence in the record, reasonable minds could not differ on whether the County's conduct was sufficient to result in liability for outrage. Accordingly, the trial court properly dismissed the claim on summary judgment.
The Spoelstras next contend that the trial court erred in dismissing their inverse condemnation claim. Inverse condemnation is an action to recover the value of property allegedly taken by the government without a formal exercise of the power of eminent domain. Phillips v. King Cy., 136 Wn.2d 946, 957, 968 P.2d 871 (1998). In order to maintain an inverse condemnation claim, a party must establish the following elements: (1) a taking or damaging (2) without just compensation (3) of private property (4) for pubic use (5) by a governmental entity that has not instituted formal proceedings. Phillips, 136 Wn.2d at 957.
The trial court ruled that the Spoelstras had failed to present any evidence that they had been damaged by the alleged taking. On appeal, the Spoelstras have failed to demonstrate any error in the trial court's decision.
In their brief, the Spoelstras first claim that their damage "is to the compensation award given to them pursuant to an out of court settlement." Brief of App., at 31. They contend that the $185,000 purchase price of the farm in 1998 did not represent the market value of the farm, which was $2,500,000, and that the County's actions somehow affected the value of their out-of-court settlement with the federal government. The Spoelstras also set forth the value of the farm at various points in time. But these allegations are not supported by any references to the relevant parts of the record, in violation of RAP 10.3(a)(5), and our review of the record fails to disclose any evidentiary support. In support of their argument, the Spoelstras also refer this court to the various allegations of damages set forth in their complaint. Brief of App., at 32. But where the moving party has met its initial burden on summary judgment by demonstrating the absence of evidence to support the non-moving party's case, the nonmoving party may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Additionally, any such affidavits must be based on personal knowledge admissible at trial and not merely on conclusory allegations, speculative statements or argumentative assertions.
(Footnote omitted.) Las v. Yellow Front Stores, 66 Wn. App. 196, 198, 831 P.2d 744 (1992). The trial court did not err in dismissing the inverse condemnation claim on summary judgment.
Finally, the Spoelstras contend that the trial court erred when, in response to their motion for reconsideration, it dismissed their claim for the 2001 dam breaching incident after earlier denying summary judgment. The Spoelstras argue that in dismissing the claim, the trial court effectively granted an untimely motion for reconsideration by the County. We agree.
After the trial court dismissed all claims except the 2001 incident, the Spoelstras moved for reconsideration. Among other things, they argued that because the trial court had not dismissed the 2001 incident, "even though it was not in the plaintiffs' original complaint," the court must have implicitly recognized their "continuing course of conduct" theory about the statute of limitations. Clerk's Papers, at 24. In opposing the motion for reconsideration, the County argued that the court should "reconsider and dismiss" the 2001 claim because it was "clearly barred by the failure to file a claim with the County under RCW 4.96.020." Clerk's Papers, at 13. In response, the trial court denied reconsideration "except as to the 2001 Spoelstra dam claim, which on reconsideration is hereby dismissed." Clerk's Papers, at 12.
The County's motion for reconsideration, included in its response to the Spoelstras' motion for reconsideration, was not filed and served within 10 days of the entry of summary judgment. See CR 59(b). The trial court had no discretionary authority to extend the time to file a motion for reconsideration. Metz v. Sarandos, 91 Wn. App. 357, 360, 957 P.2d 795 (1998). Accordingly, we reverse the trial court's dismissal of the 2001 claim and remand for further proceedings. See Metz v. Sarandos, 91 Wn. App. at 360. We note that in accordance with the trial court's original ruling, the County is not precluded from filing a new motion for summary judgment in conjunction with the 2001 incident.
In its brief, the County has moved to strike any statements in the Spoelstras' briefs that are not supported by the record. But a party may include in a brief only a motion that, if granted, would preclude hearing the case on the merits. RAP 17.4(d). The County's motion does not satisfy this requirement. Accordingly, we do not consider the motion. See Brower v. State, 137 Wn.2d 44, 76, 969 P.2d 42 (1998).
The trial court's dismissal on summary judgment of all claims except the 2001 incident is affirmed; the trial court's dismissal of the 2001 incident is reversed and the matter remanded for further proceedings.
Affirmed in part; reversed in part and remanded for further proceedings.
SCHINDLER, and APPELWICK, JJ., concur.