For some reason, this week included a rash of previously unpublished opinions getting published by the Courts of Appeals. What does that mean? It means more posts for you to read (and for me to write). So here goes.
Crystal Lotus Enterprises Ltd. v. City of Shoreline (Division 1, February 21, 2012) (published April 23, 2012), involves Crystal’s claims against the City for (1) trespass and (2) an unlawful taking. The trial court dismissed Crystal’s claims on summary judgment. Crystal appealed.
The facts of the case are very straightforward: Shoreline has been running a stormwater system that, since the 1960s, has been depositing stormwater on a piece of property referred to as Lot 8 in the decision. In 2004, Crystal bought neighboring Lot 6 and Lot 7. During a later inspection of the property, Crystal learned that the wet and swampy condition of its Lots — purportedly caused by the stormwater discharge on Lot 8 — rendered the Lots unsuitable for development. So Crystal sued the City.
The Court of Appeals affirmed the trial court’s award of summary judgment to the City. In doing so, it said something interesting, and something I had not heard before. According to the Court of Appeals, on summary judgment “[t]he nonmoving party may not rely on . . . consideration of its affidavits at face value.” Really? That sounds a lot like weighing evidence or at least being skeptical of the non-moving party’s evidence. My guess: What this means is nothing more than the regular old rule that bare assertions and conclusions need not be accepted on summary judgment — that you need actual evidence. But it’s a strange thing to say nonetheless.
Anyway, the Court of Appeals made quick work of Crystal’s claims. On the taking claim, the Court noted that a “property owner generally may sue only for a taking that occurs during his or her ownership because the price of the property is deemed to reflect its condition at the time of the sale.” That makes sense. If you buy property subject to a taking, then you bought it subject to the taking; you can’t complain about it later.
On the continuing trespass claim, the Court set out several reasons Crystal’s claims failed: (1) It made no allegation that the City committed an “intentional act” during Crystal’s ownership of the property; (2) It presented no evidence of actual substantial damages, which could have included such things as (a) expert testimony on diminution of value, (b) tax assessments, or (c) descriptions of deterioration since purchase. Of course, in response to the MSJ, Crystal averred that its land was “unusable and unmarketable.” But those bare assertions were insufficient to survive the motion.
Also of note, a second defendant (the City of Lake Forest Park) was awarded its attorneys’ fees on the appeal. Such awards are rare because the standard is so high. Attorneys’ fees are awarded for frivolous appeals:
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.
Yikes. Well, the Court of Appeals held that Lake Forest Park met that standard here. There was simply no evidence that LFP had any ownership, control over, or involvement with the relevant stormwater system. But Crystal insisted on keeping them in the case anyway and appealing their dismissal from the case. So LFP got its fees.