                                                                               FILED
                                                                           July 16, 2019
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

MICHAEL C. DARLAND and MYRNA                   )
DARLAND, husband and wife, et al,              )         No. 36002-4-111
                                               )
                       Appellants,             )
                                               )
       V.                                      )
                                               )         UNPUBLISHED OPINION
SNOQUALMIE PASS UTILITY                        )
DISTRICT, a Washington municipal               )
corporation,                                   )
                                               )
                       Respondent.             )

       FEARING, J. -    In a previous appeal, we affirmed the trial court's dismissal of

Michael and Myrna Darland's cause of action against the Snoqualmie Pass Utility

District for reimbursement of assessments paid for utility local improvement districts.

We now reverse the superior court's dismissal, based on the statute of limitations, of the

Darlands' remaining causes of action. We, however, dismiss two other claims on the

merits as a matter of law.
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


                                          FACTS

       This lawsuit concerns extension of water and sewer services to a seventy-six acre

tract of land. We call the tract of land SnoCadia. The property sits east of Snoqualmie

Pass in Upper Kittitas County. Plaintiffs Michael and Myrna Darland are current owners

of SnoCadia and wish to develop the land for residences. Defendant Snoqualmie Pass

Utility District, the local water-sewer district, assessed the property for water and sewer

services.

       We repeat some facts, beginning in the 1970s, from our earlier opinion. On

August 3, 1977, Count Michael Graf Von Holnstein purchased SnoCadia. In 1978,

Kittitas County approved a planned unit development on Von Holnstein’s land. As a

result of county approval, Kittitas County Sewer District No. 1, a predecessor of

Snoqualmie Pass Utility District, included SnoCadia in its service area when finalizing

the district’s comprehensive plan.

       To construct public water system improvements, sewer-water districts may form

utility local improvement districts (ULIDs). A sewer-water district forms the ULID to

finance improvements that benefit a limited number of properties. After forming the

ULID, the utility district sells revenue bonds to pay for the improvements, and the owners

of the properties within the ULID pay assessments for the purpose of retiring the revenue

bonds. RCW 57.16.050.

       On May 19, 1982, Kittitas County Sewer District No. 1 Board of Commissioners

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adopted resolution number 82-3, which approved an assessment for Utility Local

Improvement District No. 4 for purposes of sewer facilities. The resolution provided:

             Each of the lots, tracts, parcels of land and other property shown on
      the assessment roll is declared to be specially benefited by the proposed
      improvement in at least the amount charged against the same.

Clerk’s Papers (CP) at 229. The resolution also declared:

             [A]ll future connections within Utility Local Improvement District
      No. 4 will be subject to a connection charge or ready-to-serve fee of
      $1,275.00 each, but the property owner will be entitled to a credit of one
      such connection charge for each $1,275.00 of assessment against that
      property up to the full amount of that assessment.

CP at 229. ULID No. 4 assessed $48,917.25 against 72.47 acres of Michael Von

Holnstein’s property. Apparently the ULID did not benefit all SnoCadia.

      Kittitas County Sewer District No. 1 changed its name to Snoqualmie Pass Sewer

District of King and Kittitas Counties sometime between May 19, 1982, and July 25,

1986. On July 25, 1986, Snoqualmie Pass Sewer District Superintendent Richard Kloss

penned a letter to Snoqualmie Pass landowners, including Michael Von Holnstein. The

letter addressed a proposed water system and read, in part:

             SUBJECT: Pass-wide Water System
             The following is in response to several questions asked about the
      proposed pass-wide water system:
             1. Financing will be accomplished by the formation of a Utility
      Local Improvement District (ULID). The bonds would be issued at
      approximately 8 1/2 percent (today’s rate) payable over a 15 year period.
             The preliminary cost per acre is $ 1,425.00 and lots under 1 acre
      would be $ 475.00 per lot. This method of payment allows all land over 1
      acre to be guaranteed 3 residential equivalent hookups (1200 gpd). Lots

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Darland v. Snoqualmie Pass Utility District


       under 1 acre would be entitled to 1 residential equivalent hookup.
              The monthly payment based on a current 8 1/2 percent interest rate
       for 15 years would be $14.03 per month per acre, and $4.68 for lots under 1
       acre.

CP at 26. Superintendent Kloss’ letter referred to proposed ULID No. 7.

       On December 10, 1986, the Snoqualmie Pass Sewer District Board of

Commissioners convened a regular meeting. The board of commissioners discussed

water and sewer hookups. The minutes of the meeting read in part:

              The Board of Commissioners stated that this does not include any
       distribution system for water and that it only runs the water mains by the
       property making water available to them, this is also true for sewer.

CP at 34. Later records also suggest not only a commitment to grant customers hookups,

but also a commitment by the utility district to extend sewer and water mains to utility

customers’ respective properties, a promise contrary to utility industry customs.

       On April 8, 1987, the Snoqualmie Pass Sewer District Board of Commissioners

convened a regular meeting, during which the board discussed ULID No. 7. Minutes of

the April 8 meeting include this entry:

              Commissioner [Stan] DeBruler read the letter of protest from Mr.
       Von Holstein aloud to the [b]oard members. Von Holstein’s property is 76
       acres, abuts Mt. Grandeur. Mr. Von Holstein wants out because he has no
       legal access because of easements. Supt. Kloss explained to the [b]oard
       members the adjoining property owners and the neighboring easement
       problems. Easement possibilities were discussed by the [b]oard and it was
       suggested that a response to Mr. Von Holstein be made as soon as possible.

CP at 142.


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Darland v. Snoqualmie Pass Utility District


       On June 24, 1987, the Snoqualmie Pass Sewer District held a public hearing on the

final assessment roll for ULID No. 7. During this June 24 public hearing, a

representative of Michael Von Holnstein read a letter from Von Holnstein that expressed

dismay over assessments on his property with no development potential. The letter

claimed SnoCadia could not be developed because it lacked a sixty-foot right of way for

access as required by the county. After the reading of the letter, the following dialogue

transpired:

              PRES. CRAVEN: Is there any other person that would like to
       address the Board relative to their property?
              JOHN HIGHT: I have a question. With a piece of property big
       enough to split and divide into another lot, will I have to pay the $710 two
       times?
              PRES. CRAVEN: You will have to pay another $710.
              SUPT. KLOSS: Property under one acre is entitled to one hookup
       and for anything above that you have to pay a hookup fee—710 is
       prepaying that hookup.
              SEC. DEBRULER: These are guaranteed hookups. We are
       guaranteeing you water. This ULID # 7 is bringing water in trunk line past
       your property.

CP at 39.

       On July 31, 1987, Snoqualmie Pass Sewer District Superintendent Richard Kloss

sent notice to all district customers that the district would proceed with ULID No. 7

construction. The notice further declared:

              The District will only be responsible for the water mains and the line
       from the main to the property line. The water service line is the
       responsibility of the homeowner or business.


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CP at 33.

       In 1989, Louis Leclezio approached Michael Von Holnstein about purchasing

SnoCadia. To that end, Leclezio formed a joint venture investment group named Miller

Shingle Company. At the time Louis Leclezio negotiated a purchase of the acreage, he

knew that the land sat within the Snoqualmie Pass Sewer District boundaries and that the

property was subject to ULID Nos. 4 and 7. Leclezio further knew that Michael Von

Holnstein had defaulted on the ULID assessments and the assessments had accrued

penalties and interest. Finally, Leclezio knew that the sewer district had threatened to

foreclose on the land unless Count Von Holnstein paid amounts owed.

       Before Miller Shingle Company purchased SnoCadia, Louis Leclezio viewed the

land and reviewed records at the Snoqualmie Pass Sewer District and at Kittitas County.

Leclezio met with sewer district superintendent Richard Kloss. Leclezio wanted to

confirm the availability of water and sewer for the land and its potential for rezoning to

commercial use. Due to penalties and interest, the amount owed by Von Holnstein to the

district substantially exceeded the property purchase price, and so Leclezio sought to

measure the potential gain from payment of the assessments.

       According to Louis Leclezio, during a meeting with Snoqualmie Pass Sewer

District Superintendent Kloss, Kloss showed Leclezio a hookup status ledger maintained

by the district. The ledger disclosed that the sewer district owed Michael Von

Holnstein’s property two hundred and thirty water hookups and thirty-eight sewer

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Darland v. Snoqualmie Pass Utility District


hookups. Kloss also represented to Leclezio that the district guaranteed the hookups to

the land. Finally, Kloss represented to Leclezio that the sewer district guaranteed

delivery of the water and sewer lines to the boundary of each tax parcel of property

within the district. Thus, Leclezio concluded that, on payment of the assessments,

penalties, and interest accrued on SnoCadia, the district would provide the property a

minimum of two hundred and thirty water hookups and thirty-eight sewer hookups and

the sewer district would, at its cost, run the sewer and water mains from the district’s then

existing termini to at least the boundaries of SnoCadia. According to Leclezio, the

district’s guarantees induced him to purchase SnoCadia from Michael Von Holnstein and

to pay all assessments, penalties, and interest owed to the district on closing of the

purchase.

       Michael Von Holnstein transferred SnoCadia’s 76.8 acres of land to Miller

Shingle Company on June 1, 1989. The company paid the purchase price to Von

Holnstein and $492,781.44 to Snoqualmie Pass Sewer District for ULID Nos. 4 and 7

assessments, interest, and penalties. On September 12, 1989, the Board of Kittitas

County Commissioners approved Louis Leclezio’s request to rezone SnoCadia from

forest and range land to commercial land.

       At some date between 1989 and January 30, 1998, the Snoqualmie Pass Sewer

District changed its name to Snoqualmie Pass Utility District, the name of the defendant

in this suit. In January 1998, Louis Leclezio commenced preparations for the marketing

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Darland v. Snoqualmie Pass Utility District


and sale of the property. He sought confirmation from the Snoqualmie Pass Utility

District as to the number of water and sewer hookups available to the property. In

response to the inquiry, the utility district faxed a copy of a one page document headlined

“Hookup Status.” CP at 145. The document continued to show the acreage would

receive two hundred and thirty unused water hookups and thirty-eight unused sewer

hookups.

       On August 11, 1999, the board of commissioners of the Snoqualmie Pass Utility

District convened. Meeting minutes from August 11 portend a water shortage within the

district. The minutes read, in part:

                          SYSTEM CONNECTION CHARGES
              Supt. Kloss distributed copies of a draft resolution from Foster
       Pepper & Shefelman to rescind pre-paid hookups as was discussed at our
       last meeting. After a lengthy discussion the Board agreed to research this
       matter further and see what other alternatives might be available. In the
       meantime we need to put together a plan before any action can be taken.
              Supt. Lenihan stated that our water rights issue is the biggest
       problem. With our current water rights we cannot honor the water
       hookups. He also reported that our wells are not reliable and the plan
       should include for the cost to put in a new well and additional storage.

CP at 45.

       In March 2001, the Snoqualmie Pass Utility District adopted a temporary

moratorium on the issuance of new certificates of water availability. The utility district

then acknowledged nearly exhausting its available water rights.

       In June 2001, Louis Leclezio received an offer from an unidentified purchaser to


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Darland v. Snoqualmie Pass Utility District


purchase SnoCadia for $6 million subject to confirmation of available water and sewer

utilities. Thereafter, Leclezio and Snoqualmie Pass Utility District exchanged a series of

letters, primarily written by attorneys, through which Leclezio sought to confirm the right

to water and sewer hookups and in which the utility district denied any guarantee for

hookups.

       On June 2, 2001, attorney R. Drake Bozarth sent a letter on behalf of Louis

Leclezio and Miller Shingle Company to the Snoqualmie Pass Utility District. The letter

informed the utility district that a developer wished to acquire the property subject to the

district reconfirming in writing the total number of water and sewer hookups available.

On July 18, 2001, the Snoqualmie Pass Utility District replied to Drake Bozarth’s letter:

              The District’s current policies for property owners in the District
       seeking water service are set forth in Resolution No. 2001-3, adopted by the
       Board of Commissioners on March 14, 2001, and Resolution No. 2001-6,
       adopted by the Board of Commissioners on April 25, 2001. Pursuant to
       Resolution No. 2001-6, a waiting list for the allocation of remaining and
       future water supply was established.

CP at 49.

       On September 5, 2001, Drake Bozarth, on behalf of Louis Leclezio, advised the

Snoqualmie Pass Utility District that Leclezio prepaid for two hundred and thirty water

hookups and thirty-eight sewer hookups under ULID Nos. 4 and 7. Bozarth again

requested that the utility district verify in writing the availability of water and sewer

service to the 76.8 acres. On September 6, 2001, the utility district’s attorney, Marc


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Darland v. Snoqualmie Pass Utility District


Greenough, sent another letter to Bozarth. The letter read in part:

              With respect to your client’s claim that your client’s payment of
       ULID assessments is the equivalent of a system connection charge, there
       appears to be some misunderstanding in distinguishing ULID assessments
       and system connection charges. The District has authority to impose ULID
       assessments under RCW 57.16.050. The District has separate authority to
       impose system connection charges under RCW 57.08.005. In classifying
       customers, the District may in its discretion consider capital contributions
       made to this system including assessments. RCW 57.08.081.
              It appears that at certain times in the past, the District has maintained
       a policy of granting credits against system connection charges for ULID
       assessments that have been paid. However, a credit against a system
       connection charge is not the same as payment of the system connection
       charge itself. Please note that any credit for ULID assessments against
       future payment of system connection charges is at the discretion of the
       Board of Commissioners of the District. RCW 57.08.081.

CP at 57-58.

       On September 18, 2001, Drake Bozarth, on behalf of Louis Leclezio, notified the

Snoqualmie Pass Utility District by letter that its conduct and apparent rescission of its

obligations by reason of his payment of the ULID assessments would cause a substantial

decrease in the market value of SnoCadia. On September 23, 2003, Daniel Mallove, new

counsel for the utility district, wrote to Brian Dorsey, new counsel for Louis Leclezio:

               Your August 6, 2003 letter also asked the District to confirm the
       entitlement of the Leclezio/Darland property to a certain number of water
       and sewer connections and the actual capacity of the District to meet what
       you describe as the District’s “obligation under those entitlements.”
               As you may be aware, the District wrote to R. Drake Bozarth, your
       clients’ previous counsel, on November 15, 2001 concerning the issues you
       have raised. Please be advised that the District’s position has not changed
       since that letter was sent. Specifically, it is the District’s position that your
       clients do not have a guaranteed entitlement to any water and sewer

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Darland v. Snoqualmie Pass Utility District


       connections to their property. Rather, pursuant to District Resolution No.
       87-11, your clients received a monetary credit to be applied to the system
       connection charges to be paid by your clients as part of the District’s
       issuance of a Certificate of Water Availability for the subject property.
               If your clients wish to obtain water or sewer service, they will need
       to file an appropriate application for service pursuant to the requirements of
       Resolution No. 2002-05 or any other applicable resolutions passed by the
       District.

CP at 63. Thereafter, the proposed sale of the property failed due to the refusal of the

utility district to confirm the availability of water and sewer service to the property.

       On June 12, 2003, Miller Shingle Company sold SnoCadia to Louis Leclezio,

Michael Darland, and Myrna Darland. The deed specifically conveyed

              water rights, utilities, including Snoqualmie Pass Utility District
       water and sewer hook-ups, (believed, without warranty by grantor, to
       consist of 230 water hook-ups and 38 sewer hook-ups).

CP at 84. Under a related, but separate, contract between Louis Leclezio, on the one

hand, and Michael and Myrna Darland, on the other hand, the Darlands would hold title

to the entire property and would convey twenty-six acres to Leclezio on the satisfaction

of certain conditions, including proof that the property was entitled to receive two

hundred and thirty water hookups and thirty-eight sewer hookups. The Darlands

intended a residential development on the land and christened the proposed development

SnoCadia.

       Currently the Snoqualmie Pass Utility District sewer main ends two thousand and

two hundred feet from the southern line of SnoCadia. The utility district’s water main


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Darland v. Snoqualmie Pass Utility District


ends four thousand and five hundred feet from the property. No easements permit lateral

lines to traverse between the two main lines and the 76.8 acres. Private landowners own

some of the land between the water and sewer mains and SnoCadia. The Washington

State Department of Transportation or United States Forest Service owns other

intervening land.

       At some unknown date, the Washington State Department of Transportation

granted to Michael and Myrna Darland’s predecessors a twenty-foot access easement to

the property. Nevertheless, Kittitas County requires the Darlands to obtain two sixty-foot

access easements in order to develop the acreage for residences.

                                       PROCEDURE

       The case has a long fifteen year history. On July 14, 2004, Michael and Myrna

Darland and Louis Leclezio sued Snoqualmie Pass Utility District. The Darlands and

Leclezio requested a declaratory judgment, a writ of mandamus, and damages for inverse

condemnation, breach of contract, estoppel, and tortious interference. The Darlands and

Leclezio asked for an order establishing their right to the delivery of services to the

outside boundaries of SnoCadia in order to serve two hundred and thirty residential units

with water and thirty-eight residences with sewer. The Darlands and Leclezio also

sought an order compelling Snoqualmie Pass Utility District to lay lateral lines from its

main trunk lines to the property’s outside borders. Later the Darlands would demand that

the utility district condemn intervening land to procure for the Darlands sixty-foot access

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Darland v. Snoqualmie Pass Utility District


easements.

       On August 30, 2004, the Snoqualmie Pass Utility District answered Michael and

Myrna Darland’s and Louis Leclezio’s complaint and primarily denied the complaint’s

allegations. Nevertheless, the utility district admitted that, through the formation of

ULID Nos. 4 and 7, it entered into a contract with the owners of property within those

two ULIDs. The contract conferred special benefits to those property owners. The

district raised many affirmative defenses, including the statute of limitations.

       On January 25, 2005, Michael and Myrna Darland and Louis Leclezio moved for

partial summary judgment on the following questions, among others:

              Issue No. 1: Did the District guarantee that the Property would
       receive 230.07 ERU’s of water service and 38.37 ERU’s of sewer service
       as a “special benefit” to the Property by assessing the Property for said
       service, when all assessments have been paid in full?
              ....
              Issue No. 3: Is the District obligated, at its sole expense, to extend
       the water and sewer mains to at least the boundary of each parcel
       comprising the Property, with sufficient capacity to deliver at least 400
       gallons per day (gpd) of water per hook-up?

CP at 921-22 (boldface omitted).

       The trial court granted in part and denied in part Michael and Myrna Darland’s

and Louis Leclezio’s summary judgment motion. The trial court concluded that Michael

and Myrna Darland and Louis Leclezio were entitled to receive two hundred and thirty

hookups of water service at four hundred gallons per day per residence and thirty-eight

hookups of sewer service as a special benefit under ULID Nos. 4 and 7. The court denied

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summary judgment as to the question of whether the utility district must, at its expense,

extend the water and sewer mains to the property boundaries. The court found competing

facts as to whether the utility district agreed to extend service lines to SnoCadia.

       In September 2005, the parties entered a memorandum of agreement tentatively

resolving the dispute. Under the agreement, each party assumed separate responsibilities

to seek necessary right-of-way permits and easements to create access to the 76.8 acres in

order to allow development of SnoCadia. The Snoqualmie Pass Utility District incurred

the primary responsibility of seeking utility related rights-of-way, easements, and

permits. The Darlands assumed the primary responsibility to obtain all access related

easements and permits, principally in the form of two sixty-foot wide access roads to the

property in order to comply with county requirements for development. The procurement

of easements was a condition to the memorandum agreement becoming a binding

agreement and to the Darlands dismissal of this suit. On October 4, 2005, the parties

entered a stipulation and order staying litigation pending settlement. For the next nine

years, the parties unsuccessfully sought easements from third parties to accommodate

development of SnoCadia.

       On August 20, 2014, Michael and Myrna Darland filed their first amended

complaint. The complaint alleged breach of contract, breach of implied covenant of good

faith and fair dealing, negligence, inverse condemnation, estoppel, and unjust enrichment.

The complaint sought damages and a declaratory judgment.

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       In January 2015, the Darlands again moved for partial summary judgment. The

Darlands requested that the trial court compel the district to use its powers of eminent

domain to condemn two sixty-foot-wide access and utility easements over privately held

properties so that the Darlands’ property could utilize the special benefits conferred by

ULID Nos. 4 and 7.

       The trial court denied Michael and Myrna Darland’s second summary judgment

motion. On April 16, 2015, the trial court entered the following order:

               (1) With respect to the issue of road access to plaintiff’s [sic] property,
       because defendant does not have the legal authority to exercise its powers of
       eminent domain to condemn property for the purpose of providing road access to
       plaintiffs’ property, plaintiffs are not entitled to judgment against defendant as a
       matter of law on that issue;
               (2) With respect to the issue of extending utility service to plaintiff’s [sic]
       property, questions of fact exist as to (a) which party should pay for the costs of
       any eminent domain proceeding which may be necessary to acquire the property
       rights to extend utility service to plaintiff’s [sic] property and (b) which party
       should pay for the costs of installation of the water and sewer mains needed to
       extend utility service to plaintiff’s [sic] property; and
               (3) Consequently, Plaintiffs’ Motion for Partial Summary Judgment is
       DENIED.

CP at 1555. In its letter memorandum explaining its decision, the trial court observed

that Snoqualmie Pass Utility District will not be required to provide access easements,

but will be required to provide utility easements. The court wrote:

              As to the cost of bringing the utilities to the edge of the property,
       Judge Cooper explained in 2005 that a question of fact remains regarding
       whether defendant is required to, at its sole expense, extend water and
       sewer mains to the property boundary so that plaintiffs can enjoy the
       special benefits for which they have already paid. Accordingly, that

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      question remains in need of a trial. While it may ultimately be determined
      after trial that defendant should pay for the legal costs of the eminent
      domain proceeding and that plaintiffs should pay for the “dirt work”
      (trenching and pipe costs), the court could also fashion some other sort of
      remedy. In any event, it does at this point seem beyond dispute that
      defendant shall have to, whether it wishes or not, exercise its power of
      eminent domain to ensure that plaintiff has access to the sewer and water
      benefits already paid for. “In order for a sewer to be susceptible of use to a
      given parcel of land, there must be access from said land to said sewer
      without passing through the property of other individuals.” Memorandum
      Decision, page 9 (quoting Towers v. Tacoma, 151 Wash. 577, 583 (1929)).

CP at 1104.

      On July 8, 2015, Michael and Myrna Darland filed a motion for partial summary

judgment seeking to recover the monies paid to Snoqualmie Pass Utility District under

ULID Nos. 4 and 7 for water and sewer service. On October 22, 2015, the utility district

cross-moved for summary judgment on the Darlands’ claim for return of money paid. On

December 28, 2015, the trial court denied the Darlands’ motion for partial summary

judgment and granted the district’s motion for summary judgment. The trial court

thereby dismissed the action for reimbursement. In a memorandum decision, the trial

court explained:

              Having exhausted their ability to obtain adequate access to this
      property (and presumably develop it like originally envisioned), plaintiffs
      resort to the only remedy they can presently conceive of: a money judgment
      against defendant for the value paid of past assessments, plus interest. This
      request is put forth with full knowledge that plaintiffs themselves never
      paid one penny towards the assessments in question: those assessments
      were paid for by the previous landowners. The overall condition of the
      property was known, or should have been known, to plaintiff when it was
      purchased. The price of the property when plaintiffs purchased it

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       necessarily included every facet of that property; and every tort, contract,
       easement or other legal burden cognizable at law was transferred with the
       property to the plaintiffs when they took that deed. There was then and is
       now no cognizable claim for recoupment of previously paid ULID
       assessments.
              From the evidence presented it is clear that defendant has done
       nothing to harm plaintiffs or their property, and the assessments defendants
       previously collected from the previous landowners were legally collected
       and legally expended, and nothing has been presented by plaintiff which
       establishes a need to have a trial about anything. Defendant’s motion
       should be granted, plaintiffs’ motion should be denied, and the case should
       be dismissed entirely.

CP at 249, 710 (emphasis added). On December 28, 2015, the trial court entered an order

granting the Snoqualmie Pass Utility District’s summary judgment motion, which order

reads, in part:

              IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
       (1) Defendant’s Cross-Motion for Summary Judgment is GRANTED;
       (2) Plaintiffs’ Motion for Partial Summary Judgment Seeking to Recover
       All Monies Paid to District is DENIED; and this action is dismissed
       without fees or costs to either party.

CP at 250, 711.

       Michael and Myrna Darland appealed and focused on forcing Snoqualmie Pass

Utility District to condemn access easements to SnoCadia or to refund the special

assessments paid. This court issued “no ruling as to whether the 2015 order dismissing

the action abrogated the 2005 order obligating the utility district to provide water and

sewer hookups.” CP at 251. It also declined to answer the Darlands’ first two issues

raised on appeal. Those two issues included the following two questions:


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               Issue 1: Is the Snoqualmie Pass Utility District obligated at its costs
       to extend the existing water and sewer lines to Darlands’ property under
       ULID Nos. 4 and 7?
               Answer 1: We do not answer this question because the parties did
       not properly brief the issue.
               ....
               Issue 2: Did the trial court err when ruling that the Snoqualmie Pass
       Utility District lacks legal authority to condemn private property for access
       and utility easements benefitting the Darlands’ property?
               Answer 2: We do not address this issue because the Snoqualmie Pass
       Utility District lacks any obligation to condemn property for the purpose of
       access to the Darlands’ land.

CP at 251, 254. Regarding the Darlands’ third issue, this court held that RCW 57.16.100

barred the Darlands’ reimbursement claim.

       On the first appeal, this court declined to address Snoqualmie Pass Utility

District’s contentions that the statute of limitations barred Michael and Myrna Darland’s

lawsuit and the Darlands lacked standing to assert claims against the utility district. This

court affirmed the trial court’s 2005 and 2015 summary judgment orders and remanded to

the trial court “for what, if any, further proceedings are appropriate.” CP at 263.

       On November 21, 2017, Michael and Myrna Darland again moved, in superior

court, for partial summary judgment. The Darlands sought to compel Snoqualmie Pass

Utility District to use its statutory power of eminent domain to condemn the utility

easements necessary to deliver water and sewer service to the boundary of SnoCadia. On

November 22, 2017, the utility district cross-moved for summary judgment on the statute

of limitations and other grounds.


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       On April 23, 2018, the superior court granted Snoqualmie Pass Utility District’s

partial summary judgment motion and dismissed all of the Darlands’ causes of action as

time-barred. In a letter ruling, the trial court explained that any claim for breach of

contract was extinguished by the statute of limitations before Michael and Myrna Darland

purchased SnoCadia. Also, the utility district had performed no wrongful act toward the

Darlands. According to the superior court, earlier summary judgment rulings

determining that the Darlands possessed a right to sewer and water hookups were wrong

in light of the statute of limitations. The court qualified its ruling by stating that the

Darlands might hold enforceable rights to hookups if they filed an engineered application

to the utility district. The superior court dismissed the lawsuit in its entirety.

                                   LAW AND ANALYSIS

       The superior court granted summary judgment to Snoqualmie Pass Utility District

based on the statute of limitations. In reviewing a summary judgment, this court engages

the same inquiry as the trial court. Wolfe v. Department of Transportation, 173 Wn. App.

302, 305, 293 P.3d 1244 (2013). Therefore, this court’s review is de novo. Briggs v.

Nova Services, 166 Wn.2d 794, 801, 213 P.3d 910 (2009). Summary judgment is proper

if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show the absence of any 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). This

court construes all facts and reasonable inferences in the light most favorable to the

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No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


nonmoving party. Enterprise Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988

P.2d 961 (1999).

       Michael and Myrna Darland contend that, in granting summary judgment to the

district, the trial court erroneously concluded that all of their claims accrued in the 1980s

when the predecessor to Snoqualmie Pass Utility District formed the utility local

improvement districts and assessed property owners for the expenses of the local

districts. The Darlands characterize their claims as seeking compensation for action of

the utility district occurring in 2001. During that year, the utility district first declared an

unwillingness to provide water services to the property. We agree. Because the Darlands

sued within three years of Snoqualmie Pass Utility District’s failure to assure service, the

statute of limitations bars none of the remaining claims. At least a question of fact exists

as to the timeliness of Michael and Myrna Darland asserting those claims.

       Despite reversing summary judgment in favor of the utility district on the basis of

the statute of limitations, undisputed facts permit us to grant the district summary

judgment on two of Michael and Myrna Darland’s causes of action. We address the

defense of the limitation period first.

                                  Law of the Case Doctrine

       Before addressing the Snoqualmie Pass Utility District’s defense of the statute of

limitations, we must resolve a preliminary question. Michael and Myrna Darland assert

that the law of the case doctrine bars the utility district from raising the defense because

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No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


the district raised the defense in a 2015 partial summary judgment motion and in the first

appeal and because the superior court’s 2005 ruling, affirmed in the first appeal by this

court, included a finding that the utility district’s first actionable conduct occurred on July

18, 2001.

       Under the law of the case doctrine, questions determined on appeal, or which

might have been determined had they been presented, will not again be considered on a

subsequent appeal without a substantial change in the evidence. State v. Worl, 129

Wn.2d 416, 425, 918 P.2d 905 (1996). Accordingly, the parties, the trial court, and this

court are bound by the holdings of the court on a prior appeal until such time as they are

authoritatively overruled. Greene v. Rothschild, 68 Wn.2d 1, 10, 414 P.2d 1013 (1966).

In 1976, our Supreme Court adopted RAP 2.5(c)(2), codifying the law of the case

doctrine:

              Prior Appellate Court Decision. The appellate court may at the
       instance of a party review the propriety of an earlier decision of the
       appellate court in the same case and, where justice would best be served,
       decide the case on the basis of the appellate court's opinion of the law at the
       time of the later review.

The doctrine is discretionary, not mandatory. Greene v. Rothschild, 68 Wn.2d at 8.

       After remand from this court, the superior court directly addressed whether the

statute of limitations barred Michael and Myrna Darland’s claims. The superior court

never earlier addressed the question. Nor did we reach this question during the first

appeal. We earlier ruled: “[b]ecause we affirm dismissal of Michael and Myrna

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No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


Darland’s request for reimbursement of special assessments paid, we do not address

Snoqualmie Pass Utility District’s contentions that the statute of limitations bars the

claim . . . .” CP at 262. The “claim” referenced is the Darlands’ claim for reimbursement

of the special assessments that the predecessor in interest paid. Since no court earlier

addressed the utility district’s argument that the statute of limitations barred the

remaining claims, the law of the case doctrine does not apply.

                                       Contract Claim

       We analyze the application of the statute of limitations for some of the discrete

claims asserted by Michael and Myrna Darland against Snoqualmie Pass Utility District.

We begin with the contract claim.

       The parties agree that Snoqualmie Pass Utility District’s formation of ULID Nos.

4 and 7 created a written contract between the utility district and owners of the property

within the two local districts, under which the utility district would provide water and

sewer services to property. Both parties also agree that RCW 4.16.040 imposes a six year

limitation period on “an action upon a contract in writing, or liability express or implied

arising out of a written agreement.” RCW 4.16.040(1). The Darlands and the utility

district disagree as to the accrual date of the Darlands’ breach of contract claim.

       The statute of limitations in a contract action begins to run at the time of the

breach. City of Algona v. City of Pacific, 35 Wn. App. 517, 521, 667 P.2d 1124 (1983).

The Darlands argue that the utility district first breached the parties’ contract on July 18,

                                              22
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


2001. On that day, the Snoqualmie Pass Utility District replied, to Louis Leclezio’s

counsel’s request for confirmation of water and sewer hookups, with a letter avoiding the

question and stating that the utility district now kept a waiting list for the allocation of its

water supply. The Darlands filed their complaint less than three years later, on July 14,

2004.

        The utility district claims that the 2001 letter did no repudiate any contract, but

rather its precedent board of commissioners created a waiting list for services. We reject

the utility district’s argument for several reasons. First, even if the 2001 resolutions only

created a waiting list, the creation of such a list breached the contract for services since

no waiting list existed when Snoqualmie Pass Utility District created the utility local

improvement districts, imposed assessments on the land, and agreed to provide services

in consideration for the assessments. Second, if we adopted the utility district’s position,

no breach of contract has yet to occur such that the statute of limitations has not even

commenced to run. Third, the superior court ruled in 2005 that the Darlands were

entitled to water and sewer service. This refusal occurred in 2001 and the Darlands

timely filed their breach of contract claim in 2004.

        Snoqualmie Pass Utility District argues that the statute of limitations on the utility

local improvement district contracts accrued in 1983 and 1987. The utility district relies

on this court’s language in the first appeal, “[i]f Count Von Holnstein determined that the

problematic circumstances resulted in a lack of benefits to the 76.8 acres, he had the right

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No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


to file a lawsuit challenging the ULIDs within” six years. CP at 262. The district

mischaracterizes this court’s language, however. This passage from the opinion

discussed the lack of sixty-foot access easements to the SnoCadia land, i.e. “conditions

that erect difficulties for SnoCadia to benefit from the ULIDs,” obstacles which were also

present at the time of the ULID assessments. CP at 262. If the Darlands were

challenging the validity of the initial ULID assessments from the 1980s, then the utility

district’s reasoning would apply.

                     Implied Covenant of Good Faith and Fair Dealing

       Michael and Myrna Darland asserted no cause of action for the implied covenant

of good faith in the original complaint filed on July 14, 2004. The Darlands inserted this

claim in their first amended complaint, filed on August 20, 2014. Civil Rule 15(c) states,

“[w]henever the claim or defense asserted in the amended pleading arose out of the

conduct, transaction, or occurrence set forth or attempted to be set forth in the original

pleading, the amendment relates back to the date of the original pleading.” The

Darlands’ claim for breach of the implied covenant arises from the same conduct as

alleged in the Darlands’ original complaint. Because this cause of action benefits from

the relation back doctrine, for statute of limitations purposes, we treat the claim as filed

on July 14, 2004. Thus, the cause of action based on the covenant survives the statute of

limitations. Both parties agree that claims for the breach of good faith and fair dealing, a

tort, must be brought within three years. RCW 4.16.080.

                                              24
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


                                         Negligence

       Michael and Myrna Darland asserted their claim for negligence for the first time in

the 2014 amended complaint. The cause of action surrounds the same conduct

supporting the breach of contract claim. Therefore, this claim also survives the statute of

limitations because of the relation back doctrine under CR 15(c).

       The statute of limitations for a negligence action is three years. RCW 4.16.080(2).

The statute of limitation period begins to run when the plaintiff’s cause of action accrues.

Giraud v. Quincy Farm & Chemical, 102 Wn. App. 443, 449, 6 P.3d 104 (2000).

Usually, the cause of action accrues when the plaintiff suffers injury, however, the three

year limitations period is tolled “until the plaintiff knows or, through the exercise of due

diligence, should have known all the facts necessary to establish a legal claim.” Giraud

v. Quincy Farm & Chemical, 102 Wn. App. at 449.

       The utility district maintains that negligent injury to property claims are subject to

a two year statute of limitations under RCW 4.16.130. While we agree with the utility

district’s legal contention, we find the argument factually misplaced. The Darlands

ground their negligence claim on the utility district’s failure to take the steps necessary to

deliver water and sewer to the property, not for any physical damage to the land. We

render no decision as to the validity of the merits of the negligence claim since the parties

do not brief this issue.



                                              25
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


                                         Estoppel

       We now begin to address causes of action about which questions exist as to the

viability of the claims on the merits in addition to the limitation period. Although

Michael and Myrna Darland refer, in their amended complaint, to a claim for estoppel,

they now characterize the cause of action as one for promissory estoppel. In addition to

arguing the statute of limitations bars the promissory estoppel action, Snoqualmie Pass

Utility District contends the merits of the cause of action fails as a matter of law. We

disagree.

       Snoqualmie Pass Utility District relies on Spectrum Glass v. Public Utility District

No. 1 of Snohomish, 129 Wn. App. 303, 317, 119 P.3d 854 (2005), which stands for the

proposition that promissory estoppel does not apply when a contract governs. Stated

differently, the promise must lie outside the confines of a binding agreement.

Nevertheless, Michael and Myrna Darland rely on some promises not contained in the

writings surrounding formation of the utility local improvement districts. Those promises

include comments of utility district employees and a ledger showing SnoCadia entitled to

sewer and water hookups.

       Snoqualmie Pass Utility District argues, in the alternative, that the promises relied

on by the Darlands occurred long before the couple acquired the property, and therefore

any cause of action is barred by the statute of limitations. Nevertheless, the cause of

action for promissory estoppel accrues on breach of the promise not when the defendant

                                             26
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


relays the promise. Again, since there is a genuine issue of material fact as to when the

Darlands’ claims accrued, summary judgment was improper.

                                     Unjust Enrichment

       The Darlands’ claim for unjust enrichment alleges, in relevant part:

              As a result of the District’s refusal and/or failure to deliver the
       special benefits for which the Subject Property was assessed and paid for,
       the District has been unjustly enriched by the amount of the assessments,
       penalties, and interest it received relating to the Subject Property. Said
       amounts, together with pre-judgment interest, should be disgorged and
       restored to Darland.

CP at 213. Based on this language, Snoqualmie Pass Utility District contends that the

Darlands’ unjust enrichment claim merely restates their dismissed claim for

reimbursement of assessments paid.

       A claim for unjust enrichment may be brought by a party to recover the value of a

benefit retained even absent any contractual relationship, if fairness and justice require it.

Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008). Unjust enrichment includes

three elements: (1) the defendant receives a benefit, (2) the received benefit is at the

plaintiff’s expense, and (3) the circumstances make it unjust for the defendant to retain

the benefit without payment. Young v. Young, 164 Wn.2d at 484-85. The Darlands do

not meet element two. The Darlands never paid for the assessments, and so they cannot

establish the received benefit was at their expense.




                                              27
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


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

Swinehart v. City of Spokane, 145 Wn. App. 836, 844, 187 P.3d 345 (2008). We affirm

dismissal of the unjust enrichment claim on its merits.

                                   Inverse Condemnation

       Snoqualmie Pass Utility District argues that the subsequent purchaser rule bars the

Darlands’ inverse condemnation claim. We agree.

       In Hoover v. Pierce County, 79 Wn. App. 427, 433, 903 P.2d 464 (1995), this

court reinforced the general rule that a grantee or purchaser of land cannot sue for a

taking or injury occurring prior to his acquisition of title, but rather, the subsequent

purchaser may sue only for a new injury or taking. A prior owner’s right to damages for

injury to property does not pass to a subsequent purchaser unless expressly conveyed.

Crystal Lotus Enterprises Ltd. v. City of Shoreline, 167 Wn. App. 501, 505 n.8, 274 P.3d

1054 (2012). An exception to the doctrine exists when additional governmental action

causes a measureable decline in market value during the claimant’s ownership. Wolfe v.

Department of Transportation, 173 Wn. App. at 308 (2013).

       Louis Leclezio paid the assessments. Any additional governmental action

purportedly occurred on July 18, 2001. At that time, Miller Shingle Company and

Leclezio owned the property. Michael Darland and Myrna Darland did not acquire title

to the property until 2003.



                                              28
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


                                      Utility Easements

       Michael and Myrna Darland assign error on appeal to the trial court’s refusal to

rule that the utility district possessed legal authority to condemn the utility easements

necessary to deliver to SnoCadia the 230 water hook-ups and 38 sewer hook-ups, which

the land should receive, as a matter of law, pursuant to this court’s prior decision. The

superior court did not address this contention because of dismissal of claims based on the

statute of limitations.

       The Darlands allege that the utility district admitted that it has the statutory

authority to condemn utility easements. The Darlands also contend that the utility district

holds a duty to condemn the utility easements necessary to extend its water and sewer

lines to the Darlands’ property. The utility district argues that, since the trial court did

not reach this issue, this appeals court lacks any ruling to review on appeal. We agree

with the utility district.

       In denying the Darlands’ partial summary judgment motion, the trial court ruled:

               Viewed with limitation of actions principles in mind, the only issue
       that has ever been justiciable in this case is whether the subject property is
       entitled to the special benefits promised under ULID 4 and ULID 7. That
       issue has been settled. The property is entitled to those benefits. To date,
       plaintiffs have never properly attempted to access these benefits. They
       have never submitted a properly engineered application to the District for
       approval. If such an application were submitted and unreasonably rejected,
       it seems that plaintiffs could then sue to enforce their rights.




                                              29
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


CP at 1540. The court’s letter ruling involves no discussion of whether the utility district

has the statutory authority to condemn private land for utility easements.

         The Darlands observe that the utility district admitted in prior briefing to the trial

court that it has the statutory authority to condemn utility easements. The utility district

wrote:

                The District clearly has the authority to condemn property for the
         purpose of installing water or sewer lines and other utility facilities on
         property, and the District clearly has the express authority to condemn land
         and interests in land for that purpose. See RCW 57.08.005(1), (3), (5), and
         (7).

CP at 534. The Darlands also cite a portion of this court’s prior decision wherein this

court discussed a letter sent by the utility district’s counsel, John Milne, in which he

“recognized a contractual obligation of the utility district to provide an extension of the

utility services to the Darlands’ land and the need for the extension of the utility easement

to fulfill this duty.” CP at 245. The Darlands cite to other statements uttered by this

court in its prior decision, but mischaracterize the quoted language. The misinterpreted

language dealt with access easements, not utility easements.

         When the trial court has not reached an issue, this court lacks a ruling to review.

An appellate court may decline to reach issue where not considered by trial court when

granting summary judgment. Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 609,

94 P.3d 961 (2004).



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No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


                              2017 Court of Appeals Opinion

       Finally, the Darlands ask this court to revisit its prior decision, which declined to

decide whether the utility district has authority to condemn access easements to

SnoCadia. The Darlands contend that this court incorrectly ruled that the Darlands

provided no evidence that the utility district represented it would provide access

easements to SnoCadia and this court mistakenly commented that the Darlands failed to

cite authority for the argument. Snoqualmie Pass Utility District replies that this court

cannot or should not change its prior decision. We agree with the utility district.

       RAP 2.5(c)(2) provides that, “[t]he appellate court may at the instance of a party

review the propriety of an earlier decision of the appellate court in the same case and,

where justice would best be served, decide the case on the basis of the appellate court’s

opinion of the law at the time of the later review.” This court will grant reconsideration

of an identical legal issue in a subsequent appeal of the same case when the holding of

the prior appeal is clearly erroneous and the application of the law of the case doctrine

would result in manifest injustice. Folsom v. County of Spokane, 111 Wn.2d 256, 264,

759 P.2d 1196 (1988).

       Michael and Myrna Darland strenuously argue that, during the first appeal, they

provided evidence of promises made by Snoqualmie Pass Utility District that it would

provide access easements. Nevertheless, in this second appeal the Darlands still fail to

cite the record for any promise uttered by the utility district about access easements.

                                             31
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


       In this second appeal, the Darlands reference their prior briefing to establish a

legal obligation on behalf of Snoqualmie Pass Utility District to procure access

easements. The Darlands reiterate that, under RCW 8.12.030, the utility district has the

same powers that cities and towns have to condemn land for water and sewer systems.

They state RCW 57.02.030 mandates that the statute be liberally construed to carry out its

purposes and objectives. According to the Darlands, the utility district cannot fulfill its

contractual obligation to the Darlands to provide water and sewer hookups if SnoCadia

lacks access. Nevertheless, as in the prior appeal, the Darlands cite no Washington cases

showing the power to condemn land for a utility user to gain ingress and egress to the

user’s land.

       With the repetitive arguments and citations from prior briefing, the Darlands fail

to show how this court’s prior ruling is “clearly erroneous” and how the application of

the law of the case doctrine results in “manifest injustice” under RAP 2.5(c)(2).

Therefore, we again decline to address the question as to whether the district has the

authority to condemn access easements for the benefit of Michael and Myrna Darland.

                                      CONCLUSION

       We affirm the superior court’s dismissal of Michael and Myrna Darland’s claims

for unjust enrichment and inverse condemnation. We reverse the dismissal of the

Darlands’ other causes of action and remand for further proceedings consistent with this

opinion.

                                             32
No. 36002-4-III
Darland v. Snoqualmie Pass Utility District


       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.




                                              Fearing, J.

WE CONCUR:




Lawrence-Berrey, C.J.




Pennell, J.




                                            33
