Opinion
No. 34258-8-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-07634-3, Serjio Armijo, J., entered December 9, 2005.
Counsel for Appellant(s), William F Wright, Attorney at Law, Seattle, WA.
Counsel for Respondent(s), Robert Eugene Mack, Smith Alling Lane, Tacoma, WA.
Edward Greely Hudson, Smith Alling Lane, Tacoma, WA.
Reversed and remanded with instructions by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
Steven Van Cleve sued the Town of Eatonville, requesting that the trial court void a Town resolution that authorized the sale of 3.08 acres known as Van Eaton Park. The Town sold the property and moved for summary judgment, claiming that the sale mooted Van Cleve's suit and that Van Cleve failed to establish that the property was dedicated to public use. For the first time on appeal, the Town also argues that the trial court lacked jurisdiction to grant Van Cleve relief because he failed to join all necessary parties. The trial court granted the Town summary judgment and Van Cleve appeals.
It appears undisputed that if the property was indeed dedicated, the Town would not have been able to authorize its sale. Public authorities may not take any action with respect to the dedicated property that interferes with the use for which the property was dedicated. Gillis v. King County, 42 Wn.2d 373, 380, 255 P.2d 546 (1953) (holding that a local government holds dedicated property in trust for the public, so has no authority to act in conflict with that trust); Donald v. City of Vancouver, 43 Wn. App. 880, 886, 719 P.2d 966 (1986) (ruling that any diversion from the dedicated purpose is illegal).
We hold that this case is not moot and that a genuine issue of material fact exists precluding summary judgment — whether an implied common law dedication was created. But we also hold that Van Cleve failed to join all necessary parties. Because the Town raised this issue for the first time on appeal, however, we decline to dismiss the action and instead remand to the trial court with instructions that it dismiss the action unless all necessary parties are joined within 90 days from mandate of this opinion.
FACTS
The Eatonville Town Council passed Resolution 2005-O, which declared that 3.08 acres of land located on Orchard Avenue was surplus and authorized advertising to sell the land. The Town planned to sell the 3.08 acres to fund its purchase and development of an urban park. The Town's 1993 Comprehensive Plan (the Plan), in effect when Resolution 2005-O was adopted, referred to the 3.08 acres as undeveloped parkland and included this property in the Town's inventory of parks and recreation.
This land is identified formally as parcel numbers 3605002550 and 3605003560. Van Cleve and others refer to the land as Van Eaton Park, but the Town disputes the validity of this name. For clarity, we will refer to the land as the 3.08 acres.
Van Cleve, a Town resident, filed a complaint for declaratory judgment against the Town, requesting that the trial court declare Resolution 2005-O void and without legal basis or effect. He asserted that the Town, through implied common law dedication, had dedicated the 3.08 acres to public use as a park and was prohibited from selling it.
Two months later, the Town revised the Plan and re-designated the 3.08 acres as single family residential. The Town then sold the 3.08 acres to an unknown purchaser or purchasers.
The record on appeal does not contain the name of the purchasing entity.
Van Cleve obtained a trial date and requested a six-person jury. The Town moved for summary judgment, arguing that the case was moot because the land had been sold and that Van Cleve failed to establish that the 3.08 acres was dedicated to public use. The trial court granted summary judgment, stating that for "reason of mootness and on the merits . . . summary judgment is granted as requested." Clerk's Papers (CP) at 299-301. Van Cleve appeals.
Van Cleve also sued for an injunction and writ of mandamus, which the trial court denied. On appeal, Van Cleve argued only that his suit for declaratory judgment was not moot. He has abandoned his writ of mandamus claim. RAP 12.1(a) (mandating that, in general, we may decide a case only on the basis of issues set forth by the parties in their briefs). Therefore, we focus only on whether summary judgment dismissing Van Cleve's declaratory judgment action was proper.
ANALYSIS Mootness
The Town asserts that Van Cleve's appeal is moot because the 3.08 acres have been sold. An appeal is moot where it presents purely academic issues and where it is not possible for the court to provide effective relief. City of Sequim v. Malkasian, 157 Wn.2d 251, 258-59, 138 P.3d 943 (2006). When an appeal is moot, it should be dismissed. Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993). But this case is not moot. Van Cleve's motion for declaratory judgment seeks to clarify whether the Town had authority to declare the property surplus and authorize its sale. If the Town did not have the authority to sell the 3.08 acres, then the sale would be invalid and void. See Donald v. City of Vancouver, 43 Wn. App. 880, 886, 719 P.2d 966 (1986). Thus, the underlying issue of whether the Town had authority to sell the 3.08 acres is not moot.
The Town also argues that the appeal is moot because Van Cleve failed to join all necessary parties. But the issue of joinder is a jurisdictional issue that is unrelated to the issue of mootness. Accordingly, we discuss joinder in a separate section of this opinion.
Summary Judgment
Van Cleve maintains that summary judgment was improper because he presented sufficient evidence to show that genuine issues of material fact exist as to whether the Town intended to dedicate the 3.08 acres and whether the public accepted the dedication — the essential elements of a dedication claim.
We perform the same inquiry as the trial court when reviewing an order for summary judgment. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate only if the moving party demonstrates that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Atherton Condo. Apartment-Owners Ass'n Bd. of Dir. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all facts in the light most favorable to the nonmoving party; the nonmoving party here is Van Cleve. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
Dedication
A dedication is the devotion of property to a public use. Donald, 43 Wn. App. at 885. Dedication may be accomplished under statute or at common law. Donald, 43 Wn. App. at 885. An imperfect statutory dedication may be validated by fulfilling the requirements for a common law dedication. Sweeten v. Kauzlarich, 38 Wn. App. 163, 167, 684 P.2d 789 (1984); 11A Eugene McQuillin, The Law of Municipal Corporations § 33.05, at 327 (3rd ed. 2000). This is because statutory dedication operates as a grant, while common law dedication operates through a theory of equitable estoppel. See Sweeten, 38 Wn. App. at 167-68.
A common law dedication may be either express or implied. Richardson v. Cox, 108 Wn. App. 881, 890-91, 26 P.3d 970 (2001), review denied, 146 Wn.2d 1020 (2002). An implied common law dedication requires no particular formalities, but is found only if the plaintiff proves by clear and convincing evidence that (1) the owner, through a clear and unmistakable act, manifested the intent to dedicate its land to public use; and (2) the public accepted the owner's offer. Donald, 43 Wn. App. at 885 (outlining elements); Knudsen v. Patton, 26 Wn. App. 134, 141, 611 P.2d 1354, review denied, 94 Wn.2d 1008 (1980) (stating the burden of proof); Karb v. Bellingham, 61 Wn.2d 214, 218-19, 377 P.2d 984 (1963) (stating that the plaintiff bears the burdens of proof and production); City of Seattle v. Hill, 23 Wash. 92, 97, 62 P. 446 (1900) (holding that no formalities are required).
The owner's intent may be shown by any act that positively and unequivocally indicates its intention. Hill, 23 Wash. at 97. Evidence of this intent may include a showing that the public generally used the property, paid taxes, or improved the land, or that the governmental entity recognized or claimed the land as public land. Knudsen, 26 Wn. App. at 142; also see Spencer v. Town of Arlington, 49 Wash. 121, 123, 94 P. 904 (1908).
Public acceptance may be proved by an express act, implication from the acts of municipal officers, or implication when the public uses the property for the purposes for which it was dedicated. City of Spokane v. Catholic Bishop of Spokane, 33 Wn.2d 496, 503, 206 P.2d 277 (1949). The plaintiff need not show that a certain number of people used the property for a set period of time, but must merely show that those persons who might naturally be expected to enjoy the dedication have used it to their pleasure or advantage. Catholic Bishop of Spokane, 33 Wn.2d at 504.
The Town's Intent
A genuine issue of material fact exists regarding the Town's intent to dedicate the 3.08 acres as a public park. The Town's 1993 Plan includes the 3.08 acres in the Town's parks and recreation inventory. The Plan states, in relevant part, that the Town is served by "undeveloped parkland known as VanEaton Parkland" and hints that the area will be "developed . . . [to] offer? a good view of the Town and surrounding area." CP at 76. The Plan also includes a map entitled "Eatonville Parks" that labels the 3.08 acres as a park. CP at 77.
Van Cleve also submitted 11 declarations to support this element of his claim. In these declarations: (1) nine former town council members stated that the Planning Commission discussed the status of the 3.08 acres and intended to protect the land from sale by dedicating it as public park land in the 1993 Plan; (2) Kirk Heinz, mayor in 1994, declared that the Plan included the 3.08 acres as dedicated park land and that the 1993 Plan reflected his, and the Town Council's, intent to dedicate the land as a public park; and (3) Harold Parnell, mayor from 2002-04, declared that it was his understanding that the Plan dedicated the property as a park.
One of these declarations was from Van Cleve; he was a member and chair of the Town's Planning Commission.
Van Cleve also offered three declarations to show that the Town manifested its intent that the property be a public park by improving and maintaining the 3.08 acres. Van Cleve declared that the property was undeveloped and unusable for public recreation until 2000. Stephen Cossalman declared that in 2000, the mayor had the 3.08 acres cleared of scrub alder and brush to open up a view of Mount Rainier, taking "particular pains to leave a few majestic mature trees to enhance the beauty of the park vista." CP at 174. According to Cossalman, the Town had the grass mowed for the next four years. Cossalman also stated that in 2004, Mayor Rath hired a bulldozer to clean up the blackberry brush and scrub alders, further opening up the view. And Jacqualin Parnell declared that the Town mowed and maintained the 3.08 acres for access by citizens, but discontinued the practice when it put the property up for sale.
The Town asserts that this evidence is insufficient, pointing to its own evidence, which contradicts or may ultimately prove more persuasive than Van Cleve's evidence. But the question before us is whether, taking all evidence in the light most favorable to Van Cleve, a material issue exists as to whether the Town manifested the intent to dedicate the 3.08 acres for public use. This evidence is sufficient to show that Van Cleve raised a genuine issue of material fact entitling him to a trial on that issue. Therefore, the trial court erred in granting the Town summary judgment.
The Public's Acceptance
Van Cleve similarly raised a genuine issue of material fact concerning the second element, public acceptance of the land. Van Cleve provided three declarations to prove this point. Van Cleve declared that he and his neighbors used the property on a regular basis for recreational purposes, such as hiking, bird watching, and enjoying the outdoors. Parnell declared that she is a Town resident and uses the property for "recreation and enjoyment." CP at 97. And Cossalman and Parnell both declared that the Town cleared and maintained the area for public use.
The Town did not refute this evidence, nor did it provide evidence that the Town citizens do not generally use the area as a park. Rather, it argued that "acceptance" is defined by the Town's Municipal Code, not by common law, and Van Cleve did not present a genuine issue of material fact regarding whether the Town accepted the park dedication under the Code definition. But the Town confuses statutory dedication and common law dedication. As discussed above, when a dedication fails under a statute or ordinance, such as the Town's Municipal Code, the doctrine of common law dedication may still apply. Sweeten, 38 Wn. App. at 167. It is undisputed that the public did not accept the 3.08 acres by following the protocol developed in the Municipal Code, but this does not mean that the Town did not accept the dedication by conduct which is sufficient under the common law.
The Town's Municipal Code 17.08.145 reads:
"`Dedication' means the deliberate appropriation of land by an owner for any general and public uses, reserving to himself no other rights than such as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted. The intention to dedicate shall be evidenced by the owner by the presentment for filing of a final plat or short plat showing the dedication thereon; and the acceptance by the public shall be evidenced by the approval of such plat for filing by the appropriate governmental unit. (Ord. 92-9 sec 3, 1992).
The declarations provided by Van Cleve state that the Town citizens used the property as a public park; this created a genuine issue of material fact that the public accepted the purported dedication by using the property for the purpose for which it was dedicated. Catholic Bishop of Spokane, 33 Wn.2d at 503. Because Van Cleve has raised an issue of material fact for each of the essential elements of his implied common law dedication claim, summary judgment was improper.
Joinder
The Town argues for the first time on appeal that Van Cleve's action for declaratory judgment fails because Van Cleve did not join all necessary parties. Specifically, the Town argues that because Van Cleve failed to join the purchasers and the heirs of the original grantors, we should dismiss Van Cleve's claim.
A party may raise a joinder issue for the first time on appeal because a trial court lacks jurisdiction if all necessary parties are not joined. Treyz v. Pierce County, 118 Wn. App. 458, 462, 76 P.3d 292 (2003), review denied, 151 Wn.2d 1022 (2004). Under RCW 7.24.110, a party seeking a declaratory judgment must join "all persons . . . who have or claim any interest which would be affected by the declaration." A party is necessary if (1) the trial court cannot make a complete determination of the controversy without that party's presence; (2) the party's ability to protect its interest in the subject matter of the litigation would be impeded by a judgment in the case; and (3) judgment in the case necessarily would affect the party's interest. Town of Ruston v. City of Tacoma, 90 Wn. App. 75, 82, 951 P.2d 805, review denied, 136 Wn.2d 1003 (1998); Primark, Inc. v. Burien Gardens Assocs., 63 Wn. App. 900, 907, 823 P.2d 1116 (1992).
Here, the purchasers of the 3.08 acres are necessary parties. If the resolution authorizing the sale of the property is invalid, then the sale is also invalid. See Donald, 43 Wn. App. at 885-86. Judgment of Van Cleve's claim will therefore necessarily affect the rights of the person or entity that purchased the property from the Town. Because Van Cleve did not join the purchasers as parties, all necessary parties — that is, those whose interests would be affected or prejudiced by Van Cleve's requested declaratory judgment — are not before the court. The Town argues that this jurisdictional defect requires dismissal of the action, but because the failure to join a necessary party argument was raised for the first time on appeal, we believe it inappropriate to dismiss the case without first giving the plaintiff the opportunity to join all the parties essential to this declaratory judgment action. Accord, Williams v. Poulsbo Rural Tel. Ass'n, 87 Wn.2d 636, 649, 555 P.2d 1173 (1976), overruled in part on other grounds by Chemical Bank v. Wash. Pub. Power Supply Sys., 102 Wn.2d 874, 691 P.2d 524 (1984).
Accordingly, we reverse the trial court's decision granting the Town summary judgment and we remand to the trial court with instructions that it dismiss the action unless all necessary parties are joined within 90 days of the mandate issued in this case.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and PENOYAR, J., concur.