                                                                                                                           lL ED
                                                                                                              COURT OF APPEALS
                                                                                                                   DP/iSlotj 1i
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                  2015 JUN ? O TIM 8; 31
                         DIVISION II

                                                                                    No. 45726 -1 - II `'

SCOTT K. LANGE, Trustee; and
ELIZABETH R. LANGE, Trustee; Trustees of
The Lange Family Trust;
                                          Appellants.




           SIM




 DAVID           A. CEBELAK and KRISANNE R.                                    UNPUBLISHED OPINION
 CEBELAK, husband and wife, and the marital
 community composed thereof,


                                           Respondents,




          MELNICK, J. —         Scott   and   Elizabeth Lange (" Lange") appeal the trial court' s order granting


                                                        David         Krisanne Cebelak (" Cebelak").           Lange and
          summary judgment in, favor
partial                                            of           and




Cebelak own            adjacent properties     that have been the      subject of much     litigation. In 2009, Lange


filed a complaint against Cebelak alleging negligent injury to real property, public and private

nuisance, trespass, and loss of lateral support. The trial court dismissed Lange' s negligent injury

to real property and nuisance claims -arising from damage that occurred in 2006 because they were
barred    by     the   statute of   limitations.   Lange appeals, but because Lange did not file his complaint

until after the statute of limitations had run, we affirm.

                                                           FACTS


          Lange         owns              adjacent   to Cebelak in Clallam       County.     Both properties abut the
                               property


                                                        issued Cebelak        building            to build   a residence   in
Clallam    Bay         shoreline.   Clallam   County                      a              permit
45726 -1 - II




1996.   Cebelak       sought a revision of   the   building    permit   in late 1996   and again   in 1999. Clallam


County granted the revisions. Cebelak completed construction of the home on November 2, 1999.

         In late 1996 and 1997, the county also issued the required building and plumbing permits

for Cebelak to build       a storage   building    on    his property. In September 1997, Cebelak completed


construction of a storage building on his property, which the county inspected.

         In           1999, Cebelak                                     of a   bulkhead.    The county granted a
                May                     completed        construction




shoreline exemption, and the Department of Fish and Wildlife granted him a hydraulic permit, for

the bulkhead.


         On December 14, 2006, a severe storm hit Clallam Bay, washing away some of Cebelak' s

property and exposing the bulkhead. As a result of the storm, Lange lost a portion of his beachfront
property.       In March 2007, Lange retained Jim Johannessen, a licensed engineering geologist and

principal of Coastal Geologic Services, Inc. On November 30, 2007, Johannessen issued a report

to Lange opining that Cebelak' s bulkhead " was at least in part the cause of the severe erosion to
the Lange beachfront."        Clerk' s Papers ( CP) at 375.


          Over two years later, on December 11, 2009; Lange filed a complaint against Cebelak in

 Clallam County Superior Court alleging causes of action for public and private nuisance, trespass,
 and loss of lateral support. Although Lange used breach, duty, and damage language, he. did not

 specifically    allege negligent   injury   to   real   property.   In the complaint, Lange requested monetary


 damages for the harm to his property caused by the erosion that occurred during the storm in

 December 2006, as well as continuing damages for harm to his property resulting from the

 residence, storage building, and bulkhead on Cebelak' s property. Specifically, Lange claimed that
 the structures exist in violation of the initial building permits, applicable laws, codes, and

 regulations.      Lange also requested injunctive relief requiring Cebelak to remove the residence,




                                                               2
45726 -1 - II




storage   structure,     and   bulkhead,      and   to   restore   the   shoreline   to    its   original   condition.    In the


alternative, Lange asked the trial court to require Cebelak to redesign the bulkhead to eliminate

the trespass and nuisance.



          Cebelak raised several affirmative defenses, including that Lange' s complaint violated

applicable statutes of         limitations.    Cebelak moved for summary judgment, seeking dismissal of

Lange' s. complaint because no material issue of fact existed regarding the nuisance, trespass, and

loss of lateral support claims, and because most of the claims were barred by statutes of limitations.

Additionally, Cebelak argued that Lange could not challenge any of the county' s permitting

decisions relating to the initial construction of the structures because Lange did not timely seek
review under the Land Use Petition Act (LUPA). 1

          The trial court entered an order granting final partial summary judgment in favor of
                                                                                                  in 2006.     The trial court
Cebelak     on    the   nuisance     claims   arising from damage that             occurred




incorporated by reference its memorandum opinion on defendants' motion for summary judgment.
The trial   court ruled    that "[   c] laims for damages under the theory of negligent injury to real property

and/ or nuisance for the erosion which occurred in the December storms of 2006 storm [ sic] are

dismissed as the statute of limitations has run." 2 CP at 25. Specifically, the trial court determined

that viewing the evidence most favorable to Lange, the date of accrual for the purposes of the
                limitations    was   the date Johannessen issued           his   report,   November 30, 2007.            Because
 statute of



 Lange did not file the complaint until more than two years after the date of that report, the statute

 of limitations for nuisance ran prior to the commencement of litigation.



   Ch. 36. 70C RCW


 2 The trial court also granted the motion as to the claims relating to obstruction of view for failure
 to state a claim upon which relief may be granted. This is not at issue on appeal.


                                                                   3
45726 -1 - II




          The trial court did not dismiss any of Lange' s other claims and those claims remain active.

The trial court kept active Lange' s claims based on current or continuing trespass, negligent injury

to real property and/ or nuisance, and loss of lateral support, or that the structures are violating the

permits issued or are out of compliance with applicable county codes. Lange appeals.3
                                                                 ANALYSIS


1.         STANDARD OF REVIEW


           We review an order for summary judgment de novo, engaging in the same inquiry as the

trial   court.   Jones       v.    Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002).                  Summary

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and     that the moving party           is   entitled   to   a   judgment   as a matter of   law." CR 56( c).   We construe


all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones,

 146 Wn. 2d      at   300.    Summary judgment is proper only if reasonable persons could reach but one
conclusion       from the         evidence presented. -Bostain v.           Food Express, Inc., 159 Wn.2d 700, 708, 153


P. 3d 846 ( 2007).


II.        THE TRIAL COURT DID NOT ERR IN APPLYING THE STATUTE OF LIMITATIONS

           A.         Accrual of Nuisance Claim


           A nuisance is statutorily defined in Washington, in relevant part, as " an obstruction to the

 free use of property, so as to essentially interfere with the comfortable enjoyment of the life and

 property."      RCW 7. 48. 010.             A public nuisance is one that " affects equally the rights of an entire




 3
     On   appeal,     Cebelak       asks us    to dismiss Lange'       s claims.   Because Cebelak did not file a cross-
 appeal, we decline.



                                                                      El
45726 -1 - II



                     or neighborhood, although          the   extent of the   damage may be       unequal."       RCW 7. 48. 130.
community


A private nuisance is one that is not a public nuisance. RCW 7. 48. 150.

            A   negligence action accrues when                the   plaintiff suffers   injury   to his   real   property.     Will v.


Frontier Contractors, Inc., 121 Wn.                    App.    119, 125, 89 P. 3d 242 ( 2004). " A nuisance cause of


action accrues when the plaintiff initially suffers some actual and appreciable harm or when the

plaintiff should         have discovered the basis for              a nuisance action."     Wallace v. Lewis County, 134

Wn.             1,    19, 137 P. 3d 101 ( 2006),         as corrected (    Aug.   15, 2006) (    emphasis added).         Separate
       App.

causes of action arise for negligent injury to real property and nuisance claims, but plaintiffs must

file   a   lawsuit two     years      from the time      either action accrues.         RCW 4. 16. 130; Wallace, 134 Wn.


App. at 19.

            The damage to Lange' s property occurred on the date of the storm, December 14, 2006.

However, the Johannessen' s report opining that Cebelak' s bulkhead caused the damage issued on

November 30, 2007. Viewing the evidence in the light most favorable to Lange, neither cause of

action accrued until            November 30, 2007.             No genuine issue as to this material fact exists in the

record. Lange did not file his complaint until December 11, 2009. Therefore, Lange commenced

his lawsuit          outside of   the two        year statute of    limitations for both   claims.        RCW 4. 16. 130.       Thus,



the trial court correctly dismissed claims for damages for the erosion which occurred from the
December 2006 storm.


            If a nuisance is continuing, the two year statute of limitations only limits the period for

which the plaintiff may collect damages. Wallace, 134 Wn. App. at 19. If a nuisance remains, the

 plaintiff may continue to collect damages for uncompensated harm until the nuisance is abated.
 Wallace, 134 Wn.              App.   at   19.    Each successive day that Cebelak' s bulkhead continues to cause

 erosion     to Lange'     s                constitutes a new cause of action.           Wallace, 134 Wn.          App.   at   20. To
                               property




                                                                       5
45726 -1 - II



the extent that Lange argues that the trial court erred by dismissing his nuisance claims because

the nuisance is continuing, his argument is without merit. The trial court dismissed only those

claims relating to the December 2006 storm. It did not dismiss any claims related to any continuing

nuisance caused by any of the structures on Cebelak' s property. It also did not dismiss claims for
continued erosion resulting from Cebelak' s bulkhead. Therefore, Lange' s argument fails.
         B.          Tolling the Statute of Limitations

         To the extent that Lange argues that fraud or misrepresentation by Cebelak should have

tolled the nuisance statute of limitations, this argument is without merit. Lange essentially argues

that a genuine issue of material fact exists as to the accrual date of the cause of action for the

nuisance claim, and that a jury should determine whether fraud prevented Lange from knowing

that the nuisance existed


         An actionable nuisance claim is an act or omission that injures the plaintiffs' property or

unreasonably interferes         with   their   enjoyment of     the property.       Wallace, 134 Wn. App. at 19. The

                                                      depends only     on   the   plaintiff   suffering   some "` actual and
accrual of a nuisance cause of action



appreciable"'       harm. Mayer        v.   City   of Seattle, 102 Wn.      App.   66, 76, 10 P. 3d 408 ( 2000) ( quoting


Haslund       v.   City   of Seattle, 86 Wn.2d 607, 620, 547
                                                             P. 2d 1221 ( 1976)).                   Courts may apply the


discovery rule in cases where a delay occurs between the injury and the plaintiff' s discovery of it.
 Crisman      v.   Crisman, 85 Wn.      App.       15, 20, 931 P. 2d 163 ( 1997).      The discovery rule " postpone[ s]

the running of a statute of limitations until the time when a plaintiff, through the exercise of due
 diligence,     should    have discovered the basis for the           cause of action."       Mayer, 102 Wn. App. at 76.




                                                                Gel
45726 -1 - II




           For tolling purposes, we will assume without deciding that Lange suffered an actual and

appreciable harm. The undisputed fact is that Lange discovered the erosion to his property as of

November 30, 2007 when Johannessen' s report issued. Thus, this argument fails.4

III.        LANGE' s LUPA ARGUMENTS ARE INAPPLICABLE


            Lange      argues on appeal            that "[ t] he [ t] rial   [ c] ourt ...   must ...    be   reversed ...   so that [Lange]


can present evidence of the code violates and violation of permit conditions at trial to support [ his]

nuisance claims."              Br.    of   Appellant       at   18.   But, the trial court did not enter an order preventing


Lange from admitting evidence at trial of non-compliance to support his remaining active claims.

Rather, the trial court stated that " LUPA does not prevent claims under nuisance, trespass or loss

of     lateral   support."         CP   at   25.   As the trial court explained in its memorandum opinion which is

incorporated into its order, under Grundy v. Thurston County, 155 Wn.2d 1, 117 P. 3d 1089 ( 2005),

the bar to attacks of land use decisions under LUPA does not bar actions for nuisance or trespass

                                              may have been            lawfully        permitted.       The grant of a permit does not
caused      by    structures which




insulate the       permit      holder from          such actions       if they later become             a nuisance or   trespass.   Grundy,

 155 Wn.2d at 7 n.5. Because the trial court did not issue a ruling precluding Lange from admitting

evidence relating to code and permit violations, Lange' s argument is without merit.
             Lange          also    asserts   that "    LUPA effectively creates and perpetuates a grant of special

privilege to those who have been relieved of society' s equal obligations of code and permit

                       in   violation of article           1,   sections     8   and   12    of   the Washington Constitution.        Br. of
 compliance"




 Appellant        at   30.         However, Lange offers no argument or authority addressing his assertion.



 4 Furthermore, Lange seems to argue that the trial court ordered that he may not present evidence
 relating to fraud or misrepresentation. However, the trial court entered no written order prohibiting
 evidence.    Washington is a written order state. State v. Dailey, 93 Wn.2d 454, 458- 59, 610 P. 2d
 357 ( 1980). Because the trial court entered no order regarding prohibition of evidence, this issue
 is not properly before us.

                                                                                 7
45726 -1 - II




Accordingly, we         decline to   consider   it. RAP 10. 3(   a)(   6);   Cowiche Canyon Conservancy v. Bosley,

118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).

IV.       ATTORNEY FEES


          Lange does not request attorney fees on appeal. Cebelak requests attorney fees only under

RCW 4. 84. 370, which provides that the prevailing party in an action contesting a land use decision

is   entitled   to   reasonable   attorney fees.   This is not an action contesting a land use decision. Thus,

neither party is entitled to attorney fees. RAP 18. 1( b).
          We affirm.


          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.


                                                                                       s




                                                                                Melnick, J.


We concur:




           iaxa,




           Lee, J.
