1515-1519 Lakeview Blvd. Condominium Ass'n v. Apartment Sales Corp.

Full title: 1515-1519 LAKEVIEW BOULEVARD CONDOMINIUM ASSOCIATION, a Washington…

Court: Court of Appeals of Washington, Division 1

Date published: Dec 18, 2000

17 P.3d 639 (Wash. Ct. App. 2000)

Opinion

17 P.3d 639 (Wash.App. Div. 1 2000) 1515-1519 LAKEVIEW BOULEVARD CONDOMINIUM ASSOCIATION, a Washington corporation, Robert A. Ferguson, Douglas A. Taylor, Bruce E. Curnutt, Bruce A. McLaughlin, Frank Y. Fukui and Penny Fukui, husband and wife and the marital community composed thereof, Appellants, v. APARTMENT SALES CORPORATION, a Washington corporation, Michael K. Williams and Jane Doe Williams, husband and wife and the marital community composed thereof, Gordon Capretto and Jane Doe Capretto, husband and wife and the marital community composed thereof, Geotech Consultants, Inc., a Washington corporation, Stephen Sullivan, d/b/a Stephen Sullivan Architects, Martha Rose d/b/a Rose Construction Management, Gary Swenson and Jane Doe Swenson, husband and wife and the marital community composed thereof, and Rsp/Eqe, Inc., a Washington corporation, and the City of Seattle, a municipal corporation, Respondents. No. 45241-0-1. ^* Court of Appeals of Washington, Division 1. December 18, 2000

ORDER AMENDING OPINION

WEBSTER, J.

The City of Seattle timely filed a Motion for Reconsideration on October 2, 2000. After reviewing the appellants' answer and the City's reply, we amend the opinion, 102 Wash.App. 599, 9 P.3d 879, by replacing the first paragraph [2nd column, 13 lines from top of p. 881 of 9 P.3d] to read:

WEBSTER, J.--The appellants (Homeowners) own real property severely damaged by a landslide that occurred in early 1997. Homeowners brought suit against the City of Seattle and others. In its motion for summary judgment, the City argued that a recorded covenant waived all their negligence claims. The City also argued that the public duty doctrine and the assumption of the risk doctrine bar the Homeowners' negligent permitting claims. The trial court granted summary judgment in favor of the City. Homeowners appeal arguing: (1) the Covenant does not waive all their negligence claims; (2) the public duty doctrine does not bar their negligent permitting claims; and (3) they did not assume the risk of a landslide. We reverse because the Covenantdoes not run against Homeowners. Although the public duty doctrine bars their claim against the City for negligent permitting, only partial summary judgment is appropriate because the claim that the City negligently maintained the public storm drain remains an issue.

We also add a footnote to the end of the first paragraph on Page 5, [1st column, 29 lines from the top of p. 883 of 9 P.3d] after the word "optional," that states:

² In a motion for reconsideration to this Court after our decision, the City argues that public policy supports enforcement of the Covenant despite the traditional touch and concern requirement, citing Howe v. Douglas County, 102 Wash.App. 559, 7 P.3d 883 (2000); Restatement (Third) of Prop.: Servitudes § 3.2 (2000). Because the parties did not argue public policy in their briefs, we do not reach this issue. RAP 12.1(a).

In addition, we amend the first sentence in Section II (Page 7) [1st column, 14 lines from the top of p. 884 of 9 P.3d] to read:

The City asserts that the public duty doctrine bars Homeowners' negligent permitting claims.

We also strike the first full paragraph on Page 11 [2nd column, 3 lines from top of p. 885 of 9 P.3d] and replace with the following:

Because the City moved for partial summary judgment only on the negligent permitting claim, we do not address whether the special relationship exception applies to the claim for negligent maintenance of the public storm drain.

D. Rescue Exception

At oral argument, Homeowners argued that the rescue exception applies. An issue is not properly Before an appellate court if not set forth in the party's brief, even if raised at oral argument. State v. Johnson, 119 Wash.2d 167, 170, 829 P.2d 1082 (1992). Because Homeowners failed to assert the rescue exception in its briefing to this Court, we do not reach it.

Finally, we amend the first paragraph on Page 12 [2nd column, lines 13-25 from bottom of p. 885 and also 1st column, lines 1, 2 of p. 886 of 9 P.3d] to read:

CONCLUSION

We hold that the Covenant does not bar Homeowners' negligence claims because it fails to touch and concern an estate in land. But, because Homeowners have failed to establish a public duty exception for their negligent permitting claims, only their drainage claim remains an issue following summary judgment.

The panel having determined that the opinion filed on September 18, 2000 in the above matter should be amended,

Now, therefore, it is hereby

ORDERED that the opinion is amended as set forth above and further reconsideration is denied.

COLMAN, J. and BECKER, A.C.J., concur.

Official Washington Appellate Reports that parallel citation and star pagination was not available.