Clark County v. W. Wash. Growth Mgmt. Hearings Review Bd.

FILE
IN CLERKS OFFICE
MIPREME COURT, STATE OF WASHINGTON
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
CLARK COUNTY WASHINGTON, )
CITY OF LA CENTER, GM )
CAMAS,LLC ) No. 85989-2
)
Petitioners, )
)
MACDONALD LIVING TRUST and )
RENAISSANCE HOMES, )
)
Respondents, ) En Bane
)
and )
)
BIRCHWOOD FARMS, LLC )
)
Respondent-Intervenor, )
) Filed MAR 2! 2013
v. )
)
WESTERN WASHINGTON )
GROWTH MANAGEMENT )
HEARINGS REVIEW BOARD, )
JOHN KARPINSKI, CLARK )
COUNTY NATURAL RESOURCES )
COUNCIL, and FUTUREWISE )
)
Respondents. )
No. 85989-2
GONZALEZ, J. -·This case presents a straightforward issue of appellate
procedure. The question is whether the Court of Appeals erred by reviewing separate
and distinct claims that had been resolved below and were not raised on appeal. The
parties were not challenging the disposition of those claims, and thus, the claims had
been finally adjudicated. The Court of Appeals nevertheless addressed the abandoned
claims sua sponte and reversed the lower court's unchallenged rulings. In order to
promote finality, judicial economy, predictability, and private settlement of disputes,
and to ensure vigorous advocacy for appellate review, we prohibit review of separate
and distinct claims that have not been raised on appeal. We thus vacate the portion of
the Court of Appeals' opinion reversing the superior court's unchallenged rulings.
I. FACTS AND PROCEDURAL HISTORY
This case originates from a September 25, 2007, Clark County ordinance (the
2007 Ordinance) de-designating certain lands from status as agricultural land of long-
term commercial significance (ALLTCS), see RCW 36.70A.170, and designating the
same land as urban growth area (UGA), see RCW 36.70A.l10. These designations
are part of the comprehensive planning required under the Growth Management Act
(GMA), chapter 36.70A RCW. Under the GMA, land that is outside of a city must
meet certain substantive requirements to be designated UGA, RCW 36.70A.l10(1),
and no city may annex territory outside of a UGA, RCW 35.13.005; RCW
35A.l4.005.
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No. 85989-2
On November 16, 2007, Respondents John Karpinski, Clark County Natural
Resources Council, and Futurewise (the Challengers) filed a petition with the Growth
Management Hearings Board (the Board) alleging that Clark County was not in
compliance with the GMA. See RCW 36.70A.280. The Challengers specifically
argued that under the requirements of the GMA, the various lands affected by the
2007 Ordinance had to be designated ALLTCS and could not be designated UGA.
Numerous parties were allowed to intervene.
In December 2007 and January 2008, the cities of Camas and Ridgefield began
proceedings to annex certain parcels-areas now referred to generally by the parties
as CA-l, CB, and RB-2 (collectively, the Annexed Lands)-that had been designated
UGA by the 2007 Ordinance. Notwithstanding the ongoing dispute before the Board,
the Challengers did not contest the annexations of the Am1exed Lands in any
proceeding, nor did any party bring the annexation proceedings to the attention of the
Board. In Apri12008, Camas and Ridgefield completed their annexations of the
Annexed Lands.
On May 14, 2008, the Board issued its final order, finding that Clark County
was not in compliance with the GMA. The Board specifically found that certain land
designations from the 2007 Ordinance were clearly erroneous, including designation
of the Annexed Lands as UGA. The Board also found that Clark County's clearly
erroneous designations would substantially interfere with the fulfillment of the goals
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No. 85989-2 ·
of the GMA and thus were invalid. See RCW 36.70A.302(1). The Board was still
unaware that the Annexed Lands had been annexed.
On June 11, 2008, intervenor city of La Center filed a petition for review in the
Clark County Superior Court, appealing the Board's final order. See RCW
36.70A.300(5); RCW 34.05.514. On January 7, 2009, Clark County filed a brief with
the superior court requesting reversal of the Board's order regarding Clark County's
designations under the GMA.
On February 26, 2009, the Challengers entered into a stipulation with
intervenor GM Camas LLC (GMC)-the owner of certain property contained within
CA-l-and agreed that because GMC's property had been annexed by the City of
Camas, GMC had prevailed. The stipulating parties submitted an order to the superior
court, which was entered, reversing the Board's order as to GMC.
On June 12, 2009, the superior court entered an order that resolved the various
remaining claims on appeal, including claims related to the Annexed Lands. The
court acknowledged its prior stipulated order regarding CA-l and concluded that due
to annexation, all claims related to RB-2 also were moot. The superior court also
reversed the Board's finding that Clark County's designation of area CB as UGA was
clearly erroneous, apparently unaware that CB also had been annexed.
The Challengers filed a timely notice of appeal seeking review of the superior
court's June 12, 2009, order. The Challengers' brief focused on substantive issues
related to various parcels not at issue here. On May 17, 2010, the Court of Appeals,
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No. 85989~2
on its own motion, ordered supplemental briefing regarding issues related to the
Annexed Lands. In response, the Challengers acknowledged the stipulation regarding
area CA-l and represented that all claims related to areas CB and RB-2 were moot
due to annexation. The Challengers explained that the Annexed Lands were not
"encompassed in their petition of appeal," that they "did not ... intend to seek review
related to those areas ... which were annexed," and "did not include argument related
thereto in their briefing." Appellants' Suppl. Br. at 1-3. Unsatisfied, the Court of
Appeals on June 1, 2010, ordered additional briefing regarding the authority
underlying the annexations by Camas and Ridgefield. The Challengers noted that
they had not challenged the annexations before the superior court. At this time, the
city of Camas represented to the Court of Appeals that it would be a necessary party
to any adjudication of the validity of the annexations.
On Aprill3, 2011, the Court of Appeals rendered its opinion. Clark County v.
W. Wash. Growth Mgmt. Hearings Review Bd., 161 Wash. App. 204, 254 P.3d 862(2011). The Court of Appeals first addressed the validity of the annexations. The
court acknowledged that "the parties ... objected, arguing that the validity of the
annexations [was] not properly before [the] court," but the court reasoned that "issues
related to the annexations directly impact our ability to resolve pending issues on
parcels CA-l, CB, and RB-2 raised in this appeal." Id. at 222. The Court of Appeals
then framed the issue as "what effect, if any, the annexations had on the Growth
Board's jurisdiction to determine GMA compliance for parcels CA-l, CB, and RB-2."
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No. 85989~2
I d. at 223. The court concluded that "challenged county legislative actions pending
review are not final and no party may act in reliance on them," and thus the
annexations "did not deprive the Growth Board of jurisdiction over the challenge to
the County's actions." Id. at 223-24. Acknowledging the concerns of the city of
Camas as "a necessary party to the consideration of any questions involving the
validity of the annexations," the court "limit[ed] [its] holding only to the Growth
Board's authority to enter findings regarding the validity of the County's decisions
relating to these parcels." I d. at 226. The Court of Appeals then went on to address
various other claims on review. See id. at 226-49.
Clark County and GMC's successor in interest both sought discretionary
review by this court. The petitions for review assigned error to the Court of Appeals'
discussion of the Annexed Lands-which the Court of Appeals framed as a
determination of the Board's jurisdiction-and GMC's successor in interest also
emphasized the stipulation that had been entered by the parties regarding area CA -1.
Although the petitions for review raised additional issues, we granted review only on
the jurisdictional and parcel CA-l issues.
The essential issue now before us is whether the Court of Appeals erred by
addressing sua sponte the claims related to the Annexed Lands, which had been
resolved below and remained unchallenged on appeal.
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No. 85989-2
II. ANALYSIS
The Court of Appeals erred by adjudicating claims that were resolved below,
were not raised on appeal, and remained separate and distinct from the claims that the
parties raised on appeal. Appellate adjudication of claims resolved below and not
raised by the parties on appeal, when not necessary to properly resolving the claims
that are raised by the parties on appeal, thwarts the finality of unchallenged
stipulations and rulings, expends limited judicial resources, diminishes the
predictability of adjudication, discourages the private settlement of disputes, and
overlooks the need for zealous advocacy to facilitate appellate review. The Court of
Appeals' decision to address the Annexed Lands is contrary to our well-established
standards of appellate jurisdiction.
An appellate court must not disturb judgments or rulings except insofar as is
necessary to properly resolve the particular claims the parties have presented on
appeal. It is "a well-established rule that, on appeal from only a part of a judgment or
decree, the court may not review rulings which do not affect the part appealed from,
except where the part appealed from is so interwoven and connected with the
remainder, or is so dependent thereon, that an appeal from a part involves
consideration of the whole, and is really an appeal from the whole." Cook v.
Commellini, 200 Wash. 268, 270-71, 93 P.2d 441 (1939). In other words, when
various portions of a judgment are "separate and distinct," an appellate court must not
review those portions "from which no appeal [has] been taken." !d. at 271, 272
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No. 85989-2
("The portions ... not appealed from [become] res judicata, and ... legal and
binding, and the court [is] without power to set [them] aside."). This rule promotes
finality of judgments, advances judicial economy, ensures predictability, and
encourages the private settlement of disputes. Cf Hilltop Terrace Homeowner's
Ass 'n v. Island County, 126 Wash. 2d 22, 30-31, 891 P.2d 29 (1995) (noting analogous
purposes of the doctrine of res judicata). Additionally, requiring an actual challenge
prior to undertaking appellate review avoids "the danger of an erroneous decision
caused by the failure of parties ... to zealously advocate their position." Orwick v.
City of Seattle, 103 Wash. 2d 249, 253, 692 P.2d 793 (1984) (noting analogous purpose
of dismissing moot cases).
The scope of a given appeal is determined by the notice of appeal, the
assigmnents of error, and the substantive argumentation of the parties. See RAP
5.3(a) ("A notice of appeal must ... designate the decision or part of decision which
the party wants reviewed ... .");RAP 10.3(a), (g) ("The appellate court will only
review a claimed error which is included in an assignment of error or clearly disclosed
in the associated issue pertaining thereto."); RAP 12.1 (providing that "the appellate
court will decide a case only on the basis of issues set forth by the parties in their
briefs" except when "an issue which is not set forth ... should be considered to
properly decide a case"); see also State v. Olson, 126 Wash. 2d 315, 318-24, 893 P.2d
629 (1995) (court will consider issue on appeal, notwithstanding technical violation of
procedural rules, when nature of challenge has been made clear without prejudice to
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No. 85989-2
opposing party). Initially, the notice of appeal must properly designate the decision or
part of the decision that the party wants reviewed. RAP 5.3(a)(3); see also Sargent v.
Selvar, 46 Wash. 2d 271, 272-73, 280 P.2d 683 (1955); Stewart v. Larkin, 74 Wash. 681,
687-88, 134 P. 186 (1913). This designation also subjects to potential review any
related order that "prejudicially affected the designated decision and was entered
before review was accepted." In re Dependency ofBrown, 149 Wash. 2d 836, 840 n.2,
72 P.3d 757 (2003) (citing RAP 2.4(b)). After a decision or part of a decision has
been identified in the notice of appeal, the assignments of error and substantive
argumentation further determine precisely which claims and issues the parties have
brought before the court for appellate review. See, e.g., State v. Sims, 171 Wash. 2d 436,
441-42, 256 P .3d 285 (20 11) (rejecting argument that broad notice of appeal brought
entire order and all related issues before the Court of Appeals because "[s]uch a
cursory conclusion fails to account for established limiting principles, including, for
example, that an appellant is deemed to have waived any issues that are not raised as
assignments of error and argued by brief'); Olson, 126 Wn.2d at 318-24; Johnson v.
Johnson, 53 Wash. 2d 107, 113-14, 330 P.2d 1075 (1958) (holding that although entire
judgment was referenced in notice of appeal, separate and distinct portion not
assigned as error, "not having been raised on ... appeal, was res judicata" (citing
Cook)); cf Matthews v. Parker, 163 Wash. 10, 16-17,299 P. 354 (1931) (court would
adjudicate only that portion of decree relevant to the appellant seeking reversal).
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No. 85989-2
An appellate court's review is necessarily limited by the scope of a given
appeal. The court must address only those claims and issues necessary to properly
resolving the case as raised on appeal by interested parties. See Cook, 200 Wash. at
270-71; Johnson, 53 Wn.2d at 113-14; see also Ajax v. Gregory, 177 Wash. 465,475,
32 P.2d 560 (1934) ("It has long been the settled policy of this court, in disposing of
cases presented, to only decide the questions which are necessary to the decision of
the particular case."); Matthews, 163 Wash. at 17 ("It might be plausibly argued that
the excess ... addition should be apportioned equally .... Possibly, the location ...
[of the] improvements ... will answer that question, should it ever arise upon
conflicting claims of parties in interest. However, that is of no moment in our present
inquiry, since Parker has no interest or title to [that] land ... [and] is the only party to
this action complaining of the decree."); Stewart, 74 Wash. at 688; Krutz v. Dodge, 66
Wash. 178, 179-80, 119 P. 188 (1911); Littell v. Miller, 8 Wash. 566, 569, 36 P. 492(1894) (noting that in order to grant relief to appealing party it would not be necessary
to alter judgment under review as to other party "not joining in [the] appeal," and
thus, the judgment as to that other party remained "in full force and effect" and was
not subject to modification). This "settled policy" ensures that appellate review is
undertaken only insofar as is necessary to resolve actual and residual disputes between
parties in interest. Ajax, 177 Wash. at 47 5. It also allows interested parties to rely on
unchallenged portions of judgments, notwithstanding any outstanding appeals
regarding other, separate and distinct portions of those judgments. See Grignon v.
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No. 85989-2
Wechselberger, 70 Wash. 2d 99, 101, 102,422 P.2d 25 (1966) ("[A] party is not
precluded from enforcing the portion of a judgment not appealed from though he may
be appealing from another severable portion of the judgment."); Hinchman, 14 Wash.
at 356 ("[I]t is apparent that the appellant is entitled in any event to all that he
received, no matter what disposition is made of the case. His appeal is from portions
of the decree only, and we do not think that receiving such of the proceeds as would in
any event belong to him should be held to estop him from prosecuting the appeal.").
In accordance with our settled policy, an appellate court must not adjudicate resolved,
separate and distinct claims that are not raised by any party on appeal.
Appellate courts do retain wide discretion in determining which issues must be
addressed in order to properly decide a case on appeal. See, e.g., RAP 12.1(b); RAP
7.3; RAP 1.2. For example, appellate courts are allowed to consider and apply "a
constitutional mandate, a statutory commandment, or an established precedent" not
raised by the parties when "necessary for decision." City of Seattle v. McCready, 123
Wash. 2d 260, 269, 868 P.2d 134 (1994); see, e.g., Hall v. Am. Nat'! Plastics, Inc., 73
Wash. 2d 203, 205, 437 P.2d 693 (1968) (noting that courts "frequently decide crucial
issues which the parties themselves fail to present" (emphasis added)); Conard v.
Univ. ofWash., 119 Wash. 2d 519, 527-28, 834 P.2d 17 (1992) (considering due process
claim raised sua sponte that addressed the same underlying dispute actually raised and
argued on appeal). Appellate courts are also allowed to seek out briefing regarding
issues deemed important to proper adjudication. See RAP 10.6(c); RAP 12.1(b).
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No. 85989-2
However, an appellate court must not adjudicate resolved claims that are separate and
distinct from the underlying disputes actually raised on appeal; such extraneous
claims need not be adjudicated in order to properly decide a case on appeal, and such
judicial action needlessly disturbs resolved matters, wastes judicial resources, creates
unfair surprise, interferes with and deters private settlements, and risks insufficient
advocacy on review. Such judicial action is not required by "the merits of the case
and the interest of justice" and thus, is not authorized by our court rules. RAP 12.2.
Simply put, an appellate court errs by adjudicating separate and distinct claims
resolved below and not raised on appeal.
The Court of Appeals erred in this case by addressing the resolved claims
related to the Annexed Lands, which were not raised on appeal. Those claims had
been resolved by stipulation, dismissal, and reversal, and no challenge was presented
to the Court of Appeals regarding those claims. Further, those claims, along with the
Annexed Lands generally, had no bearing on the claims and issues that actually were
presented to the Court of Appeals-involving entirely separate and distinct tracts of
land and designations under the GMA. The Court of Appeals did not contend that
adjudicating the status of the Annexed Lands was necessary in order to properly
resolve the issues actually presented on appeal; instead the Court of Appeals simply
asserted, incorrectly and without basis, that the issues related to the Annexed Lands
actually had been directly "raised in this appeal." 161 Wn. App. at 222. The parties
rightfully made clear that the Annexed Lands were in no way at issue. For these
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No. 85989-2
reasons, we vacate the opinion of the Court of Appeals insofar as it relates to the
Annexed Lands.
III. CONCLUSION
We vacate the Court of Appeals' opinion insofar as it relates to the Annexed
Lands. All claims related to the Annexed Lands were resolved below, were not raised
on appeal, remained separate and distinct from the claims and issues actually raised on
appeal, and should not have been addressed.
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No. 85989-2
,.
WE CONCUR:
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Clark County, et al. v. W. Wash. Growth Mgmt. Hearings Review Bd., et al.
No. 85989-2
STEPHENS, J. (concurring)-! concur in the majority's decision to reverse
the Court of Appeals and reinstate the superior court's rulings. But, I would do so
on the basis of mootness. The majority purports to rely solely on the appellate
rules to hold that the petitioners failed to raise the proper issues. I am not
convinced. While an appellate court reviews only those portions of a decision the
appealing party designates, we also liberally construe the rules in determining a
party's compliance. RAP 1.2 provides in relevant part: "(a) Interpretation. These
rules will be liberally interpreted to promote justice and facilitate the decision of
cases on the merits. Cases and issues will not be determined on the basis of
compliance or noncompliance with these rules except in compelling circumstances
where justice demands, subject to the restrictions in rule 18.8(b)." As the majority
recognizes, appellate courts have wide discretion in determining what issues
should be addressed in order to properly decide a case. Majority at 11 (citing RAP
Clark County, et al. v. W Wash. Growth Mgmt. Hearings Review Bd., et al., 85989-2
(Stephens, J. Concurrence)
12.1(b), 7.3, 1.2). I believe we do a disservice to the Court of Appeals by not
respecting its discretion to address the issues involving the annexed lands.
Nonetheless, I would dismiss the claims challenging the annexation as moot
in the context of this proceeding. The claims in question originated in a petition to
the Growth Management Hearings Board (Board) challenging Clark County's
designation of certain lands under the Growth Management Act, chapter 36.70A
RCW. The cities of Camas and Ridgefield have annexed the lands in question, and
those annexations cannot be challenged in these proceedings. As a result, the
question of whether the Board properly reviewed Clark County's prior designation
of the annexed lands is moot. Dismissal should follow. See Seguin v. Barei, 163
Wash. 702, 703, 299 P. 655 (1931) (dismissing appeal where underlying interest in
disputed property was dissolved in separate proceeding).
-2-
Clark County, et al. v. W Wash. Growth Mgmt. Review Bd., 85989-2
(Stephens, J. Concurrence)
-3-