Opinion
No. 45765-9-I.
Filed: October 1, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 97-2-05538-5, Hon. James W. Bates Jr, December 10, 1999, Judgment or order under review.
Counsel for Appellant(s), David J. Smith, 135 Lake Street S. Ste100, P.O.BOX 616, Kirkland, WA 98083.
Counsel for Respondent(s), Darby N. Ducomb, Attorney At Law, 10th Fl, 600 4th Ave, Seattle, WA 98104-1877.
Bernard J. Glynn Jr., Fl 10, 600 4th Ave, Seattle, WA 98104.
The City of Seattle brought an action to foreclose a local improvement assessment lien on property that Rory Crispin purchased at a King County tax sale. Crispin counterclaimed for declaratory relief that the property was a legal building site or in the alternative, if it was not, that the City had been unjustly enriched by installment payments he had already paid for the assessment. Crispin appeals the trial court's denial of his motion for revision of an earlier summary judgment order dismissing his claim for declaratory relief and denial of his motion for judgment notwithstanding the jury's special verdict that he was not an innocent purchaser for value without actual notice under RCW 58.17.210.
The City cross-appeals the judgment entered on the jury's special verdict that Crispin was entitled to a refund of the monies he had paid toward the assessment by virtue of unjust enrichment, as well as the trial court's award of certain costs to Crispin as the prevailing party in the trial. We affirm the trial court's refusal to revisit the earlier summary judgment ruling and its order denying judgment notwithstanding the jury's special verdict that Crispin was not an innocent purchaser for value without notice. We reverse the trial court's denial of the City's motion for judgment notwithstanding the unjust enrichment verdict, as well as the money judgment on the verdict and the accompanying award of costs.
FACTS
Crispin's Purchase of Tax Lot 164 In January 1990, Rory Crispin purchased Tax Lot 164 at a King County real estate tax foreclosure auction for $493. Crispin's bid was the opening and sole bid on the property.
The 'Terms of Sale' document advertising the tax foreclosure sale stated that the county 'makes no representation of warranty, express or implied, nor any guaranty of warranty, express or implied, as to the condition of title' to the land, that the property is offered 'on a 'where is' and 'as is' basis,' that 'it shall be the buyer's responsibility to determine whether any such code violations exist for any property purchased[,]' and that 'certain properties may be subject to easements or use restrictions set forth in the Covenants, Rights, and Restrictions of certain plats, as well as in zoning and other land use controls.' Plaintiff's Exhibit 28. Prior to the purchase, Crispin performed a records search and a site inspection of Tax Lot 164, but did not get a title report or conduct a title search, did not talk to anyone at the City or to the previous owner of the land, did not obtain an appraisal, and did not consult a developer or contractor. Crispin, who owned a total of six properties at the time of trial, had previously purchased two other properties at tax foreclosure sales. History of Tax Lot 164
Tax Lot 164 is a 1.65-acre vacant parcel located east of 47th Avenue S.W. in the Emerson Subdivision of West Seattle. This parcel is identified by the City of Seattle as an Environmentally Critical Area because of landslide potential and the presence of slopes of forty percent or greater. Tax Lot 164 is currently zoned L3 (multifamily residential). It is surrounded on three sides by single-family housing, and abuts an L3 zone to the west, which is developed as the West Beach Condominiums.
In the 1950's, the parcel of land west of 47th Avenue S.W. was known as the Laurel Beach Sanitarium. This land included the properties currently known as the West Beach Condominiums and Tax Lot 164. The owners of the Laurel Beach property requested and received a multifamily rezone from the City of Seattle. In the 1960's, through deed transfer, this parcel was divided into three tracts. The land currently known as Tax Lot 164 comprised portions of two of these tracts. Four apartment buildings, now known as the West Beach Condominiums, were built on this land parcel, and in 1970 the owners of this parcel applied for and received from the City permits to change the boundaries of the three land tracts that had been formed through deed transfer. Each new tract, which are labeled Tracts A, B, and C, respectively, held one of the apartment buildings, while the land currently known as Tax Lot 164 continued to comprise portions of two of the tracts.
On June 23, 1972, the City's first subdivision ordinance became effective. This ordinance requires '[a]ny person desiring to divide land situated within The City of Seattle into two, three or four lots for the purpose of sale or lease . . . [to] submit an application for approval[.]' Seattle Ordinance 101027. That same year, after the effective date of the ordinance, the four apartment buildings were converted into condominiums. By means of the condominium declarations, the owners again changed the boundaries of the three tracts, so that all four buildings were located on two tracts, Tract A and Tract B — Tract C having been subsumed into Tract B as part of this process — and creating Tax Lot 164 by omission from the condominium declarations.
Terry Gilmour, who owned Tax Lot 164 prior to its foreclosure by the county, was one of the developers of the West Beach Condominiums. He declared that '[w]hen the Condominium Declarations were filed in 1972, we purposely left out the parcel now known as Lot 164[,]' that he 'never had any intent to develop the property[,]' and that '[s]elling the property in the future was always [his] expectation.' Clerk's Papers at 111. Gilmour still owned the parcel in 1982 when the City created the 47th S.W. water main LID in West Seattle and placed an assessment of $23,480.40 on it in 1985. Gilmour did not challenge the assessment. Neither did he pay it; he also failed to pay the real estate taxes imposed by the county. In 1990, King County foreclosed on the property for the unpaid real estate taxes.
The City's LID Assessment Suit and Crispin's Countersuit
When the City established the LID, Tax Lot 164 was assessed in the principal amount of $23,480.40 on the assumption that the lot had become a 'buildable opportunity' as a result of the water main — the water and fire departments having previously placed a moratorium on further building in the area due to inadequate water pressure for fire protection and the potential for backflow and resulting contamination of the water supply.
The City's Engineering Department, which prepared the assessment of Tax Lot 164, based the assessment on the assumption that the lot had been legally created. Kirk Jones of the Engineering Department consulted with the Department of Construction and Land Use (DCLU), and was informed that approximately 89 units could be constructed on the lot after the water main was constructed. After hearings on the final assessment roll were held, the roll was approved in March 1985.
After Crispin purchased Tax Lot 164, the City brought a foreclosure action, on June 19, 1990, for the unpaid LID assessment. Crispin brought the delinquent payments on the assessment current, and the City dismissed its action. Residents of the area who opposed the development of Tax Lot 164 formed the Endolyne Neighborhood Group and petitioned the City to rezone the lot to a single-family zone. In 1992, during the City's investigation of the petition, Pat Schneider of the DCLU opined by letter that the lot was not a legal building site because it had never been legally subdivided. Specifically, Schneider opined that 'tax lot 164 did not comply with [Seattle Ordinance 101027 because] they recorded condominium declarations and maps . . . without going through the ordinance's procedures to divide land.' Defendant's Exhibit 216. Schneider further opined that '[t]he condominium declarations are effective to divide ownership of the buildings among the owners of the condominium units, but they are not effective to segregate the land subject to the declarations from the land not subject to the declarations so as to make the latter a separate buildable lot.' Id. After Crispin received a copy of Schneider's letter, he continued to make payments on the LID assessment through May 24, 1994, after which he ceased to make payments.
In 1995, Crispin requested a formal legal building site interpretation for Tax Lot 164 from DCLU. DCLU concluded that Tax Lot 164 was not a legal building site because it has never been established as a separate legal building site in the public records by recorded plat, recorded deed, real estate contract, approved building permit plans, or approved tax lot segregation, or any other method recognized by the City of Seattle, nor has it been the subject of an approved subdivision since the City's Subdivision Ordinance became effective in June 1972.
Plaintiff's Exhibit 1.
Crispin appealed this decision to the Office of the Hearing Examiner. The Hearing Examiner affirmed, and dismissed the appeal, explaining that Crispin raised issues beyond the examiner's jurisdiction.
Crispin having ceased making payments on the LID assessment, the City brought a second foreclosure action on February 28, 1997. Crispin counterclaimed for declaratory relief, contending, inter alia, that the LID assessment was res judicata on the issue of the whether Tax Lot 164 was a legal building site, and that the City was estopped from claiming that the lot was not a legal building site. Crispin prayed, in the alternative, for recovery of the assessment payments he had previously made, on the theory of unjust enrichment. Crispin later amended his complaint, requesting declaratory relief that he was an innocent purchaser for value without actual notice for purposes of the lot boundary adjustment exemption from subdivision requirements, and damages for the City's allegedly negligent misrepresentation.
Crispin raised additional claims not relevant to this appeal.
The City moved for summary judgment dismissal of the estoppel and res judicata claims, which the court granted. Both parties moved for summary judgment on the issue of whether Tax Lot 164 was a legal building site.
The court denied Crispin's motion and granted the City's motion, holding that the lot did not qualify as a legal building site by means of the lot boundary adjustment exemption. The City subsequently dismissed its foreclosure action. The remaining issues, all arising from Crispin's counterclaim, went to jury trial.
At trial, the parties litigated the issues of (1) whether the City made negligent representations to Crispin; (2) whether the City was unjustly enriched by receiving approximately $43,000 in assessments payments, penalties and interest from Crispin; (3) whether Crispin qualified as an innocent purchaser for value without actual notice; and (4) whether Crispin knew he was injured when he received Pat Schneider's letter for purposes of the discovery rule/statute of limitations. By special verdict, the jury found that (1) the City did not make negligent misrepresentations; (2) the City was unjustly enriched in the amount of $42,419.33; (3) Crispin knew of his injuries when he received Pat Schneider's letter; and (4) Crispin was not an innocent purchaser for value without notice.
After trial, the City moved for judgment notwithstanding the verdict to dismiss the unjust enrichment claim, which was denied. Crispin also moved for judgment, asking the court to revisit the summary judgment order and declare Tax Lot 164 to be a legal building site either under the lot boundary adjustment exemption or, notwithstanding the jury's special verdict, because he was an innocent purchaser for value without notice, as a matter of law. The court also denied this motion. Crispin requested costs for certain photocopying and witness-location expenses. The court awarded $2,753.98 for these costs over the City's objection. This appeal and cross appeal followed.
DISCUSSION STATUS OF TAX LOT 164
While Crispin's assignments of error are several, the central question presented in his appeal is whether he is authorized to develop Tax Lot 164 without short platting it under the City's subdivision ordinance. We start the analysis with Seattle Municipal Code (SMC) § 23.20.008, which states in relevant part: 'Every division of land shall comply with the provisions of RCW Chapter 58.17 and the provisions of this subtitle.' And SMC § 23.20.012 states in relevant part:
No building permit or other development permit shall be issued for any lot, tract, or parcel of land divided in violation of RCW Chapter 58.17 or this subtitle, unless the Director finds that the public interest will not be adversely affected by the decision. The prohibition in this section shall not apply to an innocent purchaser for value without actual notice.
This section substantially adopts the language of RCW 58.17.210, which states:
No building permit . . . shall be issued for any lot, tract, or parcel of land divided in violation of this chapter or local regulations adopted pursuant thereto unless the authority authorized to issue such permit finds that the public interest will not be adversely affected thereby. The prohibition contained in this section shall not apply to an innocent purchaser for value without actual notice.
In addition, RCW 58.17.040(6) states that '[t]he provisions of this chapter shall not apply to . . . [a] division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division[.]'
The Legislature did not create the boundary line adjustment exemption until 1981 and the City did not create its own exemption until 1982. The State's version has been amended since its initial enactment, although not significantly insofar as any issue in this appeal is concerned. Accordingly, we cite the current version, for convenience. The parties have not briefed the question of whether a boundary line adjustment provision that did not exist when Tax Lot 164 was created can be given retrospective effect. Noting that our Supreme Court applied the State's version of the boundary line adjustment exemption retroactively, without discussion, in Island Cy. v. Dillingham Dev. Co., 99 Wn.2d 215, 662 P.2d 32 (1983) we assume without holding that to be the appropriate course, for purposes of this appeal.
A. Was the creation of Tax Lot 164 a 'subdivision' in violation of Seattle Ordinance 101027, or was it a boundary line adjustment exempt from subdivision law under RCW 58.17.040(6)?
Crispin's first claim is that the court's summary judgment order concluding that Tax Lot 164 did not qualify under RCW 58.17.040(6) as a boundary line adjustment was error. He also argues that the creation of Tax Lot 164 was not subject to, and thus did not violate Seattle Ordinance 101027, because no subdivision occurred by the lot's creation. Summary judgment is available only if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing a summary judgment order, this court conducts the same inquiry as the trial court. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). We review questions of law de novo. Id.
We first address Crispin's argument that the creation of Tax Lot 164 by omission from the condominium declarations did not violate Seattle Ordinance 101027. Seattle Ordinance 101027 § 5 requires that '[a]ny person desiring to divide land situated within The City of Seattle into two, three or four lots for the purpose of sale or lease, shall submit an application for approval of a short subdivision to the Administrator[.]' 'Lot' is defined as 'a fractional part of subdivided lands having fixed boundaries being of sufficient area and dimension to meet minimum zoning requirements for width and area.' Id. at § 3.08.
We conclude that the mere fact that the creation of Tax Lot 164 did not result in the creation of additional lots does not take it outside of the ordinance, as the ordinance defines 'short subdivision' as 'the division of land into two, three or four lots, tracts, parcels, sites, or subdivisions for the purpose of sale or lease and shall include all resubdivision of previously platted land[.]' Id. at § 3.03 (italics ours). Unless an exemption applies, Tax Lot 164 thus is subject to the ordinance, but was not created under the ordinance's formal procedures. Crispin argues that Tax Lot 164 should have been exempted from the subdivision requirements under RCW 58.17.040(6), which states that '[t]he provisions of this chapter shall not apply to . . . [a] division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division[.]' He argues that the court erroneously applied R/L Assoc., Inc. v. Klockars, 52 Wn. App. 726, 763 P.2d 1244 (1988), superseded by statute on other grounds as stated in Freeburg v. City of Seattle, 71 Wn. App. 367, 859 P.2d 610 (1993), to reach the conclusion that Tax Lot 164 was not created by a lot boundary adjustment. He argues further that the controlling case is Island Cy. v. Dillingham Dev. Co., 99 Wn.2d 215, 223, 662 P.2d 32 (1983).
We conclude that the exemption contained in RCW 58.17.040(6) does not apply. This section requires that the division be made 'for the purpose of alteration[.]' To 'alter' is "to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else[.]' Webster's Third New International Dictionary 63 (1969). This definition connotes a change that is not substantial in nature or scope. Although the total number of lots did not change, the redivision here 'swallowed up' what previously had been Tract C and created (by omission) an entirely new lot never before seen:
Tax Lot 164. Moreover, the redivision was made for the purpose of later selling Tax Lot 164, which places the redivision squarely within the requirements of Ordinance 101027. The trial court properly relied on R/L Associates to conclude that the creation of Tax Lot 164 was not created by a lot boundary adjustment. In that case, we sought to clarify when additional lots or sites are created by the redivision of property for purposes of the lot boundary adjustment exemption. That case involved a building that straddled a boundary line between two adjacent lots. The owner of the two lots petitioned to adjust the line in order to place the building entirely within one of the lots, thus freeing the other lot for development. 52 Wn. App. at 727-28.
We also observe that Tax Lot 164 is effectively landlocked due to the steepness of the site, and no provision has been made for access — thus, even if application had been made for a boundary line adjustment, approval would likely have been problematic for this reason alone. See SMC 23.28.030(3) (criteria for summary approval of boundary line adjustments includes provision that '[n]o lot is created which does not have adequate . . . access for vehicles, utilities and fire protection'). Although these formal requirements did not exist when Tax Lot 164 was created, by that same token, neither did the boundary-line adjustment exemption. Retrospective application of the exemption requires retroactive application of the criteria for approval.
We held that because the proposed boundary change would permit the owner to develop a newly created building site, and because the owner's 'purpose in seeking a boundary adjustment [was] to create an additional building site[,]' the proposed change did not qualify under the lot boundary adjustment exemption, notwithstanding the fact that the change would not create an additional lot. Id. at 731-32. Crispin asks us to distinguish R/L Associates from the present case, arguing that the redivision in that case would result in increased development potential of the land, whereas, he argues, here 'the same development potential existed before and after the realignment of the boundaries . . . [and t]he same number of sites existed before and after.' Appellant's Reply Brief at 15-16.
While this argument is not without its appeal, it ignores the fact that the purpose of the lot boundary adjustment is to exempt from local formal regulatory procedures minor boundary alterations but not substantial changes: It is therefore evident that a lot boundary adjustment is intended to apply to minor boundary changes, but not to changes that result in increased development or density otherwise regulated by the applicable land use code. R/L's argument ignores the fact that the proposed lots are substantially different from the two existing platted lots. The drastic boundary change proposed by R/L creates two essentially new lots.
Moreover, a lot boundary adjustment is a summary procedure that is not subject to the public scrutiny and control required by significant divisions of property; approval of the adjustment is mandatory when the criteria are met. SMC 23.28.030. For this reason, we believe boundary adjustment provisions should be strictly construed to effectuate their purposes. The lot boundary adjustment provides an efficient and low-cost procedure for minor or insignificant changes in property lines. If we were to focus scrutiny merely on the resulting quantity of lots . . . while ignoring the substance of the boundary changes, we would be subjecting the process to considerable abuse.
R/L Associates, 52 Wn. App. at 732-33 (citing R. Settle, Washington Land Use and Environmental Law and Practice 92 (1983)).
'The exemption for boundary line adjustment seems vulnerable to serious abuse. . . . Strict construction would seem appropriate in light of the apparent legislative purpose of the exemption — to avoid the delay and direct costs of regulation in cases of insignificant changes in a few lot lines.'
Because we conclude that the redivision of the West Beach property was not a minor boundary change, i.e., was not 'for the purpose of alteration' as required by RCW 58.17.040(6), we need not consider whether a change that does not result in increased development or density might sometimes qualify as a lot boundary adjustment. Here, the redivision resulted in the segregation of Tax Lot 164 from the condominiums — for the purpose of sale of the lot to an owner independent of the condominium group. Such a substantial change does not qualify as a lot boundary adjustment.
We reject Crispin's argument that Dillingham is controlling. There, after extensive meetings with Island County officials, including the assessor and the prosecutor, and in accord with provisions contained in the then-current county code, as an alternative to replatting the property the seller grouped together undersized lots and portions of lots in order to reconvey them to the same purchasers in the form of building lots, i.e., lots of a sufficient size to pass muster as building lots under the county code that was in effect when the law suit was brought, rather than the undersized lots previously conveyed. By this means the previous conveyances were 'corrected' and fewer but larger lots were reconveyed to the same purchasers in a form acceptable under the newer zoning code. Thus, no additional lots were created, and this was a boundary line adjustment, not a subdivision. Dillingham, 99 Wn.2d at 219-23. See also R/L Associates, 52 Wn. App. at 730 n. 4 (commenting on unhelpfulness of Dillingham).
B. Is the LID assessment, which was based on the assumption that Tax Lot 164 was legally created, res judicata as to Crispin's claim in the subsequent litigation that is was legally created?
Res judicata, or claim preclusion, is designed to prevent relitigation of claims that were or should have been decided among the parties in an earlier proceeding. Norris v. Norris, 95 Wn.2d 124, 130, 622 P.2d 816 (1980). For res judicata to apply, there must be an identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4) quality of the representation. Mellor v. Chamberlin, 100 Wn.2d 643, 645, 673 P.2d 610 (1983) (citing Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 588 P.2d 725 (1978)).
The LID assessment is not res judicata as to Crispin's claim that Tax Lot 164 was legally created. While it may be arguable that both actions involved the same parties, the other three factors do not indicate a concurrence of identity. For example, the LID assessment determined the monetary amount by which Tax Lot 164 was benefited by the building of the water main, while the subsequent action involved the issue of whether Tax Lot 164 was a legal building site under state statute and local regulations. Crispin cites Marino Property Co. v. Port Comm'rs of Port of Seattle, 97 Wn.2d 307, 644 P.2d 1181 (1982) to support his argument that because the LID assessment was made on the predicated assumption that Tax Lot 164 was a legal building site, the LID assessment impliedly decided that issue. However, Marino Property involved two separate actions in the same judicial forum, 97 Wn.2d at 312, which is not the case here. Moreover, the City conceded that the LID assessment was made on a mistaken assumption that Tax Lot 164 was a legal building site. We would be wary of adopting such a radical extension of the doctrine of res judicata based on a mistaken assumption that was not a matter in dispute in any forum, and we decline to do so here.
C. Was there substantial evidence to support the jury's special verdict that Crispin was not a 'innocent purchaser for value without actual notice' under RCW 58.17.210?
Crispin next argues that the court erred when it denied his motion for judgment notwithstanding the jury's verdict that he was not an innocent purchaser for value without actual notice for purposes of RCW 58.17.210.
In reviewing the denial of a motion for judgment notwithstanding the verdict, 'we apply the same standard as the trial court and reverse only if we can say, as a matter of law, that the evidence is insufficient to support the verdict.' Hume v. American Disposal Co., 124 Wn.2d 656, 667, 880 P.2d 988 (1994) (citing Industrial Indem. Co. of N.W., Inc. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520, 7 A.L.R.5th 1014 (1990). We view the evidence, and reasonable inferences therefrom, in the light most favorable to the nonmoving party. Brown for Hejna v. Yamaha Motor Corp., U.S.A., 38 Wn. App. 914, 920, 691 P.2d 577 (1984) (citing Cowsert v. Crowley Maritime Corp., 101 Wn.2d 402, 680 P.2d 46 (1984)). 'To question the sufficiency of the evidence is to question whether the burden of production has been met, and when this burden has been met, the evidence is sufficient.' Hume, 124 Wn.2d at 667 (citing Carle v. McCord Credit Union, 65 Wn. App. 93, 98, 827 P.2d 1070 (1992)).
The court instructed the jury that '[a]n innocent purchaser for value without notice for purposes of the statute is one who, without notice that the property purchased was not created in compliance with the subdivision statutes and ordinances, has paid the seller of the real property a valuable consideration.' Instruction 15. Crispin does not contest this instruction, so the inquiry becomes whether there was sufficient evidence for the jury to find either that Crispin did not give value for Tax Lot 164 or that he had notice that Tax Lot 164 was not created in compliance with state and local regulations. As the City does not argue that the sum Crispin paid for Tax Lot 164 does not constitute value, we focus solely on the element of notice.
Below and on appeal, the parties agree that for purposes of determining notice, the bona fide purchaser doctrine provides the appropriate standard. We thus will treat this standard as the law of the case. Regarding notice, we have stated that it 'need not be actual, nor amount to full knowledge, but it should be such 'information, from whatever source derived, which would excite apprehension in an ordinary mind and prompt a person of average prudence to make inquiry." Levien v. Fiala, 79 Wn. App. 294, 298, 902 P.2d 170 (1995) (quoting Paganelli v. Swendsen, 50 Wn.2d 304, 308, 311 P.2d 676 (1957)). In Casa del Rey v. Hart, 110 Wn.2d 65, 71, 750 P.2d 261 (1988), the Court found constructive notice of the land's defects where the buyers were 'experienced investors[,] . . . knew they were purchasing an interest sold to satisfy a judgment[,] . . . knew that the purchase price they paid was only a small fraction of the value of the property[, and] . . . knew that third parties claimed ownership or rights in the property.'
'The bona fide purchaser doctrine provides that a good faith purchaser for value, who is without actual or constructive notice of another's interest in real property purchased, has a superior interest in the property.' Levien v. Fiala, 79 Wn. App. 294, 298, 902 P.2d 170 (1995) (citing Tomlinson v. Clarke, 118 Wn.2d 498, 500, 825 P.2d 706 (1992)).
The 'Terms of Sale' document presented at the tax foreclosure sale expressly states that Tax Lot 164 was offered 'on a 'where is' and 'as is' basis, and the County makes no representation of warranty, expressed or implied, nor any guaranty of warranty, express or implied, as to the condition of title' to the land. Plaintiff's Exhibit 28. Moreover, that document states that 'it shall be the buyer's responsibility to determine whether any such code violations exist for any property purchased.' Id.
We think the terms of sale themselves provide sufficient evidence to support the jury's verdict. Moreover, Crispin has similarly purchased two other foreclosure properties, and knew that the amount of the delinquent taxes was exceedingly low — which speaks volumes about the county's opinion of the market value of the property during the years that the delinquent taxes accrued. While Crispin argues that he conducted a diligent investigation of the status of Tax Lot 164, this investigation came after he purchased the land. He can only point out that 'he obtained information through a records search at the County Assessor's Office and performed a site inspection' prior to the purchase. He admitted that prior to the sale, he did not get a title report or conduct a title search, did not talk to anyone at the City or to the previous owner, did not obtain an appraisal, and did not consult a developer or contractor.
These facts are more than sufficient to allow the jury to find that Crispin had constructive notice of the property's defects. Crispin argues that as a matter of law, he can only be charged with what a more diligent inquiry would have revealed, and he contends that if he had inquired further he still wouldn't have learned that the lot was not legally created — a fact that only became known after citizens petitioned the county to rezone the property and the City made a thorough investigation. But whether this is so was a factual question for the jury, not a legal question for this appellate court.
UNJUST ENRICHMENT AWARD
On cross-appeal, the City assigns error to the trial court's denial of its CR 50(b) motion to set aside the jury's unjust enrichment verdict. The City also argues (1) that the statute of limitations on the unjust enrichment claim expired; (2) that Crispin failed to preserve the ability to contest the assessment roll under RCW 35.44.190; and (3) that the evidence is insufficient to support the jury's verdict. We need only discuss the City's second ground for contesting the unjust enrichment award because it is dispositive of this claim.
The City argues that Crispin was barred from contesting the LID assessment because neither Crispin nor Gilmour contested the assessment at the time of the assessment hearings. The City relies on RCW 35.44.190, which reflects the Legislature's intent that confirmed assessment rolls be final:
Whenever any assessment roll for local improvements has been confirmed by the council, the regularity, validity, and correctness of the proceedings relating to the improvement and to the assessment therefor, including the action of the council upon the assessment roll and the confirmation thereof shall be conclusive in all things upon all parties.
They cannot in any manner be questioned in any proceeding by any person unless he filed written objections to the assessment roll in the manner and within the time required by the provisions of this chapter and unless he prosecutes his appeal in the manner and within the time required by the provisions of this chapter.
Crispin makes no effort to distinguish an action for unjust enrichment from a collateral attack on an assessment after confirmation of the assessment roll. Instead, he argues that the assessment here was void ab initio and thus was not subject to the section's rule of finality:
In all cases of special assessments for local improvements wherein the assessments are not valid in whole or in part for want of form, or insufficiency, informality, irregularity, or nonconformance with the provisions of law, charter, or ordinance, the city or town council may reassess the assessments and enforce their collection in accordance with the provisions of law and ordinance existing at the time the reassessment is made. This shall apply not only to an original assessment but also to any reassessment, to any assessment upon omitted property and to any supplemental assessment which is declared void and its enforcement refused by any court or which for any cause has been set aside, annulled or declared void by any court either directly or by virtue of any decision thereof.
Crispin cites Inland Empire Land Co. v. Grant Cy., 138 Wn. 439, 254 P. 14 (1926) for the proposition that a grossly excessive assessment renders the assessment constructively fraudulent and thus void from the outset. He thus argues that he may attack the LID assessment notwithstanding RCW 35.44.190. However, the Court in Inland Empire was not presented with an LID assessment, nor with a statutory provision similar to RCW 35.44.190 governing the finality of an assessment roll. Rather the case dealt with real estate taxes.
City of Longview v. Longview Cy., 21 Wn.2d 248, 150 P.2d 395 (1944) provides a more appropriate analytical starting point for this case. There, the Supreme Court construed former Rem. Rev. Stat. §§ 9375 9395 (Laws of 1911), which substantially tracks the language of RCW 35.44.190 .280. The Court noted that in view of the explicit terms of this statute, none but jurisdictional defects in the proceedings will serve to defeat an assessment upon property of an owner who has failed to file objections to the confirmation of the assessment roll. Objections that an assessment was made without regard to benefits, or in excess of benefits, or in excess of actual cost of the improvement, or in excess of charter limitations, are not jurisdictional and will not serve to defeat the assessment. 21 Wn.2d at 252 (italics ours).
Similarly, in State ex rel. Johnson v. City of Dayton, 200 Wn. 91, 93 P.2d 909 (1939), also interpreting Rem. Rev. Stat. § 9375, the Court rejected the argument that a finalized assessment roll could be attacked as void where the appellant claimed the assessment was grossly disproportionate to the benefit received. The Court noted that 'the fact that both the front foot and zone methods of assessment sometimes result in gross inequalities does not make such methods of assessment ipso facto void, where, as under our statutes, the procedure affords to each individual property owner his day in court and the right to file written objections and to appeal in case they are overruled.' Id. at 98.
Also, in Sanderson v. City of Seattle, 95 Wn. 582, 585, 164 P. 217 (1917) (internal citation omitted), the Court noted that '[t]o deny [the city] the power to assess, there must be more than a showing of lack of benefit, or that the assessment is too high, or that proper credits have not been given. There must be a lack of original jurisdiction to make the improvement. We understand this to be the meaning of Laws 1911, p. 455 § 23[.]' In Grandin v. City of Tacoma, 87 Wn. 98, 100, 151 P. 254 (1915), the Court noted that in light of section 23, appellants' right to challenge the assessment roll after failing to contest the hearings was limited to a claim of 'a total lack of authority in the council to assess their property for this improvement.'
In this case, the City made its LID assessment of Tax Lot 164 based on the admittedly mistaken assumption that the lot was a legal building site. However, to support his unjust enrichment claim below and on appeal, Crispin does not claim that the City was without jurisdiction to make the LID assessment on Tax Lot 164. Instead, he argues that because the LID assessment was 'nearly fifty times the fair market value of the property[,]' the valuation was grossly excessive. Crispin's challenge does not go to the City's jurisdiction to make the LID assessment, but falls squarely within the type of objection that is subsequently barred by RCW 35.44.190 if not raised during the assessment hearings. Absent a jurisdictional attack, which Crispin does not raise, Crispin is barred from contesting the LID assessment, as it is uncontested that Gilmour did not contest the assessment hearings below. Under the only authority cited by either party, because no objection was made to the LID assessment before confirmation, Crispin is barred by RCW 35.44.190 from attacking the assessment by any means, and, as we have noted, Crispin makes no claim that an unjust enrichment award is anything other than a collateral attack on the validity of the assessment.
Nor does it affect our analysis that Crispin was not in ownership of Tax Lot 164 at the time of the assessment hearings, and thus could not object himself, as a local improvement assessment is unaffected and remains enforceable when the property is purchased by a private citizen at a county tax foreclosure sale. Palzar v. City of Tacoma, 17 Wn. App. 745, 747-48, 565 P.2d 1191 (1977) ('[T]he legislative intent is clearly discernable that a private person, whether he proceeds by the purchase of a certificate of delinquency and himself forecloses it, or becomes a purchaser at the county's sale, may in either event pay the local assessments or acquire title subject to them, but he has no other choice.' 17 Wn. App. at 747-48 (citing City of Tacoma v. Fletcher Realty Co., 150 Wn. 33, 37, 272 P. 43 (1928))).
We also note in passing that although perhaps impractical for political or economic reasons, there is no legal barrier that prevents Crispin from applying for a subdivision, making an award for unjust enrichment premature, at best.
AWARD OF COSTS
Our decision reversing the unjust enrichment award requires reversal of the award of costs — Crispin no longer being the prevailing party. Accordingly, we need not address the merits of the City's claim that there was no legal basis for the award of costs in any event.
CONCLUSION
We affirm the trial court's order of December 10, 1999, denying Crispin's motion for revision of the earlier summary judgment and for judgment notwithstanding the jury's verdict that Crispin was not an innocent purchaser for value without notice. We reverse the trial court's order of December 10, 1999, denying the City's motion for judgment notwithstanding the unjust enrichment verdict, and we also reverse the judgment on that verdict and the accompanying award of costs.
WE CONCUR: WEBSTER, J., BECKER, J.