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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

CRYSTAL LOTUS ENTERPRISES LTD.,                     )      No. 66156-6-I
a Washington State corporation,                     )
                                                    )
              Appellant/Cross Respondent,           )
                                                    )
              v.                                    )
                                                    ) 
CITY OF SHORELINE, a municipality                   )
organized under the laws of the State of            )      UNPUBLISHED OPINION
Washington; CITY OF LAKE FOREST PARK,               )
a municipality organized under the laws of          )
the State of Washington,                            )      FILED:  February 21, 2012
                                                    )
              Respondent/Cross Appellant.           )
                                                    )

       Ellington, J.  --  Crystal Lotus Enterprises Ltd. (Crystal Lotus) filed this suit 

against the cities of Shoreline and Lake Forest Park, contending that discharge from 

Shoreline's stormwater system causes marsh-like conditions on its property, rendering 

it unmarketable.  The trial court granted summary judgment in favor of the cities, and 

we affirm.

                                           FACTS

       This case involves a stormwater system built sometime before 1962.  It was 

originally operated by King County.  Upon its incorporation in 1995, the city of 

Shoreline took over operation of the system.  In 2004, Crystal Lotus acquired two lots 

(Lots 6 and 7) in Lake Forest Park, near the Shoreline-Lake Forest Park border.  A  

No. 66156-6-I/2

pipe from the Shoreline stormwater system discharges stormwater onto an adjacent 

lot (Lot 8).

       In 2008, Don Koler, president of Crystal Lotus, contacted developer Perry 

Gravelle about developing Lots 6 and 7.  Gravelle and his consultant walked the 

property and found a swamp-like condition, which they surmised was caused by the 

discharge of stormwater onto Lot 8.  Gravelle refused to consider developing the 

property in that condition.

       Crystal Lotus filed suit against the cities of Shoreline and Lake Forest Park, 

claiming continuing trespass and unlawful taking.  Crystal Lotus alleged that 

stormwater released on Lot 8 travels underground and surfaces on Lots 6 and 7, 
"convert[ing] the land into marsh, rendering it unusable and unmarketable."1 Crystal 

Lotus requested money damages for inverse condemnation of the property, an order 

enjoining the cities from continued trespass, or money damages for loss of use of the 

property and for the cost of restoration.

       Both parties moved for summary judgment.  The court granted the cities'

motion, dismissing Crystal Lotus's inverse condemnation claim as time-barred and 

dismissing its trespass claim as barred as a matter of law.

       Crystal Lotus appeals the court's grant of summary judgment in favor of the 

cities and the court's denial of Crystal Lotus's motion.  The cities cross appeal the 

court's denial of their motion to strike inadmissible evidence.

                                       DISCUSSION

       1 Clerk's Papers at 3.

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No. 66156-6-I/3

                                    Standard of Review

       This court reviews summary judgment orders de novo, engaging in the same 

inquiry as the trial court and viewing all facts and reasonable inferences therefrom in 
the light most favorable to the nonmoving party.2 The moving party must demonstrate

the absence of any genuine issue of fact and entitlement to judgment as a matter of 

law; thereafter, the nonmoving party must show specific facts evidencing a genuine 
issue of material fact.3 The nonmoving party may not rely on speculation, 

argumentative assertions that unresolved factual issues remain, or consideration of its 
affidavits at face value.4 Summary judgment is appropriate when there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of law.5

                                   Inverse Condemnation

       Crystal Lotus alleges a government taking of property by inverse 

condemnation, claiming stormwater discharge from Shoreline's stormwater system 

reduces the marketability of Lots 6 and 7.  The cities contend this claim is barred 

because the alleged taking occurred prior to 2004, when Crystal Lotus acquired the 

affected property.  We agree.

       The Washington Constitution provides that "[n]o private property shall be taken 

or damaged for public or private use without just compensation having been first 

       2 Halleran v. Nu West, Inc., 123 Wn. App. 701, 709-10, 98 P.3d 52 (2004).

       3 Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 182, 930 P.2d 307 
(1997) (citations omitted).

       4 Pain Diagnostics and Rehab. Assocs., P.S. v. Brockman, 97 Wn. App. 691, 
697, 988 P.2d 972 (1999).

       5 CR 56(c).

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No. 66156-6-I/4

made."6 A property owner may bring an inverse condemnation claim alleging an 

unlawful governmental "taking" or "damaging," and may seek to recover the 
diminished value of the property.7 But a property owner generally may sue only for a 

taking that occurs during his or her ownership because the price of property is 

deemed to reflect its condition at the time of the sale, including any injury because of 
government interference.8

       The Shoreline stormwater system was built more than 40 years before Crystal 

Lotus acquired Lots 6 and 7 in 2004, and the only change made to the system during 

its ownership was a 2007 installation of a gabion weir on Lot 8 to reduce the velocity 

of discharge during storms.  There is no evidence, nor any assertion by Crystal Lotus, 

that the gabion weir changed the amount of water discharged onto Lot 8 or intensified 

its impact on Lots 6 and 7.  There is thus no event during its ownership upon which 

Crystal Lotus can base a takings claim.

                                   Continuous Trespass

       Crystal Lotus next alleges the cities are committing intentional continuing 
trespass by discharging stormwater that ultimately saturates Lots 6 and 7.9

       To establish intentional trespass, a plaintiff must show (1) invasion of property 

affecting an interest in exclusive possession; (2) an intentional act; (3) reasonable 

       6 Wash. Const., art. I, § 16.

       7 Phillips v. King County, 136 Wn.2d 946, 957, 968 P.2d 871 (1998).

       8 Hoover v. Pierce County, 79 Wn. App. 427, 433-34, 903 P.2d 464 (1995).  
The right to damages for injury to property is a personal right belonging to a property 
holder, and does not pass to a subsequent purchaser unless expressly conveyed.  Id.

       9 In its Reply Brief at 22, Crystal Lotus confirms its claim is for intentional (as 
opposed to negligent) trespass. 

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No. 66156-6-I/5

foreseeability the act would disturb the plaintiff's possessory interest; and (4) actual 
and substantial damages.10 A cause of action for continuing intentional trespass (as 

opposed to permanent trespass) arises when an intrusive substance remains on a 

person's land, causes actual and substantial harm to that person's property, and is 
abatable.11 The remedies for a continuing trespass are limited to injunctive relief and 

damages for injury incurred during the three years prior to filing the action.12

       This claim also fails, because Crystal Lotus does not allege that either 

Shoreline or Lake Forest Park engaged in an intentional act regarding the stormwater 

system since Crystal Lotus acquired its property.  This precludes injunctive relief.  And 

Crystal Lotus presented no evidence of actual or substantial damages occurring in the 

past three years:  no expert testimony about diminution of property value, no 

government property tax assessments, no photos or descriptions of physical 

deterioration.  Rather, Crystal Lotus merely asserts the property is currently "unusable 
and unmarketable."13 Such bare assertions do not suffice to defend a motion for 

summary judgment.14

                                       Attorney Fees

       10 Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 692-93, 709 P.2d 782 
(1985).  The concept of trespass includes trespass by water.  Phillips, 136 Wn.2d at 
957 n.4.

       11 Bradley, 104 Wn.2d at 6993; see also Fradkin v. Northshore Util. Dist., 96 
Wn. App. 118, 125-26, 977 P.2d 1265 (1999); RCW 4.16.080.

       12 Woldson v. Woodhead, 159 Wn.2d 215, 222, 149 P.3d 361 (2006); Phillips, 
136 Wn.2d at 958 n.4; Bradley, 104 Wn.2d at 695; Fradkin, 96 Wn. App. at 124-25.

       13 Clerk's Papers at 3.

       14 See Pain Diagnostics, 97 Wn. App. at 697.

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No. 66156-6-I/6

       The cities urge us to grant fees on appeal to Lake Forest Park because it was 

not a proper party to the underlying action and this appeal is thus frivolous as to Lake 

Forest Park.

       A proper defendant in an inverse condemnation or intentional trespass claim 

necessarily has some control of the actions by which the plaintiff alleges he is 
aggrieved.15 An appeal is frivolous if, considering the entire record and resolving all 

doubts in favor of the appellant, the court is convinced the appeal presents no 

debatable issues upon which reasonable minds could differ, and that it is so devoid of 
merit that there is no possibility of reversal.16

       Crystal Lotus asserts there is "a public stormwater catch basin" just within the 

Lake Forest Park boundary line, which "feeds . . . into the aforementioned main 

diversion pipe of [r]espondent Shoreline, just before it daylights and dumps the 
collected and channeled public stormwater onto private property."17 In support of this 

contention, it points to exhibit D from the declaration of Vinesh Gounder,18 a video of 

Gounder walking the property and pointing out various parts of the stormwater 

system, including the catch basin.

       But the video does not establish anything more than the location of a catch 

       15 See, e.g., Woldson, 159 Wn.2d at 216-18; Currens v. Sleek, 138 Wn.2d 858, 
859-61, 983 P.2d 626 (1999); Phillips, 136 Wn.2d at 950-56; Bradley, 104 Wn.2d at 
679-81.

       16 Boyles v. Wash. St. Dep't of Ret. Sys., 105 Wn.2d 499, 506-07, 716 P.2d 
869 (1986); Fid. Mortg. Corp. v. Seattle Times Co., 131 Wn. App. 462, 473-74, 128 
P.3d 621 (2005). 

       17 Reply Br. of Appellant at 8.

       18 This person's interest in this case, if any, is unclear.

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No. 66156-6-I/7

basin, altogether failing to address the issue of control.  And Crystal Lotus does not 

present evidence to contradict the testimony of Lake Forest Park's environmental 

programs manager that the city does not own, operate, maintain, or control any of the 

stormwater system at issue in this lawsuit.

       There is nothing in the record showing Lake Forest Park has control over the 

stormwater system at issue in this case.  This appeal is frivolous as against Lake 

Forest Park.  We grant fees on appeal to Lake Forest Park.
       Affirmed.19

WE CONCUR:

       19 Given our disposition, we need not address the cities' cross appeal regarding 
the court's denial of their motions to strike.

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