                                                                                                              A= ILED
                                                                                                  0100 1- CI" APPEALS
                                                                                                      DIVI' I0111 ! I

                                                                                                 2013 0 C T 29     Ali 9: 4 9
    IN THE COURT OF APPEALS OF THE STATE OF W

                                            DIVISION II                                          BY


MICHAEL A. LIBERA,                                                          No. 43807 -1 - II


                                  Appellant,


       VM




CITY OF PORT ANGELES, a municipality
in the State of Washington; ROGER VESS,
Assistant Civil Engineer for the City of Port
Angeles, in his official capacity; STEPHEN
SPERR, City Engineer for the City of Port
Angeles, in his official capacity,                                  UNPUBLISHED OPINION




        WORSWICK, C. J. —       Michael Libera appeals summary dismissal of his claims against the

City of Port Angeles, which had delayed connecting Libera' s property to the City storm drain.

Libera argues that the superior court erred in dismissing his claim of intentional interference with

business expectancy by government delay both on statute of limitations grounds and on the

merits. Because Libera failed to establish an issue of material fact as to whether the City had an

improper purpose or used improper means in delaying connecting Libera' s property to the City' s

storm drain, we affirm summary judgment in favor of the City.

                                                   FACTS


        Michael Libera owned property on Fairmount Avenue in Port Angeles. Libera began

pursuing a plan to operate a " quick lube" business on the property to recycle oil from "big rig"

trucks. Clerk' s Papers at 142, 219. The City' s storm drain serving Libera' s property was an old

                        approximately 200 feet   long,   ending 100 feet   short of   the intersection   of
clay tile   structure
No. 43807- 1- 11




Fairmount Avenue          and   SR ( service   road)   101.   Libera contacted the City once in 1984 and again

in 1988 about paving the parking lot on his property, and about the problems that the defective

storm drain would cause on his property. Libera told the City that the storm drain caused water

to   pool at   the   intersection   of   Fairmont Avenue      and   SR 101.   Libera wanted the City to repair and

upgrade the storm drain so that he could reliably connect his property to it without water pooling

on his property during his business operations. The City responded to both contacts by letter, but

mentioned only the paving requirements, not the storm drain. Libera secured his first set of

permits for his oil business around 1984. 1

          Sometime in the 1990' s Libera again requested and received building permits for his oil

business. In 1995, he began to seek bids from consulting engineers; in 1996 he had a

professional engineer prepare plans for the property' s drainage system. In 1997, however,

Libera slowed development on his oil business to focus on a grocery store business. During this

time, his permits for his oil business expired. Other than to make a business plan in the early

2000' s, Libera did not significantly develop the property in preparation for his business from the

late 1990' s until around 2007.


          In 2007, Libera again began developing the property in earnest, and sought to acquire a

new set of permits from the City. When he began this new process, he expected to open his

business within one year. The City did not respond to Libera' s requests to repair the storm drain

until months later, on January 22, 2008, with a letter informing him that he needed to update his

1
     It is unclear from the record whether the permits Libera acquired over time were building
permits, business permits, or both.




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No. 43807 -1 - II




development plans to provide for a number of additional storm water requirements added as of


2005.


         The City' s new rules required Libera to construct oil /water separators, infiltration

systems, foundation drains, and a catch basin with a drywell. Libera had concern about the


City' s new requirements, because he believed they would cause water to pool on his property,

and the City provided no instructions on how to remove that pooled water. Libera had expected

that the City would allow him to connect his property to the storm drain, thus resolving the

drainage problems on his property.

         In March or April of 2008, the City' s Assistant Civil Engineer Roger Vess met with

Libera, a meeting Libera had attempted to set up for months. Vess informed Libera that the City

would not repair the storm drain, nor would the City allow Libera to connect his property to the

storm drain.2 Vess told Libera that Libera could continue developing his property by paving the

road ( which     Libera   estimates would            have   cost   him $22, 000). Vess left Libera with the


impression that if Libera did this, then two to three months later, the City would remove the new

pavement, fix the drain, and repave the road, all at the City' s expense. Libera stated that tearing

up and repaving the road would have shut down his business for a period of time. The City
refused two requests from Libera to allow him to fix the storm drain at his own expense.



2 It is unclear from the record whether the City explicitly prohibited Libera from connecting his
property to the     storm   drain,     or whether      the   City   merely   refused   to fix the   storm   drain —and
refused to allow Libera to fix itthus making it impossible for Libera to connect his property to
the storm drain. Taking the facts in the light most favorable to Libera, we assume that the City
both refused to fix the storm drain and explicitly prohibited Libera from connecting his property
to the   storm   drain   until   it   was   fixed.
No. 43807- 1- 11




         Libera claims that he was " basically ready to open" his business at this time, and would

have done so but for the City' s refusal to connect his property to the storm drain. Libera cites

two reasons as to why he could not continue any development of his property until the City fixed

and connected his property to the storm drain: First, no reputable contractor would complete

Libera' s paving work and connect his property to the City' s storm drain while the drain

was still   defective.   3 Second, Libera did not want to open his business without a repaired storm

drain because water could potentially pool at the entrance and other areas of his property and
                                                                                                     4
damage the         water separator system
               oil /                        he had installed   per   the   City' s   requirements.




          On March 27, 2008, Libera attempted to make it possible to connect his property to the

storm drain by "jetting" it for $521. 67, as suggested by an unidentified City employee. CP at

233.    Shortly after jetting the system, the City installed anew utility pole, breaking the storm

drain and reburying the south end of the storm drain that Libera had just jetted. Libera

discovered that the new utility pole had buried the storm drain while he was with an expert

working for WA DOT Capital, a potential lender to Libera' s oil business.




3
    For example, Libera claimed that he could not install a legally appropriate catch basin because
the WSDOT ( Washington State Department of Transportation) requires a catch basin to be 18
inches deep, whereas the City' s storm drain was only 5 inches deep.

4 Libera claimed that " the driveway would be under water when it rained, in probably four to six
inches   of water.   A lake, potentially 20 feet   across and six    inches   deep."    CP   at   241.   Libera

based this prediction upon severe water pooling that occurred on an adjacent piece of land Libera
used to own. However, Libera admitted in his deposition that he neither witnessed nor had
evidence of water pooling on his property, only the adjacent land he had owned in the past.


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No. 43807 -1 - II




        According to Libera, upon learning about the buried storm drain, the expert working for

WA DOT Capital           said, "[   E] nough,   we' re out of   here."   CP   at   233. In the middle of 2008, one


lender rejected Libera' s loan request to start the business. Libera claimed that once this lender

rejected   Libera'   s   loan   request,   the drain issue " became      a moot point."     CP at 235. From the time


Libera lost his loan in the middle of 2008 until 2010, he searched for other lenders for his oil

business.


         In July of 2008, Libera hired an attorney to negotiate with the City. During a phone call

with Libera' s attorney on July 24, 2008, the City agreed that a blockage existed in the storm

drain and stated that it would develop a.plan to fix the blockage.

         The City fixed the broken pipe in December of 2008. However, evidence suggested that

the City did not fix the storm drain problems completely then, and had not done so up to June 11,

2012. By December of 2008, Libera lost his loans. One lender quit due to the delay, and another

lender went out of business. Libera spent roughly 14 months between late 2007 and December

of 2008 trying to get the City to connect his drainage system to the storm drain.

           In 2010, Libera again began attempting to develop his property and to complete the

development and opening of his oil business. On October 1, 2010, the City and Libera agreed on

a plan to permit his oil business. However, due to inability to obtain loans because of bad credit

and a   lack   of   income, Libera      could not   pay the debt    on   the property ( due   on   April 30, 2009),     and




could not open his business. He lost the property to foreclosure on April 1, 2011.

           Libera sued the City on numerous theories, including intentional interference with

business expectancy                              delay.   The                             that the   statute of   limitations
                            by    government                    superior court ruled
No. 43807 -1 - II




barred Libera' s claims and that, regardless, Libera had failed to state a claim giving rise to the

City' s liability. The superior court granted summary judgment to the City on all claims. Libera
appeals.



                                                     ANALYSIS


           Libera argues that the superior court erred by granting summary judgment in favor of the

City, because he raised an issue of material fact as to whether the City committed an intentional

interference with business expectancy by government delay when the City failed to repair the

storm drain until December of 2008, and when it installed a new utility pole that buried the storm

drain after Libera had cleaned it. Because Libera cannot show that the City acted with either an
                                                                   6
improper purpose        or   by   improper   means, we affirmss'




           We review summary judgment determinations de novo, engaging in the same inquiry as

the superior court. Harberd v. City ofKettle Falls, 120 Wn. App. 498, 507, 84 P. 3d 1241 ( 2004).

    Summary judgment is appropriate if there is no genuine issue of material fact and the moving

party is   entitled   to judgment     as a matter of   law." Trimble   v.   Wash. State Univ., 140 Wn.2d 88,


92, 993 P. 2d 259 ( 2000).



5
    Libera also argues that the superior court erred in ruling that RCW 4. 16. 080( 2)' s statute of
limitations barred his claims. Because we hold that the superior court did not err in granting
summary judgment against Libera on the merits of his intentional interference with business
expectancy claim, we assume without deciding that RCW 4. 16. 080( 2) did not bar Libera' s
claims.


6
    Port Angeles argues that the Land Use Petition Act (LUPA) bars Libera' s claims. However,
LUPA does not apply to "[ c] laims provided by any law for monetary damages or compensation."

RCW 36. 70C. 030( 1)( c). Libera appeals dismissal of only his damages claim for intentional
interference with business expectancy by government delay. Thus, LUPA does not apply.



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No. 43807 -1 - II




         We consider the facts and all reasonable inferences from those facts in the light most


favorable to the nonmoving party. Harberd, 120 Wn. App. at 507. However, bare assertions

that an issue of material fact exists will not defeat summary judgment in the absence of actual

evidence.      120 Wn.          App.    at   508.    Summary judgment is appropriate if reasonable minds could

reach   but   one conclusion            from   all   the    evidence.    120 Wn. App. at. 507 -08.

         To establish intentional interference with business. expectancy, a plaintiff must prove five

elements: (    1) that         a valid contractual          relationship     or   business expectancy     existed; ( 2)      that the


defendant knew            of   that relationship          or   expectancy; ( 3)    that the defendant intentionally interfered

by inducing     or   causing        a   breach      or   termination of that relationship      or   expectancy; ( 4) that the


defendant interfered with an improper purpose or by improper means; and ( 5) that damage to the

plaintiff resulted from the interference. Pacific Northwest Shooting Park Ass' n v. City of

Sequim, 158 Wn.2d 342, 351, 144 P. 3d 276 ( 2006).


         Thus, Libera must show not only that the City intentionally interfered with his business

expectancy, but also that the City interfered either with an improper purpose or by improper

means.    Pleas      v.   City    of Seattle, 112 Wn.2d 794, 803 -04, 774 P. 2d 1158 ( 1989). This requires


                                                    City   interfered, but that the     City had        duty   to         interfere. 112
demonstrating        not       only that the                                                        a               not




Wn.2d at 804. The existence of a statute, regulation, recognized common law, or an established


standard of trade or profession can establish such a duty. 112 Wn.2d at 804. A court need not

find that a defendant acted with ill will, spite, defamation, fraud, force, or coercion in order to

find improper        purpose or means.                   112 Wn.2d at 800.




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No. 43807- 1- 11




       The cases of Pleas and Westmark Development Corporation demonstrate that in


government delay cases, proving improper purpose requires showing that the defendant delayed

plaintiff with the purpose of improperly preventing plaintiff' s land development, and proving

improper means requires showing. that the defendant arbitrarily singled out for delay a particular

plaintiff or type of plaintiff. Pleas, 112 Wn.2d at 804 -06; Westmark Dev. Corp. v. City of

Burien, 140 Wn. App. 540, 560 -61, 166 P. 3d 813 ( 2007).

        In Pleas, plaintiff purchased property on which it planned to build a high - ise apartment.
                                                                                   r

112 Wn.2d at 796. Responding to political pressure by two interest groups that opposed

apartment complexes, defendant Seattle rezoned plaintiff' s property to single family residential

while plaintiff' s permit   for the   apartment complex was            pending. 112 Wn.2d at 796 -97. Our


Supreme Court held the rezoning arbitrary and capricious, and remanded with instructions to

promptly apply the   old    zoning    rules   to   plaintiff' s permit application.   112 Wn.2d at 797 -98.


        After years of additional delay and a second appeal, our Supreme Court affirmed the trial

court' s findings of fact that the city had continued to intentionally delay in direct violation of the

previous court orders. Pleas, 112 Wn.2d at 799 -800, 804 -05. The Court identified an improper


purpose ( gaining political favor with politically active and influential organizations by fighting



 Pleas discusses singling out a plaintiff as part of improper means, whereas Westmark seems to
consider it as part of improper purpose. Compare Pleas, 112 Wn.2d at 806, with Westmark, 140
Wn. App. at 560. This discrepancy can be explained because singling out has a mental
component ( deciding to target an individual or business) and an action component ( acting to
delay the singled out individual or business more than similarly situated individuals or
businesses). Regardless, singling out is a critical part of proving the defendant' s improperness.
Pleas, 112 Wn.2d    at   806; Westmark, 140 Wn.            App.   at   560.
No. 43 807 -1 - II




apartment construction) and an improper means ( singling out plaintiff' s planned apartment

complex so as        to block the         construction of apartments).          112 Wn.2d at 804 -06.


          In Westmark Development Corporation, a plaintiff in unincorporated King County

applied   to   King County for            a permit    for   an apartment complex.         140 Wn. App. at 543 -44. While

the permit application was pending in King County, Burien incorporated the area containing

plaintiff' s   property. 140 Wn.            App.   at   544.     Burien agreed to let King County maintain its

permitting authority          over permits      filed    prior   to incorporation.    140 Wn. App. at 544. However,

when King County was close to making a decision on plaintiff' s permit, Burien and King County

amended their interlocal agreement to transfer permitting authority over plaintiff' s property to

Burien.     140 Wn. App. at 544.

          Burien then delayed approving plaintiff' s permit for years, despite similarly situated

permits   typically taking 30 -120 days. 140 Wn. App.                      at       45, 561.
                                                                                544 -           Burien' s delay was

motivated      by    a   desire to   prevent apartment construction, and             to   please a state representative.   140



Wn. App. at 558 -60. The attorney who had represented plaintiff, and who had worked on

hundreds of SEPA reviews, stated that the case constituted " the longest, most frustrating, delayed

process     in the   history    of   his   career."     140 Wn.    App.   at   560 -61. Thus, Division One of this court


held that substantial evidence supported the existence of an improper purpose ( preventing

apartment construction and pleasing a state representative) and an improper means ( arbitrary

delay, refusal to respond to inquiries, much longer delay relative to other similarly situated

parties).      140 Wn.      App.     at   560 -61. The court also stressed the importance of evidence that the


defendant singled out the plaintiff. 140 Wn. App. at 560 -61.



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No. 43807 -1 - II




          Here, even when we take the facts in the light most favorable to Libera, he cannot

establish an issue of material fact as to whether the City acted with an improper purpose or by

improper means. Libera has failed to show any improper purpose behind the City' s actions. The

City asked Libera in his deposition if he could think of any reason why the City would not want

to see his business open. Libera stated that he could not. Furthermore, Libera stated in his

deposition that many of the City' s employees had helped him greatly. This evidence does not

support an improper purpose on the part of the City.

           Libera stated only the following as to a possible improper purpose:

          I believe I did that   earlier   with   regard   to Mr. Cutler, That'   s—   that is total
          speculation.   Thank you for allowing me to use that word, because I wasn' t at
          those meetings. But he made me quite angry and I made him quite angry, and that
          was in 2005 over that annexation issue. I won, he probably didn' t like it, but I
          don' t know.


CP at 23 8. This constitutes a bare assertion without evidence, which is not sufficient to establish


an issue of material fact to preclude summary judgment. Harberd, 120 Wn. App. at 508.

          Libera also asserted that the City' s Assistant Civil Engineer Vess acted with malice

towards him. Libera stated he felt that Vess had malice towards him because the City would not

let Libera connect his property to the storm drain, even though the drainage system that the City

required Libera to install on his property would result in water pooling on his property.

          However, Libera has failed to allege any facts that Vess personally made the decision to

refuse Libera' s connection. In addition, Libera has alleged no improper purpose that could have

motivated this decision. When asked what Vess did that Libera viewed as malicious, Libera

said, "   Well, nothing to my face. And I' m only assuming it was him because I wasn' t a fly on the


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No. 43807 -1 - II




wall.   He only   works   for the   City.   But I    could never get    that drain. . , .."   CP at 82. When


asked whether     Vess drew the      storm water       designs, Libera    said, "   I know he was on the property

the most. He was the one that had to deal with my many phone calls or personal visits or, you

know, he   was    the —he   was   the   boots   on   the   ground   initially." CP at 82. None of this testimony,

even when taken in the light most favorable to Libera, supports any improper purpose behind the

City' s actions. Thus, no issue of material fact exists as to whether the City acted with an

improper purpose.


         Libera likewise fails to establish an issue of material fact as to whether the City acted by

improper means. Libera alleges no improper means used to achieve the delay. Most

importantly, Libera completely fails to allege a disparity and to make a comparison between his

experience of delay and the experience of delay suffered by any other individual or business

working with the City. Unlike the plaintiffs in both Pleas and Westmark Development

Corporation, Libera does not allege that the City arbitrarily singled out him or his type of

business for an especially long or egregious delay. Thus, no issue of material fact exists as to

whether the City used improper means in delaying Libera. Thus, we affirm summary judgment

because Libera failed to allege any facts supporting that the City delayed his business for an

improper purpose or by improper means.

                                                            COSTS


         Libera requests that we award him costs on appeal. Libera cites no authority authorizing

us to award costs. Regardless, RAP 14. 2 grants costs only to parties that " substantially prevail[]

 on review."     Libera is not a substantially prevailing party; and we thus deny his request for costs.


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No. 43807 -1 - II




        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                   Worswick, C. J.
Wo- crncur:



Hunt. J.




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