Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
66156-6 |
| Title of Case: |
Crystal Lotus Enterprises, Ltd, Appellant / Cross - Res. V. City Of Shoreline, Respondent / X-app |
| File Date: |
02/21/2012 |
SOURCE OF APPEAL
----------------
| Appeal from King County Superior Court |
| Docket No: | 09-2-44564-8 |
| Judgment or order under review |
| Date filed: | 09/28/2010 |
| Judge signing: | Honorable Michael C Hayden |
JUDGES
------
| Authored by | Anne Ellington |
| Concurring: | J. Robert Leach |
| Stephen J. Dwyer |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Rand L. Koler |
| | Rand L Koler and Associates PS |
| | 615 2nd Ave Ste 760 |
| | Seattle, WA, 98104-2200 |
Counsel for Respondent(s) |
| | Stephanie Ellen Croll |
| | Keating Bucklin & McCormack Inc PS |
| | 800 5th Ave Ste 4141 |
| | Seattle, WA, 98104-3175 |
|
| | Flannary Pasieka Collins |
| | City of Shoreline |
| | 17500 Midvale Ave N |
| | Shoreline, WA, 98133-4905 |
|
| | Bob C. Sterbank |
| | Kenyon Disend PLLC |
| | 11 Front St S |
| | Issaquah, WA, 98027-3820 |
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 ) ORDER GRANTING
Washington; CITY OF LAKE FOREST PARK, ) MOTION TO PUBLISH
a municipality organized under the laws of )
the State of Washington, )
)
Respondent/Cross Appellant. )
)
Respondents filed a motion to publish the court's opinion filed February 21,
2012. After consideration of the motion and the response from appellant, the court has
determined that the motion should be granted.
Now therefore, it is hereby
ORDERED that respondent's motion to publish the opinion is granted.
Done this _____ day of April, 2012.
FOR THE PANEL:
No. 66156-6-I/2
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 ) PUBLISHED 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
pipe from the Shoreline stormwater system discharges stormwater onto an adjacent
lot (Lot 8).
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No. 66156-6-I/3
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
Standard of Review
This court reviews summary judgment orders de novo, engaging in the same
1 Clerk's Papers at 3.
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No. 66156-6-I/4
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
made."6 A property owner may bring an inverse condemnation claim alleging an
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).
6 Wash. Const., art. I, § 16.
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No. 66156-6-I/5
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
foreseeability the act would disturb the plaintiff's possessory interest; and (4) actual
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/6
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
The cities urge us to grant fees on appeal to Lake Forest Park because it was
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/7
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
basin, altogether failing to address the issue of control. And Crystal Lotus does not
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/8
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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