Opinion
No. 28316-0-III.
March 17, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Spokane County, No. 08-2-00353-6, Kathleen M. O'Connor, J., entered July 17, 2009.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Brown, J.
The state imposed a substantial penalty on Lloyd and Linda Herman after they developed their waterfront property without first obtaining the necessary permits and approvals. We ultimately affirmed assessment of the penalty. Herman v. Shorelines Hearings Bd., 149 Wn. App. 444, 461, 204 P.3d 928 ( Herman I), review denied, 166 Wn.2d 1029 (2009). The Hermans also sued the State of Washington and Spokane County on a variety of theories, while the first appeal was pending. The superior court dismissed their suit based on the failure to file within the statute of limitations. And the Hermans now appeal that dismissal. We conclude that the court properly dismissed the complaint based on the statute of limitations and we affirm the summary dismissal of the suit. We do, however, decline the invitation to impose sanctions since we cannot conclude that the issue before us was without merit to the extent that it was frivolous.
FACTS
This is the second time these parties have been before this court on controversies that followed an unauthorized shoreline development at Liberty Lake, Washington. The factual backdrop for this current dispute is well developed in our earlier published opinion and need not be repeated here other than to note that we reversed the superior court and affirmed the decision of the Washington Shorelines Hearings Board to uphold the penalty as well supported in both law and fact. Herman I, 149 Wn. App. at 461.
The Hermans sued the State of Washington and the County of Spokane, and some of their employees, on a variety of theories while the appeal in Herman I was pending. Their final amended complaint alleged violations of federal and state civil rights, violations of chapter 64.40 RCW, outrage, negligent infliction of emotional distress, abuse of process, malicious prosecution, violations of CR 11, subordination of perjury, failure to train and supervise, tortious interference with use of property, negligent inspection of property, and breach of contract. The state moved for summary judgment on the grounds that the causes of action set out in the Hermans' complaint were time barred by the applicable statute of limitations. Spokane County joined in the motion. The trial court held a hearing on the motion in February 2009. Mr. Herman agreed to dismiss a number of the causes of action before argument (CR 11 sanctions, subordination of perjury, failure to train and supervise, tortious interference with property, and negligent inspection and enforcement). The trial court dismissed those causes of action and, ultimately, all of the remaining causes of action. The court dismissed a cause of action under chapter 64.40 RCW (granting a cause of action for arbitrary, capricious, or unlawful conduct by any agency during a permit process) because there was no permit involved in this dispute.
The court determined that the harm claimed by the Hermans occurred on May 21, 2004 — the date they received the shoreline violation order. The court found that the earlier 1995 agreement only required the Department of Ecology to rescind the $1,000 penalty, and it did that; therefore, the court dismissed Mr. Herman's breach of contract claim. Finally, the court dismissed the county and the individually named county employees as parties because there was nothing in the record that showed specific action on their part to support any cause of action.
The court also denied the Hermans' motion for reconsideration. The Hermans again appeal and contend that the statute of limitations did not start with the state's violation order.
DISCUSSION
The court dismissed the Hermans' suit based on the statute of limitations. The legal propriety of that decision is the question before us rather than the merits of their various causes of action. Appellants' Br. at 1-2.
Standard of Review
We review a trial court's decision to grant summary dismissal de novo; our inquiry is the same as was the trial court's. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). "A motion for summary judgment based on a statute of limitations should be granted only if the record demonstrates that there is no genuine issue of material fact as to when the statutory period commenced." Zaleck v. Everett Clinic, 60 Wn. App. 107, 110, 802 P.2d 826 (1991).
Statute of Limitations
The Hermans contend that the trial court erred when it summarily dismissed all of their remaining causes of action on the ground that the statute of limitations period had expired. They assert that the causes of action accrued on either January 24, 2005 (the date the Department of Ecology and the Department of Fish and Wildlife sent answers to interrogatories), or August 24, 2007 (the date the superior court issued its first decision). The Hermans argue that under either date their January 23, 2008, complaint was filed within a three-year statutory limitations period. The state and county respond that the causes of action accrued on May 21, 2004 (the date the Hermans received Shoreline Violation Order No. 1038), and are therefore barred by a three-year statute of limitations. See RCW 4.16.080(2) (imposing three-year statute of limitations for injury to the person or rights of another).
A statute of limitations period starts when a cause of action accrues. A cause of action accrues when a party has the right to seek relief in the courts. Colwell v. Eising, 118 Wn.2d 861, 868, 827 P.2d 1005 (1992). A cause of "'action accrues when the plaintiff knows or should know the relevant facts, whether or not the plaintiff also knows that these facts are enough to establish a legal cause of action.'" Gilbert v. Sacred Heart Med. Ctr., 127 Wn.2d 370, 381, 900 P.2d 552 (1995) (Durham, C.J., dissenting) (quoting Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992)). And that is generally when the act occurs. Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 219-20, 543 P.2d 338 (1975).
The Department of Ecology and the county sent the Hermans Shoreline Violation Order No. 1038 on May 17, 2004. They received the order by May 21, 2004. That order states that a penalty was incurred by the Hermans for "undertaking development on the shorelines of the state in violation of Chapter 90.58 RCW and the Spokane County Shoreline Management Master Program, and for failure to comply with the provisions of a prior Stipulation and Agreed Order of Dismissal (SHB 94-3)." Clerk's Papers (CP) at 137. The order goes on to detail the specific violations that were discovered during the site inspections at the Herman property:
a. Substantial amounts of fill and bulkheading were placed waterward of the ordinary high water mark.
b. The storage structure was modified and expanded by increasing the size and adding plumbing and wiring, and,
c. The boat lift and crane that he had agreed to remove in the 1995 stipulation, was in fact, encased in a concrete and rock bulkhead, with the effect of permanently fixing it's location waterward of the ordinary high-water mark of Liberty Lake.
CP at 138. The order concludes with a list of the specific statutory provisions the Hermans violated and requires them to immediately cease and desist from further development. This violation order is the factual predicate for the Hermans' causes of action (illegally and improperly interfering with their right and ability to develop their property). CP at 58. It represents the government action at the heart of every one of their causes of action. CP at 32-79.
The order gave the Hermans notice of the relevant facts and restrictions regarding the use and development of their property. Indeed, the Hermans' current claims are based on the order: "Appellants Lloyd Herman and Linda Herman claim the State restricted the manner of use, enjoyment, and development of their property by the alleged code violation enforcement." Appellants' Br. at 2. The Hermans, then, knew of the facts they needed to enforce whatever rights they wished to assert on May 21, 2004 — the date they received Shoreline Violation Order No. 1038. Allen, 118 Wn.2d at 758. Accordingly, that is when their causes of action accrued. Gilbert, 127 Wn.2d at 381 (Durham, C.J., dissenting).
The Hermans argue, nevertheless, that the causes of action could not have accrued "until the Superior Court rendered its decision" on August 24, 2007. Appellants' Br. at 3. They assert that "[u]ntil the review process was completed, the unlawfulness of the code enforcement restricting the Appellants' use had not yet been determined." Appellants' Br. at 3. We disagree. See Habitat Watch v. Skagit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005). The superior court's ruling did not apprise the Hermans of any additional facts needed for the causes of action they allege here. The court did little more than simply affirm the board's determination upholding the violation order. The Hermans had a right to seek relief in the courts on May 21, 2004 — that is the date of accrual. Eising, 118 Wn.2d at 868.
The Hermans also argue that the discovery of additional information to support causes of action against the state and county, occurred during the board's review process and this changes the date that they knew of facts supporting a civil rights violation or a tort claim. Specifically, they contend the Department of Ecology and the Department of Fish and Wildlife added allegations in their January 24, 2005, discovery responses on hillside development that were not in the May 17, 2004, order. We disagree. They knew facts that could support a cause of action for violations of their civil rights or for their various tort claims in 2004. Later discovery of additional information (an occurrence in virtually every civil suit) does not change the applicable statute of limitations. Eising, 118 Wn.2d at 868.
The Hermans assert that the board is an administrative agency rather than a quasi-judicial body and therefore all administrative remedies had to be exhausted before the relevant statute of limitations began running. The enabling act creating the board expressly defines it as a "quasi-judicial body." RCW 90.58.170. And the local agency's action is considered the "final decision." RCW 90.58.180(1). Shoreline Violation Order No. 1038 was the final administrative action and the board heard the Herman's appeal sitting as a quasi-judicial body. All administrative action concluded when the Hermans received the order on May 21, 2004.
There is no genuine issue of material fact, then, that the applicable statutory period of limitations commenced on May 21, 2004. The causes of action that remained after the voluntary dismissals were subject to the May 21, 2004, date of accrual include: (1) federal civil rights claim under 42 U.S.C. § 1983; (2) claim under the Washington State Constitution; (3) claim under chapter 64.40 RCW; (4) tort of outrage claim; (5) negligent infliction of emotional distress claim; (6) abuse of process claim; (7) malicious prosecution claim; and (8) breach of contract claim. The court properly dismissed them.
Motion for Reconsideration
The Hermans next contend that the court should have granted their motion to reconsider the summary dismissal of their suit. Their motion was supported by Mr. Herman's affidavit; it attached two exhibits.
We review both the decision to strike the affidavit and the decision to deny the motion for reconsideration for abuse of discretion. King County Fire Prot. Dist. No. 16, No. 36 No. 40 v. Hous. Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994); Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002).
The trial court's refusal to consider the affidavits and exhibits the Hermans submitted after trial was well within its discretionary authority because "evidence presented for the first time in a motion for reconsideration without a showing that the party could not have obtained the evidence earlier does not qualify as newly discovered evidence." In re Marriage of Tomsovic, 118 Wn. App. 96, 109, 74 P.3d 692 (2003).
The Hermans argue that the exhibits were admissible under ER 402 as visual aids supporting relevant testimony. That may be true but it does not help. Relevant evidence is generally admissible at trial but not after a final judgment unless it is newly discovered evidence. Tomsovic, 118 Wn. App. at 109. Here, the record was closed. There is no suggestion that the evidence falls under the heading of "newly discovered." Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 88, 60 P.3d 1245 (2003). Indeed, the motion for reconsideration simply reargued the points made during the summary judgment proceeding.
Attorney Fees
The state and county contend that the appeal here is both frivolous and retaliatory and that they are therefore entitled to attorney fees and costs. RAP 18.1; RAP 18.9; RCW 4.84.185. They argue that the Hermans' appeal is retaliatory and frivolous because the matter was already decided against the Hermans in the appeal of the enforcement action. The state and county argue that the Hermans and counsel have violated CR 11, as incorporated by RAP 18.7.
Significantly, we have confined our analysis and resolve this appeal based on the statute of limitations only. That part of the Hermans' contentions does not meet the criteria for a frivolous action. Biggs v. Vail, 119 Wn.2d 129, 133-37, 830 P.2d 350 (1992) (a claim is frivolous if, viewed in its entirety, it is frivolous as a whole and no one claim has merit). We have not addressed the merits of the underlying causes of action but, at least facially, those causes might well fall under the rubric of "frivolous" given our clear holding that the state's actions were supported by both fact and law. But, that said, "[a]n appeal is frivolous if, considering the entire record, the court is convinced that the appeal presents no debatable issue upon which reasonable minds might differ and that it is so devoid of merit that there is no possibility of reversal." Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007).
We then affirm the decision of the trial court granting summary judgment dismissal of the Hermans' complaint but deny the requests for attorney fees.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and BROWN, J., concur.