Cobb v. Snohomish CountyCobb v. Snohomish County
Lead Opinion
The doctrine of avoidable consequences prevents an injured party from recovering damages it could have avoided through reasonable efforts. Snohomish County denied R/L Associates’s application for preliminary plat approval based on an interpretation of the County’s road ordinance that this court found to be arbitrary and capricious. See Cobb v. Snohomish County,
R/L also argues that the trial court (1) erred in denying
FACTS
R/L Associates (R/L)
R/L’s traffic study disclosed potential impacts to an intersection at 234th Street S.W. and State Highway 99. The study concluded that the "traffic movements” (i.e. particular turn lanes, etc.) aifected by traffic from the subdivision operated at LOS C, but that other traffic movements at the intersection, which the subdivision’s traffic would not impact, operated at LOS D. The County required obligations of developers based on the intersection as a whole, rather than by traffic movement. So, although R/L’s subdivision only impacted movements at LOS C, the County asked R/L to submit mitigation proposals under former SCC 26B.55.040(1), as required for projects at LOS D.
The former SCC provided four options to a developer to mitigate a development’s impact on a LOS D road system:
(a) Execution of a valid written voluntary agreement between the county and the developer (and bond if required) by which the developer agrees to pay his proportionate share of the cost of mitigation improvements in accordance with this title;
(b) Formation of a road improvement district (RID) for full improvements, in conformance withRCW 36.88.060 , as set forth herein;
(c) Execution of a negotiated voluntary agreement between the county and the developer (and bond if required) by which the developer agrees to fund certain partial or interim improvements which mitigate the direct impact of said development; or
(d) Execution of a voluntary agreement for the payment of a fee to mitigate a direct impact that has been identified as a consequence of the proposed development.
Former SCC 26B.55.040(1).
During the relevant time period, the County interpreted options (a) and (b) as requiring full improvements that would improve the entire intersection to LOS B or better.
R/L hired an engineering and land use planning firm to help with the development and obtaining of plat approval. The two employees from the firm assisting R/L were very experienced in traffic impact mitigation agreements; one had been a planner for the County. One of the employees, Mr. Watkins, prepared a mitigation offer to fund the installation of a left-hand turn lane under mitigation option (d) (voluntary agreement to pay a fee to mitigate a specific impact). Watkins had made this same offer regarding the same intersection on behalf of a former client. The County had accepted the offer, but denied that client’s overall application for unrelated reasons. Watkins called Ms. Mudgett of the County, who informed him that the offer would be acceptable. Watkins estimated that the construction of the left-turn lane would cost $10,000. Mr. Hale of R/L took over the negotiations from Watkins and did not send the letter making this offer. He wrote a letter in which he expressed his understanding that the County was "requiring” R/L to offer to fund or install a left-turn lane. Hale instead offered to pay a proportionate share of "improvements to the intersection” under option (a). Ms. Mudgett prepared a written recommendation to the hearing examiner that he accept R/L’s proposal, with the condition that building permits would be subject to construction of the improvements. R/L revised its offer, however, to agree under option (a) to pay $12.50, its estimated proportionate share of the costs to install a left-hand turn lane. Ms. Mudgett withdrew her recommendation that the hearing examiner accept the offer because, under option (a), the improvements must improve the whole intersection to LOS B or better and improvements to the left-hand turn lane alone would not do so. She advised R/L that an offer to fully fund or construct a left-hand turn lane would be an acceptable offer under options (c) or (d).
The hearing examiner determined that the offer to pay
The hearing examiner determined that R/L must make a new mitigation offer under options (c) or (d), since those options do not require that the entire intersection be raised to LOS B or better. Rather than submitting a revised offer, R/L appealed to the County Council, which upheld the hearing examiner’s decision. R/L then appealed to the superior court, challenging the constitutionality of SCC 26B. The superior court found the ordinance constitutional, but directed the County to grant the application for preliminary plat approval upon R/L’s payment of $25.00, R/L’s proportional share. R/L paid the fee under protest, and appealed the trial court’s decision to the court of appeals.
This court upheld the constitutionality of former SCC 26B, but determined that the County’s interpretation of the ordinance was incorrect to the extent that it obligated developers to pay for improvements for traffic problems not directly impacted by the development. Cobb,
On remand, the County amended its answer to add the affirmative defense of mitigation of damages, claiming that if R/L had made an offer under protest to pay $10,000 for the left-hand turn lane, the development would have continued while R/L appealed the hearing examiner’s decision. After a lengthy trial, the judge determined that the doctrine of avoidable consequences barred R/L’s right
DISCUSSION
Doctrine of Avoidable Consequences
The trial court determined that R/L’s damages were not recoverable under the doctrine of avoidable consequences. R/L contends that this was error because the doctrine does not apply as a matter of law and because the trial court’s findings that a reasonable developer would have agreed to pay $10,000 under protest to obtain plat approval, retaining the right to appeal, are not supported by substantial evidence.
Application of the Doctrine
The doctrine of avoidable consequences, also known as mitigation of damages, prevents recovery for damages the injured party could have avoided through reasonable efforts. Kloss v. Honeywell, Inc.,
R/L does not appear to dispute the trial court’s determination that the doctrine applies to
First, R/L contends that it had no obligation to pay an unlawful exaction. It bases this contention on the rule that a party cannot be required to surrender a right of substantial value in order to minimize a loss. See Restatement (Second) of Torts § 918 cmt. j (1965). Here, however, the right surrendered was the right to withhold payment of $10,000, an amount that was insignificant in comparison to the profits at risk and that R/L could readily pay. R/L contends that this was a right of substantial value because it is comparable to the example in comment j of the Restatement:
[W]hen a water company illegally refuses to turn on water unless the plaintiff pays a substantial bill that he does not owe and agrees not to sue for the return of the money, a customer who refuses to pay the bill is entitled to recover for the harm caused by the lack of water, even though he had the money and, if he had paid, would have been entitled to restitution because of the duress.
(Emphasis added.)
This example is distinguishable from the instant case because, in addition to surrendering the right to withhold payment, the plaintiff in the example surrenders the right to sue for its return. Here, R/L would have expressly retained that right by paying under protest. R/L also appears to argue that the right is substantial because "the government may not impose a choice between the government benefit and the exercise of a constitutionally guaranteed right,” quoting Parks v. Watson,
R/L’s third argument is that the doctrine of avoidable consequences does not apply because the County’s actions were intentional. It is true that there is no duty to mitigate damages arising from intentional conduct. See Wilson v. City of Walla Walla,
Finally, R/L argues that its conduct in appealing the decision was reasonable. The doctrine only requires the plaintiff to act as a reasonable person would. "If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen.” Hogland v. Klein,
The trial court did not err, as a matter of law, in determining that the doctrine of avoidable consequences applies in this case.
Factual Basis for Application of Doctrine
R/L contends that the trial court’s findings that a reasonable developer would have agreed to pay $10,000 under protest and that R/L could have obtained plat approval by doing so are not supported by substantial evidence. Substantial evidence is that sufficient to persuade a fair-minded person of the truth of the matter asserted. Ridgeview Properties v. Starbuck,
The trial court determined that a reasonable developer
The court also gave substantial weight to the expert testimony of Judith Runstad, a land use attorney who has assisted developers with permitting negotiations on many occasions. She concluded that a reasonable developer would have agreed to fund the $10,000 turn lane under protest pursuant to option (d). The court also recognized that R/L’s own expert testified that a developer would agree to a $10,000 exaction under protest to proceed with a project expected to result in a $960,000 profit.
The court also noted that R/L had asserted in its letter to the County Council that the hearing examiner sought to require the developer to pay the full amount of the turn lane. Similarly, in its brief to this court in the first appeal, R/L contended that the examiner’s intent was that R/L pay the full cost, about $10,000, for a left-turn lane. Thus, the court recognized that R/L understood that such an offer would have been acceptable to the County.
The trial court’s determinations that a reasonable developer would have mitigated its damages by offering to fund the left-turn lane under protest is supported by
Withdrawal of Jury Trial Waiver
Following remand from this court, R/L filed a Note for Trial Setting, expressly waiving its right to a jury trial. A bench trial was set for July 27, 1993. In April 1993, the parties stipulated that the County could amend its answer to assert failure to mitigate damages as an affirmative defense. R/L did not retract its jury waiver at that time. A superior court commissioner later granted the County’s motion to continue the trial date to December 14, 1993. In August 1993, R/L requested another continuance and demanded a jury trial. The court continued the trial date, but denied the request for a jury trial.
R/L contends that the trial court improperly denied R/L its constitutional right to a trial by jury on the grounds that (1) the continuation of the trial date revived the right to request a jury, and (2) the County’s amendment of its pleadings revived the right.
Withdrawal of a waiver of the right to a jury is within the discretion of the trial court. Mount Vernon Dodge v. Seattle-First Nat’l Bank,
R/L did not make its second argument, regarding the amendment of the pleadings, to the trial court. Constitutional issues not presented to the trial court in civil cases are generally not considered on appeal unless they involve the trial court’s jurisdiction. Robinson v. Peterson,
Evidence of Hale’s Past Lawsuits and Political Affiliations
R/L alleges that the trial court abused its discretion in allowing the County to question Mr. Hale on the number of lawsuits he has previously brought against the government as well as on his involvement with the Northwest Legal Foundation, a non-profit law firm which espouses obtaining substantial damage awards against the government.
R/L’s first argument is that the questioning was not relevant. Evidence is relevant when it tends to make the existence of any fact of consequence more or less probable. ER 401. We review a trial court’s ruling on relevance for abuse of discretion. Crescent Harbor Water Co. v. Lyseng,
The questions regarding Hale’s prior litigation and previous payments to the government under protest were relevant to the issue of the reasonableness of his not making such a payment in this case. But the questions regarding his involvement with the Northwest Legal Foundation were not relevant to any issue in this case. Admission of the evidence was therefore error. Because no constitutional right is implicated by the admission of irrelevant evidence, the applicable harmless error test is whether, within reasonable probabilities, the trial’s outcome would have been materially affected had the error not occurred. See State v. Braham,
R/L also argues, for the first time on appeal, that the questioning demonstrated a discriminatory purpose and
Attorney Fees
An appellate court reverses the trial court’s determination that the amount of attorney fees is reasonable only for abuse of discretion. Allard v. First Interstate Bank,
The trial court awarded attorney fees for the original trial and appeal, but not for the trial on remand. Presumably this is because R/L did not prevail at that trial. R/L argues that the hours expended on the trial after remand are reasonable, relying on federal fee-shifting cases. Those cases, however, hold only that all reasonable time spent is to be compensated. See, e.g., Davis v. City & County of San Francisco,
R/L also contends that the trial court erred in awarding attorney fees based on its attorney’s historical rates at the time he performed and billed for his services, rather than his rate at the time of trial. The cases that R/L cites for the proposition that attorney fees should be based on current rates were contingency fee cases in which
We affirm.
Baker, C.J., concurs.
Notes
Robert Hale and Larry Cobb are president and vice-president of R/L. The trial court dismissed them because they had no interest in the subject property. Although Hale and Cobb filed a notice of appeal with R/L, they did not argue that the trial court erred in dismissing them. Thus, R/L is the only party appealing the issues addressed.
We do not address the propriety of the trial court’s determination that the doctrine of avoidable consequences bars R/L from recovering any damages, rather than limits its damages to the $10,000 it could have paid under protest, because neither party raised the issue.
R/L assigned error to over 40 findings of fact. Although we have not discussed each of these in detail, we have reviewed the challenged findings and determined that they are supported by substantial evidence in the record.
Concurrence Opinion
(concurring) — I concur with the majority on the facts of this case. A reasonable developer looking at a potential profit of $960,000 would have paid what we later decided was an illegal $10,000 exaction under protest in order to proceed with a very lucrative project. I write separately to point out that the discrepancy between the projected profit and the cost of the exaction is often not nearly so great as it was here. See, e.g., Henderson Homes, Inc. v. City of Bothell,
Reconsideration denied August 4, 1997.
Review denied at