City of Brier v. Steele, No. 57666-6-I (Wash. App. 4/23/2007)
| Decision Date | 23 April 2007 |
| Docket Number | No. 57666-6-I,57666-6-I |
| Court | Washington Court of Appeals |
| Parties | CITY OF BRIER, a Washington non-charter code city, Appellant, v. WILLIAM THOMAS STEELE, as personal representative and heir to the Estate of Vera Steele, deceased, et al., and any and all persons claiming any interest in that property herein described, Respondent. |
Appeal from Snohomish Superior Court. Docket No: 03-2-09516-6. Judgment or order under review. Date filed: 12/16/2005. Judge signing: Honorable Linda C Krese.
Counsel for Appellant(s), Thomas Charles Evans, Injury at Sea, 4705 16th Ave Ne, Seattle, WA, 98105-4208.
Counsel for Respondent(s), Dennis W. Jordan, Attorney at Law, 4218 Rucker Ave, Everett, WA, 98203-2214.
William Steele owns two properties within the city of Brier, Parcel 12 and a short plat property on which his home is situated. The City of Brier and Steele entered into an agreement for the City to obtain an easement across Parcel 12 for construction of a sewer. The agreement contained a clause acknowledging exemption of Steele's property from assessment as part of the Utility Local Improvement District (ULID) associated with the sewer construction. The City included Parcel 12 but not the short plat with the home within the ULID and assessed it. Steele did not pay the full assessment on Parcel 12 so the City foreclosed. Steele collaterally attacks the assessment claiming the contract exempts both the short plat and Parcel 12 from assessment. The trial court found for Steele and denied the foreclosure. The trial court also granted Steele's request for attorney fees and costs under CR 11 and RCW 4.84.185. We affirm.
William Steele owns two properties in the City of Brier, Parcel 12 and a two lot Short plat. The short plat is south of and adjacent to Parcel 12 and contains Steele's home. In January 1991, William Steele and the City of Brier entered into an Agreement for Immediate Use and Possession (Agreement) granting the City an easement across Parcel 12 for construction of a sewer. Steele was paid $4,000 and the Agreement included a provision for more recovery if the easement negatively impacted the development of Parcel 12. The Agreement "acknowledges that Owner's property is currently served by sewer from a manhole located on Owner's easterly property and Owner's parcel, including his adjacent home, is exempted from any assessment in the project."
The City of Brier formed Utility Local Improvement District No. 89-01 to construct the sewer and assessed the properties within the district accordingly. The final ULID included Parcel 12 but did not include the short plat. Steele was sent notice of the ULID, of the inclusion of Parcel 12, of the assessment of Parcel 12 and of his right to protest the assessment. The evidence shows that the City reduced the assessment on Parcel 12 from $27,571.50 to $7,649.94, but does not show that Steele filed a protest or appeared. City of Brier passed Ordinance 254 imposing the final assessment roll for ULID 89-01 and published the ordinance on July 17, 1992. The ULID assessment was not appealed in Superior Court within the time period allowed for appeal. The final assessment for Parcel 12 was $7,649.94.
On July 16, 1992, Steele paid $4,000 to the City and the City applied this money to his assessment.1 However, Steele did not pay the remaining $3,649.94. As a result, the City sent him a notice on January 19, 1995 stating that his assessment payments were overdue and foreclosure would commence against the Parcel 12 property if he failed to pay the balance within 30 days. In response, Steele's attorney sent a letter to the City claiming that the Agreement exempted Steele's property from the assessment and asserting that Steele did not owe any money. On January 27, 1995, the City Attorney answered in a letter stating
Neither Steele nor the City took further action until July 25, 2002 when Mayor Wayne Kaske and City Clerk Norma Wilds billed Steele for the principal, interest, penalties and legal fees associated with the unpaid assessment. A letter accompanied the bill noting that "[t]he City is aware of circumstances which may have caused you to believe the debt is not due or that adjustments should have been made," but urged immediate payment of the assessment. Otherwise Steele would face a foreclosure action on the property. When Steele did not pay the assessment and fees the City brought a foreclosure action against Parcel 12.
At trial, the City submitted and rested on exhibits stipulated by Steele including the documents pertaining to the establishment of the ULID and the assessments. After Steele presented his case, the trial court determined that the Agreement exempted Parcel 12 from the assessment and that the ULID unconstitutionally interfered with Steele's contract exempting Parcel 12 and improperly included property not subject to assessment. The foreclosure action was dismissed.
The trial court subsequently awarded CR 11 sanctions to Steele upon a finding that based on the facts of the case "particularly in light of . . . Mr. Evan's letter . . . stating that no assessment was owed . . . the filing of this action cannot be said to have been done after a reasonable inquiry indicating that the action was well-grounded in fact or supported by existing law." The court further concluded that the action was not brought in good faith. In addition the court concluded that the "action was frivolous and was advanced without reasonable cause." As a result of these findings and conclusions, the trial court awarded Steele $26,741.88 in reasonable attorney fees and costs under CR 11 and RCW 4.84.185.
Steele argues that the City fails to properly assign error because the City assigned error to the findings of fact and conclusions issued on filed March 16 2006, and related to the CR 11 sanctions, rather than the findings and conclusions from December 16, 2005 underlying the decision to dismiss the foreclosure action. This argument is not well taken.2 We will address the merits of the case.
Steele acknowledges that he did not directly challenge the ULID assessment through the protest or appeal procedures required by RCW 35.44.200. This limits any challenge to a collateral attack based on a jurisdictional defect. This Court has defined four bases that may serve as a jurisdictional defect for the purpose of collateral attack. "(1) [W]here there is a violation of a constitutional right in the assessment proceedings, (2) where the improvement does not benefit the public, (3) where the improved property is not public property, and (4) where the assessment roll includes property not subject to assessment." Little Deli Marts, Inc. v. City of Kent, 108 Wn. App. 1, 5, 32 P.3d 286 (2001). Steele contends that the ULID assessment impaired his constitutional right to contract and that the assessment included property not subject to assessment.
The existence of these two bases for collateral attack depends upon the interpretation of the Agreement between Steele and the City. If the trial court's construction of the Agreement is correct, the successful collateral attack should be upheld because the Agreement exempts Parcel 12 from assessment. Steele's constitutional right to contract was impaired and the assessment does include property not subject to assessment. However, if, as the City argues, the Agreement does not exempt Parcel 12, the collateral attack fails and the foreclosure action should go forward.
"The general rule is that the interpretation of a contract is a question of law." Noble v. Ogborn, 43 Wn. App. 387, 390, 717 P.2d 285 (1986). Questions of law are reviewed de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
The trial court denied the City's request to foreclose on Parcel 12 because "it had failed to provide any evidence that the Agreement referred to anything other than Parcel 12 and that Parcel 12 is not subject to assessment for ULID 89-01 pursuant to the terms of the Agreement between the City and Defendant." This interpretation exempts Parcel 12 as well as the short plat containing Steele's home. The trial court determined that Parcel 12 was exempt because
B. That the real property described by . . . Exhibit A was also the only real property specifically identified by the Agreement except to the extent that paragraph 6 also identified the "adjacent home" that was also declared to be exempt from assessment.
C. That there were also other references in the Agreement itself to the Defendant's property which references could only be referring to the real property that is the subject matter of the Plaintiff's foreclosure action and, therefore, the real property described by paragraph 6 of the Agreement.
D. That the Plaintiff City, through its City Attorney as evidenced by Exhibit 5 [the letter], reached the same conclusion in 1995 and yet did not elect to take the witness stand in this foreclosure action to resolve the conflict between the City's current cause of action and the admissions set forth by Exhibit 5.
The Agreement specifies that it "is made with reference to the following facts: . . . B. Steele owns property across which City seeks a permanent and temporary easement legally described on Exhibit A attached hereto and incorporated by this references (the easements)." Attached Exhibit A contains the legal description for Steele's property Parcel 12. No other legal description is included within the Agreement. The provision questioned in this case reads ...
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