Opinion
No. 54223-1-I Consolidated with No. 55477-8-I
Filed: August 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-13216-2. Judgment or order under review. Date filed: 04/15/2004. Judge signing: Hon. Jay V White.
Counsel for Appellant(s), James J. Jr Dore, Attorney at Law, 1122 W James St, Kent, WA 98032-8729.
John Maurice Groen, Groen Stephens Klinge LLP, 11100 NE 8th St Ste 750, Bellevue, WA 98004-4469.
Richard William Pierson, Kingman, Peabody, Fitzharris, Ringer P, 505 Madison St Ste 300, Seattle, WA 98104-1123.
Counsel for Respondent(s), Daniel Brian Heid, City of Auburn, 25 W Main St, Auburn, WA 98001-4998.
Stephanie Ellen Croll, Keating Bucklin McCormack Inc PS, 800 5th Ave Ste 4141, Seattle, WA 98104-3175.
This appeal arises out of an inverse condemnation action. Because the condemnors did not make an offer of settlement before the trial began, the trial court erred in denying the condemnee's request for attorney fees. Because the condemnee presented no concrete evidence that altering the grade of the abutting street substantially impaired his access to it, the trial court properly dismissed that claim on summary judgment. Because the condemnee's trial attorneys filed pleadings that can fairly be described as making claims not well grounded in fact or law, the trial court's decision to sanction them was not an abuse of discretion.
FACTS
David Monk owns and operates the White River Feed Company, located in King County between Auburn and Kent. A railroad track runs along the east side of his property, allowing the delivery of bulk grain via a spur track. White River processes the grain into animal feed, then loads it into tractor-trailer trucks that depart from the west side of Monk's property to make delivery to local farms.
At the southern end, the property abuts South 277th Street, a major east-west arterial.
The Cities of Auburn and Kent decided to improve South 277th by creating a railroad overpass at the southern tip of Monk's property. The Cities, relying on legal descriptions prepared by a subcontractor, did not believe they would have to acquire any of Monk's property to complete the project. They broke ground in May 2001. Monk protested that the support structures for the overpass were encroaching on his property. He filed an action for inverse condemnation in June 2002.
Monk alleged that he was entitled to compensation not only for the taking of land at the south end of his property, but also for substantial impairment of access on the west side. The reconstruction project included the reconfiguring of 78th Avenue South, the street on Monk's western boundary, so that it could rise to meet the new overpass on South 277th Street. Before the project, 78th Avenue South ran straight and level along the length of Monk's western boundary. Large tractor-trailer trucks had no difficulty using it to get in and out of the feed company where they are loaded and weighed. Now that the reconstruction project is complete, 78th Avenue South rises in elevation as it leaves Monk's boundary line and curves to the west. The roadway of 78th Avenue South is now five feet higher in front of Monk's scales than it was before. Monk alleged that this change substantially impairs access by trucks because the grade is too steep for them to go in and out without damage.
The Cities obtained an order of partial summary judgment dismissing Monk's claim for impairment of access. Monk obtained an order of partial summary judgment declaring that the Cities had taken at least 6.2 square feet of his property. The only issue that went to trial was Monk's claim that the inverse condemnation involved a more sizable portion of the southern tip of his property.
In a case of inverse condemnation, the property owner can recover 'reasonable attorney fees and reasonable expert witness fees', but only if the judgment awarded 'as a result of trial' exceeds by 10 percent or more the highest written settlement offer submitted by the acquirer 'at least thirty days prior to trial.' RCW 8.25.075(3). The Cities proposed an interpretation of the statutory term 'trial' as referring to a distinct proceeding devoted solely to the determination of the amount of just compensation. In the view of the Cities, preliminary proceedings to determine the amount of land taken were not included in the term 'trial.' They wanted to know the extent of their encroachment on Monk's property before 'trial' so that they would be in a better position to make him an offer of settlement that would be within 10 percent of the verdict. The trial court adopted the Cities' interpretation over Monk's objection and ordered that the issue of how much land was actually taken would be tried separately to the court on December 15, 2003. The 'trial' to determine just compensation would come later.
The December bench trial was a victory for Monk. The trial court established the property line based on his evidence. In January, the Cities offered Monk $150,000 in settlement. Monk rejected the offer. In mid-March 2004, a jury returned a verdict establishing just compensation as $39,918 for the permanent taking of approximately 2,334 square feet, and $7,470 for a temporary construction easement. Because the verdict did not exceed the settlement offer, under the trial court's earlier ruling Monk was not entitled to attorney fees.
Monk appeals from the final judgment, bringing up for review the issue of his entitlement to attorney fees under RCW 8.25.075(3) and the dismissal of his claim of impairment of access. His trial attorneys, Richard Pierson and James Dore, Jr., appeal a post-judgment order imposing CR 11 sanctions against them personally.
RCW 8.25.075(3) ATTORNEY FEES
The statute provides:
A superior court rendering a judgment for the plaintiff awarding compensation for the taking or damaging of real property for public use without just compensation having first been made to the owner shall award or allow to such plaintiff costs including reasonable attorney fees and reasonable expert witness fees, but only if the judgment awarded to the plaintiff as a result of trial exceeds by ten percent or more the highest written offer of settlement submitted by the acquiring agency to the plaintiff at least thirty days prior to trial.
RCW 8.25.705(3).
The Cities point out that the phrase 'prior to trial' refers to the trial in which the court renders a judgment 'awarding compensation.' The Cities infer that a trial for the purpose of awarding compensation is a proceeding separate and distinct from proceedings in which the extent of the plaintiff's ownership interest is determined. They claim their interpretation is supported by State v. Costich, 152 Wn.2d 463, 470-71, 98 P.3d 795 (2004). It is not. The statute discussed in Costich was RCW 8.25.070, which is applicable to ordinary condemnation proceedings, not inverse condemnation. Furthermore, proceedings in that case were not bifurcated. Because the amount of property taken was not in dispute, valuation was the only issue to be tried.
The controlling precedent, virtually on all fours, is Petersen v. Port of Seattle, 94 Wn.2d 479, 618 P.2d 67 (1980). In that case, the Petersens brought an inverse condemnation action for diminution of their property value resulting from the operation of SeaTac airport. The trial court held several days of hearings to test the validity of various defense issues raised by the Port, including the statute of limitations and a claim of prescriptive avigation right. After these hearings, which led to a ruling rejecting the Port's defenses, the Port made a settlement offer. The Petersens refused the offer, and the court scheduled a trial to begin several months later for the purpose of determining the amount of compensation. Ultimately, the issue of compensation was resolved by a judgment entered on agreed facts, for an amount that did not exceed the Port's earlier settlement offer. The trial court denied the Petersens' request for attorney fees under RCW 8.25.075(3) on the basis that the judgment did not exceed the offer of settlement submitted at least thirty days prior to 'trial.' The Supreme Court, reversing, decided that the initial hearings were part of the 'trial' referred to in the statute: It is our view that the February 27 proceeding was the first portion of a bifurcated trial. Both parties, during the proceeding, referred to it as a 'trial' and reserved opening statements. Several witnesses were called and subjected to direct and cross-examination resulting in four volumes of Report of Proceedings. Closing arguments were made to the court and the court rendered an oral opinion.
In light of the legislative objective of settling rather than trying matters such as this, it seems anomalous to contend that the evaluation of defenses requiring the taking of testimony for several days is not at least a portion of a trial.
Petersen, 94 Wn.2d at 488-89.
The Cities unpersuasively attempt to distinguish Petersen on the basis that the preliminary hearings in that case were for the purpose of evaluating the Port's 'defenses', whereas in this case the preliminary bench trial was held to determine how much of Monk's property had been lost to the road project. They emphasize that Monk, as the plaintiff in an inverse condemnation action, carried the burden of establishing the extent of his property interest before damages could be awarded. While that is true, it does not follow that he needed to do so in a separate proceeding. The Cities quote State v. Evans, 96 Wn.2d 119, 126, 634 P.2d 845 (1981): 'The preliminary question of whether the condemnee has any legal rights or claims in the property for which he seeks damages must be answered before any damages can be awarded.' They overlook the next sentence: 'The question of title is not collateral to an eminent domain proceeding.' Evans, 96 Wn.2d at 126. Evans does not support the obscure inference the Cities attempt to draw from the statute.
And neither does King County v. Squire Investment Co., 59 Wn. App. 888, 801 P.2d 1022 (1990). In that rails-to-trails case, 'the County filed a quiet title action to ascertain the ownership of the right of way in combination with a condemnation action to acquire property from the owners once ascertained.' Squire Investment, 59 Wn. App. at 896. The result of the quiet title action was a quieting of title in the private landowners. The compensation verdict in the condemnation action exceeded the county's offer of settlement, entitling the landowners to an award of attorney fees under RCW 8.25.070. However, the trial court included in the award fees attributable to the quiet title portion of the action. On appeal this court remanded the award of fees for recalculation without those fees because in a quiet title action there is no statutory basis to award fees to the prevailing party. The court distinguished Petersen, where 'the preliminary proceedings were an essential part of the condemnation process. . . . Such is not the case here where the quiet title action was independent.' Squire Investment, 59 Wn. App. at 898. Petersen cannot be distinguished in the same way here. Neither Monk nor the Cities filed a quiet title action, and indeed they could not have because the Cities had already taken Monk's property by erecting a permanent structure upon it. Monk no longer had a claim to title; his only remedy was just compensation, and an inverse condemnation action was the only type of action that could achieve that end.
Underlying the Cities' argument is an incorrect assumption that the Legislature drafted RCW 8.25.075(3) for the convenience of acquirers. No doubt it is inconvenient for a governmental entity, faced with an inverse condemnation action, to have to make an offer of settlement without knowing for sure how much property the plaintiff has lost to the encroachment. But the statute must be read in the light of the constitutional mandate: 'No private property shall be taken or damaged for public or private use without just compensation having been first made'. Wash. Const. art. 1 sec. 16. The expectation is that a landowner can 'remain quiet, and be assured that, before his property was condemned, the county must ascertain his damage, and either pay it to him, or pay it into court for his benefit.' Adams County v. Dobschlag, 19 Wash. 356, 358, 53 P. 339 (1898). The expectation is that the Cities would have ascertained Monk's ownership interest and compensated him for it before building the overpass. If they had met this expectation, Monk would not have had the expense of a lawsuit. It is not unusual for the plaintiff in a cause of action to have the burden of proving more than one element. To prove his claim of inverse condemnation, Monk had to prove both ownership and value. If the Legislature had envisioned two separate and distinct trials as being necessary for this purpose, one would expect to find that intention plainly expressed in the statute. It is not. We conclude the 'trial' in which a judgment is entered 'awarding compensation' is a single proceeding to try the entire claim of inverse condemnation. Here, that trial began on December 15, 2003. Because the Cities made no offer of settlement before that date, they are liable for the reasonable attorney fees and reasonable expert witness fees incurred by Monk in connection with the claim he tried.
IMPAIRMENT OF ACCESS
As a result of the elevation of 78th Avenue South, tractor-trailer rigs must haul uphill and go over a hump as they leave White River's scales to get on the road. The large trucks are a critical component of Monk's operation, and he claims that the change in grade substantially impairs their access. His primary source of evidence to support this claim is the expert witness report of Christopher Brown, a professional traffic engineer.
The trial court ruled on summary judgment that access to Monk's property was 'neither eliminated nor substantially impaired. There is an insufficient record before the court of specific facts to support the opinions of Christopher Brown to the contrary.' Monk assigns error to the order dismissing his claim of impaired access.
Order Granting Defendant's Motion for Partial Summary Judgment re: Damages, 9/29/03, Clerk's Papers at 1185.
The right of access of an abutting property owner to a public right of way is a valuable property right, which if taken or damaged for a public use requires compensation under article 1, sec. 16 of the Washington State Constitution. Keiffer v. King County, 89 Wn.2d 369, 372, 572 P.2d 408 (1977); Brown v. City of Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214 (1892). The right is to access that is 'free and convenient'. McMoran v. State, 55 Wn.2d 37, 40, 345 P.2d 598 (1959). But compensation is properly denied in those cases where the impairment of access is not substantial. Keiffer, 89 Wn.2d at 372. Whether government action has damaged the landowner's right of access so as to require compensation is normally an issue of fact to be determined by the trier of fact. Keiffer, 89 Wn.2d at 374. However, summary judgment is properly granted in a case where no reasonable factfinder could find that there has been a substantial impairment of access. The party moving for summary judgment bears the burden of showing that there is no issue of material fact; the court must resolve all reasonable inferences in favor of the non-moving party, and will grant the motion only if reasonable people could reach but one conclusion. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on affidavits considered at face value. After the moving party submits adequate affidavits, the nonmoving party must set forth specific facts that sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact. Meyer v. University of Washington, 105 Wn.2d 847, 852, 719 P.2d 98 (1986). While the construction project was still under way, Monk complained to the Cities about the changes being made to his access to 78th Avenue South. Peter Tenerelli, an engineering supervisor for the City of Kent, responded to the complaint on August 15, 2002. Monk told him 'the planned driveway was too narrow and did not leave sufficient room for White River Feed Company trucks to maneuver and turn in order to line up under the grain loading chute.' Tenerelli proposed a new secondary driveway, obtained Monk's permission to construct it, and had it designed, built and paved within two days of this discussion.
Declaration of Peter Tenerelli, 8/21/03, Clerk's Papers at 385.
Tenerelli believed the new driveway had solved the problem. But the next summer, as the lawsuit proceeded, Monk's response to interrogatories from the Cities alleged a continuing problem: 'Continuing damage to vehicles as a result of changes in grade to right of way. To date, repair costs total approximately $2000' and 'The grade of 78th Ave. S. has been altered such that trucks bottom out when accessing the property or the roadway. This damages the trucks as well as the roadway.'
Plaintiff's 1st Supplemental Answers to First Interrogatories, Answer 15-4, Clerk's Papers at 629.
Plaintiff's 1st Supplemental Answers to First Interrogatories, Answer 26-3, Clerk's Papers at 632.
Tenerelli visited the site again to investigate these allegations. He observed and photographed 'approximately 12 scrape marks on the asphalt pavement (6 pair of 2 each)'. He also observed a grain truck being filled and driving away from the grain chute and scale house. The truck's landing gear was fully retracted and it cleared the highest point in the driveway by approximately eight inches. Based on this observation Tenerelli concluded that the six pairs of scrape marks were made by trucks that entered or left the driveway without having their landing gear fully retracted:
Declaration of Peter Tenerelli, 8/21/03, Clerk's Papers at 386.
I have first hand knowledge that hand-cranking landing gear up and down is a tedious job, and that truck drivers often don't fully retract their landing gear if they know their route and know that they most likely will not 'bottom out.' This saves time and effort and usually is not a significant safety problem. Given that knowledge, coupled with the fact that the secondary driveway at the White River Feed business has essentially been in continuous operation for approximately one year and there are only 12 marks on the pavement (six incidents since there are two landing gear pads or wheels per semi truck trailer), it seems to me that once a driver bottomed out he learned his lesson and thereafter fully retracted his gear — hence, no more marks, no more bottoming out and no more damage.
Declaration of Peter Tenerelli, 8/21/03, Clerk's Papers at 386.
The Cities filed a motion for partial summary judgment on the claim of impaired access in August 2003. They argued Monk could not prove his trucks were being damaged by the grade. In support of their motion they submitted Tenerelli's declaration. They also submitted a declaration from traffic engineer Marni Heffron, who had reviewed a preliminary report written on Monk's behalf by traffic engineer Christopher Brown. In Heffron's opinion, if the transition were truly a severe problem one would expect to find much more evidence of drag marks on the pavement. The only problem acknowledged by Heffron was that truck maneuvers 'may take longer to make'. Heffron also said that Brown had miscalculated the grades involved in the transition from the site up to the new road pavement and then down. She specified the grades that had been field measured by the City of Kent.
Declaration of Marnie Heffron, 7/22/03, Clerk's Papers at 382.
In his response brief on summary judgment, Monk continued to insist that the extreme grade was causing trucks to bottom out and incur damage. But the only evidence he submitted bearing on this claim was Christopher Brown's opinion that the road regrade had caused a substantial impairment of access. The Cities contend that Brown's opinion testimony should be rejected in its entirety as improperly authenticated and based on hearsay. We find that even when Brown's opinion is assumed to have been properly authenticated and based on personal knowledge, it does not raise a material issue of fact.
Clerk's Papers at 162.
In Brown's opinion the transition from scales to road is 'a severe problem' for the trucks because of the hump. According to Brown's report, the sudden change in grade 'causes access problems to long wheelbase tractor trailers, especially those with undercarriage equipment'. Brown thought the Cities must not have considered Monk's special need for access allowing a driver to back from 78th into the truck scales in a straight line. 'This was never a problem in bygone days. However, the new approach grades as shown on Exhibit B portray how difficult this is to now accomplish. It is this new approach with adverse grades that define its being 'substantially impaired'.' Brown concluded the only way to solve the problem short of completely redesigning and rebuilding the street was to relocate Monk's scales. The cost of doing so was estimated at $460,000. Specifically responding to Heffron, Brown declared that even if the grade measurements by the City of Kent were accurate, the grade failed to meet standards for a commercial approach as defined by the design manual of the Washington State Department of Transportation. Brown maintained that access had been substantially impaired due to the possibility of damage:
Declaration of Christopher Brown, 9/11/03, Clerk's Papers at 1070.
Brown's Report, attached to the declaration of Robert BonJorni, submitted in support of Plaintiffs' Opposition to Cities' Motion for Partial Summary Judgment re: Damages, Clerk's Papers at 975.
Christopher Brown's Report of 9/2/03, Clerk's Papers at 976-77.
Second, if the weighing takes more than twice as long as experienced in the pre-road project era and, moreover, now includes an unacceptable high probability for damaging the tractor-trailer combination unit if the driver is unaware of the substandard grade approaches due to the non-compliance of the access design with acceptable design standards, which probability did not exist in the pre-road project era, it can only be concluded that the access is 'substantially impacted'.
The impact is measured in the inability to access the scales directly, as previously and historically done, is measured by the damages to tractor-trailer combination units, and is also measured by the increased wear and tear to the tractor drive train.
Declaration of Christopher Brown, 9/11/03, Clerk's Papers at 1070-71.
Although Brown's report and declaration contain many sentences, all they add up to is an observation that there has been a change in grade and a conclusion that trucks are unable to negotiate the grade safely. The concrete facts in the record do not support that conclusion. Brown's declaration assumes facts not supported by the record: 'if the weighing takes more than twice as long' and 'if the driver is unaware.' There is no concrete evidence documenting how long it now takes to get trucks off the scales and onto the road; there is no evidence of drivers using the scales who are unfamiliar with the approach; and significantly, there is no evidence or reference point explaining what Brown means by 'an unacceptable high probability' for damage to the trucks. Aside from the 12 scrape marks there is simply no concrete, measurable evidence that trucks have difficulty going in and out of the property or that they have sustained damage. Twelve scrape marks do not prove a substantial impairment of access.
Declaration of Christopher Brown, 9/11/03, Clerk's Papers at 1070-71.
Declaration of Christopher Brown, 9/11/03, Clerk's Papers at 1071.
Monk argues that proof of his claim of impaired access is adequately supplied by Brown's opinion that the grade of the driveway is out of conformance with state road design standards. In connection with this theory, which was not argued in his responding brief below, he cites Pelley v. King County, 63 Wn. App. 638, 821 P.2d 536 (1991).
Monk's reliance on Pelley is misplaced. In that case, the County began a condemnation action to acquire property needed for road improvements. While that action was pending the landowner tried to maintain a separate proceeding for abatement of nuisance. He claimed that the planned reconstruction of the road would not only deny reasonable access to his property, but would also create a nuisance because the plans did not conform to ordinance standards for entering site distance, stopping distance, minimum curve radius, and rock facing. This court affirmed an order dismissing the nuisance claim, on the basis that such a claim would have to be resolved within the condemnation proceeding. 'Even though the Pelleys' claims may have merit, their arguments are directed to the wrong forum. . . . If, as claimed by the Pelleys, the access road cannot be built in compliance with the applicable standards, they can seek compensation as part of the valuation phase of the condemnation action.' Pelley, 63 Wn. App. at 642.
Contrary to Monk's argument, this statement in Pelley does not hold that nonconformance with road standards proves impairment of access. Pelley holds that when a condemnation action is pending, a nuisance claim based on nonconformance with design standards must be resolved in the condemnation action rather than in a separate action.
Brown's presentation of the alleged noncompliance with road standards is an example of circular reasoning. He says:
Direct access to the truck scales has been made impossible due to the access design at this location not conforming to the adopted standards. If it were possible to lower the grade of the new 78th Avenue S. at this location to allow conformance with the design standards, then the impacts would be reduced.
Declaration of Chris Brown, 9/11/03, Clerk's Papers at 1070.
Brown assumes the result — that access has been impaired. His bare allegation that the grade of the new driveway fails to conform to state standards is insufficient to prove impairment of access.
Brown also declares that the impairment can be measured in the inability of the trucks to access the scales directly, damage to the trucks, and increased wear and tear to truck drive trains. As noted by the trial court, the record Monk made in responding to the Cities' motion to dismiss his claim of impaired access lacks factual evidence to support these assertions.
The trial court dismissed the claim on September 29, 2003. Monk timely moved to reconsider. He submitted a video purporting to show a truck having difficulty accessing the scales (not part of the record before this court) and declarations from witnesses familiar with the trucks. The trial court denied the motion in part because Monk offered no explanation why the newly offered evidence could not have been submitted in opposition to the original motion for summary judgment. The court also found that the evidence was insufficient even if it had been timely:
Upon viewing the facts in light most favorable to Plaintiff, no reasonable jury would conclude that the skillful maneuvers now required by truck drivers negotiating the increased grade of the roadway has substantially impaired access or obstructed Plaintiff's reasonable means of access.
Order Denying Plaintiff's Motion for Reconsideration, 12/2/03, Clerk's Papers at 1487.
Although Monk has not separately assigned error to the order denying his motion for reconsideration, we have reviewed it and agree with the trial court's assessment. He submitted no evidence that could not have been submitted earlier. And the declarations from witnesses familiar with the trucks do not specifically rebut the record to which Monk was responding, including materials submitted by the Cities along with their reply brief on summary judgment. These materials included deposition testimony from several of Monk's employees. Paul Silone testified that after the new 78th Avenue South had been paved, there had 'been some close calls, but I can't say I've ever seen any of them actually drag their landing gear through them, but they've come across it at very slow speed.' Scott Pedersen described delays during the paving of the road but could not recall any access problem after the road was completed except for 'Mike's truck'. 'Mike' is Mike Nelson, who drives a tractor-trailer for White River. He did testify that after the road project he had some difficulty negotiating his truck on the property 'just a matter of backing in off that road where that hump's at.' And he did think there had been damage to his trailer: And I know it damaged the trailer because it wasn't like that before. I mean, I can — I can pull out of there too fast now and it'll snap those bolts right off on the back of the trailer on the right side from the weight distribution.
Deposition Testimony of Paul Silone, Clerk's Papers at 1872.
Deposition Testimony of Scott Pederson, Clerk's Papers at 1869.
Deposition Testimony of Mike Nelson, Clerk's Papers at 1878.
Q: Well, how often do you drive out too fast?
A: Never, not now. Not unless I want to have grain all over the road.
Deposition Testimony of Mike Nelson, Clerk's Papers at 1878.
Nelson's vaguely expressed belief that driving over the hump had damaged his trailer is not borne out by the repair records the Cities obtained from Monk's regular mechanic. As summarized by the Cities, these records show that Monks' trucks have needed a lot of work on the clutches both before and after the road project, but repair service has actually decreased since the project's completion.
See Cities' Reply in Support of Motion for Summary Judgment re: Damages, Clerk's Papers at 1180, summarizing evidence contained at Clerk's Papers 1801-1858.
The claim of substantial impairment of access was properly dismissed. Monk did not set forth specific facts that sufficiently rebut the contentions of the Cities and disclose the existence of a genuine issue of material fact.
CR 11 SANCTIONS
Some months after entry of the final judgment, the trial court granted the Cities' motion for CR 11 sanctions against Richard Pierson and James Dore, Jr. in the amount of $7,712.10. Pierson and Dore represented Monk at trial. The appeal by Pierson and Dore from the order of sanctions has been consolidated with Monk's separate appeal.
The trial court initially denied the Cities' motion for sanctions. On reconsideration, the court reversed itself after concluding that the original decision 'was too hasty and too generous to Plaintiffs' counsel'. The sanctions were imposed for two particular actions by counsel: their filing of a second motion for reconsideration of the impairment of access claim, and their pretrial filing of a motion to strike some of the witnesses on the Cities' list of potential witnesses.
Order Denying Defendants' Motion for CR 11 Sanctions, 6/8/04, Clerk's Papers at 2514.
Order Granting, in Part, Defendants' Motion for Reconsideration, 8/19/04, Clerk's Papers at 2524.
The appellant attorneys first contend a trial court lacks jurisdiction to impose CR 11 sanctions once judgment has been entered and this court has accepted review. They rely on RAP 7.2. The rule authorizes the trial court to hear and determine 'postjudgment motions authorized by the civil rules.' RAP 7.2(e). The attorneys contend that the term 'postjudgment motions' does not include CR 11 motions, but refers only to CR 59 motions for reconsideration and CR 60 motions for relief from judgment. This argument is inconsistent with several Washington cases that have upheld an award of CR 11 sanctions imposed after judgment was entered. See, e.g., Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994) (sanctions imposed after mandate); Leen v. Demopolis, 62 Wn. App. 473, 815 P.2d 269 (1991) (motion for sanctions made after notice of appeal filed). We have already held that an appellate court's permission is not required under RAP 7.2(e) for a trial court to rule on a post-judgment request for CR 11 sanctions. Leen, 62 Wn. App. at 484-85.
Appellant attorneys cite the court's statement in Biggs that late entry of a CR11 motion is normally impermissible. That statement was not referring to jurisdiction. The court was emphasizing the necessity of adequate notice to the alleged violator: 'without prompt notice regarding a potential violation of the rule, the offending party is given no opportunity to mitigate the sanction by amending or withdrawing the offending paper.' Biggs, 124 Wn.2d at 198. 'Prompt notice of the possibility of sanctions fulfills the primary purpose of the rule, which is to deter litigation abuses.' Biggs, 124 Wn. 2d at 198. Lack of notice is not an issue in this case. In both instances of conduct complained of by the Cities, the Cities gave the appellant attorneys an opportunity to withdraw the offending paper, and filed the motion for sanctions only after the attorneys refused to do so.
In short, RAP 7.2 is not to be read as narrowly as urged by the attorneys. We conclude the term 'postjudgment motions' means any motion, authorized by the rules, that is made after judgment is entered.
Appellant attorneys next contend that CR 11 sanctions are appropriate only if the action as a whole is frivolous. That is the test for sanctions under RCW 4.84.185, which authorizes recovery of attorney fees for the prevailing party where the lawsuit is found to be frivolous. It is not the test for CR 11 sanctions directed at the filing of groundless pleadings. The attorneys next argue that CR 11 sanctions cannot be awarded because the criteria specified in Biggs have not been met. Biggs says the trial court 'must make a finding that either the claim is not grounded in fact or law and the attorney or party failed to make a reasonable inquiry into the law or facts, or the paper was filed for an improper purpose.' Biggs, 124 Wn.2d at 201 (emphasis in original).
According to the trial court's order and findings, reasonable inquiry would have revealed to counsel that neither the motion for reconsideration nor the motion to strike witnesses was well grounded in fact or in law. In the court's view, both motions were strategically filed on the eve of trial 'solely to cause delay and increase the costs of litigation.'
Conclusion of Law 1, Clerk's Papers at 3389.
The motion for reconsideration regarding the access issue was supported by the hearsay declaration of Christopher Brown and the representation by Plaintiffs' counsel Richard Pierson that 'Henry Perrin has recommended that a turn back road not be accepted unless deficiencies are corrected.' Mr. Pierson signed the motion on behalf of himself and Mr. Dore. The Cities subsequently obtained a declaration from Mr. Perrin in which he stated that he did no such thing. Mr. Dore signed a reply declaration in support of the motion, dated February 20, 2004, in which he not only offered more hearsay, but also failed to disclose to the court that he was present on January 27, 2004, when Mr. Perrin made the alleged statements to Mr. Brown, and he failed to advise the court that the statements were never made, although his hearsay declaration implies no recommendation had been made by Mr. Perrin. To this date, he never has contradicted Mr. Perrin's declaration and therefore it is reasonable for the court to infer that he cannot. The Cities gave notice of their intention to seek CR 11 sanctions if the motion were not stricken. Plaintiffs' counsel did not strike the motion, leaving the Cities no choice except to go to the expense of responding and litigating the issue of the alleged 'newly discovered evidence'.
Order Granting, in Part, Defendants' Motion for Reconsideration, 8/19/04, Clerk's Papers at 3322-23 (citations omitted).
As for the motion to strike witnesses, the attorneys claimed that the Cities had identified and listed 13 people as witnesses just three weeks before the scheduled start of the jury trial, in violation of a local discovery rule. The trial court, however, found otherwise:
In fact, all witnesses listed by the Cities to be called at trial had been properly identified in a timely manner with their addresses, phone numbers, and the substance of their testimony set forth. Attorney Pierson and attorney Dore, Jr. made misrepresentations of fact regarding the Cities' witness disclosure lists to the Court in the Motion to Strike.
Finding of Fact 28, Clerk's Papers at 3387 (citations omitted).
The standard of appellate review for CR 11 sanctions is abuse of discretion. Biggs v. Vail, 124 Wn.2d at 197. The trial court made appropriate findings here and the record supports the findings. We perceive no abuse of discretion.
SANCTIONS ON APPEAL
At the end of March 2005, attorneys Pierson and Dore asked this court to vacate the trial court's order imposing CR 11 sanctions on the basis that the trial court lacked subject matter jurisdiction the same argument discussed above. Their motion to vacate was denied. The Cities have requested sanctions pursuant to RAP 18.9(a) for being forced to respond to a frivolous motion. We deny the Cities' motion for sanctions. Although we have rejected the argument about jurisdiction, it is not totally devoid of merit.
The Cities have also requested that sanctions be imposed on appellant attorneys for filing a frivolous appeal. We deny this request as well. Resolving all doubts in favor of appellant attorneys, we find the issues raised in their appeal are not totally devoid of merit.
MISCELLANEOUS MOTIONS
After Monk filed his opening brief, the Cities filed a motion on the merits to affirm. This was denied. The Cities then filed a 34-page Respondents' Brief. On the opening page, they argued that Monk's appeal should be dismissed 'for the reasons set forth in the Cities' Motion on the Merits incorporated herein by reference'. Monk, in his reply brief, objected to incorporation by reference. In response, the Cities filed a formal motion to incorporate certain pages by reference. By incorporating only these specific pages, the Cities would avoid violating the page length requirements of RAP 10.4(b). In the alternative, the Cities sought permission to file an amended brief.
Respondents' Brief, at 1.
We deny the Cities' motion to incorporate as well as their request to file an amended brief. Our courts consistently reject attempts by litigants to incorporate by reference arguments contained in trial court briefs, holding that such arguments are waived. See U.S. West v. Washington Utilities and Transp. Comm'n, 134 Wn.2d 74, 111-12, 949 P.2d 1337 (1997); State v. Kalaskosky, 121 Wn.2d 525, 540 n. 18, 852 P.2d 1064 (1993). The Cities' request is analogous.
We deny the Cities' request for permission to file a surreply brief. We also deny, as too late, their request (filed two days before oral argument) to include in the court file an appendix they forgot to attach to their brief.
In summary, the judgment is reversed and remanded solely for an award of Monk's reasonable attorney and expert witness fees under RCW 8.25.075(3). The trial court shall include in the award Monk's reasonable attorney fees on appeal for the portion of the appeal related to RCW 8.25.075(3). The order dismissing Monk's claim for impaired access is affirmed. The order of sanctions against Richard Pierson and James Dore, Jr. is affirmed.
COLEMAN and AGID, JJ., Concur.