Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

JOHN R. WYSS, 
                             Appellant,                          No.  41298-5-II

       v.                                                  UNPUBLISHED OPINION

GRAYS HARBOR COUNTY,
                             Respondent.

       Van Deren, J.  --  John Wyss appeals the trial court's order granting summary judgment to 

Grays Harbor County, asserting that the trial court erred because (1) the County failed to timely 

appeal his purported 1999 subdivision of property within the city of Hoquiam and (2) the county 

assessor lacked authority to rescind Wyss's earlier illegal and invalid attempted property 

subdivision via quitclaim to his minor son.  Because Wyss is collaterally estopped from asserting 

the validity of his attempted property subdivision, the trial court properly dismissed his claims.  

We affirm and award attorney fees to the County for having to defend against Wyss's frivolous 

claims. 

                                            FACTS

       Wyss owned an eight-unit apartment building located in Hoquiam, Washington, against 

which Hoquiam initiated condemnation proceedings in August 1999.  In September 1999, Wyss  

No.  41298-5-II

attempted to transfer the north 40 feet of the property on which the apartment building was 

located to his son by recording a quitclaim deed in the Grays Harbor County Auditor's office.  

When Wyss filed the quitclaim deed, the county assessor's office assigned a new tax parcel 

number to the north 40-foot portion of Wyss's lot.  In December 1999, Hoquiam issued a final 

decision condemning Wyss's apartment building.  

       Wyss attempted to appeal Hoquiam's condemnation decision but the trial court found 

Wyss's appeal untimely under the land use petition act (LUPA), chapter 36.70C RCW.  We 

affirmed the trial court's decision to dismiss Wyss's appeal in April 2002, in an unpublished 

opinion.1  

       In October 2002, Wyss sued Hoquiam in United States District Court, alleging that 

Hoquiam's condemnation action was an unconstitutional taking and that it denied him due process 

of law.  The federal court disagreed and entered a summary judgment order in favor of Hoquiam

in November 2003.  In its summary judgment order, the federal court declined to exercise its 

supplemental jurisdiction over Hoquiam's claim that Wyss's transfer of a portion of his property 

to his son was illegal under Washington law.  

       Following the federal court's summary judgment order, Hoquiam sued Wyss in Grays 

Harbor County Superior Court to nullify Wyss's attempted transfer of property to his son.  In 

October 2005, the superior court entered a summary judgment and declaratory judgment order in 

favor of Hoquiam, finding that Wyss's attempted 1999 transfer of a portion of his property was 

unlawful and invalid.  We affirmed the trial court's 2005 summary judgment order in an 

1 Wyss v. City of Hoquiam, noted at 111 Wn. App. 1001 (2002). 

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No.  41298-5-II

unpublished opinion in 2006.2  

       In 2007, Hoquiam assessed a tax lien against Wyss's property.3 On March 11, 2009, 

Hoquiam notified the county assessor of the 2005 trial court judgment, invalidating Wyss's 

transfer of the 40 foot section of property to his son.  On receiving notice of the 2005 trial court 

judgment, the county assessor recombined the two tax parcel numbers associated with Wyss's 

property into a single tax parcel number.  Wyss then sued the County, asserting that the county 

assessor did not have "legal authority to rescind Wyss'[s] subdivision" of his property and 

requesting a declaratory judgment as well as injunctive relief.  Br. of Appellant at 12.  The trial 

court dismissed Wyss's claims with prejudice.  Wyss appeals the trial court's dismissal of his suit 

against the County.  

                                          ANALYSIS

       Wyss contends that the trial court erred by dismissing his claim against the County 

because the County failed to timely appeal the county assessor's 1999 assignment of a new tax 

parcel number to a portion of his property, which assignment Wyss characterizes as a land use 

decision subject to LUPA's statute of limitations.  Wyss concedes that the 1999 transfer of his 

property was illegal and he acknowledges our 2006 unpublished opinion holding that the transfer 

of his property was illegal and thus invalid.  But despite conceding that his attempted transfer has

been adjudicated as illegal, Wyss asserts that the County was required to appeal the county 

assessor's assignment of an additional tax parcel number in 1999 within LUPA's 21-day statute of 

2 City of Hoquiam v. Wyss, noted at 136 Wn. App. 1011 (2006).  

3 The issue of Hoquiam's tax assessment lien against Wyss's property was the subject of another 
appeal before us, Grays Harbor County v. Wyss, No. 41691-3-II.  We dismissed Wyss's appeal 
on December 12, 2011, based on Wyss's failure to comply with RCW 84.64.120.
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No.  41298-5-II

limitations and, because the County did not appeal, his illegal division of the lot stands.  

       Wyss also contends that the trial court erred in dismissing his claim because the county 

assessor lacked authority to "rescind" his 1999 subdivision when, in 2009, the assessor 

recombined the two tax parcel numbers associated with his property into a single tax parcel 

number. 

I.     Standard of Review

       We review summary judgment orders de novo, engaging in the same inquiry as the trial 

court.  Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).  Summary 

judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file 

demonstrate the absence of any genuine issues of material fact, entitling the moving party to 

judgment as a matter of law.  CR 56(c).  We may affirm a trial court's summary judgment ruling 

on any correct ground, even if the trial court did not consider that ground, "provided that it is 

supported by the record and is within the pleadings and proof."  Plein v. Lackey, 149 Wn.2d 214, 

222, 67 P.3d 1061 (2003).

II.    Collateral Estoppel

       All of Wyss's arguments in this appeal rely on his persistent assertion that he can maintain 

that his property was legally subdivided into two separate parcels by the county assessor's 1999 

assignment of an additional tax parcel number to a portion of his land.  This issue has been fully 

addressed and resolved by a final judgment on the merits; thus, it is barred by collateral estoppel.  

       Collateral estoppel, or issue preclusion, prevents relitigation of any issue that was actually 

litigated to final conclusion in an earlier lawsuit.  State Farm Mut. Auto. Ins. Co. v. Avery, 114 

Wn. App. 299, 304, 57 P.3d 300 (2002).  The requirements for applying collateral estoppel to a 

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No.  41298-5-II

claim are:

       (1) identical issues; (2) a final judgment on the merits; (3) the party against whom 
       [collateral estoppel] is asserted must have been a party to or in privity with a party 
       to the prior adjudication; and (4) application of the doctrine must not work an 
       injustice on the party against whom the doctrine is to be applied.

Malland v. Dep't of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985).  All of these 

requirements are met here.

       In 2005, the Grays Harbor Superior Court entered a summary judgment order invalidating 

Wyss's attempted subdivision of the lot in the City, and we affirmed the superior court's summary 

judgment order in an unpublished opinion in 2006.4 As we held in the 2006 opinion:

              The trial court properly found that the deed from Wyss to James was 
       illegal.  Wyss's transfer of the north 40 feet effectively divided the property and 
       created a short subdivision.  RCW 58.17.020(6).  Therefore, Wyss had to comply 
       with local regulations including Chapter 9.34 of the Hoquiam Municipal Code, 
       before dividing his property.  RCW 58.17.030[].  Because the short subdivision he 
       attempted to transfer was not created legally, the transfer was illegal.  See RCW 
       58.17.030.

City of Hoquiam v. Wyss, noted at 136 Wn. App. 1011, 2006 WL 3525277 at *4.

       Wyss's attempted 1999 subdivision of the lot in Hoquiam was fully and finally determined 

to be improper and illegal and, thus, his property remains a single parcel.  Wyss is therefore 

collaterally estopped from raising the issue again.  Accordingly, we affirm the trial court's 

summary judgment order dismissing Wyss's claims.

4 This court may consider unpublished opinions in examining issues such as collateral estoppel.  
See Martin v. Wilbert, 162 Wn. App. 90, 93 n. 1, 253 P.3d 108, review denied, 173 Wn.2d 1002
(2011).
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III.   LUPA

       Although we need not address the merits of Wyss's LUPA claim on appeal, we note that 

the county assessor's assignment of tax numbers does not constitute a land use decision subject to 

LUPA's statute of limitations.  Former RCW 36.70C.020(1) (1995) defined a "[l]and use 

decision" in part, as "a final determination by a local jurisdiction's body or officer with the highest 

level of authority to make the determination, including those with authority to hear appeals."  

Here, the Hoquiam City Council, not the county assessor, had authorityto make a final 

determination regarding Wyss's purported property subdivision.

       Former RCW 58.17.020(6) (1995) defined a "[s]hort subdivision" as "the division or 

redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of . . . 

transfer of ownership.  And RCW 58.17.030 provides that "[e]very short subdivision . . . shall 

comply with the provisions of any local regulation adopted pursuant to RCW 58.17.060."5  

       The local regulation governing Wyss's purported subdivision of his property is found in 

Chapter 9.07 of the City of Hoquiam Municipal Code, which authorizes the city engineer to 

approve or deny applications for a short subdivision, and which authorizes the Hoquiam City 

Council to hear appeals from the city engineer's decision.  HMC 9.07.060-.080.  

       Because the county assessor's office did not have "the highest level of authority to make 

[a short subdivision] determination," its actions in assigning and recombining tax parcel numbers 

to Wyss's property did not constitute land use decisions and was not subject to LUPA's statute of 

limitations.6 Former RCW 36.70C.020(1).  Wyss's claim regarding Hoquiam's failure to meet the 

5 Wyss ignores these relevant statutory provisions despite our reliance on them in our previous 
unpublished decision, affirming the trial court's 2005 summary judgment order invalidating his 
attempted illegal subdivision.  See Wyss, noted at 136 Wn. App. 1011, 2006 WL 3525277 at *4.
6 As we noted in Wyss's previous appeal when rejecting the same statute of limitations argument 
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No.  41298-5-II

LUPA deadline fails.

IV.    Attorney Fees

       The County requests attorney fees and costs under RAP 18.9(a) for defending against 

Wyss's frivolous appeal.  RAP 18.9 allows this court to order a party to pay attorney fees and 

costs for filing a frivolous appeal.  See also Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. 

Pers. Bd., 107 Wn.2d 427, 442, 730 P.2d 653 (1986) ("This court's power to impose attorney 

fees and costs as a sanction for bringing a frivolous appeal is pursuant to RAP 18.9.").  

       "[A]n appeal is frivolous if there are no debatable issues upon which reasonable minds 

might differ, and it is so totally devoid of merit that there was no reasonable possibility of 

reversal."  Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980).  Here, all of Wyss's 

Wyss raised against the City of Hoquiam:
              The statute of limitations does not bar the City's claim because the statute 
       of limitations does not apply to actions brought "in the name or for the benefit of 
       the state." RCW 4.16.160.  Municipal actions are brought "for the benefit of the 
       state" when those actions arise out of the exercise of powers traceable to the 
       sovereign powers of the state that have been delegated to the municipality. Wash. 
       Pub. Power Supply Sys. (WPPSS) v. Gen. Elec. Co., 113 Wn.2d 288, 293, 778 
       P.2d 1047 (1989).  The focus of the cases interpreting RCW 4.16.160 has not been 
       on the municipal conduct's effect but on its nature and character.  WPPSS, 113 
       Wn.2d at 293 . . .
              The power to regulate platting is traceable to the state's sovereign powers. 
       See Oceanographic Comm'n of Wash. v. O'Brien, 74 Wn.2d 904, 910, 447 P.2d 
       707 (1968) (sovereign power manifests itself by the power of taxation, the power 
       of eminent domain, and through the government's police power). In Washington, 
       the legislature has effectively delegated platting issues to the municipalities.  RCW 
       58.17.030, .060(1).  Therefore, because the City was acting for the state's benefit 
       by enforcing the short plat regulations, the declaratory judgment action seeking to 
       void the deed was not time barred because no statute of limitations applied.  RCW 
       4.16.160. 
Wyss, noted at 136 Wn. App. 1011, 2006 WL 3525277 at *4. (footnotes omitted).
       It is also worth noting that, if we were to accept Wyss's argument that the county 
assessor's March 16, 2009, correction of tax parcel numbers associated with his property 
constituted a land use decision, his complaint, filed on February 19, 2010, would be beyond 
LUPA's 21-day statute of limitations.  RCW 36.70C.040(3).  
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No.  41298-5-II

claims ignore our previous unpublished opinion, which clearly held that his purported subdivision 

of property was illegal and therefore void, and we also rejected his statute of limitations argument 

under LUPA.  Accordingly, Wyss's appeal does not raise any "debatable issues upon which 

reasonable minds might differ," and we award the County attorney fees and costs for defending 

against Wyss's frivolous appeal.  Streater, 26 Wn. App. at 435.

       We affirm the trial court's summary judgment order dismissing Wyss's claims with 

prejudice.  Additionally, we award the County attorney fees and costs under RAP 18.9 for 

defending against Wyss's frivolous appeal.

       A majorityofthe panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                 Van Deren, J.
We concur:

Worswick, A.C.J.

Johanson, J.

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