                                                              FILED

                                                         MAR 28, 2013

                                                 In the Office of the Clerk of Court 

                                               W A State Court of Appeals, Division III 



        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                           DIVISION THREE 


KEENE VALLEY VENTURES, INC., a             )             No. 30286-S-III
Washington corporation,                    )
                                           )
                    Appellant,             )
                                           )
        v.                                 )
                                           )
CITY OF RICHLAND, a municipal              )
corporation,                               )
                                           )
                    Respondent and         )
                    Cross Appellant,       )
                                           )             PUBLISHED OPINION
APPLEWOOD ESTATES                          )
HOMEOWNER ASSOCATION, a                    )
nonprofit Washington corporation;          )
CHERRYWOOD ESTATES                         )
HOMEOWNER ASSOCIATION, a                   )
nonprofit Washington corporation; and      )
GREGORY CARPENTER and                      )
LAREINA CARPENTER, husband and             )
wife, and the marital community thereof,   )
                                           )
                    Defendants.            )

      KORSMO, C.J. -The trial court in this inverse condemnation action granted

nominal damages to plaintiff Keene Valley Ventures (KVV) and declined to award
No. 30286-5-III
Keene Valley Ventures, Inc. v. City of Richland


attorney fees. In this appeal, KVV argues that it had no burden of proving the amount of

its damages. We disagree and affirm.

                                          FACTS

       Ron Johnson is the sole shareholder and director of Baines Corporation, as well as

the sole shareholder, sole director, and president of KVV. Baines purchased 21.6 acres of

undeveloped land in the City of Richland for $47,500 in 2000. KVV subsequently

purchased the property from Baines in 2003 for the sum of$189,170. 1 The property is at

Keene and Shockley Roads at the low point of Keene Valley in an area known as Sub-

basin 3.

       Richland has been developing Keene Road in stages. Part of that development

included culverts that move water from south of Keene Road to ditches on the north side

of the road adjacent to KVV's property. A Storm Water Management Plan (SWMP)

adopted by Richland in 2005 includes two projects that involve Sub-basin 3. One project

would include the creation of a retention pond in the general vicinity of KVV' s property;

it has not yet been designed or funded. A second project would involve piping more

water to the area; that project likewise has not yet been approved by the city council.




       I There was no appraisal of the land. Mr. Johnson testified at trial that his
accountant set the value of the land, but there was no explanation of how that value was
calculated.

                                             2
No. 30286-5-II1
Keene Valley Ventures, Inc. v. City of Richland


       Shortly after purchasing the property, Mr. Johnson discovered a large man-made

wetland in the northwest comer of the KVV property. He retained a wetland scientist

who determined that there were three man-made wetlands on the property. Irrigation of

neighboring properties was identified as the source of the wetlands. Mr. Johnson

calculated that he would need 27,000 cubic yards of dirt to fill the three wetlands.

Development of the upper valley continued throughout the decade following Baines'

purchase of the land. More and more water was funneled from those properties down to

the bottom of the valley and, subsequently, onto KVV's property.

       A geotechnical engineering study conducted for KVV in January 2005 drilled

three test pits. Groundwater was located-in the pits at 5.5, 7.5, and 2 feet. A different

company drilled three test pits in the same general area in November 2005. It discovered

groundwater at 1.1, 1.2, and 2.5 feet, respectively. The testing company recommended a

five-foot fill depth on the property. Mr. Johnson calculated that recommendation would

require 145,000 to 150,000 cubic yards of fill.

       KW marketed the property. It entered into an agreement to sell the land in

January 2006 for $541,500. A second agreement a year later involved a purchase price of

$575,000. Neither sale closed; no evidence was admitted that explained the failure of

either sale to close.




                                             3

No. 30286-5-III
Keene Valley Ventures, Inc. v. City of Richland


       Water regularly collected in the ditch on the north side of Keene Road. Water also

would occasionally flow from the ditch onto the KVV property. Mr. Johnson wrote a

letter to Richland complaining about standing water in the ditch as well as the rising

water table. Richland responded by explaining that the water was routed to the Keene

Road ditch by design and was consistent with the SWMP.
                      2
       KVV filed suit in 2008; the matter proceeded to a four-day bench trial in May

2011, and the parties filed written arguments. The trial court entered a memorandum

decision the following month. The court ruled that KVV had proved trespass, nuisance,

and inverse condemnation, but that the damage to the land was temporary because

Richland could re-route the water to flow away from the property. The court also ruled

that KVV had failed to prove that it had sustained damage. The court awarded KVV

nominal damages of $1 and declined to award attorney fees.

       After reconsideration was denied, KVV timely appealed to this court. Richland

filed a cross appeal from the determination that the taking was temporary.




       2 There  were additional parties that were dismissed from the action before trial and
different causes of action against Richland that also were dismissed before trial. Of the
claims tried to the bench, only the inverse condemnation claim presents issues for our
review.

                                             4

No. 30286·5·111
Keene Valley Ventures, Inc. v. City of Richland


                                        ANALYSIS

       The trial court was unconvinced that KVV had been harmed by Richland's

direction of water to its property. KVV vigorously argues both that it had no obligation

in a condemnation case to establish its losses and that it nonetheless did so. We conclude

that KVV did bear the burden to establish its losses and that its failure to convince the

trial judge is not something that we can remedy for it on appeal. We decline to consider

Richland's cross appeal except to the extent this issue is also argued by KVV.

       In order to prevail in an inverse condemnation action, the plaintiff must establish a

"taking" by the government. Borden v. City o/Olympia, 113 Wn. App. 359, 374, 53 P.3d

1020 (2002). In this context, a taking consists of an appropriation of private property

without exercise of the power of eminent domain. Phillips v. King County, 136 Wn.2d

946,957,968 P.2d 871 (1998). The elements are "(1) a taking or damaging (2) of private

property (3) for public use (4) without just compensation being paid (5) by a

governmental entity that has not instituted formal proceedings." Id. The plaintiff must

establish more than simply interference with the owner's property rights. Rather, there

must be a permanent or recurring interference that "destroys or derogates" a fundamental

ownership interest. Borden, 113 Wn. App. at 374.

       This court reviews a trial court's decision following a bench trial to determine

whether substantial evidence supports any challenged findings and whether the findings


                                             5

No. 30286~5~III
Keene Valley Ventures, Inc. v. City of Richland


support the conclusions of law. State v. Hovig, 149 Wn. App. 1, 8,202 P.3d 318 (2009).

"Substantial evidence" is sufficient evidence to persuade a fair-minded person of the truth

of the declared premise. Panorama Vill. Homeowners Ass 'n v. Golden Rule Roofing,

Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). Conclusions of law are reviewed de

novo. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We defer to the

trial court's credibility determinations; we will not reweigh evidence even if we would

have resolved conflicting evidence differently. Thorndike v. Hesperian Orchards, Inc.,

54 Wn.2d 570,575,343 P.2d 183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153

Wn. App. 710, 717,225 PJd 266 (2009). Stated another way, an appellate court is not in

a position to find persuasive evidence that the trier of fact found unpersuasive. Quinn,

153 Wn. App. at 717.

       These principles resolve KVV's argument that it did in fact prove its damages.

We agree with KVV that there was evidence from Mr. Johnson's testimony that would

have established the cost of restoring the property with fill dirt. 3 However, the trial judge

was not required to credit that information and find it persuasive, and this court is not in


       3  KVV did not necessarily prove that the fair market value of the property had
been-diminished, let alone destroyed. There was no appraisal of the property. The two
sales agreements did not establish the market value because neither sale went through.
They did suggest that the value of the land had appreciated greatly in less than a decade
despite the rising groundwater levels. There also was no evidence that the land could not
still be developed. Under the circumstances, the trial court understandably did not find
actual damage.
                                              6

No. 30286-5-II1
Keene Valley Ventures, Inc. v. City of Richland


the position of reweighing that evidence. Although the evidence would have supported a

contrary finding, it was entirely the trial court's prerogative to decide how persuasive it

found the evidence. Having concluded it was not persuasive, the story ended there.

       KVV also argues that once it established that its property had been damaged, it

had no burden to prove the amount of its damages. It analogizes to a condemnation

action in which the government, desiring to take private property for public use, must

present evidence of the fair market value of the property, although no party has a burden

of proving value. E.g., State v. Amunsis, 61 Wn.2d 160, 164,377 P.2d 462 (1963).4

       No Washington court appears to have yet considered the burden of proof, ifany,

on the damages component of an inverse condemnation action. 5 Our courts have

assigned the burden of proof to the property owner to establish that a taking occurred.

E.g., Kahuna Land Co. v. Spokane County, 94 Wn. App. 836, 841,974 P.2d 1249 (1999)

(landowner had burden of establishing regulatory taking); Burton v. Clark County, 91

Wn. App. 505, 516, 958 P.2d 343 (1998) (same).




       4 The same rule applies at a condemnation hearing in which the parties agree that a
special benefit to the land exists and the remaining question is the value of the land with
the benefit. State v. Templeman, 39 Wn. App. 218, 223-24, 693 P .2d 125 (1984).
       5A justice dissenting in a condemnation case suggested that the landowner bore
the burden of proof in an inverse condemnation case. State v. Ward, 41 Wn.2d 794, 798,
252 P.2d 279 (1953) (Grady, J., dissenting).

                                              7

No. 30286-5-III
Keene Valley Ventures, Inc. v. City of Richland


       Richland cites numerous cases which it argues show that all jurisdictions in this

country to consider the issue have concluded that the landowner bears the burden of

proving damages. Included among that list are Carolina Chloride, Inc. v. Richland

County, 394 S.C. 154, 170, 714 S.E.2d 869 (2011); Lawrence County v. Miller, 2010

S.D. 60, 786 N.W.2d 360, 366; Taylor v. Department o/Transportation, 879 So.2d 307,

319 (La. Ct. App. 2004); and DeKalb County v. Daniels, 174 Ga. App. 319, 329 S.E.2d

620,623-24 (1985). While the cases cited by Richland support its argument, they are of

limited utility due to the varying state constitutional provisions that undergird

condemnation and inverse condemnation actions.

       The general proposition that "each party has the burden to prove the affirmative of

an issue" does not apply to land valuation in condemnation actions. State v. Templeman,

39 Wn. App. 218, 224, 693 P.2d 125 (1984). As explained in Amunsis, the reason is that

juries will consider competing land valuations and select the appropriate value in light of

the evidence. There simply is no issue of law or fact to which the burden "'may

intelligently and reasonably be applied.'" Amunsis, 61 Wn.2d at 163 (quoting Martin v.

City o/Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920».6



       6 "'You might as well undertake to fit a hat to a headless man as to fit the doctrine
of burden of proof to a proceeding of this character, which is absolutely wanting an issue
to which such a doctrine can be applied.'" Amunsis, 61 Wn.2d at 164 (quoting Martin,
101 Ohio St. 1).

                                              8

No. 30286-5-III
Keene Valley Ventures, Inc. v. City of Richland


        However, the Amunsis concern is not presented in an inverse condemnation case.

Instead, the party claiming inverse condemnation must prove a taking, one element of

which is the loss of the property or a diminution in its value. Phillips, 136 Wn.2d at 957.

Unless the taking element is conceded, which it was not here, the Amunsis rule would

relieve the plaintiff of proving one element of its case., Accordingly, we hold that the

plaintiff in an inverse condemnation action bears the burden of proof in establishing the

diminution in value of its property. The Amunsis rule is inapplicable when the

diminution of value element ofa taking claim is contested at trial. The trial court did not

err in concluding that KVV failed to sustain its burden of proving damages.

        Two other damages-related arguments remain. 7 KVV contends that the trial court

applied the wrong damages standard because it treated this case as a recurring temporary

taking rather than a permanent taking. Richland argues in its cross appeal that the court

erred in finding a temporary taking rather than a permanent taking because it has no

specific plans to remediate its drainage plan and its effect on the KVV property. We

decline to consider Richland's argument, except to the extent that it overlaps KVV's


          7 KVV also assigns error to the trial court failing to award its attorney fees after
  prevailing at trial. See RCW 8.25.075(3). However, the award of nominal damages does
, not satisfy the statutory directive awarding attorney fees to a landowner who establishes
  an entitlement to compensation. In a different context, our court has consistently noted
  that nominal damages are not "real damages." E.g., Gilmartin v. Stevens Inv. Co., 43
  Wn.2d 289, 294, 261 P.2d 73 (1953) (quoting Bellingham Bay & British Columbia R.R.
  v. Strand, 4 Wash. 311, 314,30 P. 144 (1892).
                                               9
No. 30286-5-III
Keene Valley Ventures, Inc. v. City of Richland


argument, because it has not established that a ruling will have any future impact; it is

essentially a moot question in light of our disposition.

       In awarding damages for injury to real property, including cases of inverse

condemnation, a court must first determine if the damage is temporary or permanent.

Harkoffv. Whatcom County, 40 Wn.2d 147, 152,241 P.2d 932 (1952). Permanent

damage is valued by determining the market value of the property before and after the

damage. Id. Temporary damage is valued in accordance with the cost of restoring the

property. Id. Whether damage is permanent or temporary is a factual question. Barci v.

Intalco Aluminum Corp., 11 Wn. App. 342, 355, 522 P.2d 1159 (1974).

       The parties both argue that the trial court erred by finding the taking to be

temporary rather than permanent. Since this is a factual question, we would normally

defer to the trier of fact on this point. Quinn, 153 Wn. App. at 717. However, we need

not consider this challenge because KVV failed to prove its case under either standard.

       The trial court determined the taking was temporary, but found the proof of

remediation costs insufficient to grant relief. The trial court additionally addressed the

diminution in value question and also found KVV's prooflacking. 8 It specifically found

that there was no proof of the property's value before the groundwater began rising or

afterwards. Thus, even if the court had erred in determining that the damage was


       8   See Findings of Fact 69, 70, 71, and 75. Clerk's Papers at 414. 


                                              10 

No. 30286-5-111
Keene Valley Ventures, Inc. v. City of Richland


temporary rather than permanent, the alleged error was of no consequence to the outcome

of the trial. U.nder either measure of damage, the trial court was not convinced that KVV

had shown that it actually suffered a loss.

       The trial judge concluded that Richland had harmed KVV through its channeling

of waters to its ditches adjoining KVV's property, resulting in occasional flooding and

significant increases in the water table. The evidence supports those determinations. The

trial judge also found that KVV had not shown that its property value suffered from the

city's actions or that it had adequately proven the cost of remedying the situation. As the

trier of fact, the judge was not required to find the evidence convincing. Accordingly, the

court did not err when it ruled that although Richland had inversely condemned the

property through its water management actions, KVV was not entitled to actual damages.

       Affirmed.

                                                     I
                                                               Korsmo, C.J.

WE CONCUR:




                                              11 

