Kenneth Hauge, Appellant V. City Of Lacey And Thurston County, Respondents (Majority)

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FILFD COURT OF APPEALS DIVISION 11 3: 22, 20114 SEP - 3 ! STATE OF WASHINGTON BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44305 -8 -II KENNETH HAUGE, Appellant, v. UNPUBLISHED OPINION CITY OF LACEY, a municipal corporation, Respondent, THURSTON COUNTY, a subdivision of Washington State, Defendant. LEE, J. favor of the City Kenneth Hauge appeals the trial court' s order granting summary judgment in of Lacey and dismissing his inverse condemnation claim. Hauge argues that, despite a previous settlement between the parties related to the City' s condemnation and acquisition of a right -of way over his property, the City failed to pay him just compensation for a) the reduction of his property' s value due to increased traffic noise; and ( b) the removal of three trees address outside of his Because the claims the for settlement right of way. - abuse, Hauge also argues that the trial court erred in failing to retaliation, between Hauge and negligence, the City and additional provided Hauge governmental takings. with just compensation for No. 44305 -8 - II any reduction in his property' s value incident to the City' s road expansion and the disputed trees, and Hauge' s contentions other are meritless, we affirm. We also deny Hauge' s request for attorney fees. FACTS BACKGROUND A. In May 2008, the City posted a public notice of its intent to widen Carpenter Road from two to four lanes property owner as part of a Hauge was term long - steadfastly transportation opposed to the project. From its inception, affected road widening project. Hauge, who is extremely sensitive to noise, feared the project would destroy the character of his property and have adverse impacts on his and his elderly mother' s health. Accordingly, Hauge rejected the City' s many prelitigation offers to purchase a 4, 058 square foot right - way over a narrow strip of of his property. In March 2010, the way. City offered Hauge $ 44, 500 as just compensation for the right of- The City took the position that " just compensation is the difference between the fair market value of the property before the acquisition and the fair market value of the property remaining after the circumstances of asked the acquisition. owner." It is the property that needs to be evaluated and not the Clerk' s Papers ( CP) for "$ 425, 000 for the total taking of [ his] at 180. Hauge rejected the offer and instead property." CP at 183. The City rejected the counter -offer because it was unwilling to " treat a partial acquisition as a total acquisition without any basis for making that decision." CP at 184. Hauge and the City were unable to reach an amicable agreement. In Deccember 2010, the. City successfully sought an order of public use and necessity in December 2010, to condemn 2 No. 44305 -8 -II and acquire the Hauge' over of way right - s Before proceeding to a jury trial to property. establish just compensation, Hauge and the City negotiated a settlement. During the negotiations, City' s valued appraiser the right of way - at $ 57, 000. This included $ 20, 000 for the land itself, $ 7, 680 for the contribution value of affected timber including severance trees outside the Hauge' damages.' that right of way - would s own appraiser assessed need the to be value of the This figure included $ 34, 500 for the land itself, $26, 000 for trees to in severance cedar fence. damages, funds, the trial agreement court the " just Following to entered parties a " settlement, filed a " 29, 320 in right of way at $ - replace 172, 500. lost timber, $53, 000 Stipulation of Settlement" with the trial court for $ 150, 000. settle Decree compensation the and $ 59,000 for loss of the land value for accessory dwelling units and a In March 2011, the evidencing their represented and $ removed), of at 317 -19. After Hauge accepted the Appropriation" memorializing that the $ 150, 000 for the [ City' s] City began the CP taking work on of the [ Hauge] property." the right of way. - CP at 322. However, a dispute soon arose over Hauge' s refusal to allow the City to remove three trees on his property abutting the right - way. Believing it had compensated Hauge for the trees as part of the settlement, the of City moved to enjoin Hauge from interfering with their removal. As part of its motion to enjoin, the City included a declaration from City Engineer Roger Schoessel and the construction plans filed 1 as part of the public use and Severance damages value are to the land that is l Transit Auth. necessity statutorily not taken hearing. in Washington. RCW 8. 12. 190( 2). " recognized is referred Schoessel' s declaration stated that " Hauge to as ` severance damages.'" A loss of Cent. Puget Sound Heirs & Reg' Devisees ofEastey, 135 Wn. App. 446, 456, 144 P. 3d 322 ( 2006) quoting Shields v. Garrison, 91 Wn. App. 381, 388 n.2, 957 P.2d 805, 967 P. 2d 1266 ( 1998)). v. Both.the City' s appraiser and Hauge' s appraiser refer to these damages as " proximity damages," but, from the context, it is clear that severance damages are intended. CP at 128. 3 No. 44305 -8 -II' refused to allow the removal of the three ( 3) trees shown on Plan Sheet 7 even though the City had] for those trees paid as part of the CP settlement." at 39. In May 2011, the trial court granted the City' s motion to enjoin Hauge from interfering with removal of the trees. Hauge did not appeal the order, and construction on the project continued. B. PROCEDURE In June 2012, Hauge filed complaint outside alleged of the uninhabitable; ( that ( 1) the for inverse City condemnation. The the City did not compensate Hauge for the three trees it removed right of way; - 3) a complaint against ( 2) the City' s actions rendered Hauge' s auxiliary dwelling unit the retaining wall built by the City did not comply with manufacturer specifications, posed a substantial risk of collapse, and encroached on Hauge' s property; ( 4) the City failed to compensate Hauge for heightened noise levels resulting from increased traffic on Carpenter Road; and ( 5) the City' s actions caused a loss of lateral support on the property. The City moved for summary judgment in response to Hauge' 2 s complaint. Hauge opposed the City' s summary judgment and filed a cross- motion for summary judgment. Before the summary judgment complaint, Hauge alleged that ( 1) " hearing, Hauge amended his complaint. In the amended The actions of the defendants have damaged the Property to the extent that the Property is worthless to the plaintiff and a constructive taking has occurred," 2) he should be compensated for the three trees removed outside of the right -of way, and ( 3) - the plaintiff has a cause of action for severance damages arising from diminution in the value of 2 The City submitted a CR 12(b)( 6) motion with considerable materials outside the pleadings and asked the court to treat it "procedurally the same as a Motion for Summary Judgment pursuant to CR 56." CP at 18. The trial court and the parties treated the City' s motion as a summary judgment motion. On appeal, we review the motion as one for summary judgment. CR 12( c). 4 No. 44305 -8 -II the Property caused by the construction and continued existence of the widened Carpenter CP at 155 -56. Road." Shortly thereafter, trial the heard court oral argument on the parties' motions for summary judgment, granted the City' s summary judgment motion and denied Hauge' s cross motion for summary judgment. Hauge appeals. ANALYSIS A. STANDARD OF REVIEW We review a trial court' s summary judgment ruling Tower, LLC; 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009). de Torgerson v. One Lincoln novo. 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. A material fact is one on which the outcome of the litigation depends in whole or in CR 56( c). part. Owners Ass 'n Bd. of Dirs. Atherton Condo. Apartment 516, 799 P. 2d 250 ( 1990). therefrom in the light most favorable to the nonmoving party." Atherton, 115 Wn.2d at 516. subject to a burden- shifting 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989). satisfies issues its initial burden, the demonstrates that material Blume Dev. Co., 115 Wn.2d 506, We consider " all the facts submitted and the reasonable inferences Summary judgment is nonexistence of genuine v. of material inquiry facts are scheme. Young v. Key Pharms., Inc., The moving party has the initial burden to show the fact. shifts Young, 112 Wn.2d at 225. If the moving party to the nonmoving party to " present evidence that in dispute." Atherton, 115 Wn.2d at 516. However, ' a complete failure of proof concerning an essential element of the nonmoving party' s case necessarily renders all other facts immaterial. "' 5 Young, 112 Wn.2d at 225 ( quoting Celotex No. 44305 -8 -II Corp. v. Catrett, 477 U. S. 317, 322 -23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)). Summary judgment should only be granted if the nonmoving party fails to show that a genuine issue as to a material fact exists. Seven Gables Corp. v. MGM/UA Entm' t Co., 106 Wn.2d 1, 13, 721 P. 2d 1 1986). JUST COMPENSATION B. Hauge argues that the trial court misinterpreted the parties' settlement, and therefore, he has not been provided just compensation for the diminution in value of his property in light of increased noise from the expanded road or for the three trees removed during construction of the right of way. Because the only reasonable interpretation of the parties' settlement is that the City provided Hauge with just compensation for the trees and severance damages for the effects of the road, we disagree. We interpret v. settlement agreements Bates, 169 Wn.2d 185, 188, is the parties' intent." 234 P. 3d the same way 205 ( 2010). " Tanner Elec. Co -op v. we interpret other contracts. McGuire The touchstone of contract interpretation Puget Sound Power & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 ( 1996). In Washington, the intent of the parties to a particular agreement may be discovered not only from the actual language of the agreement, but also from viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties." Scott Galvanizing, 1993) ( quoting Inc. Berg v. v. Nw. EnviroServices, Inc., 120 Wn.2d 573, 580 -81, Hudesman, 115 Wn.2d 657, 667, 801 P. 2d 222 ( 1990)). 6 844 P. 2d 428 If "only one No. 44305 -8 -II inference reasonable can be drawn from the extrinsic evidence," we can determine the contract' s meaning as a matter of law. Scott Galvanizing, 120 Wn.2d at 582. In interpreting contracts, courts normally give words their "' general and ordinary accepted meaning and connotation' unless otherwise defined by the parties or by the dictates of the context." Blue Mountain Mem' l Gardens v. Dep' t ofLicensing, Cemetery Bd., 94 Wn. App. 38, 43, 971 P. 2d 75 ( quoting Keeton 661 P. 2d 982, However, " review denied, 99 Wn.2d 1022 ( 1983)), that field." review denied, 138 Wn. 2d 1011 ( 1999). Blue Mountain, 94 Wn. App. at 43 ( citing RESTATEMENT ( SECOND) CONTRACTS § 202 ( 1981)). The Decree of Dep' t of Soc. & Health Servs., 34 Wn. App. 353, 360 -61, a term of art in a given field is given its technical meaning when used in, an agreement within OF v. Hauge' s of Appropriation property. " Just stated that $ 150, 000 compensation" is a term of was " just compensation" for the taking art in eminent domain law. Where a partial taking of a plaintiff' s land is involved, just compensation " is the difference between the fair market value of the entire property before the acquisition and the fair market value of the remainder review after the State v. Sherrill, 13 Wn. App. 250, 254 -55, 534 P.2d 598, acquisition." denied, 86 Wn.2d 1002 ( 1975). " Fair market value is the amount of money which a well informed purchaser, willing but not obliged to buy the property would pay, and which a well informed seller, willing but not obliged to sell it would accept, taking into consideration all uses to which the property Here, Hauge the " fair is adapted." argues market value of State v. Wilson, 6 Wn. App. 443, 447, 493 P. 2d 1252 ( 1972). that the parties the 4, 058 sq. ft. intended the $ 150, 000 settlement as compensation for portion 7 of property," and not compensation for the trees No. 44305 -8 -II and severance damages for the impact that the right -of way would have on Hauge' s remaining land. Br. of Appellant at 6. The record, however, belies this assertion. Before reaching settlement, the City' s appraiser valued just compensation for the right57, 000, ofway at $ be removed, and $ property value 172, 500, severance the of a figure that included $ 20, 000 for the land itself, $7, 680 for trees that had to 29, 320 in severance damages for the effect the new road would have on the Hauge' damages a Hauge $ 150, 000 CP land, $ 26, 000 for lost timber, $ 53, 000 for acquired figure that explicitly accounted for " increased noise and vibration above allowable standards," fence. Hauge' s appraiser valued just compensation at remaining land. included $ 34, 500 for the which and a cedar s at and $ 59, 000 for the loss of land value for an additional dwelling unit 55 -56. Given these figures, it is highly improbable that the City paid merely for 4, 058 square feet of right - way and nothing else. of - Additionally, although the stipulation of settlement does not specifically reference " just compensation," it does reference the City' s petition for public use and necessity and the decree 3 of appropriation. to represent " just Both these documents compensation" state to Hauge that the pursuant parties to the intended the $ 150, 000 settlement eminent domain proceedings. CP at 322, 314. When read together, and in context of the settlement negotiations between the parties, the only reasonable interpretation is that the parties intended the $ 150, 000 settlement amounted to just compensation for the diminution of Hauge' s property value, including the lost trees and severance 3 The damages. stipulation of Tanner Elec., settlement also 128 Wn.2d specifically at 674. references provisions applicable to eminent domain proceedings "). 8 Thus, Hauge' s argument that the chapter 8. 25 RCW ( " Additional No. 44305 -8 -II settlement did not include damages for the trees and the impact of the right -of way on his - remaining land fails. Hauge also asserts that he did not need to appeal the trial court' s ruling on the motion to enjoin because the issue of whether he had been compensated for the three trees abutting the right - way " was simply not before the court" when it enjoined him from interfering with the of City' s trial construction activities. Br. of Appellant at 20. But this was precisely the issue before the The City moved to enjoin Hauge from interfering with the tree removal process court. because the three trees at issue " were purchased by the Petitioners as part of the settlement and judgment entered herein." CP at 37. Moreover, the City submitted the plans used during the public use and necessity hearing which clearly indicate that the three abutting trees would need to be removed. references The trial court' s order enjoining Hauge from interfering with the removal effort these plans. Hauge never appealed the trial court' s order. The doctrine of collateral estoppel precludes a party from relitigating an issue of ultimate fact previously determined by a valid and final judgment. State v. Williams, 132 Wn.2d 248, 253 -54, 937 P. 2d 1052 ( 1997). Thus, Hauge' s assertion that he did not need to appeal the trial court' s ruling on the motion to enjoin fails. Finally, Hauge stresses that the following provision in the stipulation of settlement evinces the City' s intent to purchase the right - f way without also compensating Hauge for the o diminution in property value to his remaining land: 9 No. 44305 -8 -II It is further agreed by the [ City] that neither this Stipulation nor the Judgment and Decree to be entered herein shall in any manner be used to prevent [ Hauge] from filing a separate action for displacement, negligence, personal injury, or any other City]... in constructing the Carpenter Road Improvement Project or relating to such roadway. road related action on CP at 319. Hauge to Contrary seek just the to Hauge' part of the [ s assertions, compensation this " for damage for clause does not allow reservation of rights" which the City has already paid. Rather, the clause recognizes that the settlement would not preclude Hauge from filing suit for additional takings based Wn. or other causes of action not envisioned on the App. same event claim 779, 780, 976 P. 2d spitting is 1274, by the settlement. " precluded review Filing two separate lawsuits in Washington," denied, 139 Wn.2d Landry v. Luscher, 95 1006 ( 1999), and it is unreasonable to read this provision as encouraging claim splitting. The only reasonable interpretation from the extrinsic evidence is that the $ 150, 000 settlement between Hauge and the City provided him just compensation for the acquired land, for the three trees abutting the right - way, and for the diminution in property value due to of increased noise from the road expansion. Accordingly, we affirm the trial court' s granting of summary judgment on these claims. HAUGE' S OTHER CLAIMS C. Hauge next argues that summary judgment was improper because the trial court " focused only on his takings claims and failed to consider the nature or sufficiency of his remaining claims, which he characterized as abuse and retaliation claims." Br. of Appellant at 9. He also alleges that he sufficiently pled and argued that the City failed " to construct a retaining wall on the right of way - additional according to the property from him for the manufacturer' s project outside 10 specifications" the scope of the and that the City " original right of-way." took Br. No. 44305 -8 -II of Appellant at 13, 15. Because Hauge never actually brought causes of action for abuse and retaliation, and the record does not raise a genuine issue of material fact with regard to Hauge' s contention that the City acted negligently in building the retaining wall or appropriated additional property during its construction, we hold that these claims were insufficiently pleaded and/or properly dismissed on summary judgment. Washington follows notice pleading rules and simply requires a ` concise statement of the claim and 936 ( 2008) ( the relief sought. "' Champagne v. Thurston County, 163 Wn.2d 69, 84, 178 P.3d quoting Pac. Nw. Shooting Park Assn v. City ofSequim, 158 Wn.2d 342, 352, 144 P. 3d 276 ( 2006)); see also CR 8( a). A complaint that fails to give the opposing party fair notice of asserted claims is insufficient. Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 25, 974 P. 2d 847 ( 1999). " insufficient While inexpert pleadings may survive a summary judgment motion, pleadings cannot." Here, Hauge pleaded claims assuming " does not for argues abuse Pac. Nw. Shooting ParkAss' n, 158 Wn.2d at 352. that, although and retaliation his " complaint is by City not a model of employees. Br. of clarity," Appellant it sufficiently at 13. Even and " retaliation" claims are recognized causes of action, Hauge' s complaint abuse" indicate that he is bringing such claims or seeking relief on these grounds. In the FACTS" portion of his complaint, Hauge mentions that " employees of the City of Lacey or its contractors frequently directed hostile and aggressive behavior at plaintiff Kenneth Hauge and his mother, CP Helen." mentions a claim for at 8. But, under the " CAUSES OF ACTION" section, Hauge nowhere abuse or retaliation. CP at 9 -10. In addition, the trial court allowed Hauge to submit an amended complaint four days before it heard argument on the parties' summary judgment motions. Despite having the opportunity to clarify the causes of action for which he 11 No. 44305 -8 -II would be seeking insufficient to relief, fair give Hauge did notice of not his a mention asserted for claim abuse Thus, claims. or retaliation. hold that, we This is even under Washington' s generous notice pleading standards, Hauge failed to sufficiently plead claims for abuse and retaliation. Hauge also argues that he sufficiently pleaded a claim for either negligence or inverse condemnation because the City failed to construct the retaining wall according to manufacturer specifications and the wall encroaches on his property. To counter Hauge' s bare assertions in his pleadings, the City presented a number of expert declarations, stating that the wall was built according to Hauge' s manufacturer specifications, is structurally Hauge failed to rebut the property. City' s sound, evidence on and does not encroach on this 4 point. A party opposing summary judgment " may not rely merely upon allegations or self serving statements, but must set forth specific Brokerage, Inc. Therefore, we facts showing that v. Caledonian Ins. hold that, even genuine issues of material fact exist." Newton Ins. Agency & Grp., Inc., 114 Wn. App. 151, 157, 52 P. 3d 30 ( 2002). assuming Hauge properly pleaded a claim for negligence 5 or inverse condemnation related to the retaining wall, he failed to bring forth any evidence 4 Hauge did submit presented expert an expert' s testimony on However, report. the issue" of the contrary to Hauge' s assertion- that he wall' s " significant risk of future collapse," the report nowhere states that the alleged deficiencies in the construction of the retaining wall potentially damaged ( or encroached on) Hauge' s property. Br. of Appellant at 15. 5 Hauge argues that he " sought leave to amend his complaint a second time to add a negligence claim; however, it appears that the amendment never occurred because the trial court dismissed the complaint on summary judgment." Br. of Appellant at 13 n. 10. This contention misrepresents the record. Although Hauge argued in his cross -motion for summary judgment on September 28, 2012, that he " should be allowed to amend the complaint to allege damages due to negligence" in building the retaining wall, Hauge filed his amended complaint approximately 12 No. 44305 -8 -II sufficient to survive summary judgment on this issue. Finally, Hauge appears to argue that the City took additional property outside the rightfor of-way involves. D. 6 which Therefore, was not compensated. we do not address this Hauge fails to articulate what property this claim argument any further. See RAP 10. 3( a)( 5) -( 6). ATTORNEY FEES Hauge response argues at all" as a appeal" and, trees parties that the " outside City' s response brief is so nonresponsive as to constitute no accordingly, the RAP 18. 9( a) though brief, does of he sanction. Appellant' articulate arguments of the of way right - settlement accounted for City " should pay [ Hauge' s] attorney fees and costs on s Reply Br. supporting its had been severance position resolved damages; at by 8. However, the City' s response, that ( a) "[ t] he claim for the taking the condemnation action," ( and ( c) Hauge' s" b) the statement that the City and the court were on notice that Mr. Hauge had claims different than that set forth in his Amended Complaint is stated for the first time in Mr. Hauge' s Appellate Brief." Br. of Resp' t at 6, 7 -8. Therefore, we deny Hauge' s request for attorney fees. later. CP 91. The trial court did not specifically address Hauge' s negligence claim because he twice failed to plead itnot because summary judgment was prematurely granted. one month at 6 Hauge does not articulate what property this claim involves, but does cite to clerk' s papers that were stricken by this court because they were not before the trial court when that court ruled on summary judgment. 13 No. 44305 -8 -II We affirm the trial court' s summary judgment dismissal of Hauge' s lawsuit and deny attorney fees as a RAP 18. 9( a) sanction against the City. 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. 14

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