Justin M. Nelson, Et Al., Appellant V. Skamania County, Wa, Et Al., Respondents (Majority)

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COURTFILED OF APPEALS V/ SUO ZO I /: JUN 17 f H 8: 36 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II JUSTIN M. NELSON and ALLISA No. 44240 -0 -II S. ADAMS NELSON, Appellants, v. UNPUBLISHED OPINION SKAMANIA COUNTY, WASHINGTON, and SHANNON FRAME and JANE DOE FRAME, and the community thereof, Respondents. LEE, J. Justin Nelson and Allisa Adams- Nelson sued Skamania County and Shannon Frame, alleging that the County' s former landfill operation on adjacent property caused debris to flow onto his property. The County successfully moved for summary judgment arguing that all of Nelson' s claims were barred by applicable statutes of limitations. Nelson appeals arguing ( 1) the trespass from migrating debris is both continuing and abatable and the County is liable for damages liable until under a the County theory of removes inverse the debris, ( condemnation 2) if the trespass is not abatable, the County is for any takings that have occurred in the 10 II. years No. 44240 -0 -II prior to Nelson filing suit, and ( 3) the trial court abused its discretion in failing to exclude evidence of a code violation Nelson received four years before filing this lawsuit. We hold that genuine issues of material fact preclude summary judgment on Nelson' s trespass claim. Accordingly, we reverse the trial court' s dismissal of Nelson' s trespass claim. We also hold that Nelson is precluded by the subsequent purchaser rule from recovering under inverse and therefore, we affirm the trial court' s dismissal of his inverse condemnation, condemnation claim. Finally, we hold that the trial court did not abuse its discretion when, at the summary judgment stage of proceedings, it refrained from excluding evidence of Nelson' s 2008 code violation. We remand for further proceedings on Nelson' s trespass claim. FACTS BACKGROUND A. In 2005, Dan Huntington, a prior owner of Nelson' s property, filed a complaint with Skamania County alleging that: The portion of this property adjacent to County land is directly in the path of a slide that is heavily laden with garbage. The garbage, things like old water tanks, car parts, scraps of metal, etc., is coming out of an old county landfill that was to the Mt. Pleasant Transfer Site. The garbage is cluttering up the banks of Canyon Creek [ and] interfering with efforts to sell the property. converted Clerk' s Papers ( CP) at 135. The record does not reflect whether the County addressed Huntington' s complaint. In February 2007, Justin Nelson purchased approximately 10 acres of unimproved real property abutting Canyon Creek in Skamania property is downslope 1978, the County and contiguous used a portion of The southern boundary of Nelson' s County. to property owned its property 2 as a by the County. landfill / urn b From the 1950s until dump. After ceasing No. 44240 -0 -II landfill /dump operations in 1978, the County began operating a solid waste transfer station on the The County engaged in extensive clean -up efforts to remove solid waste which had site. been on the ground at the site in the 1980s. Although Nelson visited the property on three 1 occasions before purchasing it, he alleges that he was unaware of the debris because inclement weather hindered his inspection efforts on two visits, and he did not know where the property boundaries were located on the third visit. Shortly after purchasing the property, Nelson commissioned a 2007 survey to confirm the property boundaries, and the surveyor told him that there was " a lot of garbage" on the property. CPat50. In October 2008, Nelson showed the property to Washington Department of Fish & Wildlife ( WDFW) employee, William Weiler. After seeing the property, Weiler relayed the following to another WDFW employee: I have not yet contacted Skamania County, but I find it inconceivable that they didn[' t] know about this. Their garbage transfer station was built on the site of their former dump site, and to my understanding, closed in the 1970' s. Clearly, the site was not adequately reclaimed and due to unstable slopes /mass wasting, I was literally walking on cars, car parts, paints, electrical equipment, perennial tires, garbage of all sorts. tributary The area where the garbage originates is a to Canyon [ Creek], which continues to slide into Canyon I observed debris for a good half mile downstream along Canyon Creek, and if I walked further, there is no doubt that the dump materials would have also been in the Washougal River. In my 18 years with WDFW, this is the largest toxic waste site I' ve ever seen in association with a fishbearing stream. A lot of Creek. folks need to look at this and come up with a restoration plan. CP at 137. 1 Nelson purchased the property from Shannon Frame, a successor owner to Huntington. No. 44240 -0 -II In November 2008, Department of Ecology Inspector Derek Rockett visited the site with Nelson and Weiler. Rockett concurred with much of Weiler' s assessment and noted: F] irst priority at this site should be the prevention of any further solid waste /land slides, possibly through bank stabilization and /or creating a buffer between the edge of the bank and the solid from the landfill. waste An environmental assessment may need to be done and potential restoration will be intense. CP at A January 2009 minute entry from the Department of Ecology' s Environmental 140. Report Tracking System indicates that Ecology would " be following up with the county" on the issue. CP at 140. The record does not reflect whether any follow up occurred or whether the County took any action. Yakama Nation Fisheries Habitat Biologist Greg Morris visited the site on multiple occasions between 2008 and 2012. Based on his observations, Morris concluded that " it appears that the garbage strewn throughout Mr. Nelson' s property. and in the creek is of the same source and continuously migrating down the hill from its origin, the old Skamania County landfill." CP at 189. Certified Geologist Warren Krager visited Nelson' s property in 2012. He observed that large, bulky refuse is largely exposed at and above the ground surface" and that smaller refuse is " thoroughly mixed with silt soil, basaltic gravel and organic matter from natural, long term slope transport processes such as soil creep, freeze -thaw cycles, snow slides, erosion by running water, and photographs sliding and falling from 1993 to 2011 aided by gravity." and concluded CP at 171. that August 2009 Krager also analyzed aerial photographs showed that " a light colored debris flow scar is visible from the Skamania County Transfer Station" that was not present in 2006 photographs. CP at 172. 4 No. 44240 -0 -II Krager that " opined multiple landfill refuse laden debris flows from [ the County' s property] have been moving into the lower ravine on [ Nelson' s property] from at least as early as 2005 summer of that " without continuing through late and massive clean up summer of 2009." and environmental restoration ... CP at 172 -73. He concluded releases of landfill refuse onto private land and into public water courses will continue unabated for decades into the future." CP at 173. PROCEDURE B. On March 13, 2012, Nelson filed a complaint in Clark County Superior Court, which he later amended on County for ( 1) 5) nuisance, ( April 17. The amended complaint alleged causes of action against Skamania inverse waste, ( condemnation, ( 2) private nuisance, ( 6) common law trespass, and ( 7) 3) public nuisance, ( negligence. 4) common law The complaint also alleged that the property' s former owner, Shannon Frame, breached " his warranties of seizin and right to convey-because, at the time of conveyance, a portion of the property was possessed by Skamania County." CP at 13. The County moved for summary judgment, arguing that Nelson' s claims were " barred by limitations, absence of standing and other diapositive defenses." CP at 30. Specifically, the County argued that ( 1) Nelson' s inverse condemnation claim was barred by the 10 -year statute of limitations because any bring an inverse taking potential , occurred condemnation claim under the decades before; ( 2) Nelson lacked standing to subsequent purchaser rule; ( 3) Nelson' s claims for trespass and nuisance were, in actuality, negligent damage to real property claims and should be treated as such; ( 4) Nelson' s trespass and nuisance claims were barred by statutes of limitation; ( 5) the waste statute, RCW 4. 24. 630, was inapplicable to the facts of this case; and ( 6) 5 No. 44240 -0 -II the two -year statute of limitations governing negligent injury to real property barred Nelson' s negligence claims. The County also argued that Nelson' s suit was retaliatory in nature because, in September 2008, Nelson was cited for a code violation for having a campfire during a burn ban and for clearing brush within 100 feet of Canyon Creek without appropriate permits. Nelson opposed summary judgment arguing that ( 1) the statute of limitations should not bar the trespass, nuisance, negligence, and inverse condemnation claims because the debris migration has been continuous in nature, and (2) the subsequent purchaser rule should not bar his inverse condemnation claim because he was unaware of the debris before buying the property Nelson and paid declarations affidavits / Geologic from Morris Reconnaissance information from Weiler also moved " under and and for more significantly and the Krager, property Frame. than the authority of with his included a certified copy of Krager' s Engineering Observation Report, Huntington' Rockett Nelson motions s 2005 complaint, opposing summary judgment. CR 7( b), ER 401, ER 402, and ER 403" to " and the Nelson exclude all . evidence of prior regulatory proceedings against" him. CP at 170, 191. At the hearing on the County' s summary judgment motion, the trial court " indicated [ its] intention to dismiss trespass ' all of plaintiffs' and requested additional claims briefing against that on the claim. County CP at other 216. than for ` continuing The court also denied Nelson' s request to exclude evidence of Nelson' s code violation because his activity on the property " may indeed be relevant as to what [ Nelson] may have contributed to whatever' s going on that he' s alleging on his property" and that such evidence may be " subject to a motion in limine in front of a jury" or a " specific jury instruction" at a later stage in the proceeding. Report of Proceedings ( RP) ( Oct. 5, 2012) at 13. 6 No. 44240 -0 -II In its supplemental briefing, the County argued that "[ i]n those cases where a continuing trespass was found, the defendant had continued to actively engage in the tortious conduct which was the County subject of also the trespass.... without argued, No comparable circumstances exist evidentiary support, here." CP at 217. The the doctrine of continuing trespass is that " unavailable in this case because that cause of action is possible only if the condition created by the defendant can be unreasonable removed ` without hardship and expense. "' . CP at 219. Nelson responded that the County had failed to present any evidence concerning the abatability of the condition and " under the established rule, the limitation period is triggered by continuing damages, without regard for continuing CP acts." at 230. The trial court ruled that the County was entitled to summary judgment as a matter of law. Later, the trial court amended its ruling to also dismiss Nelson' s breach of warranty deed claim against Shannon Frame. Nelson 2 appeals. ANALYSIS TRESPASS CLAIM A. Nelson argues that the trial court erred in granting the County' s motion for summary judgment on its trespass claim because material issues of fact remain concerning the abatability of the condition created by the County' s trespass. Nelson has presented sufficient evidence to raise a genuine issue of material fact regarding whether the debris flowing onto his land is abatable. Therefore, summary judgment was not appropriate. 2 Nelson has not challenged public nuisance, ( 3) common warranties of seizin and right appeal. RAP 10. 3( a)( the summary law dismissal nuisance, ( to convey. 4) of waste, ( his 5) claims for ( 1) negligence, ( private nuisance, ( 2) 6) and breach of Frame' s Accordingly, we refrain from addressing them in this Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 6); Cowiche Canyon P. 2d 549 ( 1992). 7 No. 44240 -0 -II. 1. Standard of Review We review a trial court' s summary judgment ruling de Tower LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009). novo. Torgerson v. One Lincoln Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56( c). part. A material fact is one on which the outcome of the litigation depends in whole or in Owners Ass 'n Bd. of Dirs. Atherton Condo. Apartment v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990). We consider " all the facts submitted and the reasonable inferences therefrom in the favorable to the nonmoving party." light most Atherton, 115 Wn.2d at 516. The moving party is held to a strict standard. Any doubts as to the existence of a genuine issue of material fact is resolved against Summary judgment is the moving party." Atherton, 115 Wn.2d at 516. subject to burden- shifting a 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989). genuine issues of material fact is on scheme. Young v. Key Pharms., Inc., The initial burden to show the nonexistence of the moving party. Young, 112 Wn.2d at 225. If the moving party satisfies its initial burden, the inquiry shifts to the nonmoving party to " present evidence that demonstrates that material facts are Circumstantial, indirect, and inferential burden" under 865 ( 2012). required to summary judgment. Rice v. in dispute." Atherton, 115 Wn.2d at 516. evidence will suffice to discharge the plaintiff' s Offshore Sys., Inc., 167 Wn. App. 77, 89, 272 P. 3d A plaintiff "must meet his burden of production to create an issue of fact but is not resolve that issue on summary judgment." Rice, 167 Wn. App. at 89. However, " a complete failure of proof concerning an essential element of the nonmoving party' s case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 8 No. 44240 -0 -II S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986). nonmoving party fails to Corp. v. show that a Summary judgment should only be granted if the genuine issue as to a material fact exists. Seven Gables MGM/UA Entm' t Co., 106 Wn.2d 1, 12 -13, 721 P. 2d 1 ( 1986). Statute of Limitations 2. The applicable statute of limitations in a trespass case depends on whether the trespass is or permanent. continuing Whether a trespass is continuous or permanent determines when the statute of limitations begins accruing and what damages are available to a plaintiff. For a permanent trespass, RCW 4. 16. 080' s three year statute of limitations for trespass upon real property begins accruing immediately. 3 This is because " where a use which causes damage to adjacent property is permanent in nature, its effect upon the market value of that property is also permanent and is ascertainable at the time it becomes known that the use will Cheskov continue." 3 v. Port of Seattle, 55 Wn.2d 416, 420, 348 P. 2d 673 ( 1960). With a Contrary to the County' s assertions, both negligent and intentional trespass are recognized as v. Burlington N Santa Fe Ry. Corp., 130 continuing torts in Washington ( see Pac. Sound Res. Wn. App. subject 926, 941, 125 P. 3d 981 ( 2005), to RCW 4. 16. 080' s year three - 477, 483, 403 P. 2d 343 ( 1965). review statute of denied, 158 Wn.2d 1011 ( 2006)) and both are limitations. Zimmer v. Stephenson, 66 Wn.2d Four published appellate decisions since the Zimmer decision of Seattle, 102 Wn. App. 66, 75, 10 P. 3d 408 ( 2000), review denied, 142 Wn.2d 1029 ( 2001); Will v. Frontier Contractors, 121 Wn. App. 119, 125, 89 P. 3d 242 ( 2004), review Mayer v. City denied, 153 Wn.2d 1008 ( 2005); 2006), and 177 Wn.2d Wallace v. Lewis County, 134 Wn. App. 1, 13, 137 P.3d 101 Transp., 173 Wn. App. 302, 306, 293 P. 3d 1244, review denied, Dep' 1026 ( 2013) have incorrectly stated or implied that negligent trespass claims are Wolfe v. t of subject to RCW 4. 16. 130' s two year statute of limitations for " relief not hereinbefore provided." But Zimmer is explicit about the three year statute of limitations for negligent trespass upon real property and is binding. Zimmer, 66 Wn.2d at 483. 9 No. 44240 -0 -II permanent trespass, " the land before the In moment, 2006). injury proper and measure immediately of after." continuing trespass, damage a arguably, is a new tort." damages ... is the difference in market value of the Cheskov, 55 Wn.2d at 420. accrues " every day the trespass continues. Every Woldson v. Woodhead, 159 Wn.2d 215, 219, 149 P. 3d 361 Thus, " the statute of limitations does not run from the date the tort begins; it is applied retrospectively to 159 Wn.2d abated or, 223. at if allow recovery for damages sustained within three years of filing." Woldson, Damages are " recoverable from three years before filing until the trespass is not abated, until the time of trial[;] ... prospective damages 4 are not allowed. " Woldson, 159 Wn.2d at 223. T]he reasonable abatability of an intrusive condition is the primary characteristic that continuing trespass from distinguishes a Dist., 96 Wn. App. a permanent trespass." Fradkin v. Northshore Util. 118, 125, 977 P. 2d 1265 ( 1999). " A trespass is abatable, irrespective of the permanency of any structure involved, so long as the defendant can take curative action to stop the continuing damages.... ` App. at without unreasonable 125 -26 ( quoting Mangini v. Aerojet Gen. hardship and expense. ' Fradkin, 96 Wn. Corp., 12 Cal. 4th 1087, 1097, 51 Cal. Rptr. 2d 4 The County relies heavily on dicta from our decision in Wallace, 134 Wn. App. at 13, to argue that actionable damages in continuing trespass may not be attributable to problems existing before the retrospective necessary to the three year court' s statute decision in a of limitations. " A statement is dicta when it is not Dicta is case.... not binding authority." Protect the Peninsula's Future v. City ofPort Angeles, 175 Wn. App. 201, 215, 304 P. 3d 914, review denied, 178 Wn.2d 1022 ( 2013). Our discussion in Wallace about damage attributable to preexisting problems on the land occurs after our holding that the plaintiff "failed to allege and to show any actionable damage resulting from intentional continuing trespass by the County" and is dicta unnecessary to our holding. Wallace, 134 Wn. App. at 17. Woldson is explicit in holding that it is immaterial when a continuing tort begins because damage continually accrues until the trespass is abated. Woldson, 159 Wn.2d at 223. 10 No. 44240 -0 -II 272, 912 P. 2d permanently 1220 ( 1996)). maintained," substance or condition." The law does not presume that " an encroachment will be and the " trespasser is under a continuing duty to remove the intrusive Fradkin, 96 Wn. App. at 126. Here, the County moved for summary judgment on the grounds that the resulting condition caused by the trespass was not abatable, precluding the applicability of the rules governing continuing torts. It then became Nelson' s burden to establish a material issue of fact concerning whether the condition created by the County' s trespass was abatable, and thus, a continuing trespass. Nelson presented sufficient evidence to raise a genuine issue of material fact concerning whether the damage to his property is abatable. Nelson presented evidence that the Department of Ecology concluded that the " first priority at this site should be the prevention of any further for " intense" CP 140. In addition, land slides" solid waste / and Krager without massive clean u p and environmental restoration ... concluded that " the potential need restoration. at releases of landfill refuse onto private land and into public water courses will continue unabated for decades into the future." 5 CP at 173. Krager and the Department of Ecology' s discussion of restoration raises a genuine issue of material fact as to whether the debris trespassing onto Nelson' s property is abatable. Were the debris truly permanent and not abatable, restoration would be a fruitless effort. Moreover, a trespass is abatable, irrespective of the permanency of any structure involved, so long as the 5 The 56( e) County argues provides affidavit shall that "[ be that Krager' s. report is inadmissible on procedural grounds. However, CR s] worn or certified copies of all papers or parts thereof referred to in an thereto." Krager' s report, referred to in his sworn affidavit, is certified attached and is properly before us. 11 No. 44240 -0 -II defendant can take curative action to stop the continuing damages." Fradkin, 96 Wn. App. at Because genuine issues of material fact remain as to whether the trespass is abatable, 125 -26. making it, as yet, unclear when the statute of limitations should run on this claim, summary judgment on this ground is inappropriate. INVERSE CONDEMNATION B Nelson also argues that the County is liable to compensate him under a theory of inverse The County contends that the statute of limitations bars this claim or, condemnation. alternatively, that the subsequent purchaser rule precludes recovery. As explained above, material issues of fact remain concerning the permanency of the County' s trespass, making summary dismissal purchaser rule on the statute of limitation bars Nelson' s inverse grounds condemnation. inappropriate. However, the subsequent Accordingly, the trial court' s summary dismissal of this claim was appropriate. To prevail on an inverse condemnation action, the plaintiff must establish a " taking" by the Borden government. v. City of Olympia, 113 Wn. App. 359, 374, 53 P. 3d 1020 ( 2002). A taking consists of an appropriation of private property without exercise of the power of eminent domain. Phillips establish more a King County, 136 Wn.2d 946, 957, 968 P. 2d 871 ( 1998). than simply interference with the permanent or interest." v. owner' s recurring interference that ` destroys property or rights. derogates' A plaintiff must Rather, " there must be a fundamental ownership Keene Valley Ventures, Inc. v. City ofRichland, 174 Wn. App. 219, 223, 298 P. 3d 121 quoting Borden, 113 Wn. App. at 374), review denied, 178 Wn.2d 1020 ( 2013). 12 No. 44240 -0 -II Here, as discussed above, material issues of fact remain concerning the abatability of the condition created by the County' s trespass. Therefore, genuine issues of material fact remain as to whether the County has permanently interfered with Nelson' s property rights. However, Nelson' s inverse condemnation claim is barred by the subsequent purchaser rule. The subsequent purchaser rule does not allow a purchaser who has bought property previously damaged by a government taking to bring a claim because " it is the original owner who suffers reflects from the true harm" the diminished property 173 Wn. App. and value the subsequent purchaser " in light 302, 308, 293 P. 3d 1244, of review this earlier pays a price that presumably taking." Wolfe v. Dep' t of Transp., denied, 177 Wn.2d 1026 ( 2013). " Because the right to damages for an injury to property is a personal right belonging to the property owner, the right does not pass to a subsequent purchaser unless expressly conveyed" or there is a new taking that occurs after acquiring the property. 903 P. 2d 464 ( 1995), review Hoover v. Pierce County, 79 Wn. App. 427, 433 -34, denied, 129 Wn.2d 1007 ( 1996). subsequent purchaser must show additional governmental decline in market value. To establish a new taking, the action that causes a measurable Wolfe, 173 Wn. App. at 308 -09. Here, the County' s debris flow clearly began damaging Nelson' s property long before he purchased it. include the The statutory warranty deed conveying the property to Nelson does not expressly right to recover for the migrating debris. Moreover, Nelson has neither alleged nor offered any evidence of any new governmental action by the County contributing to the debris slide onto inverse Nelson' s property after his purchase. Accordingly, Nelson cannot recover under an condemnation claim as a subsequent purchaser. 13 Because the subsequent purchaser rule No. 44240 -0 -II precludes recovery on Nelson' s inverse condemnation claim, we affirm summary judgment on this claim. MOTION TO EXCLUDE C. Nelson argues that the trial court abused its discretion in failing to exclude evidence of his own 2008 discretion. code violation. We review a trial court' s evidentiary rulings for an abuse of Mutual of Enumclaw Ins. Co. P. 3d 1143 ( 2013). " v. Gregg Roofing, Inc., 178 Wn. App. 702, 728, 315 Therefore, we will overturn the trial court' s ruling on the admissibility of evidence only if its decision was manifestly unreasonable, exercised on untenable grounds, or based on untenable reasons." Mutual of Enumclaw Ins. Co., 178 Wn. App. at 728. The trial court did not abuse its discretion by failing to exclude evidence of Nelson' s 2008 code violation. Here, the trial court explained that it would not exclude evidence of Nelson' s 2008 code violation for having a campfire during a burn ban and for clearing brush within 100 feet of Canyon Creek without appropriate permits because "[ i]f indeed we' re going to go forward on continuing trespass, that may indeed be relevant as, to what your client may have contributed to whatever' s going on that he' s alleging on his property." RP ( Oct. 5, 2012) at 13. Moreover, the trial court indicated that discussion of retaliatory intent could be subject to a motion in limine or that a specific jury instruction could be given in relation to the impact of the code violation. Under these circumstances, the trial court clearly did not abuse its discretion when it refrained from excluding potentially relevant evidence at this early stage in the proceedings. 14 No. 44240 -0 -II In summary, we reverse the trial court' s summary judgment dismissal of Nelson' s trespass claim; we affirm the trial court' s dismissal of Nelson' s inverse condemnation claim; and we hold that the trial court did not abuse its discretion in not excluding evidence of Nelson' s 2008 code violation at this stage in the proceedings. Accordingly, we remand to the trial court for further proceedings on Nelson' s trespass claim. 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 in accordance with RCW 2. 06. 040, it is so ordered. 15

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