Wallace v. Lewis County

• Decision Date: 20 June 2006
• Docket Number: No. 32717-1-II.,No. 32765-1-II.,32717-1-II.,32765-1-II.
• Citation: 134 Wn. App. 1,137 P.3d 101
• Parties: Gail WALLACE and James Wallace, Appellants, v. LEWIS COUNTY and John Petty, Respondents, Gail Wallace and James Wallace, Appellants, v. Lewis County, John Petty, and Franklin Catlin, Respondents.
• Court: Washington Court of Appeals

Page 101

137 P.3d 101

134 Wn. App. 1

Gail WALLACE and James Wallace, Appellants, v.LEWIS COUNTY and John Petty, Respondents,Gail Wallace and James Wallace, Appellants, v.Lewis County, John Petty, and Franklin Catlin, Respondents.

No. 32717-1-II.

No. 32765-1-II.

Court of Appeals of Washington, Division 2.

June 20, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Franklin Catlin, Toledo, WA, pro se.

Bradley Bishop Jones, Attorney at Law, Dianne Kathleen Conway, Attorney at Law, Tacoma, WA, for Appellants.

Jeffrey Scott Myers, Law Lyman Daniel Kamerrer et al, Olympia, WA, Mark Colman Scheibmeir, Hillier Scheibmeir Vey & Kelly, Chehalis, WA, for Respondents.

HUNT, J.

¶ 1 Gee Cee's, Inc. and James and Gail Wallace, owners of Gee Cee's, (collectively, Gee Cee) appeal two different superior courts' summary judgment dismissals of (1) their nuisance action against John Petty, who operated a tire disposal business on property adjacent to Gee Cee's property; and (2) their action for negligence, intentional trespass, nuisance, and inverse condemnation against Lewis County for using Petty's business for tire disposal.Gee Cee argues that (1) the County's tires are a fire hazard and create a vector problem;¹ and (2) both trial courts erred in dismissing their negligence, intentional trespass, nuisance, and inverse condemnation claims against the County.

¶ 2 The Wallaces separately appeal one trial court's denial of their motion to amend the complaint against Petty to add additional causes of action.The Wallaces argue that the trial court erred in dismissing their nuisance claim against Petty and abused its discretion in denying their motion to amend.We have linked these two cases on appeal.

¶ 3 Finding no reversible error, we affirm.

FACTS

¶ 4 In 1976 or 1977, John Petty owned a tire business, Daytona West Tire Sales, which sold recycled tire casings.He stored used tire casings on property he owned at Rogers Road and retreaded the tire casings for customers as needed.

¶ 5 During this time, the County owned and operated a tire disposal site (Lebo Site) where it would dispose of its old junk tires.But after vandals set fire to the site in 1980, the County closed it and searched for an alternative disposal method.

I.COUNTY'S TIRE DISPOSAL AGREEMENT WITH PETTY

¶ 6 Petty approached the County with a plan to open a tire disposal business on his property at Rogers Road.Petty believed that old tires would be worth money, and he hoped to sell the tires for a profit.In 1981, the County entered into a formal agreement with Petty for tire disposal, which Petty viewed as a "partnership deal."

¶ 7 Petty agreed to accept the County's surplus, worn, or damaged tires without limitation.The County agreed to pay Petty $850 for the first year and to negotiate the fee for each subsequent year.The County also agreed not to develop its own facility within the Centralia-Chehalis and Napavine areas, but it apparently retained the right to use any other used tire disposal vendor.²

¶ 8 Petty also agreed to accept the public's tires for a fee.The agreement specified that the County had the right to regulate the location and operation of Petty's business under Washington's Constitution and statutes and that it could regulate the fee Petty charged the public.

¶ 9 Once accepted, Petty retained all rights to all tires, including the County's, which he could opt to sell for a profit.Petty also agreed that he would be "responsible for any damage done to any party which could result from a fire or any other damage done to any agency."Gee Cee's Clerk's Papers Vol. 1at 73.

¶ 10 Implementation of the tire disposal agreement was to commence when Petty obtained all required permits.The agreement would expire five years thereafter or when either party terminated the agreement.By 1982, the County had approved Petty's tire disposal business.The County conditioned the permit on Petty's compliance with all laws, contracting with a pest control operator for rodents and insects, conforming to the fire code, and erecting a fence around his property.The County voluntarily assisted Petty with his environmental checklist, and it installed a 300-foot gravel road for improved access to the tire dump.Petty gave the County a gate key.

¶ 11 According to Gee Cee, once the disposal site was operational, Petty stored up to 189,000 tires on his property, 100,000 of which the County contributed.Gee Cee, Petty, and Petty's customers contributed the remaining tires.³

II.PROPERTY OWNERSHIP CHANGES

¶ 12 In 1982, Gee Cee's, Inc. acquired 20 acres of property adjacent to Petty's tire facility.In 1988, the Wallaces bought a separate parcel of land from Petty, with an option to buy another parcel where Petty stored the tires, which was adjacent to property on which Petty operated his tire disposal business.The Wallaces did not, however, exercise this option.That same year, the County closed Petty's tire disposal site because he had failed (1) to comply with new local regulations and state law regarding minimum functional standards for solid waste handling under chapter 173-304 WAC or (2) to transfer the tires to an approved site.⁴

¶ 13 On September 14, 1999, Petty sold his tire disposal property on Rogers Road to Franklin Catlin.The County unsuccessfully ordered Catlin to bring the property into compliance with applicable laws and regulations.

III.ONGOING FIRE HAZARD AND VECTOR PROBLEM

¶ 14 Petty's neighbors had begun complaining about rodents and mosquitoes coming from Petty's Rogers Road property in 1979, before Petty opened his tire disposal business on the site and before he entered into the tire-disposal contract with the County.The County received additional complaints in 1998 and 1999, at least.⁵Between 1988 and 1999, the County attempted to compel Petty either to obtain a permit or to remove the tires.Petty submitted a new application for a permit in 1998, but the County ultimately rejected it for failure to meet permit requirements.

¶ 15 With the County's assistance, Petty applied for government funds to cleanup the tires.But his application was unsuccessful because the designated cleanup funds had already been dispersed to another tire disposal company.According to Gee Cee, the rodent and fire hazard problems continued unabated.

IV.PROCEDURAL HISTORY

¶ 16 On July 17, 2002, the Wallaces filed a nuisance action against the County, Petty, and Catlin in Lewis County Superior Court.Later, the Wallaces moved to amend the complaint against Petty and Catlin to include negligence and intentional trespass and to amend the complaint against the County to include negligence, intentional trespass, and inverse condemnation.On June 10, 2004, the Court allowed the amendments against the County and Catlin,⁶ but it denied the requested amendments against Petty.

¶ 17 On July 6, 2004, Gee Cee filed a similar lawsuit against the same three defendants in Thurston County Superior Court based on the same four causes of actions.In their complaint, Gee Cee alleged that Petty's tire pile (1) continued to breed mosquitoes, particularly during the summer months; (2) created a rodent problem and a fire hazard; and (3) thus, caused their property values to diminish by at least 20 percent.In addition, the Wallaces alleged that they suffered personal injury, including emotional distress, from the problems on Petty's property.

A.Summary Judgments for the County in Lewis and Thurston County Superior Courts

¶ 18 On October 7, 2004, the County moved for summary judgment in both Lewis and Thurston County Superior Courts.Both courts granted the motions and dismissed both Gee Cee's and the Wallaces' actions.

¶ 19 The Lewis County Superior Court ruled that (1) the County slightly exacerbated a condition that had existed at the time of its agreement with Petty; and (2) at the time, the County neither owned the property nor owed a duty to the Wallaces under a specific statute, such as the Model Toxics Control Act, chapter 70.105D RCW.

¶ 20 The Thurston County Superior Court ruled that (1) the County was not involved with Petty other than through the general government process of permitting or contracting with an independent contractor; and (2) therefore, the public duty doctrine precluded Gee Cee's claims.

B.Summary Judgment for Petty in Lewis County Superior Court

¶ 21 On July 17, 2003, Petty moved for summary judgment.The trial court rescheduled the summary judgment hearing four times, in part because the Wallaces needed to obtain new counsel.On February 26, 2004, the Wallaces moved to amend their complaint against Petty to add claims of negligence and intentional trespass.

¶ 22 On April 30, 2004, the Lewis County Superior Court denied the Wallaces' motion to amend and, because the statute of limitations had run on the Wallaces' nuisance action, it granted summary judgment to Petty.

¶ 23 Gee Cee and the Wallaces appeal the Thurston and Lewis County Superior Courts' summary judgment dismissals of their negligence, trespass, nuisance, and inverse condemnation actions against the County.The Wallaces separately appeal the Lewis County Superior Court's summary judgment dismissal of their nuisance action against Petty.We have linked these two cases on appeal.Except as otherwise necessary, we will refer to Gee Cee and the Wallaces collectively as "Gee Cee."

ANALYSIS

I.NEGLIGENCE ACTION AGAINST THE COUNTY

¶ 24 Gee Cee argues that the County negligently managed its solid-waste handling in a manner that adversely affected their properties and that both trial courts erred in dismissing their negligence actions on summary judgment.

¶ 25 The County counters that the statute of limitations barred Gee Cee's untimely negligence claims and, therefore, the trial courts properly dismissed the actions.The County is correct.

A.Standard of Review

¶ 26 Summary judgment is appropriate when the pleadings, affidavits, depositions, and admissions on...