City of Spokane Valley v. High-Est LLC

FILED
MARCH 15, 2022
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CITY OF SPOKANE VALLEY, a )
Washington non-charter code city, ) No. 38105-6-III
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
HIGH-EST, L.L.C., a Washington limited )
liability company; HIGHLAND )
OWNERS ASSOCIATION, a Washington )
nonprofit corporation INC., a foreign )
corporation; TAMI C. JENNINGS, )
Individually; ROBERT W. GUTHRIE and )
TERRIE GUTHRIE, husband and wife; )
PIONEER WATER COMPANY, INC., a )
Washington; corporation; TAMI C. )
JENNINGS, individually; and also all )
other persons or parties unknown claiming )
any right, title, estate, lien, or interest in )
the real estate described in the petition )
herein )
)
Appellants, )
)
AVISTA CORPORATION, a Washington )
public utility corporation; )
CENTURYLINK, Inc.; INLAND )
POWER & LIGHT CO., a Washington )
cooperative association; SPOKANE )
COUNTY, a political subdivision of the )
State of Washington; KINDER )
MORGAN, INC., a foreign corporation )
formerly doing business as El Paso )
Natural Gas Company; )
)
Defendants. )
No. 38105-6-III
City of Spokane Valley v. High-Est, LLC
FEARING, J. —In this condemnation proceeding, appellants, holders of various
interests in a parcel of land, appeal a superior court interlocutory order that enforced a
stipulation between the condemnor, city of Spokane Valley, and the fee owner of the
land. The stipulation granted the city immediate possession of the condemned property.
Because the order lacks appealability, we dismiss the appeal without prejudice.
FACTS
The city of Spokane Valley initiated condemnation proceedings in order to
construct a roundabout at the intersection of Barker Road and Trent Avenue. The
condemnation entails taking 4.15 out of 28.6 acres owned in fee simple by appellant
High-Est LLC. High-Est has slated the parcel for residential development.
The condemnation petition named, in addition to High-Est, Tami Jennings, Terrie
Guthrie, Pioneer Water Company Inc., and Highland Owners Association as condemnees.
Pioneer Water Company possesses an easement for water lines across the land. The
owners association claims a road easement across the land. Terrie Guthrie owns a
majority interest in High-Est LLC and serves as president of Pioneer Water Company.
Guthrie and her deceased husband purchased the condemned property from Tami
Jennings, who the Guthries granted a deed of trust encumbering the parcel.
After the city of Spokane Valley filed its petition, the trial court entered an order
finding that the roundabout project constituted a public use. High-Est thereafter
stipulated to an order for immediate possession and use in exchange for Spokane Valley’s
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payment of $308,600 into the registry of the court. None of the other condemnees signed
the stipulation. High-Est has since withdrawn the money for its use. In turn, Spokane
Valley has begun construction on the roundabout.
PROCEDURE
After High-Est entered the stipulation, other condemnees contended the stipulation
for immediate possession was not enforceable because of their lack of agreement to and
their lack of signature on the stipulation. The city of Spokane Valley filed a motion to
enforce the stipulation of immediate possession and use. High-Est, who had signed the
stipulation, opposed the motion and argued that the stipulated order only applied against
High-Est and did not impact the property interests held by the other condemnees.
Highland Owners Association, Pioneer Water Company Inc., Terrie Guthrie, and Tami
Jennings also objected to the motion.
After a hearing, the superior court granted Spokane Valley’s motion. The trial
court signed the original stipulation between Spokane Valley and High-Est. High-Est,
Highland Owners Association, Pioneer Water Company, Terrie Guthrie, and Tami
Jennings appeal the order enforcing the stipulation. The condemnees did not file a
motion for discretionary review.
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City of Spokane Valley v. High-Est, LLC
LAW AND ANALYSIS
The city of Spokane Valley argues that the superior court’s order granting the
stipulation for immediate possession does not qualify as an appealable order because the
condemnation proceeding has not ended in the superior court. We agree.
Pre-Rules of Appellate Procedure cases hold that, because of the character of
eminent domain proceedings, aggrieved parties are limited by the special provisions
relating to appeals contained in eminent domain statutes. E.g., Taylor v. Greenler, 54
Wn.2d 682, 685, 344 P.2d 515 (1959); Longview, P&N.R. Co. v. Settle, 128 Wn. 642,
643, 223 P. 1058 (1924). The only provision relating to appellate review of eminent
domain by cities is found in RCW 8.12.200, contemplating review of final judgments in
eminent domain proceedings.
Generally, a party has the right to appeal only a final judgment or analogous trial
court order. RAP 2.2(a). In an eminent domain proceeding, a party may appeal an order
of public use and necessity. RAP 2.2(a)(4). RAP 2.2(a)(4) does not apply, however, to
an order for immediate possession.
In their reply brief, the condemnees contend that this court should accept
discretionary review in the event we rule they lacked a right to appeal. RAP 5.1(c)
permits this court to consider an incorrectly designated notice of appeal as a notice for
discretionary review. Nevertheless, we still must determine the validity of accepting
discretionary review. By definition, such review is discretionary.
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An appellate court may grant discretionary review of a trial court order after
considering the factors enumerated in RAP 2.3(b). RAP 2.3(b) declares:
Considerations Governing Acceptance of Review. Except as
provided in section (d), discretionary review may be accepted only in the
following circumstances:
(1) The superior court has committed an obvious error which would
render further proceedings useless;
(2) The superior court has committed probable error and the decision
of the superior court substantially alters the status quo or substantially
limits the freedom of a party to act;
(3) The superior court has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such a departure
by an inferior court or administrative agency, as to call for review by the
appellate court; or
(4) The superior court has certified, or that all parties to the litigation
have stipulated, that the order involves a controlling question of law as to
which there is substantial ground for a difference of opinion and that
immediate review of the order may materially advance the ultimate
termination of the litigation.
(Boldface omitted.) The condemnees contend factors one, two, and three apply. We
disagree.
In their reply brief, the condemnees do little to advocate the propriety of
discretionary review. They only posit that the case implicates constitutional principles
involving substantial property rights. Nevertheless, any ruling of this court would not
render further proceedings useless, since the trial for damages will proceed regardless.
The decision did not substantially alter the status quo since the city has proceeded with
construction and none of the condemnees other than High-Est presents evidence that the
construction interferes in their property rights. The only party entitled to possess the
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City of Spokane Valley v. High-Est, LLC
acreage, High-Est, signed the stipulation and received payment in exchange for Spokane
Valley taking possession. When accepting payment, High-Est did not suggest that
Spokane Valley could not enforce the stipulation for possession.
We also question whether the superior court committed error, let alone obvious or
probable error. No case law requires the city to obtain the approval of condemnees, who
lack a possessory interest in the property, before assuming immediate possession.
RCW 8.25.070 utilizes a shifting attorney fee scheme to incentivize negotiation and
settlement between condemnor and condemnee prior to trial and authorizes immediate
possession of the property by the government entity. RCW 8.25.070(3) reads:
Reasonable attorney fees and reasonable expert witness fees
authorized by this section shall be awarded only if the condemnee
stipulates, if requested to do so in writing by the condemnor, to an order of
immediate possession and use of the property being condemned within
thirty days after receipt of the written request, or within fifteen days after
the entry of an order adjudicating public use whichever is later and
thereafter delivers possession of the property to the condemnor upon the
deposit in court of a warrant sufficient to pay the amount offered as
provided by law. In the event, however, the condemnor does not request
the condemnee to stipulate to an order of immediate possession and use
prior to trial, the condemnee shall be entitled to an award of reasonable
attorney fees and reasonable expert witness fees as authorized by
subsections (1) and (2) of this section.
(Emphasis added.) The statute only references a stipulation by one condemnee and that
one condemnee should be the party who owns fee simple.
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City of Spokane Valley v. High-Est, LLC
CONCLUSION
We dismiss this appeal and remand for further proceedings before the superior
court.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, C.J.
______________________________
Lawrence-Berrey, J.
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