                                                                                                        COURTFILED



                                                                                                                  OF APPEALS
                                                                                                               V/ SUO     II.

                                                                                                      ZO I /: JUN 17
                                                                                                                       f H 8: 36




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

JUSTIN        M.      NELSON           and     ALLISA     S.                     No. 44240 -0 -II
ADAMS -
      NELSON,


                                         Appellants,


         v.



SKAMANIA COUNTY, WASHINGTON, and                                           UNPUBLISHED OPINION
SHANNON               FRAME           and     JANE     DOE
FRAME, and the community thereof,

                                         Respondents.




         LEE, J. —          Justin Nelson and Allisa Adams- Nelson sued Skamania County and Shannon

Frame, alleging that the County' s former landfill operation on adjacent property caused debris to

flow   onto   his property.         The County successfully moved for summary judgment arguing that all

of Nelson' s claims were barred by applicable statutes of limitations. Nelson appeals arguing ( 1)

the trespass from migrating debris is both continuing and abatable and the County is liable for

damages       until   the   County    removes    the debris, (   2) if the trespass is not abatable, the County is

liable   under a      theory   of   inverse   condemnation     for any takings that have   occurred   in the 10   years
No. 44240 -0 -II



prior   to Nelson      filing   suit,     and (   3)   the trial court abused its discretion in failing to exclude

evidence of a code violation Nelson received four years before filing this lawsuit.

          We hold that genuine issues of material fact preclude summary judgment on Nelson' s

trespass      claim.   Accordingly, we reverse the trial court' s dismissal of Nelson' s trespass claim.

We also hold that Nelson is precluded by the subsequent purchaser rule from recovering under

inverse       condemnation,          and therefore, we affirm the trial court' s dismissal of his inverse


condemnation claim. Finally, we hold that the trial court did not abuse its discretion when, at the

summary judgment stage of proceedings, it refrained from excluding evidence of Nelson' s 2008

code violation. We remand for further proceedings on Nelson' s trespass claim.

                                                                FACTS


A.           BACKGROUND


             In 2005, Dan Huntington, a prior owner of Nelson' s property, filed a complaint with

Skamania County alleging that:

             The portion of this property adjacent to County land is directly in the path of a
             slide that is heavily laden with garbage. The garbage, things like old water tanks,

             car parts, scraps of metal, etc., is coming out of an old county landfill that was

             converted   to the Mt. Pleasant Transfer Site.  The garbage is cluttering up the
             banks of Canyon Creek [ and] interfering with efforts to sell the property.

Clerk'   s    Papers ( CP)      at    135.    The record does not reflect whether the County addressed

Huntington' s complaint.


             In February 2007, Justin Nelson purchased approximately 10 acres of unimproved real

property abutting Canyon Creek in Skamania                              County.       The southern boundary of Nelson' s

property is downslope           and contiguous              to property   owned       by   the   County.    From the 1950s until


1978, the        County   used        a   portion      of    its property   as    a    landfill / urn
                                                                                                b          dump.   After ceasing



                                                                    2
No. 44240 -0 -II



landfill /dump operations in 1978, the County began operating a solid waste transfer station on

the   site.     The County engaged in extensive clean -up efforts to remove solid waste which had

been on the ground at the site in the 1980s.

                                                                                                     1
          Although Nelson          visited   the property on three   occasions   before purchasing it, he alleges


that he was unaware of the debris because inclement weather hindered his inspection efforts on

two visits, and he did not know where the property boundaries were located on the third visit.

Shortly after purchasing the property, Nelson commissioned a 2007 survey to confirm the

property boundaries, and the surveyor told him that there was " a lot of garbage" on the property.

CPat50.


          In October 2008, Nelson showed the property to Washington Department of Fish &

Wildlife ( WDFW)           employee,     William Weiler.      After seeing the property, Weiler relayed the

following to another WDFW employee:

          I have not yet contacted Skamania County, but I find it inconceivable that they
          didn[' t] know     about    this.    Their garbage transfer station was built on the site of
          their former dump site, and to my understanding, closed in the 1970' s.
                       Clearly, the site was not adequately reclaimed and due to unstable
          slopes /mass wasting, I was literally walking on cars, car parts, paints, electrical
          equipment,      tires,   garbage of all sorts.   The area where the garbage originates is a
          perennial      tributary   to Canyon [ Creek], which continues to slide into            Canyon
                   I observed debris for a good half mile downstream along Canyon Creek,
              Creek.
          and if I walked further, there is no doubt that the dump materials would have also
          been in the Washougal River. In my 18 years with WDFW, this is the largest
          toxic waste site I' ve ever seen in association with a fishbearing stream. A lot of

              folks need to look at this and come up with a restoration plan.

CP at 137.




 1
     Nelson    purchased   the property from Shannon Frame,          a successor owner    to Huntington.
No. 44240 -0 -II



           In November 2008, Department of Ecology Inspector Derek Rockett visited the site with

Nelson and Weiler. Rockett concurred with much of Weiler' s assessment and noted:


            F] irst priority at this site should be the prevention of any further solid waste /land
           slides, possibly through bank stabilization and /or creating a buffer between the
           edge        of   the bank   and     the   solid   waste       from the landfill.         An environmental

           assessment may need to be done and potential restoration will be intense.
CP    at   140.        A January 2009 minute entry from the Department of Ecology' s Environmental

Report Tracking System indicates that Ecology would " be following up with the county" on the

issue.     CP     at   140.   The record does not reflect whether any follow up occurred or whether the

County took any action.

           Yakama Nation Fisheries Habitat Biologist Greg Morris visited the site on multiple

occasions       between 2008         and   2012. Based on his observations, Morris concluded that " it appears


that the garbage strewn throughout Mr. Nelson' s property. and in the creek is of the same source

and   continuously migrating down the hill from its                      origin,   the   old    Skamania   County   landfill."   CP


at 189.


           Certified Geologist Warren Krager                 visited      Nelson' s property in 2012.         He observed that


 large, bulky refuse is largely exposed at and above the ground surface" and that smaller refuse

is " thoroughly mixed with silt soil, basaltic gravel and organic matter from natural, long term

slope transport processes such as soil creep, freeze -thaw cycles, snow slides, erosion by running

water,     and     sliding     and   falling   aided   by    gravity."       CP    at    171.     Krager also analyzed aerial


photographs            from 1993 to 2011         and concluded           that August 2009         photographs   showed     that "   a




light colored debris flow scar is visible from the Skamania County Transfer Station" that was not

present in 2006 photographs. CP at 172.




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No. 44240 -0 -II



         Krager      opined         that "   multiple   landfill    refuse       laden debris flows from [          the County' s

property] have been moving into the lower ravine on [ Nelson' s property] from at least as early as

summer of      2005     and    continuing through late             summer of       2009."    CP   at    172 -73.    He concluded


that " without      massive clean        up   and environmental restoration ...              releases of landfill refuse onto


private land and into public water courses will continue unabated for decades into the future."

CP at 173.


B.       PROCEDURE


         On March 13, 2012, Nelson filed a complaint in Clark County Superior Court, which he

later   amended on      April 17. The amended complaint alleged causes of action against Skamania


County for ( 1)      inverse    condemnation, ( 2) private nuisance, (               3)   public nuisance, (       4) common law


nuisance, (   5)    waste, (   6)    common      law trespass,      and (   7)   negligence.    The complaint also alleged


that the property' s former owner, Shannon Frame, breached " his warranties of seizin and right to

convey-because, at the time of conveyance, a portion of the property was possessed by Skamania

County."      CP at 13.


         The County moved for summary judgment, arguing that Nelson' s claims were " barred by

limitations,       absence    of    standing    and other    diapositive defenses."            CP      at   30.   Specifically, the

County argued that ( 1) Nelson' s inverse condemnation claim was barred by the 10 -year statute of

limitations because any              potential , taking   occurred       decades before; ( 2)     Nelson lacked standing to

bring   an   inverse   condemnation claim under               the       subsequent purchaser rule; (          3) Nelson' s claims


for trespass and nuisance were, in actuality, negligent damage to real property claims and should

be treated     as    such; (    4)     Nelson' s trespass and nuisance claims were barred by statutes of

limitation; ( 5) the waste statute, RCW 4. 24. 630, was inapplicable to the facts of this case; and ( 6)




                                                                    5
No. 44240 -0 -II



the two -year statute of limitations governing negligent injury to real property barred Nelson' s

negligence claims.           The County also argued that Nelson' s suit was retaliatory in nature because,

in September 2008, Nelson was cited for a code violation for having a campfire during a burn

ban and for clearing brush within 100 feet of Canyon Creek without appropriate permits.

         Nelson opposed summary judgment arguing that ( 1) the statute of limitations should not

bar the trespass, nuisance, negligence, and inverse condemnation claims because the debris

migration has been continuous in nature, and (2) the subsequent purchaser rule should not bar his

inverse condemnation claim because he was unaware of the debris before buying the property

and    Nelson         paid   significantly     more       for    the       property    than      Frame.          Nelson     included


           declarations
affidavits /                     from Morris        and    Krager,         a certified copy of Krager' s Engineering

Geologic     Reconnaissance             and   Observation Report, Huntington'                    s   2005     complaint,    and the


information from Weiler               and   Rockett    with   his    motions    opposing summary judgment.                   Nelson


also   moved " under         the authority     of   CR 7( b), ER 401, ER 402,                 and      ER 403" to "      exclude   all .




evidence of prior regulatory proceedings against" him. CP at 170, 191.

          At the hearing on the County' s summary judgment motion, the trial court " indicated [ its]

intention    to dismiss         all   of plaintiffs'   claims        against   the    County         other    than   for ` continuing


trespass '       and requested additional        briefing       on   that   claim.    CP    at   216.        The court also denied


Nelson' s request to exclude evidence of Nelson' s code violation because his activity on the

property " may indeed be relevant as to what [ Nelson] may have contributed to whatever' s going

on    that he'   s   alleging   on    his property"    and    that       such evidence     may be " subject to a motion in


limine in front of a jury" or a " specific jury instruction" at a later stage in the proceeding. Report

of   Proceedings ( RP) ( Oct. 5, 2012) at 13.




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No. 44240 -0 -II



          In its    supplemental      briefing,     the   County      argued     that "[    i]n those cases where a continuing

trespass was found, the defendant had continued to actively engage in the tortious conduct which

was    the   subject of    the trespass....         No    comparable circumstances exist                  here."   CP   at   217.   The


County       also   argued,       without    evidentiary     support,      that "     the doctrine of continuing trespass is

unavailable in this case because that cause of action is possible only if the condition created by

the defendant        can     be    removed ` without         unreasonable            hardship     and   expense. "' .   CP at 219.


Nelson responded that the County had failed to present any evidence concerning the abatability

of the condition and " under the established rule, the limitation period is triggered by continuing

damages,       without regard        for continuing       acts."      CP   at   230.       The trial court ruled that the County

was entitled to summary judgment as a matter of law. Later, the trial court amended its ruling to
                                                                                                                                    2
also   dismiss Nelson'        s   breach    of   warranty deed     claim against           Shannon Frame. Nelson         appeals.



                                                             ANALYSIS


A.           TRESPASS CLAIM


             Nelson argues that the trial court erred in granting the County' s motion for summary

judgment on its trespass claim because material issues of fact remain concerning the abatability

of   the condition created           by   the    County' s   trespass.     Nelson has presented sufficient evidence to


raise a genuine issue of material fact regarding whether the debris flowing onto his land is

abatable. Therefore, summary judgment was not appropriate.




2
    Nelson has      not challenged          the summary       dismissal         of   his   claims   for ( 1)   private nuisance, (      2)
public nuisance, (      3)    common        law    nuisance, (   4)   waste, (   5)    negligence, (    6) and breach of Frame' s
warranties of seizin and right               to convey.      Accordingly, we refrain from addressing them in this
appeal.       RAP 10. 3(     a)(   6); Cowiche Canyon          Conservancy v. Bosley, 118 Wn.2d 801, 809, 828
P. 2d 549 ( 1992).



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No. 44240 -0 -II.



         1.        Standard of Review


         We        review a     trial   court' s   summary judgment ruling de                    novo.   Torgerson v. One Lincoln


Tower LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009).                                 Summary judgment is appropriate only

if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any

genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.

CR 56( c).         A material fact is one on which the outcome of the litigation depends in whole or in

part.                             Owners Ass 'n Bd. of Dirs.
        Atherton Condo. Apartment —                                                         v.   Blume Dev. Co., 115 Wn.2d 506,


516, 799 P. 2d 250 ( 1990).                 We consider " all the facts submitted and the reasonable inferences


therefrom in the             light   most   favorable to the nonmoving party."                      Atherton, 115 Wn.2d at 516.


 The moving party is held to a strict standard. Any doubts as to the existence of a genuine issue

of material        fact is   resolved against       the moving party." Atherton, 115 Wn.2d at 516.



         Summary judgment is                 subject      to    a   burden- shifting    scheme.      Young v. Key Pharms., Inc.,

112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989).                                  The initial burden to show the nonexistence of


genuine       issues   of material       fact is   on   the moving party.           Young,       112 Wn.2d   at   225.       If the moving

party satisfies its initial burden, the inquiry shifts to the nonmoving party to " present evidence
that    demonstrates            that    material        facts       are    in   dispute."        Atherton,   115       Wn.2d      at   516.


 Circumstantial, indirect, and inferential                               evidence will suffice to discharge the plaintiff' s


burden"       under    summary judgment. Rice                       v.   Offshore Sys., Inc.,     167 Wn. App. 77, 89, 272 P. 3d

865 ( 2012).         A plaintiff "must meet his burden of production to create an issue of fact but is not

required      to   resolve     that issue    on    summary judgment."                Rice, 167 Wn.       App.     at   89.   However, "   a




complete failure of proof concerning an essential element of the nonmoving party' s case

necessarily        renders all other        facts immaterial."              Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106



                                                                            8
No. 44240 -0 -II



S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986).                       Summary judgment should only be granted if the

nonmoving party fails to               show   that a     genuine   issue     as   to   a material   fact   exists.   Seven Gables


Corp.    v.   MGM/UA Entm' t Co., 106 Wn.2d 1, 12 -13, 721 P. 2d 1 ( 1986).


             2.    Statute of Limitations


             The applicable statute of limitations in a trespass case depends on whether the trespass is


continuing         or permanent.       Whether a trespass is continuous or permanent determines when the


statute of limitations begins accruing and what damages are available to a plaintiff.

             For a permanent trespass, RCW 4. 16. 080' s three -
                                                               year statute of limitations for trespass

                                                                       3
upon real         property begins accruing         immediately.             This is because "       where a use which causes




damage to adjacent property is permanent in nature, its effect upon the market value of that

property is also permanent and is ascertainable at the time it becomes known that the use will

continue."          Cheskov      v.   Port   of Seattle, 55 Wn.2d 416, 420, 348 P. 2d 673 ( 1960).                        With a




3
    Contrary to the County' s assertions, both negligent and intentional trespass are recognized as
                                                         v. Burlington N Santa Fe Ry. Corp., 130
continuing torts in Washington ( see Pac. Sound Res.
Wn.     App.      926, 941, 125 P. 3d 981 ( 2005),          review         denied, 158 Wn.2d 1011 ( 2006)) and both are
subject       to RCW 4. 16. 080'       s   three -year   statute of    limitations.       Zimmer v. Stephenson, 66 Wn.2d
477, 483, 403 P. 2d 343 ( 1965).               Four published appellate decisions since the Zimmer decision —
Mayer         of Seattle, 102 Wn. App. 66, 75, 10 P. 3d 408 ( 2000), review denied, 142 Wn.2d
             v.   City
1029 ( 2001); Will v. Frontier Contractors, 121 Wn. App. 119, 125, 89 P. 3d 242 ( 2004), review
denied, 153 Wn.2d 1008 ( 2005);           Wallace v. Lewis County, 134 Wn. App. 1, 13, 137 P.3d 101
    2006),    and   Wolfe    Dep'
                            v.        Transp., 173 Wn. App. 302, 306, 293 P. 3d 1244, review denied,
                                       t of

177 Wn.2d           1026 ( 2013) — have incorrectly stated or implied that negligent trespass claims are
subject to RCW 4. 16. 130' s two -
                                 year statute of limitations for " relief not hereinbefore provided."
But Zimmer is explicit about the three -
                                       year statute of limitations for negligent trespass upon real
property and is binding. Zimmer, 66 Wn.2d at 483.



                                                                   9
No. 44240 -0 -II



permanent        trespass, " the           proper   measure      of   damages ...        is the difference in market value of the


land before the               injury   and   immediately     after."       Cheskov, 55 Wn.2d at 420.


          In     a    continuing trespass, damage                    accrues "       every   day   the trespass       continues.   Every

moment,        arguably, is            a new    tort."    Woldson v. Woodhead, 159 Wn.2d 215, 219, 149 P. 3d 361

 2006).     Thus, " the statute of limitations does not run from the date the tort begins; it is applied


retrospectively to              allow    recovery for damages              sustained within        three   years of   filing."   Woldson,


159 Wn.2d            at   223.    Damages are " recoverable from three years before filing until the trespass is
                                                                                                                                        4
abated or,       if       not abated, until       the time      of    trial[;] ...     prospective     damages        are not allowed. "




Woldson, 159 Wn.2d at 223.


               T]he reasonable abatability of an intrusive condition is the primary characteristic that

distinguishes             a   continuing trespass from              a permanent        trespass."      Fradkin v. Northshore Util.


Dist., 96 Wn.             App.     118, 125, 977 P. 2d 1265 ( 1999). " A trespass is abatable, irrespective of the


permanency of any structure involved, so long as the defendant can take curative action to stop

the continuing damages.... `                      without unreasonable               hardship   and expense. '         Fradkin, 96 Wn.


App.   at   125 -26 ( quoting Mangini                v.           Gen.
                                                          Aerojet —              Corp., 12 Cal. 4th 1087, 1097, 51 Cal. Rptr. 2d



4 The County relies heavily on dicta from our decision in Wallace, 134 Wn. App. at 13, to argue
that actionable damages in continuing trespass may not be attributable to problems existing
before the       retrospective             three -year    statute     of   limitations. " A statement is dicta when it is not
necessary to the                court' s     decision in    a   case....         Dicta is    not   binding   authority."     Protect the

Peninsula's Future v. City ofPort Angeles, 175 Wn. App. 201, 215, 304 P. 3d 914, review denied,
 178 Wn.2d 1022 ( 2013).                      Our discussion in Wallace about damage attributable to preexisting
problems on the land occurs after our holding that the plaintiff "failed to allege and to show any
actionable damage resulting from intentional continuing trespass by the County" and is dicta


unnecessary to our holding. Wallace, 134 Wn. App. at 17. Woldson is explicit in holding that it
is immaterial when a continuing tort begins because damage continually accrues until the
trespass    is   abated.          Woldson, 159 Wn.2d at 223.




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No. 44240 -0 -II



272, 912 P. 2d        1220 ( 1996)).          The law does       not   presume    that "    an encroachment will be


permanently     maintained,"       and the " trespasser is under a continuing duty to remove the intrusive

substance or condition."          Fradkin, 96 Wn. App. at 126.

          Here, the County moved for summary judgment on the grounds that the resulting

condition caused by the trespass was not abatable, precluding the applicability of the rules

governing continuing torts.            It then became Nelson' s burden to establish a material issue of fact


concerning whether the condition created by the County' s trespass was abatable, and thus, a

continuing trespass.

          Nelson presented sufficient evidence to raise a genuine issue of material fact concerning

whether the damage to his property is abatable. Nelson presented evidence that the Department

of Ecology concluded that the " first priority at this site should be the prevention of any further

            land slides"
solid waste /                    and   the   potential need   for " intense"   restoration.    CP    at   140. In addition,


Krager     concluded    that "   without massive clean u p and environmental restoration ...                     releases of



landfill refuse onto private land and into public water courses will continue unabated for decades

into the future."    5 CP at 173.

           Krager and the Department of Ecology' s discussion of restoration raises a genuine issue

of material fact as to whether the debris trespassing onto Nelson' s property is abatable. Were the

debris truly    permanent        and not abatable,        restoration would     be   a   fruitless   effort.   Moreover, a


    trespass is abatable, irrespective of the permanency of any structure involved, so long as the

5
    The   County   argues      that Krager'   s. report   is inadmissible   on procedural grounds.             However, CR
56( e)    provides   that "[   s] worn or certified copies of all papers or parts thereof referred to in an
affidavit shall    be   attached   thereto." Krager' s report, referred to in his sworn affidavit, is certified

and is properly before us.



                                                               11
No. 44240 -0 -II



defendant     can    take    curative action         to stop the continuing damages."          Fradkin, 96 Wn. App. at

125 -26.     Because genuine issues of material fact remain as to whether the trespass is abatable,


making it, as yet, unclear when the statute of limitations should run on this claim, summary

judgment on this ground is inappropriate.


B          INVERSE CONDEMNATION


        Nelson also argues that the County is liable to compensate him under a theory of inverse

condemnation.          The County contends that the statute of limitations bars this claim or,

alternatively, that the           subsequent          purchaser    rule   precludes    recovery.     As explained above,


material issues of fact remain concerning the permanency of the County' s trespass, making

summary dismissal            on   the    statute of   limitation   grounds   inappropriate. However, the subsequent


purchaser     rule   bars Nelson' s inverse              condemnation.       Accordingly, the trial court' s summary

dismissal of this claim was appropriate.


           To prevail on an inverse condemnation action, the plaintiff must establish a " taking" by

the   government.       Borden          v.   City   of Olympia, 113 Wn.      App.     359, 374, 53 P. 3d 1020 ( 2002).    A


taking consists of an appropriation of private property without exercise of the power of eminent

domain. Phillips        v.    King County,           136 Wn.2d 946, 957, 968 P. 2d 871 ( 1998).            A plaintiff must


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


a   permanent or       recurring interference that ` destroys                or   derogates'   a fundamental ownership

interest."    Keene Valley Ventures, Inc. v. City ofRichland, 174 Wn. App. 219, 223, 298 P. 3d 121

 quoting Borden, 113 Wn.                 App.   at   374), review denied, 178 Wn.2d 1020 ( 2013).




                                                                   12
No. 44240 -0 -II



           Here, as discussed above, material issues of fact remain concerning the abatability of the

condition created         by   the   County'   s   trespass.     Therefore, genuine issues of material fact remain as


to whether the County has permanently interfered with Nelson' s property rights.

           However, Nelson' s inverse condemnation claim is barred by the subsequent purchaser

rule.     The subsequent purchaser rule does not allow a purchaser who has bought property

previously damaged by a government taking to bring a claim because " it is the original owner

who     suffers   from the true harm"              and    the   subsequent purchaser "           pays a price that presumably

reflects   the diminished property             value      in light   of   this   earlier   taking." Wolfe v. Dep' t of Transp.,

173 Wn.      App.    302, 308, 293 P. 3d 1244,               review   denied, 177 Wn.2d 1026 ( 2013). " Because the


right to damages for an injury to property is a personal right belonging to the property owner, the

right does not pass to a subsequent purchaser unless expressly conveyed" or there is a new taking

that    occurs after      acquiring the property.               Hoover v. Pierce County, 79 Wn. App. 427, 433 -34,

903 P. 2d 464 ( 1995),           review   denied, 129 Wn.2d 1007 ( 1996).                      To establish a new taking, the

subsequent purchaser must show additional governmental                                      action that causes a measurable


decline in    market value.          Wolfe, 173 Wn. App. at 308 -09.

           Here, the County' s debris flow clearly began damaging Nelson' s property long before he

purchased     it.   The statutory warranty deed conveying the property to Nelson does not expressly

include the       right   to   recover   for the migrating debris. Moreover, Nelson has neither alleged nor


offered any evidence of any new governmental action by the County contributing to the debris

slide onto    Nelson'      s   property   after     his   purchase.        Accordingly, Nelson cannot recover under an

inverse    condemnation claim as a subsequent purchaser.                             Because the subsequent purchaser rule




                                                                     13
No. 44240 -0 -II




precludes recovery on Nelson' s inverse condemnation claim, we affirm summary judgment on

this claim.


C.      MOTION TO EXCLUDE


        Nelson argues that the trial court abused its discretion in failing to exclude evidence of

his   own   2008   code    violation.       We review a trial court' s evidentiary rulings for an abuse of

discretion.   Mutual of Enumclaw Ins. Co.                 v.    Gregg Roofing,    Inc.,   178 Wn. App. 702, 728, 315

P. 3d 1143 ( 2013). "      Therefore, we will overturn the trial court' s ruling on the admissibility of

evidence only if its decision was manifestly unreasonable, exercised on untenable grounds, or

based   on untenable reasons."            Mutual of Enumclaw Ins. Co., 178 Wn.                 App.    at    728.   The trial


court did not abuse its discretion by failing to exclude evidence of Nelson' s 2008 code violation.

        Here, the trial court explained that it would not exclude evidence of Nelson' s 2008 code


violation for having a campfire during a burn ban and for clearing brush within 100 feet of

Canyon Creek       without appropriate permits                 because "[   i]f indeed we' re going to go forward on

continuing trespass, that may indeed be relevant as, to what your client may have contributed to

whatever' s   going   on   that he'   s   alleging   on   his property."     RP ( Oct. 5, 2012)   at   13.   Moreover, the


trial court indicated that discussion of retaliatory intent could be subject to a motion in limine or

that a specific jury instruction could be given in relation to the impact of the code violation.

Under these circumstances, the trial court clearly did not abuse its discretion when it refrained

from excluding potentially relevant evidence at this early stage in the proceedings.




                                                                  14
No. 44240 -0 -II



        In summary, we reverse the trial court' s summary judgment dismissal of Nelson' s

trespass claim; we affirm the trial court' s dismissal of Nelson' s inverse condemnation claim; and

we hold that the trial court did not abuse its discretion in not excluding evidence of Nelson' s

2008   code violation at   this   stage   in the   proceedings.   Accordingly, we remand to the trial court

for further proceedings on Nelson' s trespass claim.


        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.




                                                          15
