                                                              FILED
                                                         SEPTEMBER 5, 2013
                                                       In the Office of the Clerk of Court
                                                     W A State Court of Appeals, Division ITI



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

JON GmSON AND MARY LOIS                       )         No. 30802-2-111 

GmSON, husband and wife, and                  )

WESLEY HILL AND JEANNA HILL,                  )

husband and wife, d/b/a MONTGOMERY            )

COURT APARTMENTS,                             )
                                              )
                     Appellants,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
CITY OF SPOKANE VALLEY, a                     )

municipal corporation,                        )

                                              )

                     Respondent.              )


       KULIK, J. -   Jon and Mary Gibson sued the city of Spokane Valley (the City),

alleging the City inversely condemned their apartment complex by cmstructing a

roundabout that restricted access to the apartments. The trial court granted the City's

motion for summary judgment dismissal and denied the Gibsons' motion for

reconsideration. The Gibsons appeal, contending there are genuine issues of material fact

regarding the severity of the access restrictions on the property. They also contend that

the trial court erred in dismissing an equitable estoppel claim. We agree with the trial
No.30802-2-II1
Gibson v. City ofSpokane Valley


court that the access, while more circuitous, does not result in compensable damage but

we conclude that the trial court improperly dismissed the equitable claim. Therefore, we

affirm the summary judgment in favor of the City on all claims except the promissory

estoppel claim. We reverse dismissal of that claim and remand for trial.

                                          FACTS

      Jon and Mary Gibson own the Montgomery Court Apartments, a commercial

apartment complex at 2301 N. Wilbur Road in the City. The southeast comer of the

apartment complex abuts the three-way intersection of East Montgomery Drive, North

Wilbur Road, and East Mansfield Street. The apartments have one driveway to access the

complex, which is located on Wilbur north of the roundabout at issue here.

      In 2003, Spokane Countyl approached the Gibsons on behalf of the City seeking

an easement on their property to modifY the intersection to improve traffic congestion in

the area of the Pines-Indiana-Montgomery 1-90 interchange. The Gibsons eventually

reached an agreement with the City and executed the requested easement and a right-of­

way deed in exchange for $69,000.

      In 2008, the City built a three-way roundabout at the intersection, which prohibited

traffic traveling east on Montgomery from making a left tum onto Wilbur to access the


      I   At that time, the project area was an unincorporated portion of Spokane County.

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No. 30802-2-III
Gibson v. City o/Spokane Valley


apartments. Instead, travelers were required to tum left onto Jackson Avenue to reach

Wilbur. Inga Note, a senior traffic engineer for the City, explained that the roundabout

was designed so people could access Wilbur from Jackson and that the City installed a

sign at the Jackson intersection to indicate this access to Wilbur. When the Gibsons

realized the roundabout would limit vehicles traveling east on Montgomery from using

Wilbur to access the apartments, they sent a letter to the City revoking the authorization to

record the easement and returned the $69,000. According to the Gibsons, most existing

and prospective tenants used Montgomery to access Wilbur Road and the Montgomery

apartments.

      The Gibsons filed a claim for damages with the City, alleging it inversely

condemned the apartment complex by restricting the right of access to the complex. A

commercial real estate appraiser retained by the Gibsons estimated that the market value

of the apartments was reduced by $1,325,000 as a result of the impact from lost access

due to the roundabout. The Gibsons also raised claims for misrepresentation, damages

arising from construction of the roundabout, and estoppel, asking that the City be

estopped "from denying compensation to [the Gibsons] for the costs of constructing a

new access on Montgomery." Clerk's Papers (CP) at 8. They alleged that they had spent

time and money in obtaining estimates for a second access in reliance on representations



                                             3

No.30802-2-II1
Gibson v. City o/Spokane Valley


by the City.

       Both parties filed motions for partial summary judgment. The Gibsons argued

"[t]here is no issue of material fact that the Plaintiffs have been deprived access to their

property from E. Montgomery Dr.... through the construction of the roundabout."

CP at 606. They argued that the City engaged in an unconstitutional taking of their

property because access to the apartments from Montgomery had been "completely

eliminated." CP at 607. They alleged, "[t]he majority of potential renters that become

tenants at Montgomery Court Apartments learn of apartment availability by driving by the

complex, and their inability to access the entrance has caused a severe reduction in

rentals, and increased costs of advertising." CP at 598. Hank Borden, a civil engineer,

submitted a declaration in support of the Gibsons' motion, stating that "a driver

unfamiliar with the area would have difficulty locating that [Wilbur] entrance."

CP at 423.

       The City countered that the inverse condemnation claim should be dismissed

because alteration of traffic flow by the apartment complex was not a compensable

deprivation ofa property.right under Washington law. Specifically, it pointed out that

Washington cases distinguish between impainnent of access on and off property from

noncompensable alterations of traffic flow to and from an owner's property, noting that in



                                              4

No. 30802-2-111
Gibson v. City ofSpokane Valley


this case there had "been no change at all in the ability of motorists to drive onto and exit

the apartment parcel by way ofits entrance on Wilbur." CP at 338. The City pointed out

that the Gibsons lost traffic flow in one direction, but that there had been no change for

drivers headed westbound, which constituted the majority of traffic.

       The court granted the City's motion for summary judgment and dismissed the

Gibsons' claims for inverse condemnation and equitable relief, noting that access from

Wilbur, the directly abutting street, remained unrestricted. It concluded, "[t]he placement

and resulting re-routing caused by the round-about, although curious and unfortunate,

does not create a circumstance that as a matter of law leaves plaintiffs with a remedy."

CP at 796. The court denied the dismissal of the misrepresentation claim and the

Gibsons' motion for partial summary judgment.

       The Gibsons moved for reconsideration, arguing that as abutting property owners

to Montgomery, they were entitled to per se compensation based on the impaired access.

The court denied the Gibsons' motion for reconsideration. The Gibsons later moved for

voluntary dismissal of the remaining claims. The Gibsons appeal the dismissal of their

claims for inverse condemnation and equitable relief.




                                              5

No. 30802~2-III
Gibson v. City o/Spokane Valley


                                         ANALYSIS

       Summary Judgment. The Gibsons maintain that they presented sufficient evidence

to raise genuine issues of material fact regarding the severity of the access restrictions

imposed by the City's construction of the roundabout. Specifically, they contend that the

effect of the roundabout constitutes a compensable taking under the Washington

Constitution because access to their property from Montgomery Road has been "totally

eliminated" and access from Wilbur has been substantially impaired, resulting in a de

facto partial closure of the street. Br. of Appellants at 20.

       This court reviews summary judgment orders de novo. Ranger Ins. Co. v. Pierce

County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). We will affinn an order granting

summary judgment if, when viewing the evidence in a light most favorable to the

nonmoving party, there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter oflaw. CR 56(c); Ranger, 164 Wn.2d at 552. When

reviewing a summary judgment order, this court engages in the same inquiry as the trial

court, considering the facts and all reasonable inferences from the facts in the light most

favorable to the nonmoving party. Right-Price Recreation, LLC v. Connells Prairie

Cmty. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002). The party opposing summary

judgment "may not rely on speculation, argumentative assertions that unresolved factual



                                              6

No.30802-2-III
Gibson v. City o/Spokane Valley


issues remain, or having its affidavits considered at face value." Seven Gables Corp. v.

MGMlUA Entm 't Co., lO6 Wn.2d 1, 13, 721 P.2d 1 (1986).

       Inverse Condemnation. "No private property shall be taken or damaged for public

or private use without just compensation having been first made." CONST. art. I, § 16.

An inverse condemnation claim is an action that seeks to recover the value ofthe property

that the government appropriated without a formal exercise of its eminent domain

powers. Fitzpatrickv. Okanogan County, 169 Wn.2d 598,605,238 P.3d 1129 (2010)

(quoting Dickgieser v. State, 153 Wn.2d 530,534-35, 105 P.3d 26 (2005)). A party

alleging an inverse condemnation must establish (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 condemnation proceedings. Id. at 606

(quoting Dickgieser, 153 Wn.2d at 535).

       "The right of access of an abutting property owner to a public right-of-way is a

property right which if taken or damaged for a public use requires compensation under

article I, section 16 of the Washington State Constitution." Keiffer v. King County, 89

Wn.2d 369, 372, 572 P.2d 408 (1977). The issue of whether compensation must be paid

involves a two-step process. "The first is to determine if the government action in

question has actually interfered with the right of access as that property interest has been



                                              7

No. 30802-2-111
Gibson v. City ofSpokane Valley


defined by our law." Id. This is a legal question to be answered by the court.

Wandermere Corp. v. State, 79 Wn.2d 688,695,488 P.2d 1088 (1971). If the right of

access has been damaged, then the degree of damage is the pivotal issue. Keiffer, 89

Wn.2d at 373. The degree of impairment is a question of fact. Id. at 374.

       To satisfY the first step, a party must show that his or her right of access was either

eliminated or substantially impaired. Id. This means the party's "reasonable means of

access must be obstructed." Union Elevator & Warehouse Co. v. State, 96 Wn. App. 288,

296, 980 P .2d 779 (1999). Generally, however, if the landowner retains an alternative

route to and from his property, even if it is less convenient, the landowner is not deemed

specially damaged. Hoskins v. City ofKirkland, 7 Wn. App. 957, 960-61, 503 P.2d 1117

(1972).

      The question before us is whether access to and from the apartment complex has

been damaged under the law. Not all impairments of access to property are compensable.

Washington cases distinguish between true impairment of access, which relates to access

on and off an owner's property, from noncompensable alterations of traffic flow to and

from an owner's property:

      [D]istinctions are made between the restriction of access and related but
      distinguishable actions which simply regulate the volume or flow of traffic
      on a public way. Those actions taken pursuant to the police power for the
      purpose of regulating the flow of traffic on the public way itself are

                                              8

No. 30802-2-111
Gibson v. City ofSpokane Valley


       generally not compensable.

Keiffer, 89 Wn.2d at 372.

       Moreover, RCW 47.52.041 provides that no person shall have any claim against a

city, state, or county "by reason of the closing of such streets, roads or highways as long

as access still exists or is provided to such property abutting upon the closed streets, roads

or highways. Circuity of travel shall not be a compensable item of damage."

       For example, in Walker v. State, the highway department wanted to build a

concrete bar or curb at the center of a highway. Walker v. State, 48 Wn.2d 587, 588-89,

295 P.2d 328 (1956). The curb would prevent westbound travelers on the highway from

turning left into the plaintiffs' motel, although they could travel further west, tum around,

and come back to stop at the motel. Id. The plaintiffs asked for damages based on this

diversion of westbound traffic from their motel business. The court held that they had no

property right in the continuance of the flow of traffic past their property, noting the

plaintiffs still had unimpeded access to and from their property:

       Re-routing and diversion of traffic are police power regulations. Circuity of
       route, resulting from an exercise of the police power, is an incidental result
       of a lawful act. It is not the taking or damaging of a property right.
               Although an abutting property owner may be inconvenienced by one­
       way traffic regulation immediately in front of his property, he has no
       remedy if such regulation be reasonably adapted to the benefit of the
       traveling public.



                                              9

No.30802-2-III
Gibson v. City ofSpokane Valley


Id. at 591.

       Similarly, in Kahin v. City ofSeattle, the court held asa matter of law that

although the installation of traffic markers to direct the flow of traffic in and out of the

plaintiffs gasoline station could interfere with customer's convenient access to the

station, this did not entitle the plaintiff to compensation. Kahin v. City ofSeattle, 64

Wn.2d 872,876,395 P.2d 79 (1964). The court pointed out that there was no physical

barrier to the plaintiff s access and that vehicles were not prevented from driving onto or

leaving the property. Id. at 874. The court noted that the plaintiff and his customers were

'" in the same position and subject to the same police power regulations as every other

member of the traveling public.'" Id. (quoting Walker, 48 Wn.2d at 590).

       The Gibsons overlook this well-established precedent and misstate the effect of the

roundabout on access to the apartments. They allege that they have lost "[a]ll [a]ccess

from Montgomery to [their] [p]ropertyH and claim that the apartments are "now

completely inaccessible from Montgomery." Br. of Appellants at 15,20. Relying in part

on Fry v. O'Leary, 141 Wash. 465, 252 P. 111 (1927), they contend it is immaterial that

the ingress-egress driveway is on Wilbur and assert that direct access from the abutting

street onto the property is not necessary for compensation.

       The Gibsons misstate the holding of Fry. In that case, a portion of the street


                                              10 

No. 30802-2-III
Gibson v. City ofSpokane Valley


adjacent to the Frys' lot was vacated so that a garage placed in the street could be

pennitted. Id. at 466-67. This left the Frys with one-half the street width they had

previously enjoyed. Id. at 470. The court held that vacation of one-half of a street in

front of an owner's parcel is compensable because an owner's right of access extends to

the full width of the street. Id. at 470. Here, the roundabout did not cause the vacating of

one-half ofthe width of Wilbur nor did it cause a private improvement to be placed in the

public right-of-way adjacent to the apartment's point of access to Wilbur. Wilbur itself

has not been altered.

       Maps of the area show that the Gibsons still have direct access to the apartment

complex, even though access from Montgomery to Wilbur may be less convenient than

before the roundabout was built. Moreover, directions of travel on Wilbur were not

altered by the roundabout. A driver on Wilbur can travel southbound to the roundabout

and, from that point, may travel in any direction. The roundabout changed a route that

eastbound drivers can take to get to the apartments from East Montgomery. However,

drivers eastbound on Montgomery continue to have access to the apartments by Jackson

Avenue and the roundabout has no effect on drivers approaching the apartments from the

east along East Mansfield. Based on traffic count data, most drivers access the

apartments from the east by means of North Pines Road. In sum, travelers on


                                             11 

No. 30802·2·111
Gibson v. City ofSpokane Valley


Montgomery lost the convenience of a left tum onto Wilbur. This is not a compensable

taking under Washington law.

       Nevertheless, citing Union Elevator, the Gibsons assert that "if the circuity of

route imposed is severe enough, it is not a bar to a claim." Br. of Appellants at 27. They

assert that summary judgment is improper "when there is evidence that the new route

imposed by the condemnation impairs access to the extent that the property owner's

business is impaired." Br. of Appellants at 24. They claim that in this case, their

damages exceed those of the general public and are, therefore, compensable. They

reiterate that the "question of impact beyond that experienced by the general public is

necessarily a question of fact." Br. of Appellants at 25.

       Union Elevator does not support the Gibsons' claim. In that case, the Washington

State Department of Transportation closed an intersection as part ofa highway upgrade

project. Union Elevator, 96 Wn. App. at 290·91. Because of the redesign, farmers were

only able to access Union Elevator's grain elevator by negotiating a long and tortuous

county road. Id. at 291·92. The evidence showed that truck drivers were required to

negotiate a steep downhill grade, approach a 90 degree tum to the left, a 90 degree tum to

the right, and then a drive up a severely sloped driveway to reach the grain storage

facility. Id. at 291,296·97. As a result, long·time customers stopped using the facility


                                             12 

No. 30802-2-III
Gibson v. City a/Spokane Valley


because of the distance and dangerousness of the route. The property owners filed suit,

complaining that the highway redesign completely destroyed all economically viable use

oftheir facility. Emphasizing that this was a "fact-driven" case, this court held that

summary judgment dismissal was improper because Union Elevator was able to show

"damages different from that of the general public." Id. at 295,297.

       In contrast, the Gibsons can only show "inconvenience at having to travel a further

distance to [their] business facility." Union Elevator, 96 Wn. App. at 296. Access to the

apartments does not require negotiating steep grades and blind turns. Moreover, Union

Elevator was the only business affected by the road closure. Here, in contrast, other

apartment owners were affected. Mr. Gibson himself testified that the change in access

would have a similar effect on·an apartment complex northeast of his building and Ms.

Note testified that she received a complaint from an apartment owner regarding the

roundabout.

      To reiterate: deprivation ofthe most "direct and convenient" access to property is

insufficient to maintain an inverse condemnation claim. Walker, 48 Wn.2d at 590-91.

Where a landowner retains an alternative mode of ingress or egress to the property in

question, the owner's damages are "not different in kind even though different in degree

from that suffered by others [and therefore] has no legal basis for complaint." Hoskins, 7



                                             13 

No.30802-2-II1
Gibson v. City ofSpokane Valley


Wn. App. at 960.

       Here, the Gibsons lost the convenience of making a left tum onto Wilbur from

Montgomery. This regulation of traffic does not constitute a compensable taking or

damaging of property under Washington law. The trial court properly granted summary

judgment on this issue.

       Estoppel Claim. Next, the Gibsons maintain that they produced enough evidence

to support a promissory estoppel claim regarding the City's alleged promise to pay for a

new access point on Montgomery. On appeal, they assert that under equitable principles

"the trial court should have evaluated the elements of a claim for promissory estoppel to

determine if [the Gibsons] propounded sufficient evidence to survive summary

judgment." Br. of Appellants at 31. We agree.

       Montgomery's original complaint separately identified four causes of action:

inverse condemnation, misrepresentation, estoppel, and "[d]amages [a]rising [0 Jut of

[c]onstruction of the Round-About." CP at 7-8. As originally pleaded the third,

"estoppel," cause of action incorporated the preceding allegations of the complaint, and

alleged, at paragraph 28:




                                            14 

No. 30802-2-111
Gibson v. City ofSpokane Valley


               28.    For reasons including but not limited to those stated herein,
       Spokane Valley is estopped from .. Y] denying compensation to MCA
       [Montgomery Court Apartments] for the costs of constructing a new access
       on Montgomery. MCA acted in reliance on Spokane Valley's statements
       and acts by agreeing to the easement and right of way and expending time
       and expense in obtaining estimates for the second access. MCA has been
       injured, and will continue to be injured, if Spokane is allowed to repudiate
       its prior statements and acts in an amount to be proven at trial.

CP at 8. The relief prayed for in the original complaint was money damages, costs and

fees, and any other relief that the court deemed equitable and proper.

       Although never explicitly at issue in later summary judgment proceedings,

Montgomery's promissory estoppel claim was supported by evidence later presented to

the court. When deposed, Mr. Gibson recounted statements made at a meeting with

representatives of the City and county that he attended on or about July 18,2008. As he

described that meeting, the government representatives sought to deter him from legally

challenging the then-existing design for the roundabout, which would increase the City's

cost and delay construction. To induce him to forgo the threatened challenge, the

government representatives offered to design and construct a new access into the


       2 The  ellipses omit "refusing to modifY the round-about," run-on language that can
only be read as a drafting error. It is not clear whether Montgomery intended to allege
that the City was estopped from refusing to modifY the roundabout as well as from
denying compensation. The run-on language makes paragraph 28 somewhat ambiguous.
The request for monetary relief, given the concluding language "in an amount to be
proven at trial," provides some clarification.

                                            15 

No.30802-2-II1
Gibson v. City ofSpokane Valley


apartments from Montgomery, something they claimed to have funds available to do. Mr.

Gibson testified that the alternative of the City constructing a new access to the

apartments from Montgomery was a '" very, very distant second choice'" from his

perspective but one to which he ultimately agreed. CP at 491.

       Montgomery produced electronic mail that Mr. Gibson sent to a county employee

who participated in the July 18 discussions on the Monday following that meeting. The

communication outlined, in bullet points, "the settlement offer I understand as suggested

by the County and City," noting that "[i]fI've properly covered the terms we'll need to

formalize this as an agreement." CP at 507. The bullet items identified the approximate

location of the new access, the costs associated with its design and construction that

would be covered by "[t]he county I city," and provided that the

"County I City will negotiate on behalf of the property owner with utility companies and

governmental agencies to insure acceptance and co-operation with the changes above."

CP at 507-08.

       A county representative responded to the electronic mail a couple of days later,

stating:

       Jon,
       I have corresponded with the City and they agree with this arraignment
       [sic]. We will proceed with the layout of the approach and of course share
       that with you before we finalize. Please send me the cost estimates as soon

                                             16
No.30802-2-III
Gibson v. City a/Spokane Valley


       as they are available. I will put the package together and formalize the
       agreement for the parties to sign.
       Thanks

CP at 507. Several months later, Mr. Gibson forwarded cost estimates of$168,000. It

was at that point that electronic mail communications between City and county

representatives reveal that City engineers claimed a different recollection of what was

discussed and agreed to at the meeting in JUly.

       In a first amended complaint filed approximately eight months after the action was

commenced, Montgomery recharacterized its third cause of action more broadly as one

for "Equitable Relief." CP at 27. Paragraph 28, alleging estoppel, remained unchanged.

A new paragraph 29 was added to the "Equitable Relief' cause of action, requesting

injunctive relief. It stated:

               29.    For reasons including but not limited to those previously
       stated herein, MCA is entitled to injunctive relief. The Court has
       jurisdiction over The City of Spokane Valley and authority to impose an
       injunction preventing Spokane Valley from operating and/or managing
       traffic flow in such a manner that vehicle eastbound on Montgomery is
       unable to use the roundabout to make a left-hand tum and travel northbound
       on North Wilbur Road, where the entrance to the apartment complex is
       located.

CP at 27-28. The amended complaint's prayer for relief now explicitly requested

injunctive relief in addition to the earlier request for money damages, costs and fees.




                                             17 

No. 30802-2-III
Gibson v. City ofSpokane Valley


       Following Montgomery's amendment of its complaint, the City moved for partial

summary judgment dismissing Gibsons' first three causes of action. When it came to

Montgomery's third cause of action, however, the City's motion papers addressed only

the right to injunctive relief asserted in paragraph 29. Neither the motion nor supporting

memorandum said anything about the "estoppel" paragraph, paragraph 28.

       For instance, the City's "introduction" to its arguments for summary judgment said

only the following about Montgomery's third cause of action:

              As a third claim, plaintiffs seek an injunction to "prevent[] Spokane
       Valley from operating and/or managing traffic flow" as currently regulated
       by the roundabout. ([First Amended Complaint] at ~ 29). But the City's
       decision to build the roundabout was part of an area-wide transportation
       improvement project. Plaintiffs have no evidence that the City's decisions
       regarding transportation planning were beyond its authority, or that the
       decisions were reached in an unlawful or arbitrary and capricious manner.

CP at 326-27.

       The section of its legal memorandum requesting dismissal of Montgomery's third

cause of action was entitled "Plaintiffs' request for injunctive relief should be denied."

CP at 345 (emphasis added). Legal argument relating to that third cause of action

comprised only two pages of the City's 31-page legal memorandum and dealt solely with

the remedy of injunction.




                                             18 

No. 30802-2-II1
Gibson v. City ofSpokane Valley


       Montgomery responded to the City's motion for partial summary judgment with a

cross motion for partial summary judgment. Its cross motion sought judgment as a matter

of law only on its inverse condemnation claim. Although it did not move for summary

judgment on its third cause of action, Montgomery's discussion of background facts

referred to the City's alleged promise and its reliance, with citations to supporting

evidence:

              In July 2008, Mr. Gibson met with City representatives in attempts to
       resolve the access issue as the City did not want their construction schedule
       impacted.... To avoid any potential delay, the City made promises to Mr.
       Gibson that, in return for his not delaying the construction of the
       roundabout, the City would:
              (1) 	 Pay the costs of constructing a new access point to the
                     property on Montgomery, subsequent to Mr. Gibson obtaining
                     estimates for such a construction;
              (2) 	 Find a satisfactory resolution to the access issue in good faith
                     and assured Mr. Gibson that money was not an issue; and
              (3) 	 Draft a written agreement memorializing its commitment to
                     arranging and paying for a solution to the limited access
                     problem, while Mr. Gibson obtained estimates.

             Relying on the City's representations, Mr. Gibson expended
      substantial time and money to get the estimates and halted his efforts to stop
      construction, but the City never produced the written agreement it
      specifically promised. Mr. Gibson relied on the City's representations and
      spent approximately $4,000 obtaining costs estimates. When it received the
      estimates, the City breached its commitments to Mr. Gibson and offered to
      pay him only $1,500, an amount that failed to compensate Mr. Gibson for
      even the cost of obtaining estimates.

CP at 601. Among the deposition testimony and documentary evidence supporting these

                                             19 

No.30802-2-II1
Gibson v. City ofSpokane Valley


allegations was the evidence described above.

       The City's I8-page reply brief in support of its motion for summary judgment

devoted only one-half of a page to Montgomery's third cause of action. It again

characterized that cause of action as seeking only "an injunction to compel the City to

modify the roundabout." CP at 679. Its introduction to its reply argument makes clear

that Montgomery's allegations in support of promissory estoppel were simply not on the

City's radar screen:

              The most important part of this case is the plaintiffs' claim for
       inverse condemnation. This is the root out of which plaintiffs'
       misrepresentation claim grows. If the inverse condemnation claim fails,
       then plaintiffs were indeed paid just compensation for the property rights
       that were actually acquired, and the Court need not reach the
       misrepresentation issues at alL

CP at 665.

       Finally, and unsurprisingly, in the hour that the trial court set aside for argument of

the cross motions for summary judgment, the words "promissory estoppel" and "estop"

were not used at alL Neither party nor the court made any reference to the alleged

promises that had been made to Mr. Gibson on July 18 as asserted by paragraph 28 of the

first amended complaint.

       The trial court took the cross motions for summary judgment under advisement

and announced its decision in a letter opinion. Its entire discussion of the third cause of

                                             20 

No. 30802-2-111
Gibson v. City a/Spokane Valley


action states:

       Absent a cause of action for inverse condemnation, plaintiffs' claim for
       equitable relief fails as well.

CP at 796.

       The only claim that the trial court recognized as surviving summary judgment was

Mr. Gibson's misrepresentation claim. Its order on the motions for summary judgment

concluded that the City was entitled to summary judgment as a matter of law on

plaintiffs' causes of action based on inverse condemnation and equitable relief. It thereby

dismissed Montgomery's promissory estoppel theory, although there is literally nothing in

the record to suggest that it did so advertently.

       In order to state a claim for promissory estoppel, a plaintiff must present evidence

of: (1) A promise which (2) the promisor should reasonably expect to cause the promisee

to change his position and (3) which does cause the promisee to change his position

(4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided

only by enforcement of the promise. Corbit v. J.I. Case Co., 70 Wn.2d 522,539,424

P.2d 290 (1967).

       In moving for summary judgment, the City never touched in any substantive way

on the promissory estoppel component of Montgomery's third cause of action. It thereby

necessarily failed to sustain its burden of offering factual evidence showing that it was

                                              21 

No. 30802-2-II1
Gibson v. City o/Spokane Valley


entitled to judgment as a matter of law on that claim. Under Graves v. P.J. Taggares

CO.,3 summary judgment dismissing the promissory estoppel component should have been

denied on that basis alone.

         Beyond that, however, Montgomery's evidence in opposition to the City's motion

for summary judgment did (though not necessarily advertently) raise a genuine issue of

fact as to each element of promissory estoppel. It demonstrated genuine issues of fact as

to the City's promises; a context inviting reliance, resulting reliance, and resulting harm.

         Because the City never made a threshold showing that it was entitled to judgment

as a matter oflaw on Montgomery's promissory estoppel claim and Montgomery

presented evidence that supported it, we reverse the dismissal of that claim and remand it

for trial.

         Attorney Fees. The Gibsons assert that they are entitled to attorney fees under

RCW 8.25.075(3) if they prevail on appeal. Because they are not the prevailing party on

appeal, they are not entitled to attorney fees.

         We affirm the trial court's summary judgment in favor of the City on all claims

except the promissory estoppel claim. We reverse dismissal of that claim and remand for

trial.



         3   Graves v. P.J. Taggares Co., 94 Wn.2d 298,302, 616 P.2d.1223 (1980) (quoting

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No. 30802-2-111
Gibson v. City ofSpokane Valley


      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.


                                         Kulik, J.

WE CONCUR:




Siddoway, A.C.J.                         Brown, J.




Jacobsen v. State, 89 Wn.2d 104, 108,569 P.2d 1152 (1977)).

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