Opinion
No. 34048-8-II.
December 5, 2006.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 04-2-00925-8, F. Mark McCauley, J., entered October 17, 2005.
Counsel for Appellant(s), John R. Wyss (Appearing Pro Se), C/o 9020 Greenwood Avenue North, Seattle, WA, 98103.
Counsel for Respondent(s), Steven Ross Johnson, Attorney at Law, 609 8th St, Hoquiam, WA, 98550-3522.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
John R. Wyss appeals a summary judgment order dismissing his claim for inverse condemnation and granting the city of Hoquiam's motion for summary judgment on an action to void a land transfer from Wyss to his minor son. We affirm because res judicata bars Wyss's cause of action and because Wyss failed to follow the short plat statutes in transferring the land to his son.
FACTS
In August 1999, the city of Hoquiam (the City) condemned an eight-unit apartment building that Wyss owned because it was dangerous and not safe. Wyss and his four-year-old son, James Russell Beemer Wyss (James), were living in the building at the time. On August 30, 1999, Abatement of Dangerous Buildings issued a notice and order of abatement requiring Wyss to vacate the building within 30 days and begin demolishing the building within 60 days or the City would do so at Wyss's expense.
At about this time, Wyss executed a deed transferring the north 40 feet of his 84-foot lot to James. Wyss retained the section of real property on which the building stood. Wyss did not comply with the regulations on subdivisions of real property when he divided his property.
Wyss appealed the abatement order to the Hoquiam Building Code Council (the Council).
He appeared at the hearing on December 1, 1999, testified on his own behalf, and heard the Council's decision affirming the abatement order. On February 9, 2000, he sent the City a check for a demolition permit so he could contract for his own demolition services. The City returned the check, saying that Wyss's request came too late and that Hoquiam had already proceeded with demolition and had contracted for asbestos removal from the structure.
Wyss claims that the Council never gave him the option of repairing the building. We do not have a copy of the Council's final decision in the clerk's papers. Wyss has provided excerpts from the hearing's transcript and it appears from the discussion that the Council did not consider it financially feasible to repair the building. The Council voted to deny Wyss's appeal but allowed Wyss 30 days to present the building department with a set of working drawings and to apply for a permit if he wanted to repair the building.
Wyss filed a petition for review of the Council's decision in superior court, but it dismissed his appeal as untimely. He appealed to this court, and we affirmed the superior court's dismissal in an unpublished opinion.
Wyss v. City of Hoquiam, No. 25907-9-II, 2002 Wn. App. LEXIS 581, at 9 (Wash.Ct.App. Apr. 5, 2002).
Wyss then filed a complaint in federal district court for violations of his civil rights, claiming he was deprived of his home and property without compensation, denied due process, and suffered a physical invasion and total taking of his property for public benefit without compensation.
His complaint to the federal court alleged that the City evicted him from his property without giving him the option of repairing it and that the City burdened his property by recording a lis pendens. He claimed that, despite his pending appeal before the Council, the City wrongfully disconnected the building's power and physically removed the electrical connections. Wyss claimed that the condemnation was part of the City's improvement plan and so the taking was for a public benefit. He claimed that the City completely deprived him of the property because the City's lien to cover the demolition costs would exceed the land's value.
His requested relief from the federal district court included a declaratory judgment affirming his deed to James, damages for the unlawful cloud on his title, compensation for being deprived of his right to live in his home, damages for loss of rental income from the apartments, and punitive damages. The City counter-claimed in federal court, seeking a declaratory judgment nullifying the deed to James as an unlawful subdivision.
On summary judgment motions from the parties, the federal district court ruled that Wyss was accorded due process and that Wyss's Fifth Amendment taking claim had no merit because the building was a nuisance and the City was properly exercising its police power to protect and ensure public safety. The court disagreed that the City was taking or seizing property for its own or for public use. The district court noted that Wyss could still use his building and his property for a lawful purpose.
The court went on to say:
[E]ven if a cognizable taking had occurred in this case, Mr. Wyss has not pursued available and adequate post-deprivation remedies, and thus, he cannot maintain an action based on a 'taking without just compensation.' . . . The State of Washington provides a meaningful post-deprivation remedy for the intentional or negligent loss of property by state agents and employees. Here, Mr. Wyss has had the opportunity to challenge the City of Hoquiam's alleged taking in a reverse condemnation suit brought in state courts.
Clerk's Papers (CP) at 62 (internal citations omitted).
The federal district court declined to rule on whether the land transfer to James was void. It viewed this claim as a request for the federal court to exercise its supplemental jurisdiction. Because the court had dismissed Wyss's federal claims, it declined to retain jurisdiction over this remaining pendent state law claim.
The City then filed a complaint in superior court seeking a declaratory judgment that the land transfer to James was unlawful and invalid. Wyss filed a counterclaim for inverse condemnation, arguing again that the City took his property without compensation. The City and Wyss both moved for summary judgment.
The City's memorandum in opposition to Wyss's motion for summary judgment was filed on September 22, 2005, only four days before to the hearing on September 26, 2005. Wyss moved to strike this memorandum because it was not filed within 10 days, as CR 56(c) requires. Nonetheless, the trial court considered the memorandum in denying Wyss's motion for summary judgment and granting summary judgment for the City. Wyss now appeals.
CR 56(c) provides:
The [summary judgment] motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served not later than 28 calendar days before the hearing. The adverse party may file and serve opposing affidavits, memoranda of law or other documentation not later than 11 calendar days before the hearing. The moving party may file and serve any rebuttal documents not later than 5 calendar days prior to the hearing.
ANALYSIS
I. Standard of Review
We review summary judgment orders de novo, performing the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). In conducting this inquiry, we must view all facts and reasonable inferences in the light most favorable to the nonmoving party. Hisle, 151 Wn.2d at 860. Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle, 151 Wn.2d at 861.
II. Damages for the Taking of Real Property
Wyss claims that the City acted illegally by requiring that his home be demolished without giving him the opportunity to repair it. He claims that the City "vacated [him] from his home forcefully by disconnecting utilities" and posting "Do Not Enter" signs. Appellant's Br. at 9. He claims that the City should have observed a stay of action while he was appealing the abatement order. He also claims that he was denied due process under the City ordinances, Washington eminent domain law, and constitutional law. He argues that the City should have allowed him to abate his own nuisance rather than unreasonably forcing a demolition contract onto him and placing a lien on his property.
We hold that res judicata now bars all of Wyss's claims for damages stemming from the apartment building's condemnation and demolition. The federal district court has already heard the parties' arguments and adjudicated this matter. Res judicata refers to the preclusive effect of judgments, which bar the relitigation of claims and issues that were litigated, or might have been litigated, in a prior action. Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995). Res judicata prevents relitigation of already determined causes and curtails the multiplicity of actions and harassment in the courts. Loveridge, 125 Wn.2d at 763.
For res judicata to apply, a prior judgment must have the same: (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made. Loveridge, 125 Wn.2d at 763. We hold that all the elements are present. The harm Wyss alleges here arose from the exact same facts that gave rise to his federal claim: the City destroyed his apartment building and filed a lien on his real property for the demolition costs. The parties are the same and they appear in the same capacity as they did in Wyss's federal court case.
Res judicata bars not only the claims that were actually made, but also any claims that could have been made. Loveridge, 125 Wn.2d at 763. The doctrine is meant to encourage judicial economy by requiring a claimant to bring all claims in one proceeding instead of relitigating the same claim under different causes of action. Alcantara v. Boeing Co., 41 Wn. App. 675, 685, 705 P.2d 1222 (1985). Because Wyss could have claimed inverse condemnation in his federal suit, the trial court properly rejected that claim on res judicata grounds.
III. Transfer of Real Property from Wyss to JBW
Wyss claims that the City is time barred from filing an action to declare the deed transfer to his son illegal. Wyss also raises affirmative defenses, claiming that neither the county code nor RCW 58.17.020(6) requires approval of "short subdivision" before his deed can be recorded. He also claims that the City had the opportunity and the obligation to raise this claim in 1999 when Wyss appealed the initial abatement order. Because the City did not appeal the Council's lack of action on the deed, Wyss claims that res judicata, equitable estoppel, and estoppel by silence prevent it from now raising any claims relating to the land transfer.
"'Short subdivision' is the division or redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership." RCW 58.17.020(6).
Wyss further claims that the transfer was proper because it complied with the statute of frauds and was within his rights as a property owner. He also claims that the City is retaliating against him for seeking damages for its abatement action. He claims that his son, as a minor, is entitled to a guardian ad litem in this action. Finally, Wyss claims that the City's planning commission must first find that a violation occurred before a court action may be brought to enforce the code.
A. Illegal Subdivision
The trial court properly found that the deed from Wyss to James was illegal. Wyss's transfer of the north 40 feet effectively divided the property and created a short subdivision.
RCW 58.17.020(6). Therefore, Wyss had to comply with local regulations including Chapter 9.34 of the Hoquiam Municipal Code, before dividing his property. RCW 58.17.030; see CP at 214. Because the short subdivision he attempted to transfer was not created legally, the transfer was illegal. See RCW 58.17.030.
B. Exemptions Do Not Apply
We also hold that Wyss's property was not exempt. Wyss identifies Hoquiam City Code Chapter 9.04.050(6), which exempts a "division made for the purpose of adjusting boundary lines which does not create any additional lot, tract, parcel, site or division which contains insufficient area and dimension to meet minimum requirements for width and area for building site." CP at 213. Here, the transfer did not simply adjust the boundary between two existing parcels. Furthermore, Wyss has failed to show that the new lots complied with the minimum lot size requirements in the county code. Therefore, we reject Wyss's claim that his transfer was exempt.
We also reject Wyss's claim that the planning commission must find that a violation occurred. Wyss appears to misread the county code that sets forth the penalties for illegal subdivisions. The code says, "The planning commission may initiate an action to enjoin such transfer, sale, agreement, or option by making application for an injunction in the Superior Court[.]" CP at 215. The code does not say that only the planning commission has this authority.
C. Hoquiam's Suit Not Time Barred
Neither res judicata nor any estoppel theory bars the City's claim. Under CR 13(a), a party's counterclaim is compulsory "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." When Wyss sued to set aside the abatement order, the "transaction or occurrence" was the City's condemnation of his apartment building. See CR 13(a). Wyss's transfer of real property to his son was a different transaction. Therefore, a lawsuit to declare the transfer invalid was not a compulsory counterclaim.
The statute of limitations does not bar the City's claim because the statute of limitations does not apply to actions brought "in the name or for the benefit of the state." RCW 4.16.160. Municipal actions are brought "for the benefit of the state" when those actions arise out of the exercise of powers traceable to the sovereign powers of the state that have been delegated to the municipality. Wash. Pub. Power Supply Sys. (WPPSS) v. Gen. Elec. Co., 113 Wn.2d 288, 293, 778 P.2d 1047 (1989). The focus of the cases interpreting RCW 4.16.160 has not been on the municipal conduct's effect but on its nature and character. WPPSS, 113 Wn.2d at 293.
RCW 4.16.160 provides:
The limitations prescribed in this chapter shall apply to actions brought in the name or for the benefit of any county or other municipality or quasimunicipality of the state, in the same manner as to actions brought by private parties: PROVIDED, That, except as provided in RCW 4.16.310, there shall be no limitation to actions brought in the name or for the benefit of the state, and no claim of right predicated upon the lapse of time shall ever be asserted against the state.
The power to regulate platting is traceable to the state's sovereign powers. See Oceanographic Comm'n of Wash. v. O'Brien, 74 Wn.2d 904, 910, 447 P.2d 707 (1968) (sovereign power manifests itself by the power of taxation, the power of eminent domain, and through the government's police power). In Washington, the legislature has effectively delegated platting issues to the municipalities. RCW 58.17.030, .060(1). Therefore, because the City was acting for the state's benefit by enforcing the short plat regulations, the declaratory judgment action seeking to void the deed was not time barred because no statute of limitations applied. RCW 4.16.160.
"The legislative body of a city, town, or county shall adopt regulations and procedures, and appoint administrative personnel for the summary approval of short plats and short subdivisions or alteration or vacation thereof." RCW 58.17.060(1).
IV. Late-Filed Response to Wyss's Motion for Summary Judgment
Wyss claims that the trial court violated CR 56(c) when it considered the City's responsive memorandum despite Wyss's motion to strike. He claims that the failure to adhere to CR 56(c) should void the City's memorandum and the court's summary judgment order wherein the late filed memorandum was considered. The City responds that considering this memorandum was within the trial court's discretion and that Wyss has not shown that the trial court abused its discretion.
Whether to review the responsive memorandum was within the trial court's discretion. See Brown v. Peoples Mortgage Co., 48 Wn. App. 554, 559-60, 739 P.2d 1188 (1987) (whether to reject untimely filed affidavits lies within the trial court's discretion). Because Wyss has not shown that the trial court abused its discretion, we hold that the trial court committed no error.
According to the Grays Harbor Superior Court Local Civil Rules (LCR), "All material in support of a motion should be filed and served not later than five days before the time specified for the hearing. All material in response to a motion shall be filed and served no later than noon the work day before the hearing date." LCR 7(b)(5)(A). Assuming this rule also applies to responsive memoranda for summary judgment motions, the City's memorandum was not late according to local rules.
V. Attorney Fees
Wyss claims in his assignments of error that the trial court erred in granting the City the costs of the suit and statutory attorney fees. However, he does not address this claim in his brief and thus has waived the issue. Keever Assocs. v. Randall, 129 Wn. App. 733, 741, 119 P.3d 926 (2005) (when an issue is not argued, briefed, or supported by citation to the record or authority, it is generally waived).
Affirmed.
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.
HOUGHTON, C.J. and BRIDGEWATER, J. concur.