Bonneville v. Pierce County

Decision Date04 November 2008
Docket NumberNo. 36895-1-II.,36895-1-II.
PartiesRobert BONNEVILLE a/k/a Will Ellwanger, Appellant, v. PIERCE COUNTY, a municipal corporation; Mark Lupino, John Doe, Marcia Greeson, individuals, Respondents.
CourtWashington Court of Appeals

Joseph Philip Tall, Attorney at Law, Seattle, WA, for Appellant.

Gerald Allen Horne, Attorney at Law, Ronald Lamar Williams, Pierce Co. Pros. Office, Tacoma, WA, for Respondents.

ARMSTRONG, J.

¶1 Robert Bonneville1 appeals a summary judgment in favor of Pierce County on his 42 U.S.C. section 1983 claims against the County and a number of its agents. Bonneville contends that the trial court should have granted his motion to continue the summary judgment hearing so that his recently hired attorney could prepare for it. He also argues that there are issues of material fact as to (1) whether he voluntarily consented to an inspection by county officials during which they learned that Bonneville was violating his conditional use permit to operate a business out of his home and (2) whether the County violated his due process rights. Because Bonneville has not provided a record of the arguments and the trial court's ruling on the continuance motion, we are unable to address the issue. In addition, we find no issue of material fact as to whether the County violated Bonneville's constitutional rights. We affirm.

FACTS

¶2 Bonneville owns property in Pierce County in an area that was zoned for rural use in 1994. In 2004, Bonneville applied for a conditional use permit (Cottage Industries II) to operate an appraisal business out of the single family home located on his property, a business he has been operating since at least 1999.

¶3 At the permit hearing on May 13, 2004, the County expressed concern that Bonneville would not comply with conditional use requirements because he had "shown that he does not follow directives" after years of dealing with the County. 1 Clerk's Papers (CP) at 53. Before the hearing, Pierce County staff asked the hearing examiner to condition approval of Bonneville's permit on (1) allowing the County to monitor Bonneville's property and (2) Bonneville signing a right of entry agreement. At the hearing, planning department employee Marcia Greeson again asked the examiner to require Bonneville to sign a right of entry agreement allowing the staff access to Bonneville's property.

¶4 Before the hearing examiner made his decision, Bonneville recommended that enforcement issues could be resolved if he permitted "somebody from the county" to "come through there at any time, count heads ... and agree on the space." 1 CP at 120. He later confirmed that someone from the county was "welcome to come there any time, walk through the building...." 1 CP at 122. He also agreed to a "pattern where somebody comes through" once a month or once a week and to meet a schedule if they "come up with a schedule of inspections, be it routine or random...." 1 CP at 131, 143.

¶5 The hearing examiner approved Bonneville's conditional use permit subject to numerous conditions, including that he allow "Pierce County Staff to monitor the site to make sure that all conditions of approval are being adhered to[]...." and that he permit "unlimited and unfettered" access to his property for inspection and monitoring purposes. 1 CP at 55. The hearing examiner asserted jurisdiction over the matter for a period of three years "to insure that all conditions of approval are satisfied." 1 CP at 55. Bonneville did not appeal the decision.

¶6 Bonneville signed a Pierce County Right of Entry Agreement on February 22, 2004, which an attorney, Fred Hetter, notarized.2 The notary certified that Bonneville "acknowledged that he[] signed this instrument and acknowledged it to be his[] free and voluntary act for the uses and purposes mentioned in the instrument." 1 CP at 182. Bonneville subsequently prepared a Right of Entry Agreement on August 12, 2004, authorizing the County to enter his property for the purposes of monitoring the permit conditions.

¶7 The County inspected Bonneville's permit compliance three times after the conditional use decision. On November 22, 2006,3 Greeson, Mark Luppino, and Pierce County Sheriff Dan Wullick arrived at Bonneville's home office without a warrant. The sheriff escorted the county staff because Bonneville had been argumentative during prior visits. Bonneville asserts that Luppino was "clad in bullet proof armor" and that Deputy Wullick was armed at the time of the inspection. Br. of Appellant at 3. Greeson knocked and asked Bonneville for permission to inspect his property. After initially refusing entry to the staff, Bonneville invited them into the house. Bonneville admitted that he "acquiesced" to Greeson's "demand" to enter his home. 2 CP at 372.

¶8 During the inspection, the staff observed that Bonneville was violating several conditional use permit conditions. Greeson then initiated proceedings to revoke Bonneville's permit on February 1, 2007. On April 15, 2007, the hearing examiner revoked his permit after finding by a preponderance of the evidence that Bonneville violated three approval conditions. One violation included Bonneville's failure to comply with the "unlimited and unfettered" access condition because of his "abusive and hostile" behavior toward those who came to his property. 3 CP at 414.

¶9 On December 28, 2006, Bonneville sued the County under 42 U.S.C. sections 1983 and 1985(3). On July 23, 2007, the County moved for summary judgment. In support of its motion, the County submitted a staff report prepared by the County along with Luppino's declaration. Bonneville, representing himself, requested a continuance on the motion hearing on September 7, 2007, because his mother was ill and he needed more time to respond. The trial court granted the continuance but warned Bonneville that he should file his response within the following week. Bonneville appeared with counsel on September 21, 2007, and requested a second continuance so that his attorney could prepare for the hearing. The September 21, 2007 trial transcript, however, does not include the motion for a continuance, only an excerpt of the trial court's ruling on the motion for summary judgment.

¶10 According to the unofficial transcript attached to the County's brief, Bonneville's counsel advised the court that he would appear on behalf of Bonneville, that he had first seen Bonneville on the matter only the day before the hearing, and that he needed time to prepare for the motion. In the same transcript, the trial court denied the motion, explaining that Bonneville had already received one continuance, that he had had ample time to retain an attorney, and that the court believed he was simply delaying the case.

¶11 The court granted the County's motion for summary judgment after finding no genuine issues of material fact.4 It determined that "there is nothing in the record" to suggest Bonneville's consent to the inspection was coerced. Report of Proceedings (RP) (Sept. 21, 2007) at 5. It also found that he was afforded due process at the hearing at which his permit was granted and at the revocation hearing. Bonneville moved for reconsideration, which the trial court denied. This appeal followed.

ANALYSIS
I. Continuance

¶12 Bonneville contends that the trial court should have granted him a second continuance. We review the trial court's ruling on a motion to continue for an abuse of discretion. State v. Downing, 151 Wash.2d 265, 272, 87 P.3d 1169 (2004). But an appellant must provide the record from which his or her assignment of error arose so that we can determine whether discretion was abused. RAP 9.2(b). Here, Bonneville provides no part of the official record of the motion or the trial court's ruling. The unofficial transcript attached to the County's brief is incomplete, was never filed with the trial court, and does not meet RAP standards. See RAP 10.3(a)(8). Even if we consider the partial unofficial record, it shows that the trial court acted well within its discretion in denying Bonneville a second continuance. Bonneville had ample time to retain counsel before the summary judgment motion. He failed to ask for a second continuance immediately after the first continuance expired. He also offered no explanation for retaining an attorney only the day before the hearing. Under these circumstances, the trial court did not abuse its discretion in denying Bonneville more time.

II. Evidence Considered in Summary Judgment Ruling

¶ 13 Bonneville next argues that the trial court erred in considering the staff report and Luppino's declaration in its summary judgment ruling because this evidence contains hearsay and is not based on personal knowledge.

¶14 Civil Rule 56(e) states, in part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." A party may object to an affidavit filed in support of a motion for summary judgment if it sets forth facts that would not be admissible in evidence. Smith v. Showalter, 47 Wash.App. 245, 248, 734 P.2d 928 (1987) (citing State v. The (1972) Dan Evans Campaign Comm., 86 Wash.2d 503, 506, 546 P.2d 75 (1976)). If a party fails to object or bring a motion to strike deficiencies in affidavits or other documents in support of a motion for summary judgment, the party waives any defects. Smith, 47 Wash. App. at 248, 734 P.2d 928 (citing Lamon v. McDonnell Douglas, Corp., 91 Wash.2d 345, 352, 588 P.2d 1346 (1979); Greer v. Nw. Nat'l Ins. Co., 36 Wash.App. 330, 338, 674 P.2d 1257 (1984)).

¶15 Nothing in the record before us shows that Bonneville raised the hearsay or personal knowledge issues before the trial court. Nor does his motion for reconsideration raise these issues. Consequently, Bonneville...

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