No. 27334-9-II c/w 28224-1-II
Filed: April 9, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 00-2-05842-5 Judgment or order under review Date filed: 04/13/2001
Counsel for Appellant(s), Michael B. Tierney, Micheal B. Tierney PC, 2955 80th Ave S.E. Ste 103, Mercer Island, WA 98040-2975.
Counsel for Respondent(s), Carolyn A. Lake, Goodstein Law Group PLLC, 625 Commerce St. Ste 340, Tacoma, WA 98402-4632.
The Town of South Prairie brought a declaratory judgment action, arguing that Dwight Partin, d/b/a South Prairie Creek R.V. Park (Park), breached a land use permit that allowed the Park to connect recreational vehicles to the Town's sewer system. The trial court granted summary judgment to the Park. Holding that there is a genuine issue of material fact as to whether the Park breached the permit, we reverse.
In 1989, the Town of South Prairie (Town) issued the Park a land use permit to operate a recreational vehicle park and campground. The Park apparently had an on-site septic system. Around 1990, the Town began constructing a sewer system that included a central sewage treatment plant along with on-site processing systems at the individual locations served by the sewer system. The on-site systems deliver semi-processed sewage to the treatment plant. But when the sewer system failed to comply with Department of Ecology (DOE) standards a year after its construction, DOE prevented any new hookups.
In August 1994, the Town passed Resolution No. 151, which authorized the mayor to execute a new land use permit for the Park. The permit included a use agreement for the existing 93 recreational vehicle sewer hookups. And it included a condition that the Park, within one week after the permit's execution, employ a licensed professional engineer to study the Town's sewage plant and make recommendations for improvement.
The permit also allowed the Park to grow to a maximum of 250 sites and apparently gave the Park preference for an additional 93 sites as the Town's sewer system gained capacity. But section 8(a) of the permit provided that before the Park could add any additional connections to the Town's sewer system, it must have a licensed professional engineer analyze the Park's on-site sewage system and certify:
(1) Either the current on-site system is adequate to service a number of recreational vehicles for which sewer availability certificates have been granted; or
(2) Professional engineer shall design an on-site system which will meet all applicable state and county health standards; and
(3) Design and certify an on-site sanitary sewer system which will service the park and buildings at maximum build-out authorized by this permit.
Clerk's Papers (CP) (6/11/01) at 138-39.
To meet its immediate obligations under the permit, the Park employed Hedges Roth Engineering, Inc. (H R) to analyze the Town's plant and make recommendations. The H R report also commented on the Park's on-site sewer system.
Apparently, the three processing tanks that comprise the Park's on-site system are installed incorrectly in that the installation does not match the DOE's approved design.
Sometime after passage of the resolution and execution of the permit, the Park increased the number of recreational vehicle sewer hookups from 93 to between 102 and 105. And in October 1995, the Town mayor gave letter approval to the additional hookups.
In 2000, the Town filed this action for declaratory judgment under RCW 7.24, requesting that the trial court determine whether irregularities in the passage of Resolution 151 rendered it invalid. The Park moved for summary judgment, arguing that the resolution and permit were valid.
In its reply, the Town alleged for the first time that the Park had breached section 8(a) of the permit. Specifically, it argued that the Park connected additional recreational vehicles to the sewer system without first obtaining certification of the adequacy of its on-site system. In support, the Town submitted several declarations including those of Michael
J. Reynolds, the city attorney, and Larry Harter, the Town utility operator responsible for the operation of the Town's water system and waste water treatment plant.
The Park denied that it had breached the permit and asserted that a licensed professional engineer had certified the adequacy of its on-site system. In support, it submitted the February 20, 2001, declaration of Donald Clapp, an engineering technician employed by DBM Consulting Engineers (DBM).
The trial court ruled that (1) the resolution and permit were valid and embodied the contractual land use rights and obligations of the Town and the Park; (2) the Town and the Park must cooperate in good faith to accomplish their obligations thereunder; and (3) as a matter of law, the Park had not breached its obligations under the resolution and permit. Consequently, the court granted summary judgment to the Park and dismissed with prejudice the Town's petition for declaratory judgment. After subsequently denying the Town's motion for reconsideration and motion to continue the summary judgment, the trial court awarded attorney fees and costs to the Park.
The Town then deposed Clapp, the declarant engineering technician, who stated that he had not seen a certification of the adequacy of the Park's sewer system and that the Park had not asked DBM to prepare one. Relying on Clapp's deposition, the Town then brought a CR 60 motion for relief from judgment.
In reply to that motion, the Park submitted Clapp's December 6, 2001, declaration. Clapp reasserted that DBM had certified the adequacy of the Park's system, accounting for his previous contradictory deposition statements by explaining that he understood "certify" to mean "to vouch for," which is what DBM had done, and "[c]ertification" to mean "a written document or report[,]" which DBM had not prepared. CP (10/1/02) at 785.
The Town also assigns error to the trial court's award of attorney fees and costs but presents no supporting argument. Therefore, we do not address this issue. RAP 10.3(a)(5).
The Town brought two appeals, which we consolidated.
ANALYSIS I. Summary Judgment A. Standard of Review
We review summary judgments de novo, engaging in the same inquiry as the trial court. Int'l Bhd. of Elec. Workers, Local Union No. 46 v. Trig Elec. Constr. Co., 142 Wn.2d 431, 434-5, 13 P.3d 622 (2000); Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). Summary judgment is appropriate only if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). "A material fact is of such a nature that it affects the outcome of the litigation." Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995).
We must consider the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). "[W]hen reasonable minds could reach but one conclusion from the evidence presented, questions of fact may be determined as a matter of law, and summary judgment is appropriate." Cent. Washington Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 353, 779 P.2d 697 (1989).
B. Scope of Declaratory Judgment
The Town's petition for declaratory judgment under RCW 7.24 sought `a determination of the validity, invalidity or any part thereof of Resolution No. 151.' CP (6/11/01) at 5. But the Town argued to the trial court that the Park breached the permit and, on appeal, it relies on the same argument.
We do not consider the validity of the resolution and permit because the Town did not argue this point. See RAP 10.3(a)(5) (appellant must support assignments of error with argument and citations to legal authority and the record).
Citing Jacobsen v. King County Med. Serv. Corp., 23 Wn.2d 324, 327, 160 P.2d 1019 (1945), the Park claims that a party may not allege breach of contract in a petition for declaratory judgment brought under RCW 7.24. It argues that the Town improperly asks this court `to declare that [the Park] has failed to satisfy [its] obligations under Resolution 151,' a remedy the Park claims is not available to a party seeking review of a declaratory judgment. Response Br. of Respondent at 14.
The Town responds that under CR 15(b), the court treats issues tried upon the express or implied consent of the parties as if they had been raised in the pleadings. The Town argues that the trial court appropriately considered whether the Park breached its contract because the issue is material to determining the rights and obligations of the Town and the Park under the resolution and permit, the subject of the Town's petition for declaratory judgment.
The Town also claims that under CR 57, a court may consider breach of contract in deciding a petition for declaratory judgment if to do so would be appropriate. CR 57 provides that '[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.' But it does not authorize a trial court to address a breach of contract claim when considering a petition for declaratory judgment. Rather, it authorizes a trial court to render a judgment for declaratory relief even though another remedy is available. See Wagers v. Goodwin, 92 Wn. App. 876, 880, 964 P.2d 1214 (1998).
The holding in Jacobsen is not as broad as the Park contends. The Jacobsen court did not hold that a party may not allege breach of contract incident to a petition for declaratory judgment. Rather, it reasoned that because a breach of contract claim assumes the existence of a contract and fixes the parties' rights thereunder, a party claiming breach of contract may not petition for a declaratory judgment. Jacobsen, 23 Wn.2d at 327. But a party may bring a petition for declaratory judgment that another party breached a contract. See St. Paul Mercury Ins. Co. v. Salovich, 41 Wn. App. 652, 653-54, 705 P.2d 812 (1985) (affirming trial court's declaratory judgment absolving insurer of all liability on insurance contract because insured breached contract by making material misrepresentations).
CR 15(b) provides that '[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.' When the Town argued that the Park breached the permit, the Park not only objected on the grounds that the Town did not allege breach in its petition for declaratory judgment, it also argued and presented evidence to show that it had not breached. The trial court considered the arguments and evidence and decided the issue. `CR 15(b) is designed to avoid the tyranny of formalism that was a prominent characteristic of former practice and to avoid the necessity of a new trial which often follows a deviation from the pleadings.' Harding v. Will, 81 Wn.2d 132, 136, 500 P.2d 91 (1972). Given the policy of CR 15(b) and the parties' litigation of the breach issue, it is appropriate for us to consider this issue as part of the Town's petition for declaratory judgment. See also Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 766-67, 733, P.2d 530 (1987).
The Park asserted that the Town's claim of breach and request for rescission of the agreement was `a completely different remedy more properly sought in a different type of suit.' CP (6/11/01) at 180. But the Park then argued that by claiming breach the Town conceded the validity of the agreement, entitling the Park to summary judgment, instead of arguing that the court should reject the Town's breach claim as an improper claim in a petition for declaratory judgment.
C. Section 8(a) of the Land Use Permit
The Town argues that there is a genuine issue of material fact as to whether the Park breached section 8(a) of the permit. Section 8(a) requires that before the Park may add additional units, it must either obtain certification from a licensed professional engineer showing that its system is adequate to service the number of recreational vehicles equal to the number of sewer availability certificates or it must employ a professional engineer to design a new system that meets state and county health standards. The Town contends that the Park did not obtain certification and that Clapp, who suggested that it did, is not a licensed professional engineer.
The Park contends that (1) its expansion from 93 recreational vehicle hookups to 102 did not trigger the requirements of section 8(a) because it was a minor expansion; (2) the mayor authorized the expansion to 102 hookups; and (3) it did have certification from a licensed professional engineer.
The permit contemplates expansion up to `a maximum total of 250 recreational vehicles [sic] spaces[.]' CP (6/11/01) at 145. But by its plain language, any expansion triggers the requirements in section 8(a). And the resolution and permit authorize only the Planning Commission to make amendments, and only minor amendments at that, defining a minor amendment as one that does not increase the number of hookups. Thus, the Park's expansion triggered section 8(a)'s requirements. And there is no evidence showing that the mayor had authority to amend Resolution 151 to allow the Park to make additional hookups without complying with section 8(a). To prove compliance with section 8(a), the Park submitted the February 20, 2001, declaration of Clapp, an engineering technician employed by DBM. The Park argues that although Clapp is not a licensed professional engineer, he is an agent of DBM and his declaration evidences that DBM certified the adequacy of the Park's sewer system.
The Town argues that under White v. Kent Med. Ctr., Inc., P.S., 61 Wn. App. 163, 168, 810 P.2d 4 (1991), the trial court should not have considered Clapp's declaration because the Park submitted it as part of its reply pleadings, rather than as part of the Park's motion for summary judgment. White recognized that a party moving for summary judgment may not raise in subsequent pleadings new issues that it did not raise in its motion for summary judgment and supporting materials. 61 Wn. App. at 168. But it expressly noted that under CR 56(c), a party moving for summary judgment may submit rebuttal documents after the nonmoving party submits its reply. White, 61 Wn. App. at 168. Here, the Town alleged in its reply that the Park failed to obtain certification of the adequacy of its on-site system. Clapp's declaration attempts to disprove that allegation; it did not raise any new issues. Thus, the trial court properly considered Clapp's declaration.
Clapp's declaration states that (1) the Park hired H R to determine whether its `sewer system was adequate to service all recreational vehicles connected to the system'; (2) H R's report indicated that the Park produced around 3,150 gallons of sewage per day (gpd); (3) the Park's on-site system was designed to handle 6,500 gpd; and (4) sewage produced by the Park was not higher in concentration than other sewer connections within the Town. II CP (6/11/01) at 194. After declaring that he has never observed the Park's sewage meter readings exceed 3,500 gpd, Clapp stated that:
[DBM] certifies that based upon the Plans for the Town's original DOE-approved sanitary sewer treatment system, the design of the on-site portion of the R.V. Park's sanitary sewer pre-treatment system is adequate to service the recreational vehicles and office complex now connected to that system.
II CP (6/11/01) at 194.
But Clapp's declaration does not address several section 8(a)(1) requirements. It does not state that the Park obtained certification from a licensed professional engineer. It does not state that the Park obtained any certification before connecting additional recreational vehicles to the system. It does not indicate that DBM or any of its employees possess engineering licenses. And it does not explain how many sewer availability certificates the Town has granted or provide the number of hookups that the system could handle. It merely purports to certify the adequacy of the system.
On May 22, 2000, the Park admitted that it had added `a dozen or so' recreational vehicle hookups beyond the 93 hookups it had when the resolution was enacted. CP (6/11/01) at 130.
The Park also contends that H R's report can serve as certification. H R stated that the Park's on-site system was designed to handle 6,500 gpd and that at the time of the report it was averaging 90 recreational vehicle units that were producing on average only 3,150 gpd during dry weather. But it also said that the addition of more septic tanks `appears necessary due to the fluctuation in daily flow rates during the cold/wet weather.' CP (6/11/01) at 60. Further, H R does not mention sewer availability certificates or whether the system could adequately serve more than 90 recreational vehicle units. Finally, it speaks only of the design capabilities of the Park's system, not the system's actual functioning capabilities.
Viewing the evidence in the light most favorable to the Town, the Park did not carry its initial burden of showing that there was no issue of fact regarding whether it met the requirements in section 8(a). Even if the Park, as the moving party, had met its burden of showing compliance with section 8(a), the Town submitted additional evidence that raised a question of material fact on this issue, making summary judgment inappropriate. See Hash v. Children's Orthopedic Hosp. Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).
The declaration of Michael J. Reynolds, the city attorney, states that '[t]he R.V. Park has also never obtained certification that its on-site sewage treatment problems have been solved.' CP (6/11/01) at 113. And the declaration of Larry Harter, the Town utility operator responsible for the operation of the Town's water system and waste water treatment plant, states that he is `unaware of any certification ever obtained from any professional engineer showing that there was adequate on-site sewage treatment at the R.V. Park.' CP (6/11/01) at 104. Viewing this evidence in the light most favorable to the Town, there is a genuine issue of material fact as to whether the Park obtained certification from a licensed professional engineer showing the adequacy of its on-site system. Thus, the trial court erred in granting summary judgment for the Park.
D. Motion to Continue
The Town next argues that the trial court abused its discretion by denying its motion to continue to allow the Town to depose Clapp. But CR 56(f) does not authorize a court to continue a final judgment.
'Once a judgment is final, a court may reopen it only if authorized by statute or court rule. For purposes of most cases . . . CR 59 and CR 60 set forth the conditions under which a party may seek relief from judgment.' Rose v. Fritz, 104 Wn. App. 116, 120, 15 P.3d 1062 (2001) (citations omitted). As neither CR 59 nor CR 60 authorize a court to continue a final judgment, we find no error.
`A final judgment is an order that `adjudicat[es] all the claims, counts, rights, and liabilities of all the parties.' It must be `in writing and signed by the judge and filed forthwith.' It can be an order granting summary judgment if it meets these requirements.' Rose v. Fritz, 104 Wn. App. 116, 120, 15 P.3d 1062 (2001) (citations omitted).
II. Motion for Relief from Judgment
The Town argues that the trial court erred by denying its CR 60 motion for relief from judgment. It claims that the Park committed fraud or misrepresentation by alleging that Clapp's declaration evidenced that a licensed professional engineer certified the adequacy of the Park's on-site system. We review a trial court's denial of a CR 60 motion for relief from judgment for an abuse of discretion; an abuse occurs when a court exercises its discretion on untenable grounds or for untenable reasons. Lindgren, 58 Wn. App. at 595; State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999).
Under CR 60(b)(4), a court may grant a party relief from judgment for fraud when the party shows by clear, cogent, and convincing evidence that (1) the adversary made a knowing and false representation of material fact; (2) the moving party was ignorant of that falsity; (3) the moving party reasonably relied on the representation; and (4) the moving party suffered damage. Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990); N. Pac. Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482 (1981). A party may also show that the adversary's misrepresentation caused the entry of a judgment such that the losing party was prevented from fully and fairly presenting its case or defense. Lindgren, 58 Wn. App. at 596. To prove a misrepresentation there must be `specific knowledge and intent by the wrongdoer.' Sarvis v. Land Res., Inc., 62 Wn. App. 888, 893, 815 P.2d 840 (1991).
The Town cites Peoples State Bank v. Hickey, 55 Wn. App. 367, 371, 777 P.2d 1056 (1989), for the proposition that under CR 60(b)(4), it is immaterial whether misrepresentation is innocent or willful. But Sarvis is a later case from the same court and appears to contradict Hickey. Sarvis, 62 Wn. App. at 893.
When the Town deposed Clapp after the trial court had granted summary judgment for the Park, Clapp stated that he had never seen an actual certification of the adequacy of the Park's on-site system and that the Park never asked DBM to prepare one. He also stated that the system's incorrect installation resulted in a substantial drop in its capabilities. But in response to the Town's motion under CR 60, the Park submitted Clapp's December 6, 2001, declaration, which stated that although incorrect installation resulted in diminished capabilities, the system was still adequate. Clapp explained his deposition statements by pointing out that DBM had not prepared a written report or `certification.' CP (10/1/02) at 785.
Because Clapp accounted for the discrepancies between his statements, there was insufficient evidence establishing that his February 20, 2001, declaration contained misrepresentations. Further there is no evidence that the Park knowingly misled the trial court. Thus, the trial court did not abuse its discretion by denying the Town relief from judgment.
Because the Town has failed to show that Clapp's declaration was false or misleading, the trial court did not err by declining to hold a hearing to determine whether Clapp's declaration was perjurious or by not finding misconduct that prevented the Town from fully and fairly presenting its case.
The Park also requests attorney fees and costs but provides no supporting argument. To receive an award of attorney fees on appeal, a party must devote a section of the brief to the fee request that includes argument and citation to authority. RAP 18.1(b). Phillips Bldg. Co., Inc. v. An, 81 Wn. App. 696, 704-05, 915 P.2d 1146 (1996). As the Park failed to do so, we deny the request for attorney fees.
Accordingly, we reverse the summary judgment order and remand for trial on whether the Park breached its obligations under the resolution and permit.
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.
QUINN-BRINTNALL, A.C.J. and HOUGHTON, J., concur.