Schumm v. Spiller
| Decision Date | 30 May 2018 |
| Docket Number | No. 50174-1-II,50174-1-II |
| Parties | KEN SCHUMM, a single person, Appellant, v. KENNETH SPILLER and MICHAELEEN SPILLER, individually and the marital community thereof, Respondents. |
| Court | Washington Court of Appeals |
WORSWICK, J. — Kenneth and Michaeleen Spiller sold real property to Ken Schumm without disclosing that the property was habitat to a threatened species of gopher. Schumm sued the Spillers, alleging fraud, misrepresentation, and breach of contract. The superior court dismissed all claims on summary judgment. We affirm.
The Spillers owned a home and property in Thurston County (County). In September 2013, Mary Linders, a biologist from the Washington Department of Fish and Wildlife (WDFW), and Brad Thompson, a biologist from the United States Fish and Wildlife Department Service (USFWS), conducted a site visit on the Spillers' property. During the visit, the biologists determined that Mazama pocket gophers occupied the Spillers' property.1
Following the site visit, Thompson sent a letter to the Spillers stating:
Clerk's Papers (CP) at 132. The Spillers did not join the conservation partnership.
In April 2014, USFWS issued a press release announcing that the legal status of Mazama pocket gophers in the County had been changed to "threatened species."2 CP at 45. In August2014, after listing their home for sale, the Spillers completed a "Form 17" seller's disclosure statement as required under RCW 64.06.020 and presented the form to Schumm. CP at 36. On this form, the Spillers checked "No" in response to the following questions:
CP at 36, 40. Schumm and the Spillers then entered into a residential real estate purchase and sale agreement and the parties finalized the property sale in December 2014.
In June 2015, the County issued a press release encouraging residents who were planning to build on their property to apply for building permits. The press release stated that properties listed in a building permit application would be screened for the presence of Mazama pocket gophers. The press release further stated that the County was creating a habitat conservation plan with the federal government.
Later the same month, Schumm submitted an application to build a two-story garage on the property. After Schumm's property was screened, the County notified Schumm that his property was located within a zone that may contain a gopher species and that the zone was a protected critical area. The County did not approve Schumm's building application.
The USFWS sent Schumm a letter in November, notifying him that his proposed building project did not comply with federal regulations. The USFWS informed Schumm that his options included modifying the footprint of his project, developing his own USFWS-approved habitat conservation plan, or waiting for the County to finalize its USFWS-approved habitat conservation plan.3
Nearly a year later, Schumm sued the Spillers for damages, alleging fraud, misrepresentation, and breach of the purchase and sale agreement. Schumm alleged that the Spillers committed fraud and misrepresentation by answering "No" on the seller's disclosure Form 17 in response to questions 1(I) and 10(A). CP at 7.
The Spillers moved for summary judgment dismissal, asserting that Schumm could not produce prima facie evidence for his claims. In support of their motion for summary judgment, the Spillers submitted a copy of the September 2013 letter from Thompson and a copy of their Form 17 disclosures.
In response, Schumm asserted that (1) the Spillers' failure to disclose both the gophers' presence and the September 2013 letter from Thompson created issues of material facts, (2) Form 17 created a duty on the Spillers to disclose the gophers' presence as "potential problems," (3) the Spillers made false representations about the condition of their property and about their knowledge of the gophers, (4) Schumm was entitled to rely on the false disclosures in Form 17,and (5) Schumm would not have purchased the property if the Spillers had been honest in their disclosures. CP at 126.
With his response, Schumm submitted an unsigned declaration from Thompson.4 Schumm later filed a notice of errata and filed an amended signed declaration from Thompson. The signed declaration differed materially from the unsigned declaration.
Thompson's signed declaration stated that after the pocket gophers were listed as a species of concern,5 USFWS began reaching out to property owners in the County to inform them of the need to "engage in land use practices that conserve the gopher." CP at 182. Thompson further stated that during the site inspection of the Spillers' property, the biologists observed that pocket gophers occupied the property. Thompson stated that the biologists spoke to the Spillers about the kinds of "practices that allow landowners to co-exist with pocket gophers, such as control of invasive plants and haying" and offered the Spillers the opportunity to enter into a conservation partnership. CP at 182. The signed declaration omitted any reference to the placement of "buildings, landscaping, driveways, etc." CP at 203.
On February 17, 2017, the trial court granted the Spillers' motion for summary judgment and dismissed all of Schumm's claims with prejudice.
On February 27, the due date for Schumm's motion for reconsideration,6 Schumm filed a document titled "Plaintiff's Brief in Support of Motion for Reconsideration." CP at 202. In his brief Schumm argued, without evidence, that the Spillers were made aware by both Thompson from the USFWS and Linders of the WDFW that "trapping, killing, or removal" of the gophers was not allowed. Schumm further asserted, again without evidence, that during the September 2013 visit to the Spillers' property, Linders and Thompson discussed the various practices that allow a "landowner to co-exist with the pocket gophers regarding placement of buildings, landscaping, driveway, etc." CP at 203.
Schumm cited CR 59 as the basis for his motion for reconsideration, but did not cite a subsection of the rule identifying a specific legal ground for reconsideration. Schumm's brief included a caption with the names of the parties and the cause number and also referenced Schumm's relief sought.
At the same time he filed his brief, Schumm filed an unsigned declaration of Linders's.7 Attached as an exhibit to Linders's declaration were excerpts of federal regulations detailing the "threatened species" status given to the gophers in April 2014. CP at 212. The documents were filed at 5:00 p.m. on February 27 and were electronically served on the Spillers at 6:26 p.m. the same day.
The next day, Schumm filed a document titled "Motion for Reconsideration of Summary Judgment" and also filed an updated and signed declaration by Linders. CP at 255. Like the Thompson declaration, the signed Linders declaration materially differed from the unsigned declaration. Linders's signed declaration omitted any information regarding the biologist informing the Spillers about the pocket gophers being a "species of concern" and also omitted any information that "trapping, killing, or removal [of the gophers] was not allowed," or that there were restrictions on the "placement of buildings, landscaping, driveways, etc." CP at 253-54.
In addition to responding to the merits of Schumm's reconsideration motion, the Spillers argued that the motion should be stricken because it was untimely served under Thurston County Superior Court Local General Rule 30(c)(1), and that Linders's signed declaration should be stricken because it was untimely filed.
The trial court denied the Spillers' motion to strike and also denied Schumm's motion for reconsideration. Schumm appeals the trial court's orders granting the Spillers' motion for summary judgment dismissal and denying his motion for reconsideration.
As a preliminary matter, the Spillers argue that this court lacks jurisdiction to hear Schumm's appeal because it is untimely. The Spillers assert that because Schumm's motion for reconsideration was untimely, his appeal to this court is also untimely. We disagree.
We review de novo questions of a court's subject matter jurisdiction. In re Marriage of McDermott, 175 Wn. App. 467, 479, 307 P.3d 717 (2013). A party may raise a question of subject matter jurisdiction for the first time at any point in a proceeding, even on appeal. McDermott, 175 Wn. App. at 479.
A necessary prerequisite to appellate jurisdiction is the timely filing of the notice of appeal. Singleton v. Naegeli...
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