          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



HUGH K. SISLEY and MARTHA E.            )         NOS. 69827-3-1
SISLEY, both individually and on behalf )              69828-1-1
of their marital community,                       (Consolidated Cases)

                     Appellants,                  DIVISION ONE


                     v.



CITY OF SEATTLE, a municipal                      UNPUBLISHED OPINION
corporation,
                 Respondent.                      FILED: February 3, 2014
                                          .)                                         3       -~
                                                                                     CD      cz;-;
                                                                                      I      ~n^'
       Lau, J. —In this multi-decade long dispute over the City ofSeattle's housing jS^i•.!
code enforcement actions involving numerous residential rental properties ownecPby 31,
Hugh and Martha Sisley, the Sisleys appeal the trial court's partial summary judgment

order dismissing their state constitutional, tort, and certificate of release claims. They

do not appeal the judgment entered after the jury's adverse verdict on their contract

claims or the denial of their new trial motion. Finding no error, we affirm the partial

summary judgment order of dismissal.

                                          FACTS


       Hugh and Martha Sisley own numerous Seattle residential properties that have

been the subject of several hundred municipal code enforcement cases, dating to the
69827-3-1,69828-1-1/2


1980s. In May 2010, the Sisleys filed a complaint for damages. By amended

complaint, they alleged that the City violated state constitutional provisions governing

privileges and immunities, due process, equal protection, and privacy, and engaged in

"tortious conduct," by unlawfully or improperly (1) imposing vacant building monitoring

fees, (2) imposing tenant relocation assistance fees, (3) transferring tenant utility bill

arrearages to their home account, (4) installing or reinstalling water meters without

consent, and (5) entering and searching their properties. They also alleged that City

municipal court judgments entered in two code enforcement cases involving 6317 15th

Avenue NE and 6515 16th Avenue NE were "excessive and in violation of state law."

The municipal court judgments totaled $368,000 and $247,400.1 Each judgment
authorized continuing per diem penalties for uncorrected violations.

       The Sisleys filed a motion "seeking enforcement of defendant's procedures for

confirming compliance with defendant's housing code." They asked the court to find

that they "timely remedied the claimed Housing Code violations for the properties

located at 6515 16th Ave. N.E. and 6317 15th Ave. N.E. and that the City has released

them from all claims for the property located at 6317 15th Ave. N.E." They argued that

a certificate of release issued by the City with respect to the 6317 15th Avenue NE code

enforcement action "discharged and extinguished" the municipal court judgment and "all

accumulated fines." Br. of Appellant at 43.




       1 In October 2011, this court upheld the municipal court judgments over the
Sisleys' claim that the penalty amounts exceeded the $75,000 claim limit applicable to
district courts under RCW 3.66.020. City of Seattle v. Sislev. 164 Wn. App. 261, 263
P.3d 610 (2011), review denied. 173 Wn.2d 1022 (2012).
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       On the City's summary judgment motion, the trial court ruled that (1) all state

constitutional claims for money damages failed in the absence of augmentative

legislation, (2) the public duty doctrine barred relief on all claims arising from the "City's

housing and zoning enforcement actions including tenant relocation assistance and

vacant building monitoring," (3) res judicata barred the Sisleys' excessive penalty

argument, and (4) no genuine issue of material fact remained as to whether a

"certificate of release" issued by the City in a code enforcement case involving the

Sisley-owned property at 6317 15th Avenue NE released accrued civil penalties. The

court also dismissed the Sisleys' tortious interference claim.

       The Sisleys filed a second amended complaint alleging that (1) the City's utility

bill collection actions breached express and implied contractual duties and (2) the City

"unlawfully and tortiously refused to issue Certificates of Compliance" recognizing

correction of code violations at two Sisley-owned properties. A jury rejected both

claims, and on December 4, 2012, the trial court entered judgment for the City.

       The Sisleys do not challenge the jury's verdict or the trial court's denial of their

motion for a new trial. They appeal the trial court's partial summary judgment order

dismissing the state constitutional, tort, and certificate of release claims.

                                          ANALYSIS

       We review a grant of summary judgment de novo, construing the facts and all

reasonable inferences in the light most favorable to the nonmoving party. Hearst

Commc'ns. Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). We

will affirm the trial court's ruling "if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine

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issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law." CR 56(c). The nonmoving party may not rely on speculation or

argumentative assertions that unresolved factual issues remain. Seven Gables Corp. v.

MGM/UAEntm'tCo., 106Wn.2d 1, 13, 721 P.2d 1 (1986). Further, we will not look

beyond the evidence and issues called to the trial court's attention. RAP 9.12. We

may, however, affirm on any basis supported by the summary judgment record.

Gontmakher v. City of Bellevue, 120 Wn. App. 365, 369, 85 P.3d 926 (2004).

       State Constitutional Claims


       The Sisleys sought money damages for alleged violations of various state

constitutional provisions. Washington law contains no counterpart to 42 U.S.C. § 1983,

which creates a civil cause of action for violations of the United States Constitution by

persons acting under color of state law. Washington courts have "consistently rejected

invitations to establish a cause of action for damages based upon constitutional

violations 'without the aid of augmentative legislation.'" Blinka v. Wash. State Bar Ass'n,

109 Wn. App. 575, 591, 36 P.3d 1094 (2001) (quoting Svs. Amusement, Inc. v. State, 7

Wn. App. 516, 517, 500 P.2d 1253 (1972)); see also Reid v. Pierce County, 136Wn.2d

195, 213-14, 961 P.2d 333 (1998) (declining to recognize civil action for damages

premised on violation of state constitutional right to privacy). Because the Sisleys

identified no augmentative legislation supporting their claims for money damages, this

claim fails.2



       2The Sisleys' remaining contentions are unpersuasive. The Sisleys voluntarily
dismissed their federal law claims, leaving no basis for a section 1983 action in state
court. And their public policy argument is up to the legislature, not the courts.
69827-3-1, 69828-1-1/5


       Tort Claims


       The Sisleys also sought money damages based on allegations that the City

unlawfully imposed vacant building monitoring and tenant relocation assistance fees

under the authority of its Housing and Building Maintenance Code.3 The trial court
dismissed this claim on partial summary judgment, ruling that the public duty doctrine

foreclosed relief.

       The City's Housing and Building Maintenance Code requires quarterly inspection

of vacant buildings that are found to violate minimum standards. SMC 22.206.200. The

City may impose vacant building monitoring fees. SMC 22.206.200. The code also

authorizes the issuance of emergency orders directing closure of buildings found to

pose imminent health or safety risks. SMC 22.206.260. The City may seek

reimbursement for relocation assistance paid to displaced tenants. SMC 22.206.260.

       Here, the record establishes that the City imposed vacant building monitoring

fees in connection with Sisley-owned properties at 1322 NE 65th Street and 6418

Brooklyn Ave NE.4 The fees totaled $604. In both cases, the City suspended collection
efforts or reversed the fees.5 The record also establishes that the City imposed tenant


       3Seattle Municipal Code chapters 22.200 - 22.208.
       4The Sisleys advise that their claim relating to vacant building monitoring fees
"involves properties located at 1509 NE 66th Street, 6418 Brooklyn Avenue NE, and
1322 NE 65th Street." Br. of Appellant at 14 n.13. They raise no issue on appeal with
regard to 1509 NE 66th Street.

       5The City reversed the fees associated with 6418 Brooklyn Avenue NE after a
City employee "determined that City code required a notice of violation or Director's
order be issued before vacant building monitoring fees could be sought." Resp't's Br.
at 10. The City now claims that determination was erroneous. We are not asked to
review the merits of this issue.
69827-3-1,69828-1-1/6


relocation assistance fees after issuing a series of emergency orders directing the

closure of the Sisley-owned property at 6526 15th Ave NE due to hazardous conditions.

The Sisleys challenged that action, and the City sued to recover the fees. That suit was

one of four alleging failure to pay tenant relocation assistance fees. The City states it

"exercised prosecutorial discretion" and dismissed three of the cases. Resp't's Br.

at 12. In the fourth, the City obtained a final judgment. The Sisleys never paid the fees.

       "In a negligence action, whether an actionable duty was owed to the plaintiff is a

threshold determination." Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871,

877, 288 P.3d 328 (2012). Our review is de novo. Munich, 175 Wn.2d at 877.

       When the defendant in a negligence action is a governmental entity, the public
       duty doctrine provides that a plaintiff must show the duty breached was owed to
       him or her in particular, and was not the breach of an obligation owed to the
       public in general, i.e., a duty owed to all is a duty owed to none.

Munich, 175 Wn.2d at 878. The public duty doctrine does not apply when the entity

acts in a proprietary capacity, as opposed to a governmental capacity—that is, when the

entity "engages in businesslike activities that are normally performed by private

enterprise." Stiefel v. City of Kent. 132 Wn. App. 523, 529, 132 P.3d 1111 (2006). "The

principal test in distinguishing governmental functions from proprietary functions is

whether the act performed is for the common good of all, or whether it is for the special

benefit or profit of the corporate entity." Okeson v. City of Seattle, 150 Wn.2d 540, 550,

78 P.3d 1279 (2003); see, §£., Russell v. City of Grandview, 39 Wn.2d 551, 553, 236

P.2d 1061 (1951) (city engaged in a proprietary function when operating a municipal

water plant and distribution system); Borden v. City of Olympia, 113 Wn. App. 359, 371,

53 P.3d 1020 (2002) (city engaged in a proprietary function when it "helped private


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69827-3-1, 69828-1-1/7


developers design, engineer, and pay for a new stormwater drainage system."); City of

Mercer Island v. Steinmann, 9 Wn. App. 479, 482, 513 P.2d 80 (1973) (city engaged in

a governmental capacity when administering zoning ordinance). Another distinguishing

factor is whether the act involves the performance of "uniquely governmental duties."

Hoffer v. State, 110 Wn.2d 415, 422, 755 P.2d 781 (1988) (state auditor acted in a

governmental capacity when auditing public offices).

      The Sisleys argue that the public duty doctrine does not apply because the City

acted in a proprietary capacity when it imposed vacant building monitoring and tenant

relocation assistance fees under the authority of its housing code. Br. of Appellant at

38-39. To the contrary, our Supreme Court has recognized a "traditional public duty

rule" holding that "building codes impose duties that are owed to the public at large."

Taylor v. Stevens County, 111 Wn.2d 159, 165, 759 P.2d 447 (1988). Consistent with

this rule, the City's Housing and Building Maintenance Code states:

      The express purpose of this Code is to provide for and promote the health, safety
      and welfare of the general public, and not to protect individuals or create or
      otherwise establish or designate any particular class or group of persons who will
      or should be especially protected or benefited by the terms of this Code.

SMC 22.200.020(G). There was nothing evidently "businesslike" about the City's efforts

to enforce this code. Stiefel, 132 Wn. App. at 529. The summary judgment record

contains no evidence that vacant building monitoring, for purposes of code compliance,

and tenant relocation assistance are activities "normally performed by private

enterprise." Stiefel, 132 Wn. App. at 529. We conclude the City acted in a

governmental capacity and the public duty doctrine bars relief.




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       The Sisleys argue in the alternative that the "special relationship" exception

applies. Br. of Appellant at 39-41. Under the special relationship exception, an entity

may incur liability "ifthe plaintiff can prove circumstances setting his or her relationship

with the government apart from that of the general public." Cummins v. Lewis County,

156 Wn.2d 844, 854, 133 P.3d 458 (2006). "A special relationship arises where

(1) there is direct contact or privity between the public official and the injured plaintiff

which sets the latter apart from the general public, and (2) there are express

assurances given by a public official, which (3) gives rise to justifiable reliance on the

part of the plaintiff." Taylor, 111 Wn.2d at 166. The exception "requires evidence of the

plaintiff's inquiries and the [public entity's] specific assurances." Moore v. Wavman, 85

Wn. App. 710, 721, 934 P.2d 707 (1997); see, ag^, Sundberg v. Evans. 78 Wn. App.

616, 624, 897 P.2d 1285 (1995) (record, which included plaintiff's affidavit and transcript

of county employee's deposition, raised genuine issues of material fact regarding

applicability of special relationship exception).

       The Sisleys claim that the City "made numerous promises" over the years, and

that the summary judgment record "created a factual issue as to whether the City was in

[a] special relationship with Mr. and Mrs. Sisley." Br. of Appellant at 40-41. Contrary to

RAP 10.3(a)(6), they fail to cite the record. "It is not the function of trial or appellate

courts to do counsel's thinking and briefing." Orwick v. City of Seattle, 103 Wn.2d 249,

256, 692 P.2d 793 (1984). Nonetheless, our review of the record reveals no evidence

that the City made specific assurances regarding vacant building monitoring or tenant

relocation assistance fees. This claim fails.




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       The Sisleys also contend that the public duty doctrine does not apply to their

tortious interference claim. See Vergeson v. Kitsap County, 145 Wn. App. 526, 543-44,

186 P.3d 1140 (2008) (public duty doctrine does not apply to intentional torts). They

argue, "In this case, the City knew of Mr. and Mrs. Sisleys' business relationships

involving their properties and has intentionally and wrongfully interfered with these

relationships by engaging in repeated and protracted investigations that interrupted their

business and scared away clients." Br. of Appellant at 39 n.22.

       The Sisleys failed to meet their burden to raise a genuine issue of material fact

regarding the elements of tortious interference: (1) the existence of a valid contractual

relationship or business expectancy, (2) the City's knowledge of that relationship or

expectancy, (3) intentional interference inducing or causing a breach or termination of

the relationship or expectancy, (4) proof that the City interfered for an improper purpose

or used improper means, and (5) resultant damage.6 Hudson v. City ofWenatchee, 94
Wn. App. 990, 998, 974 P.2d 342 (1999). The claim is premised on a few sentences of

unsupported argument. For example, the Sisleys argue the City "interrupted their

business and scared away clients."7 Br. of Appellant at 39 n.22. The tortious

interference claim fails.




       6The trial court ruled, "The City's enforcement of its housing and zoning codes
did not give rise to a claim of tortious interference with business expectations when the
City's interest in protecting the public's health, safety, and welfare outweighs the
plaintiffs' rental interest." We may affirm the trial court on any basis supported by the
summary judgment record. Gontmakher, 120 Wn. App. at 369.

       7The Sisleys cite the trial testimony of city employee Jill Vanneman to support
their contention that "the City has admitted that it subjects Mr. and Mrs. Sisley to more
oversight and enforcement action than anyone else in the City." Br. of Appellant at 27.
69827-3-1,69828-1-1/10


       For similar reasons, the Sisleys' remaining "negligence-based tort claims" also

fail. Br. of Appellant at 37 (formatting omitted). Their entire argument consists of two

paragraphs:

             The City negligently managed Mr. and Mrs. Sisleys' personal municipal
       account. "Negligence consists in the doing of an act which a reasonable man
       would not have done, or in the failure to do an act which a reasonable man would
       have done under similar circumstances." Svs. Tank Lines v. Dixon, 47 Wn. 2d
       147, 151, 286 P.2d 704, 706 (1955).
              A municipality has a duty to exercise reasonable care in the course of
       enforcing the Housing Code and operating the electrical utility and water
       services. As set forth above, the City has breached this duty. The City has been
       hounding Mr. and Mrs. Sisley for years and even assuming arguendo the more
       recent mismanagement of their municipal accounts is simply bureaucratic
       obstinacy or incompetence, Mr. and Mrs. Sisley have stated a cause of action for
       negligence because this perverse course of conduct is unreasonable and
       economically harmful to their business and livelihood.

Br. of Appellant at 37. These "arguments" consist of nothing more than a list of

unsupported complaints about the City. Counsel's arguments are not evidence. Bravo

v. Dolsen Companies, 71 Wn. App. 769, 777, 862 P.2d 623 (1993) (unsworn allegation

of fact in appellate brief falls outside materials that court can consider), reversed on

other grounds. 125 Wn.2d 745, 888 P.2d 147 (1995). The Sisleys fail to even suggest

which facts raise a material fact issue. We decline to "comb the record" to find support

they failed to provide.8 Fishburn v. Pierce County Planning &Land Servs. Dep't, 161
Wn. App. 452, 468, 250 P.3d 146 (2011).




When reviewing a grant of summary judgment, "the appellate court will consider only
evidence and issues called to the attention of the trial court." RAP 9.12.

       8Even if the Sisleys identified a genuine issue of material fact, we question
whether they are entitled to further proceedings on their "negligence-based tort claims."
Br. of Appellant at 37 (formatting omitted). On partial summary judgment, the trial court
ruled, "The supply of power by City Light to the plaintiffs' properties is governed by
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       The Sisleys also assert that the City "improperly installed water services."9 Br. of
Appellant at 17 (formatting omitted). The trial court ruled, "There is no genuine issue of

material fact that the property at 6544 16th Ave. NE was occupied after the City

reinstalled a water meter at the property, and the plaintiffs were required to provide and

pay for water after the individuals occupied the property." The Sisleys now claim the

trial court "incorrectly" found the property was occupied. Br. of Appellant at 17. Trial

court summary judgment findings are superfluous. Hamilton v. Huqgins, 70 Wn. App.

842, 848, 855 P.2d 1216 (1993). Our review of this issue is de novo. The record

evidence indicates no material issues of fact. The trial court properly granted summary

judgment.

       Penalty Judgments—Eighth Amendment Excessive Fines Clause

       The Sisleys also sought money damages premised on the two municipal court

judgments discussed above. They claim the judgments violate the Eighth Amendment's

excessive fines clause and thus entitle them to sue for money damages.10 They assert
the penalties were constitutionally excessive.11



contract." The Sisleys assigned no error to this ruling. Arguably, they have waived all
tort-based claims related to the City's "supply of power."

       9This assertion appears in the section of the Sisleys' opening brief titled
"Statement of the Case." It is unclear whether the assertion is part of the appeal and, if
so, to which assignment of error it pertains. See RAP 10.3(a) ("The brief of the
appellant or [respondent] should contain ... (5) Statement of the Case. A fair
statement of the facts and procedure relevant to the issues presented for review,
without argument.") (emphasis added).

       10 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted." U.S. Const, amend VIII. In their opening brief, the
Sisleys state, "Although Article I, § 14 of the Washington Constitution has an excessive
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       This claim fails on several grounds. First, the Sisleys cite no authority

authorizing a money damages claim based on an alleged excessive fines clause

violation. They rely on United States v. Baiakaiian, 524 U.S. 321, 118 S. Ct. 2028, 141

L. Ed. 2d 314 (1998) (reviewing forfeiture imposed under federal statutes), and State v.

WWJ Corp., 138 Wn.2d 595, 980 P.2d 1257 (1999) (declining to review untimely

argument regarding penalty imposed under state consumer protection statutes), but

neither case involved a money damages claim based on an alleged excessive fines

clause violation.

       Next, the United States Supreme Court has determined that the excessive fines

clause "'limits the government's power to extract payments, whether in cash or in kind,

as punishment for some offense.'" Baiakaiian. 524 U.S. at 328 (internal quotation

marks omitted) (quoting Austin v. United States, 509 U.S. 602, 609-10, 113 S. Ct. 2801,

125 L. Ed. 2d 488 (1993)). The Sisleys fail to address whether the enforcement

penalties constitute punishment. See State v. Frodert. 84 Wn. App. 20, 29-30, 924 P.2d

933 (1996) ("As with the double jeopardy clause, the excessive fines clause only

protects against 'punishment.'").




fines clause, this memo analyzes the applicability of only the Eighth Amendment of the
U.S. Constitution." Br. of Appellant at 32 n.20.

       11 As a preliminary matter, our record does not reflect precisely how much money
the Sisleys presently owe the City. The Sisleys assert, "Today, the total fines presently
exceed two million dollars—more than $2,500,000, and the fines grow by $1,600 a day."
Br. of Appellant at 16. They do not explain how they calculated this figure.
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       Finally, to the extent this claim arises under 42 U.S.C. § 1983, it fails because the

Sisleys dismissed all federal claims after the City removed the case to federal court.12
      The trial court properly granted summary judgment dismissal.

       Certificate of Release

      The Sisleys contend that the trial court erred in ruling that a City-issued certificate

of release released no accrued civil penalties with respect to code violations at 6317

15th Ave NE. Br. of Appellant at 41. The certificate stated:

       The above described property [6317 15th Ave NE] is released from all
       requirements of the NOTICE OF VIOLATION of the Seattle Municipal
       Code 22.206 dated June 27, 2008 for the following reasons:
                 HOUSE WAS DEMOLISHED FOR REDEVELOPMENT.

(Boldface omitted.) The City issued the certificate on August 3, 2012, nearly three

years after the municipal court entered a final $368,000 judgment in the case.

       The Sisleys argue that the certificate is a binding contract under which "the

existing judgment and all of the accumulated fines have been discharged and

extinguished." Br. of Appellant at 43. They add, "The meaning of the City's 'Certificate

of Release' should be determined and construed in the same manner as other

contractual documents." Reply Br. of Appellant at 2. Neither the record nor reasoned

argument supports these contentions. Among other elements, an enforceable contract

requires an offer, acceptance, and consideration. FDIC v. Uribe, Inc., 171 Wn. App.




         12 Given our resolution of the excessive fines claim, we need not address the
claim or issue preclusion question. However, we question whether the doctrines of res
judicata or collateral estoppel apply to bar the Sisleys' Eighth Amendment excessive
fines claim involving the Seattle Municipal Court judgments, given the protracted
litigation history in this case involving prior near identical issues and claims between
these parties.
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69827-3-1,69828-1-1/14


683, 688, 287 P.3d 694 (2012). As a matter of law, the certificate of release is not a

contract.


       The dispositive question is whether the certificate satisfied or voided the City's

judgment. The Sisleys offer no plausible theory as to how satisfaction or voiding

occurred. By its terms, the certificate releases the "above described property" from the

requirements of the notice of violation. During her deposition, City employee Carol

Anderson agreed with the statement that "the Certificate of Release means that the

person who received the Notice of Violation is no longer obligated to take the corrective

action . . . ." She did not testify that the certificate satisfies or voids existing penalty

judgments. City employee Diane Davis explained via deposition that the City might

issue a certificate to clear title:

               Q. Have you ever heard of a Certificate of Release?
               A. Yes.
               Q. What is your understanding [of] what that is?
               A. That is a document that is occasionally issued when there's some
       reason to suspend the Notice of Violation. The usual time we would issue one of
       those is if there was a, there was a violation on the record and the property was
       being transferred and needed to clear the title in order for the title company to
       accept the transfer. A Certificate of Release might be issued in that
       circumstance preserving the rights or preserving the—making it clear the
       violation still exists, but that it's being issued so that title can be transferred; in
       other words, it's not saying it's in compliance. It's specifically when we can't
       determine compliance that we would issue a Certificate of Release.

The certificate itself states, "You are strongly encouraged to record this Certificate with

King County to ensure a clear title to this property." And while the certificate identifies

"HUGH K AND MARTHA E SISLEY" as the property's owners, it nowhere references

the City's $368,000 municipal court judgment. On this record, the trial court properly




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found no genuine issue of material fact existed as to the enforceability of the judgment

or the underlying penalties.

                                        CONCLUSION


       Because the trial court properly granted partial summary judgment in favor of the

City on all claims, we affirm the partial summary judgment order dismissing the

constitutional, tort, and certificate of release claims.




WE CONCUR:




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