Opinion
No. 36750-5-II.
April 22, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 02-2-00746-2, Richard A. Strophy, J., entered October 12, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Merrell C. Sager appeals the trial court's denial of reconsideration of its order authorizing a warrant of abatement for code violations on Sager's property. He argues that the trial court erred in (1) relying on a local rule because it conflicts with the general rule, (2) denying reconsideration, and (3) authorizing abatement based on nuisance statutes. Finding no error, we affirm.
FACTS
Merrell Sager built a house, garage, and septic system on his property without obtaining permits from Thurston County. In 2000, the County issued a civil infraction for this violation. In 2002, the County filed a complaint alleging building and sanitary code violations and public nuisance and seeking abatement of the violations. Sager counterclaimed, alleging civil rights violations and unlawful taking of property. The trial court granted the County's motion for summary judgment on the code violation, nuisance, and abatement claims and authorized an administrative search of the property. It also granted the County's summary judgment motion on Sager's counterclaims.
In an unpublished opinion, we affirmed the trial court as to the building and sanitary code violations and upheld the remedy of abatement for the building code violation. Thurston County v. Sager, noted at 122 Wn. App. 1036, slip op. at 1-2 (2004). But we reversed the abatement remedy for the sanitary code violation, remanding to the trial court to consider the appropriate remedy. Sager, slip op. at 1. We also reversed the order authorizing an administrative search without a warrant and the grant of summary judgment on the nuisance claim. Sager, slip op. at 1-2. After we filed our opinion, Sager moved for reconsideration, which we granted in part, deleting a footnote and adding a new section considering and rejecting Sager's argument that he was statutorily exempt from the permit requirement. Sager, Order on Recons. and to Amend Op., Aug. 18, 2004.
When Sager failed to comply with the summary judgment order and a contempt order the trial court entered on remand, the County moved for a warrant of abatement. On May 26, 2006, the trial court issued an order authorizing the clerk to issue a warrant of abatement. Although the clerk's papers do not contain many of the following motions and orders, the trial court summarized the subsequent events as follows: On June 8, 2006, Sager moved for reconsideration of the order authorizing abatement. On July 7, 2006, the trial court denied the motion as untimely and without merit. Also on July 7, the trial court entered an amended order authorizing the clerk to issue a warrant of abatement. The amended order corrected the date the trial court had heard oral arguments on the matter and omitted a phrase that had been crossed out and initialed by hand on the original order. On July 13, 2006, Sager again moved for reconsideration. The trial court recalled that it announced its ruling denying Sager's second motion for reconsideration at a hearing on either September 8, 2006, or September 22, 2006. In order to clarify and complete the record, the trial court issued a written order denying Sager's second motion for reconsideration on October 12, 2006.
The record on appeal is replete with holes, and both parties refer in their briefs to documents that are not in the clerk's papers.
Neither of these hearings are part of the record on appeal.
Sager appeals.
ANALYSIS I. Timeliness of Appeal
Preliminarily, the County argues that Sager's substantive appeal of the order authorizing abatement is untimely because he timely appealed only the order denying his second motion for reconsideration, which asked the court to reconsider the amended order authorizing abatement. The County points out that the amended order made only clerical corrections and did not substantively change the order.
The original order authorizing the clerk to issue an abatement warrant contained an incorrect oral argument date and a handwritten and initialed deletion. The County moved to correct the oral argument date, and the trial court signed an amended order containing the correct date and omitting the phrase that had been crossed out. Although Sager's motion for reconsideration of the original order authorizing abatement was untimely, Sager timely moved for reconsideration of the amended order.
An appeal from an order denying a timely motion for reconsideration brings up for review the underlying final judgment. RAP 2.4(c). Here, although the amended order is substantively identical to the original order and contains only clerical corrections, under a liberal interpretation of the rules of appellate procedure, we can consider Sager's appeal from the denial of his second motion for reconsideration and review the merits of the underlying order. See RAP 1.2(a) (this court will liberally interpret the appellate rules to facilitate the decision of cases on the merits).
II. Thurston County Local Rule 59
Sager first argues that the trial court improperly relied on Thurston County Local Court Rule (LCR) 59 to deny reconsideration because it omits seven of the nine criteria for reconsideration in Superior Court Civil Rule (CR) 59.
Under CR 59(a), a trial court may grant reconsideration based on nine grounds: (1) irregularity in the proceedings, (2) misconduct, (3) accident or surprise, (4) newly discovered evidence, (5) excessive or inadequate damages, (6) error in assessment of recovery, (7) lack of evidence, (8) error of law, or (9) substantial justice has not been done. On the other hand, Thurston County LCR 59(a)(3) provides simply: "Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence."
CR 83(a) allows each court to adopt local rules "not inconsistent" with the general court rules. A local rule is inconsistent with the general rule when it is "'so antithetical that it is impossible as a matter of law that they can both be effective.'" State v. Chavez, 111 Wn.2d 548, 555, 761 P.2d 607 (1988) (quoting Heaney v. Seattle Mun. Court, 35 Wn. App. 150, 155, 665 P.2d 918 (1983)). Two rules are not inconsistent if they can be reconciled and both given effect. King County v. Williamson, 66 Wn. App. 10, 12-13, 830 P.2d 392 (1992).
Here, the local rule describes when a trial court should ordinarily deny a motion for reconsideration, but it does not preclude granting a motion under the CR 59 criteria. Indeed, the "manifest error" provision of Thurston County's rule can easily encompass all but the newly discovered evidence provision of CR 59. And the local rule contains a provision regarding newly discovered evidence. Because a trial court can give effect to both rules, they are not inconsistent. The trial court did not err in relying on Thurston County LCR 59.
III. Denial of Reconsideration
Sager argues that the trial court erred in denying his second motion for reconsideration. We review a trial court's ruling on a motion for reconsideration for an abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002).
A. Manifest Error
Sager argues that the trial court committed manifest error in concluding that we had rejected his challenge to the validity of the County's building code, making that the law of the case.
In a footnote, we addressed Sager's claims that he was exempt from the County's permit requirements under certain statutory exemptions and that the County did not properly adopt the sections of its building code requiring permits. Sager, slip op. at 5 n. 2. But we declined to reach the statutory exemption argument, finding that Sager raised it for the first time on appeal. Sager, slip op. at 5 n. 2. And we rejected his challenge to the code's validity, finding that Sager failed to cite to any evidence in the record showing that the County failed to satisfy public notice requirements. Sager, slip op. at 5 n. 2.
Sager moved for reconsideration, arguing that he had raised the statutory exemption issue before the trial court and that he did provide evidence that the County failed to satisfy public notice requirements. Sager, Order on Recons. and to Amend Op., at 1. We granted his motion on the statutory exemption issue and denied the motion "in all other respects." Sager, Order on Recons. and to Amend Op. at 1. We then amended the opinion by deleting the footnote in which we had addressed the statutory exemption and code validity issues and added a new section to address the statutory exemption issue. Sager, Order on Recons. and to Amend Op., at 2-4.
He also requested that the court declare him the substantially prevailing party and publish the opinion. Sager, Order on Recons. and to Amend Op., at 1.
The trial court reasoned that Sager was precluded from making further arguments on the code validity issue because it had initially denied Sager's challenge on summary judgment, we had affirmed as to that issue, and we had denied reconsideration of the issue.
Sager contends that, when we deleted the footnote containing our analysis of the code validity issue, we revived the issue for the trial court's consideration on remand. But Sager's argument works only if we read the amended opinion in a vacuum, ignoring our order on reconsideration. Rather than revive the claim, we denied reconsideration of the code validity issue. Sager, Order on Recons. and to Amend Op. at 1. It would be inconsistent for us to reject an argument and deny reconsideration of it, but then remand the issue for the trial court's consideration.
Under the law of the case doctrine, an appellate court's decision is binding on further proceedings in the trial court on remand. State v. Strauss, 119 Wn.2d 401, 412-13, 832 P.2d 78 (1992). The trial court did not err in concluding that this court's rejection of the code validity issue precluded Sager's further arguments on the issue on remand.
B. New Legal Authority
Sager argues that the trial court should have granted reconsideration in light of Bosteder v. City of Renton, 155 Wn.2d 18, 29-34, 117 P.3d 316 (2005), superseded by statute as stated in Wright v. Terrell, 162 Wn.2d 192, 195 n. 1, 170 P.3d 570 (2007), which held that an administrative search warrant issued without statutory or court rule authorization is invalid. But the trial court here authorized issuance of an abatement warrant, not a search warrant. And we held in our first opinion that, under the county building code, abatement is a proper remedy for Sager's building code violations. Sager, slip op. at 5. Bosteder does not change our analysis of the abatement remedy and the trial court did not err in denying reconsideration on this basis.
C. Irregularity in the Proceedings
Sager next argues that the trial court should have granted reconsideration because of several irregularities in the proceedings.
He asserts that the County cited him only for failure to obtain a permit to build a carport but prosecuted him for failure to obtain a permit for the carport, house, and septic system. This issue relates only to the underlying finding of code violations, an issue that this court has conclusively decided against Sager. Sager, slip op. at 5. Moreover, Sager did not present this argument to the trial court in his second motion for reconsideration. We decline to review the issue. RAP 2.5(a).
Sager also argues that the county prosecutor submitted false evidence to the trial court. The prosecutor submitted the document in question, a notice of public hearing for the building code that Sager challenged, in support of the County's motion for contempt. In addition to the fact that this document relates to the code validity issue that we have previously rejected, Sager did not present this argument to the trial court in his second motion for reconsideration. Again, we decline to review the issue. RAP 2.5(a).
Sager also maintains that the prosecutor misled the court by making more than clerical changes to the amended order authorizing the warrant of abatement. He bases the argument, however, on a disingenuous reading of both the original and amended orders. The original order, as signed in open court, contains the handwritten deletion that he complains of in the amended order. The prosecutor did not mislead the court by presenting an amended order omitting the language that had been deleted by hand and initialed in the original order.
D. Excessive or Unreasonable Damages
Sager next argues that the remedy of abatement is excessive and unreasonable in this context. But we previously upheld the abatement remedy and Sager is bound by that decision. Sager, slip op. at 5. The trial court authorized abatement more than seven months after it had found Sager in contempt of the summary judgment order, and only after finding that Sager had not corrected the code violations and remained in contempt of court. Sager does not dispute that he is in violation of county building codes and that he has done nothing to remedy this violation for at least seven years. The trial court's authorization of abatement was reasonable.
E. Unjustifiable Verdict
Sager contends that the trial court was not justified in authorizing abatement because the statute of limitations had run on the abatement action. As with his argument about the citation the County issued, this issue relates only to the underlying finding of code violations, an issue that we have conclusively decided against Sager. Moreover, Sager did not present this argument to the trial court in his second motion for reconsideration. We decline to review the issue. RAP 2.5(a).
F. Substantial Justice
Finally, Sager argues that issuing a warrant of abatement in this case fails to accomplish substantial justice. He reasons that any other citizen of Thurston County who undertakes building or remodeling without permits can still assert the claim that the County did not validly enact its building code. Nonetheless, we decided the issue against Sager and we will not permit Sager to revive it merely because someone else may choose to bring it in the future.
The trial court did not abuse its discretion in denying Sager's second motion for reconsideration of its order authorizing abatement.
V. Grounds for Abatement
Finally, Sager argues that the trial court erroneously based the order authorizing abatement on nuisance statutes. We held that the County failed to prove its nuisance claim. Sager, slip op. at 7-9. On remand, the County voluntarily dismissed the claim. The trial court based its order authorizing abatement on Sager's failure to comply with the county building code, not nuisance statutes. The argument fails.
The portion of the original order that was crossed out by hand did reference nuisance statutes. But this language was never part of the trial court's order, and was omitted entirely from the amended order.
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 QUINN-BRINTNALL, J., concur.