IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JOHN R. WYSS,
Appellant,
No. 41298-5-II
v.
UNPUBLISHED OPINION
GRAYS HARBOR COUNTY,
Respondent.
Van Deren, J. â John Wyss appeals the trial courtâs order granting summary judgment to
Grays Harbor County, asserting that the trial court erred because (1) the County failed to timely
appeal his purported 1999 subdivision of property within the city of Hoquiam and (2) the county
assessor lacked authority to rescind Wyssâs earlier illegal and invalid attempted property
subdivision via quitclaim to his minor son. Because Wyss is collaterally estopped from asserting
the validity of his attempted property subdivision, the trial court properly dismissed his claims.
We affirm and award attorney fees to the County for having to defend against Wyssâs frivolous
claims.
FACTS
Wyss owned an eight-unit apartment building located in Hoquiam, Washington, against
which Hoquiam initiated condemnation proceedings in August 1999. In September 1999, Wyss
No. 41298-5-II
attempted to transfer the north 40 feet of the property on which the apartment building was
located to his son by recording a quitclaim deed in the Grays Harbor County Auditorâs office.
When Wyss filed the quitclaim deed, the county assessorâs office assigned a new tax parcel
number to the north 40-foot portion of Wyssâs lot. In December 1999, Hoquiam issued a final
decision condemning Wyssâs apartment building.
Wyss attempted to appeal Hoquiamâs condemnation decision but the trial court found
Wyssâs appeal untimely under the land use petition act (LUPA), chapter 36.70C RCW. We
affirmed the trial courtâs decision to dismiss Wyssâs appeal in April 2002, in an unpublished
opinion.1
In October 2002, Wyss sued Hoquiam in United States District Court, alleging that
Hoquiamâs condemnation action was an unconstitutional taking and that it denied him due process
of law. The federal court disagreed and entered a summary judgment order in favor of Hoquiam
in November 2003. In its summary judgment order, the federal court declined to exercise its
supplemental jurisdiction over Hoquiamâs claim that Wyssâs transfer of a portion of his property
to his son was illegal under Washington law.
Following the federal courtâs summary judgment order, Hoquiam sued Wyss in Grays
Harbor County Superior Court to nullify Wyssâs attempted transfer of property to his son. In
October 2005, the superior court entered a summary judgment and declaratory judgment order in
favor of Hoquiam, finding that Wyssâs attempted 1999 transfer of a portion of his property was
unlawful and invalid. We affirmed the trial courtâs 2005 summary judgment order in an
1
Wyss v. City of Hoquiam, noted at 111 Wn. App. 1001 (2002).
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unpublished opinion in 2006.2
In 2007, Hoquiam assessed a tax lien against Wyssâs property.3 On March 11, 2009,
Hoquiam notified the county assessor of the 2005 trial court judgment, invalidating Wyssâs
transfer of the 40 foot section of property to his son. On receiving notice of the 2005 trial court
judgment, the county assessor recombined the two tax parcel numbers associated with Wyssâs
property into a single tax parcel number. Wyss then sued the County, asserting that the county
assessor did not have âlegal authority to rescind Wyssâ[s] subdivisionâ of his property and
requesting a declaratory judgment as well as injunctive relief. Br. of Appellant at 12. The trial
court dismissed Wyssâs claims with prejudice. Wyss appeals the trial courtâs dismissal of his suit
against the County.
ANALYSIS
Wyss contends that the trial court erred by dismissing his claim against the County
because the County failed to timely appeal the county assessorâs 1999 assignment of a new tax
parcel number to a portion of his property, which assignment Wyss characterizes as a land use
decision subject to LUPAâs statute of limitations. Wyss concedes that the 1999 transfer of his
property was illegal and he acknowledges our 2006 unpublished opinion holding that the transfer
of his property was illegal and thus invalid. But despite conceding that his attempted transfer has
been adjudicated as illegal, Wyss asserts that the County was required to appeal the county
assessorâs assignment of an additional tax parcel number in 1999 within LUPAâs 21-day statute of
2
3
City of Hoquiam v. Wyss, noted at 136 Wn. App. 1011 (2006).
The issue of Hoquiamâs tax assessment lien against Wyssâs property was the subject of another
appeal before us, Grays Harbor County v. Wyss, No. 41691-3-II. We dismissed Wyssâs appeal
on December 12, 2011, based on Wyssâs failure to comply with RCW 84.64.120.
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No. 41298-5-II
limitations and, because the County did not appeal, his illegal division of the lot stands.
Wyss also contends that the trial court erred in dismissing his claim because the county
assessor lacked authority to ârescindâ his 1999 subdivision when, in 2009, the assessor
recombined the two tax parcel numbers associated with his property into a single tax parcel
number.
I.
Standard of Review
We review summary judgment orders de novo, engaging in the same inquiry as the trial
court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary
judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file
demonstrate the absence of any genuine issues of material fact, entitling the moving party to
judgment as a matter of law. CR 56(c). We may affirm a trial courtâs summary judgment ruling
on any correct ground, even if the trial court did not consider that ground, âprovided that it is
supported by the record and is within the pleadings and proof.â Plein v. Lackey, 149 Wn.2d 214,
222, 67 P.3d 1061 (2003).
II.
Collateral Estoppel
All of Wyssâs arguments in this appeal rely on his persistent assertion that he can maintain
that his property was legally subdivided into two separate parcels by the county assessorâs 1999
assignment of an additional tax parcel number to a portion of his land. This issue has been fully
addressed and resolved by a final judgment on the merits; thus, it is barred by collateral estoppel.
Collateral estoppel, or issue preclusion, prevents relitigation of any issue that was actually
litigated to final conclusion in an earlier lawsuit. State Farm Mut. Auto. Ins. Co. v. Avery, 114
Wn. App. 299, 304, 57 P.3d 300 (2002). The requirements for applying collateral estoppel to a
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claim are:
(1) identical issues; (2) a final judgment on the merits; (3) the party against whom
[collateral estoppel] is asserted must have been a party to or in privity with a party
to the prior adjudication; and (4) application of the doctrine must not work an
injustice on the party against whom the doctrine is to be applied.
Malland v. Depât of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985). All of these
requirements are met here.
In 2005, the Grays Harbor Superior Court entered a summary judgment order invalidating
Wyssâs attempted subdivision of the lot in the City, and we affirmed the superior courtâs summary
judgment order in an unpublished opinion in 2006.4 As we held in the 2006 opinion:
The trial court properly found that the deed from Wyss to James was
illegal. Wyssâs 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[]. Because the short subdivision he
attempted to transfer was not created legally, the transfer was illegal. See RCW
58.17.030.
City of Hoquiam v. Wyss, noted at 136 Wn. App. 1011, 2006 WL 3525277 at *4.
Wyssâs attempted 1999 subdivision of the lot in Hoquiam was fully and finally determined
to be improper and illegal and, thus, his property remains a single parcel. Wyss is therefore
collaterally estopped from raising the issue again. Accordingly, we affirm the trial courtâs
summary judgment order dismissing Wyssâs claims.
4
This court may consider unpublished opinions in examining issues such as collateral estoppel.
See Martin v. Wilbert, 162 Wn. App. 90, 93 n. 1, 253 P.3d 108, review denied, 173 Wn.2d 1002
(2011).
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III.
LUPA
Although we need not address the merits of Wyssâs LUPA claim on appeal, we note that
the county assessorâs assignment of tax numbers does not constitute a land use decision subject to
LUPAâs statute of limitations. Former RCW 36.70C.020(1) (1995) defined a â[l]and use
decisionâ in part, as âa final determination by a local jurisdictionâs body or officer with the highest
level of authority to make the determination, including those with authority to hear appeals.â
Here, the Hoquiam City Council, not the county assessor, had authority to make a final
determination regarding Wyssâs purported property subdivision.
Former RCW 58.17.020(6) (1995) defined a â[s]hort subdivisionâ as âthe division or
redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of . . .
transfer of ownership. And RCW 58.17.030 provides that â[e]very short subdivision . . . shall
comply with the provisions of any local regulation adopted pursuant to RCW 58.17.060.â5
The local regulation governing Wyssâs purported subdivision of his property is found in
Chapter 9.07 of the City of Hoquiam Municipal Code, which authorizes the city engineer to
approve or deny applications for a short subdivision, and which authorizes the Hoquiam City
Council to hear appeals from the city engineerâs decision. HMC 9.07.060-.080.
Because the county assessorâs office did not have âthe highest level of authority to make
[a short subdivision] determination,â its actions in assigning and recombining tax parcel numbers
to Wyssâs property did not constitute land use decisions and was not subject to LUPAâs statute of
limitations.6 Former RCW 36.70C.020(1). Wyssâs claim regarding Hoquiamâs failure to meet the
5
Wyss ignores these relevant statutory provisions despite our reliance on them in our previous
unpublished decision, affirming the trial courtâs 2005 summary judgment order invalidating his
attempted illegal subdivision. See Wyss, noted at 136 Wn. App. 1011, 2006 WL 3525277 at *4.
6
As we noted in Wyssâs previous appeal when rejecting the same statute of limitations argument
6
No. 41298-5-II
LUPA deadline fails.
IV.
Attorney Fees
The County requests attorney fees and costs under RAP 18.9(a) for defending against
Wyssâs frivolous appeal. RAP 18.9 allows this court to order a party to pay attorney fees and
costs for filing a frivolous appeal. See also Green River Cmty. Coll. Dist. No. 10 v. Higher Educ.
Pers. Bd., 107 Wn.2d 427, 442, 730 P.2d 653 (1986) (âThis courtâs power to impose attorney
fees and costs as a sanction for bringing a frivolous appeal is pursuant to RAP 18.9.â).
â[A]n appeal is frivolous if there are no debatable issues upon which reasonable minds
might differ, and it is so totally devoid of merit that there was no reasonable possibility of
reversal.â Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980). Here, all of Wyssâs
Wyss raised against the City of Hoquiam:
The statute of limitations does not bar the Cityâs claim because the statute
of limitations does not apply to actions brought âin the name or for the benefit of
the state.â RCW 4.16.160. Municipal actions are brought âfor the benefit of the
stateâ 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 conductâs effect but on its nature and character. WPPSS, 113
Wn.2d at 293 . . .
The power to regulate platting is traceable to the stateâs sovereign powers.
See Oceanographic Commân of Wash. v. OâBrien, 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 stateâs 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.
Wyss, noted at 136 Wn. App. 1011, 2006 WL 3525277 at *4. (footnotes omitted).
It is also worth noting that, if we were to accept Wyssâs argument that the county
assessorâs March 16, 2009, correction of tax parcel numbers associated with his property
constituted a land use decision, his complaint, filed on February 19, 2010, would be beyond
LUPAâs 21-day statute of limitations. RCW 36.70C.040(3).
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No. 41298-5-II
claims ignore our previous unpublished opinion, which clearly held that his purported subdivision
of property was illegal and therefore void, and we also rejected his statute of limitations argument
under LUPA. Accordingly, Wyssâs appeal does not raise any âdebatable issues upon which
reasonable minds might differ,â and we award the County attorney fees and costs for defending
against Wyssâs frivolous appeal. Streater, 26 Wn. App. at 435.
We affirm the trial courtâs summary judgment order dismissing Wyssâs claims with
prejudice. Additionally, we award the County attorney fees and costs under RAP 18.9 for
defending against Wyssâs frivolous appeal.
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.
Van Deren, J.
We concur:
Worswick, A.C.J.
Johanson, J.
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