Anthony R Gordon, V City Of Tacoma

FIL r- a C, it ' f d i APPEALS DIVISION 11

2013 JUN l 9/ 32 8: IN THE COURT OF APPEALS OF THE STATE OF W. AUNWM

DIVISION II T

ANTHONY R. GORDON, No. 42302 2 II - -

Appellant,

V.

CITY OF TACOMA and CITY OF TACOMA DEPARTMENT OF PUBLIC WORKS BUILDING AND LAND USE SERVICES DIVISION UNPUBLISHED OPINION

WORSWICK, C. . — J The city of Tacoma (the City)admittedly violated Anthony Gordon's

right to procedural due process when it fined him for building code infractions without allowing him to appeal the fines. Gordon was awarded damages after a bench trial. In this pro se appeal,

Gordon argues that the trial court erred by ( ) 1 failing to award him all damages caused by the

violations, 2) ( ruling that a default judgment in a prior adjudication precluded his recovery of

fines assessed in violation of his right to due process, and (3) ruling that the due process

violations ended once he had constructive notice of the City's enforcement actions. We disagree and affirm.

FACTS

The Tacoma Municipal Code establishes minimum standards for buildings and structures.

TMC 2.1. Former TMC 2.1.2001)imposed fines for failure to repair derelict 070. 0 060 ( 0

properties and allowed a building owner to appeal both the designation of a property as derelict

No. 42302- 11- 2

and the first fine imposed; however, former TMC 2.1.did not provide for appeals of 060 0 l ' subsequent fines. Post v. City of Tacoma, 167 Wn. d 300, 304 05,217 P. d 1179 (2009). 2 - 3

Anthony Gordon and his wife owned a rental property in Tacoma. In October 2001,

Gordon's tenant vacated the property, which was " irtually uninhabitable."Clerk's Papers ( P) v C

at 197. At that time, a back deck had been removed so that a sliding glass door led to a drop off -

to the ground below; the tenant had removed the bathroom water fixtures;causing water damage; and Tacoma Public Utilities had suspended water and electricity service for the tenant's nonpayment of bills.

On July 29, 2002, a neighbor reported the conditions to the City. On August 2,a City inspector visited Gordon's property, noted violations of the Tacoma building code, and designated the property derelict. Gordon visited the property on August 7 and saw that the City had boarded it up.

On August 15, the City mailed a letter to Gordon stating that it had designated the property derelict and explaining his right to appeal.However,the City mailed the notice to the wrong address, and Gordon did not receive it. Then,between October 2002 and April 2006,the City fined Gordon a total of 25 times for failure to repair the derelict property. In all,the

principal amount of the fines totaled $ 1, 25. 2 6

The City mailed the first three notices of fines to the wrong address. Gordon did not receive these fine notices. The fourth fine notice was also sent to the wrong address but was

1 Tacoma's city council amended the ordinance in 2002, but that amendment does not affect this analysis. Tacoma Ordinance 27027 (Dec. 10,2002).The current version of the ordinance allows an owner to appeal all fines. TMC 2.1. 6). 5) 060( F)( 0 7(

No. 42302 2 II - -

successfully delivered to Gordon; however, he did not open the letter. The City mailed the sixth fine notice, and all the notices that followed,to.Gordon at his correct address. But Gordon refused to accept 18 of the 19 fine notices sent to the correct address.

Under former TMC 2.1.Gordon was unable to appeal the second fine and all 060, 0

subsequent fines. See Post, 167 Wn. d at 304 05. The City issued the second fine notice on 2 -

November 18, 2002. Gordon contacted the City only twice: once in April 2003 and once in 2006. He did not contest the fines or the condition of the property. During this period Gordon had performed some work on the property but failed to make it habitable, even though only minor repairs"were needed. CP at 200.

The City assigned the first eight fines to a collection agency. The collection agency sued

Gordon to recover the principal amount of the fines, plus interest and costs, totaling $ 35. 3649. ,

When Gordon failed to appear at a hearing, the court entered a default judgment for the City on June 30, 2005. Gordon did not appeal the judgment.

Later, on April_ 2,_ 1. 2006,. Gordon filed_ own_ against the City,_ his suit alleging_ inter alia,a

violation of his constitutional right to procedural due process and seeking damages under 42,

C. § U. . 1983. In S December 2006, the City moved for summary judgment of dismissal and

further argued that collateral estoppel precluded relitigation of Gordon's liability for the eight fines comprising the collection agency's judgment. The trial court agreed that collateral estoppel precluded relitigation of the first eight fines, but it did not dismiss the § 1983 claim.

No. 42302 2 II - -

In 2009,the Washington Supreme Court decided that former TMC 2.1.violated a 060 0

building owner's right to procedural due process by failing to provide for appeals of the

subsequent fines. Post, 167 Wn. d at 304 05,314 15. In light of Post,the City conceded it had 2 - -

violated Gordon's right to procedural due process.

In March 2011, the trial court held a bench trial on the sole issue of damages. The trial court found that Gordon could have completed the necessary repairs in no more than five months. Accordingly, the trial court found that the City's violations caused Gordon to suffer

damages for only five months. Thus the trial court awarded Gordon a total of 11, 50 in $ 2

damages for two compensable injuries suffered over a five month period: 1) rental income - ( lost

totaling $ , and (2) 3750 frustration and inconvenience worth $ , The trial court did not allow 7500.

Gordon to recover the eight fines included in the collection agency's judgment, but it vacated the remaining fines.

Gordon appeals. ANALYSIS

Gordon argues that the trial court erroneously awarded damages for the City's due

process violations because (1) award did not compensate him for all damages caused by the the

violations, 2) ( Gordon is not precluded from recovering the fines included in the collection

agency's judgment, and (3)constructive notice of the fines did not bring the due process violations to an end. We disagree.

2 Anthony Gordon is the sole appellant in this case.

No. 42302 2 II - -

We review whether the trial court's findings of fact support its conclusions of law. In re

Marriage ofRockwell, 141 Wn. App. 235, 242, 70 P. d 572 (2007).Gordon does not assign 1 3

error to any of the trial court's findings of fact. Unchallenged findings of fact are verities on

appeal. In re Estate of Jones, 152 Wn. d 1, 8, 93 P. d 147 (2004) 2 3 . We review conclusions of

law de novo. Robel v. Roundup Corp.,148 Wn. d 35,42, 59 P. d 611 (2002). 2 3

Section 42 U. .1983 provides a cause of action for damages and injunctive relief C. S

against a municipality whose officers, acting under color of law and pursuant to official policy, deprive a person of rights secured by the United States Constitution. Monell v. Dep't ofSoc.

436 U. .658, 690, 98 S. Ct. 2018, 56 L.Ed. 2d 611 (1978). Servs., S In a successful § 1983 claim,

the damage award should compensate the plaintiff for injuries caused by the deprivation of. "

constitutional rights."Carey v. Piphus, 435 U. .247, 254, 98 S. Ct. 1042, 55 L.Ed. 2d 252 S

1978).

3 Gordon asserts in his assignments of error that "[ here was no evidence presented to support t] the use of constructive notice."Br.of Appellant at 4 (Apr.2,2012).But his brief contains no argument in support of this assertion, and therefore it is waived. Cowiche Canyon Conservancy v. Bosley, 118 Wn. d 801, 809, 828 P. d 549 (1992).Moreover, Gordon's brief does not assign 2 2 error to any specified findings of fact as required by RAP 10. ( g); the findings of fact 3 therefore are verities on appeal and we limit our review to the trial court's conclusions of law and judgment. Jensen v. Lake Jane Estates, 165 Wn. App. 100, 110, 267 P. d 435 (2011). 3 4 Citing RAP 10. ( City contends that Gordon failed to properly assign error to the trial g), 3 the court's conclusions of law. This contention fails because RAP 10. ( g) not require an 3 does appellant to assign error to conclusions of law. In re Estate ofKrappes, 121 Wn. App. 653, 660 n. 1, 91 P. d 96 (2004).RAP 10. ( l 3 g) 3 requires an appellant to refer by number to any jury instructions or findings of fact to which error is assigned.

No. 42302 2 II - -

A. Damages Caused by the Constitutional Violation

Gordon argues that he is entitled to recover damages for injuries occurring over the entire

period when the City violated his right to procedural due process. We disagree. A deprivation of the constitutional right to procedural due process does not presumptively

cause damages. Carey, 435 U. .at 263. Instead,the plaintiff may recover damages only if he S

shows that the violation of. is constitutional right was the " oving force"that caused his injury. h m

Bd. of County Commis ofBryan County v. Brown, 520 U. .397, 404, 117 S. Ct. 1382, 137 L. S

Ed. 2d 626 (1997).

Here, the violations of Gordon's constitutional right to appeal the fines were not the moving force that caused him to suffer injuries during the entire period when the violations

occurred. See Bryan County, 520 U. .at 404. Arguing to the contrary, Gordon contends that the S

violations caused him to suffer, during the entire period of the violations, 1) loss of rental ( the

income and ( ) 2 inconvenience and frustration. The trial court's findings of fact foreclose that

contention.

First,the violations did not cause Gordon to lose rental income for the entire period of the violations. Gordon's tenant vacated the property in October 2001, nine months before the City declared the property derelict and Gordon saw that the City boarded it up in August 2002. But the due process violations began with the fine notice issued in November 2002. Moreover,

5 The ordinance, former TMC 2.1.allowed a person to appeal only the initial designation of 060, 0 the property as derelict and the first fine issued. Post, 167 Wn. d at 304 05. The ordinance 2 - violated procedural due process insofar as subsequent fines were not appealable. Post, 167 Wn. d at 314 15. 2 -

an

No. 42302 2 II - -

although only minor repairs were needed, Gordon failed to make the property habitable. Gordon was an experienced real estate manager and had previously worked with the City to remedy derelict homes within four to five months. These findings of fact are sufficient for the trial court to conclude that the due process violations did not cause Gordon to suffer a loss of rental income during the entire period of the violations.

Second, the City's violations of Gordon's right to procedural due process did not cause him to suffer inconvenience and frustration for the entire period of the violations. As a matter of fact,the trial court found that the City's violations caused only five months' worth of inconvenience and frustration.' This finding supports the trial court's conclusion that Gordon was not entitled to damages for inconvenience and frustration during the entire period.

Moreover, the City's violations caused no injury that lasted over five months. Gordon acknowledged the condition of the property from the time he saw that the City boarded it up in August 2002, but Gordon failed for years to make the "minor repairs"necessary to make the

house habitable..CP at 197. ordon-accept 1_ of the 19_ notices sent certified refused- o t G 8 fine- _

mail to his correct address. The trial court found that, if Gordon had instead cooperated with the City to rehabilitate his property, he could have brought it into compliance with the building code within five months. Accordingly,the trial court limited its damage award to compensation for injuries that lasted up to five months. Thus the moving force that caused Gordon to suffer injuries for more than five months was Gordon's failure to cooperate and complete the repairs-

6 Further, the trial court found that Gordon contacted the City on only two occasions during the four year period when the City issued fines: once in 2003 and once in 2006. -

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not the City's violations of Gordon's right to procedural due process. See Bryan County, 520

U. . at 404. Gordon's argument fails. S

B. Preclusive Effect ofthe Default Judgment

Gordon next argues that the default judgment that included the City's first eight fines should not have precluded him from challenging or recovering the fines subject to the judgment because the elements of collateral estoppel are not met. We agree that reliance on a collateral estoppel analysis is misplaced, but we hold that res judicata precludes Gordon from recovering as damages the fines subject to the default judgment.

Collateral estoppel and res judicata are distinct but closely related doctrines. Shoemaker

v. City ofBremerton, 109 Wn. d 504, 507, 745 P. d 858 (1987).Collateral estoppel precludes 2 2

the relitigation of an issue that was actually litigated and necessarily decided in a prior

adjudication. City ofArlington v. Cent. Puget Sound Growth Mgmt. Hearings Bd., Wn. d 164 2

768, 792, 193 P. d 1077 (2008).In contrast, res judicata bars the relitigation of claims that were 3

or might have been raised in a prior.adjudication. Lenzi v. Redland Ins.Co., Wn. d 267, _ 140 2

280, 996 P. d 603 (2000).Whether collateral estoppel or res judicata precludes relitigation of 2

issues or claims is a question of law reviewed de novo. Christensen v. Grant County Hosp. Dist.

No. 1, 152 Wn. d 299, 306, 96 P. d 957 ( 2 3 2004); Lynn v. Dep't ofLabor & Indus., 130 Wn. App.

829, 837, 125 P. d 202 (2005). 3

When an appellant claims that collateral estoppel is the applicable doctrine in a case, it

may be appropriate for us to alternatively consider res judicata. See Lenzi, 140 Wn. d at 280. 2

Collateral estoppel applies only when an issue was actually litigated in a prior adjudication. City

N.

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ofArlington, 164 Wn. d at 792. But collateral estoppel analysis is not appropriate where, as 2

here, the prior adjudication ended in a default judgment without any issues being actually

litigated. SECOND)OF JUDGMENTS § RESTATEMENT ( 27 cmt. e (1982).We therefore consider the

doctrine of res judicata.

After a prior adjudication has occurred, res judicata bars the relitigation of all claims decided and any other claims that with reasonable diligence should have been raised. Kelly -

Hansen v. Kelly- Hansen, 87 Wn. App. 320, 329, 941 P. d 1108 (1997).But res judicata does 2

not bar a claim if 1) could not have been litigated in the prior adjudication, 2) ( it ( necessary facts

were not in existence at the time of the prior adjudication, or ( ) 3 necessary evidence would have

been inadmissible in the prior adjudication. Kelly- Hansen, 87 Wn. App. at 330 31. -

Here, res judicata bars Gordon from claiming recovery of the fines that were subject to

the default judgment. The City assigned its claims to eight fines to the collection agency, and the collection agency sued Gordon to recover the amount of the fines. Gordon should have with

reasonable_ diligence claimed that he was not liable for the fines because the City imposed them

in violation of his right to due process. Instead, he failed to appear and the court entered a default judgment concluding that he was liable for the first eight fines. Nothing in the record shows that Gordon ever sought relief from the default judgment. He cannot now escape it by

bringing a claim he should have raised in the prior adjudication. See Kelly- Hansen, 87 Wn. App.

at 330 31 -

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C. Constructive Notice

Lastly, Gordon appears to argue that the trial court erred by ruling that Gordon's receipt of a fine notice sent through the mail established "constructive notice"of the fines and ended the City's due process violations. This argument misapprehends the trial court's ruling.

The trial court ruled that the City's violation of Gordon's right to procedural due process recurred each time the City fined Gordon without providing for his right to appeal the fine. Because the trial court agreed that the City violated Gordon's right to procedural due process, Gordon's argument is inapposite.

In one of its findings of fact,the trial court found that Gordon gained " constructive

knowledge of the condition of the property and the actions of the City"when he signed a certified mail receipt acknowledging delivery of a letter containing the City's fourth fine notice, even though Gordon did not open the letter. However, the trial court did not find this fact dispositive of any legal issues, and it did not rely on the concept of constructive notice when

ruling on damages. This argument fails.___ _

7 Gordon's assignments of error make three points about constructive notice: 1) trial court ( the erred by considering constructive notice sua sponte, 2) trial court erred by relying on the ( the concept of constructive notice, and (3) substantial evidence does not support the trial court's factual findings about constructive notice. However, Gordon fails to support the first and third points with any argument or citation to authority; therefore we do not con'sider them. Cowiche Canyon, 118 Wn. d at 809; see RAP 10. 2 a)( 6). 3(

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The trial court's damage award properly applied the law to the facts it found. Because Gordon fails to show any error in the trial court's damage award, we affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW

040, 2.6.it is so ordered. 0

Worswick, C —

8 Without cross -appealing or seeking affirmance on alternate grounds, the City assigns error to one of the trial court's findings of fact: that the City's imposition of the fines was the most significant financial issue that Gordon and his wife discussed during marriage counseling. We do not address the City's assignment of error because it has no bearing on the outcome of Gordon's appeal.