HomeMy WebLinkAbout12-06-2024 - City's Reply Memo (Untimely Appeal) City Attorney’s Office Memorandum
DATE: December 6, 2024
TO: Phil Olbrechts, Hearing Examiner (olbrechtslaw@gmail.com)
CC: Cynthia Moya, City Clerk Specialist (cmoya@rentonwa.gov)
Julie Pendleton, Counsel for Appellant Colt/Mt Olivet
(pendleton@lasher.com)
FROM: M. Patrice Kent (pkent@rentonwa.gov)
SUBJECT: Reply to Response to Untimely Filing of Appeal
(City of Renton Code Compliance Case # CODE 24-000261)
Mr. Hearing Examiner,
I represent the City of Renton Community and Economic Development Department,
including the Code Compliance Division and its employees in the course of their
assigned duties.
The 4 Notices of Violation and the Email from Mr. Petzold referenced herein are attached
to the email for ease of reference.
In her Response dated October 3, 3024, Ms. Pendleton does not dispute that the Appeal
filed on October 29, 2024 for a Notice of Violation dated May 6, 2024, (“May
Violation”) was untimely. Counsel appears to consider opportunity for appeal of Renton
Municipal Code (“RMC”) violation as the functional equivalent to a default judgment.
Ms. Pendleton asserts that the untimely filing should be excused for equity reasons based
on a good faith mistake of her office relating to “which attorney was handling the
appeal.” She relies on the Division 2 unpublished Morrone v. Northwest Motorsport,
Inc., 22 Wn.App.2d, 1002, 2022 WL 1468789 (2022) and in the Division 2 published
VanderStoep v. Guthrie, 200 Wn.App. 500, 402 P3d 883 (2017). Each of these cases
apply the 4-step analysis from White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968):
MORRONE FACT COMPARISON
A closer review of facts in Morrone shows it is clearly distinguishable from the code
compliance case at issue here.
Both Northwest Motorsport, Inc. (“NWMS”) and Mr. Colt/Mt. Olivet Cemetery Co., Inc.
(together “Colt”) were untimely in their filing. At that point, the similarities end.
NWMS had a corporate restructuring and change of management during the course of the
case, which is not alleged here. The delay for NWMS was a matter of days rather than the
Hearing Examiner: CODE 24-000261 (REPLY – Untimely Filing)
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December 6, 2024
months for Colt. The counsel miscommunication for NWMS was what firm was
representing the party, versus which attorney within the firm was representing Colt.
In addition to the corporate restructuring, period of delay and the substance of counsel
miscommunication, in the present case there were also three intervening notices of
violation issued after the May Violation and before the Appeal was filed, on June 12,
2024 (“June Violation”) and on August 13, 2024 (“August Violation”) and on September
4, 2024 (“September Violation”). Each were substantially the same, consolidated under
the same code compliance case referenced above and citing violation of the same Renton
Municipal Code (“RMC”) section, RMC 4-4-130.D.2. In addition, following the issuance
of the second notice of violation on July 2, 2024, Code Compliance Inspector Eric
Petzold sent an email to Mr. Colt requesting contact.
VANDERSTOEP FACT COMPARISON:
VanderStoep is readily distinguishable from the instant case.
In the insurance-related case, the adjuster claimed that she “never received notice of the
lawsuit” (VanderStoep, at 511) and the Guthries also “properly notified American Family
[insurance] and followed up on that notice” (VanderStoep, at 512, emphasis added). The
court agreed to set aside the noneconomic damages.
Here there is no claim that counsel did not receive notice, nor that Mr. Colt followed up
despite the multiple notices and email communication noted above. At this point there are
no noneconomic damages as the totality of corrective action is a fine.
WHITE 4-STEP ANALYSIS:
VanderStoep (at 516-517) quotes the standards for setting aside a default judgment as
first laid out by the Washington State Supreme Court in White v. Holm, 73 Wn.2d 348,
352, 438 P.2d 581 (1968): .
A party moving to vacate a default judgment must be prepared to show:
(1) that there is substantial evidence supporting a prima facie defense;
(2) that the failure to timely appear and answer was due to mistake,
inadvertence, surprise, or excusable neglect;
(3) that the defendant acted with due diligence after notice of the default
judgment; and
(4) that the plaintiff will not suffer a substantial hardship if the default
judgment is vacated.
Little v. King, 160 Wn.2d 696, 703-04, 161 P.3d 345 (2007). Factors (1) and (2)
are "primary" and (3) and (4) are "secondary." (Id. At 704)
Morrone (at 1014-15) describes the procedural analysis of setting aside a defauklt
judgment as a matter of equity:
Hearing Examiner: CODE 24-000261 (REPLY – Untimely Filing)
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December 6, 2024
We determine whether default should be set aside as a matter of
equity. VanderStoep, 200 Wn.App. at 517. Accordingly, when reviewing the trial
court's decision to vacate default judgment, we assess whether that decision is just
and equitable. Rush v. Blackburn, 190 Wn.App. 945, 956-57, 361 P.3d
217 (2015). "Our primary concern is whether justice is being
done." VanderStoep, 200 Wn.App. at 517. What is equitable is determined from
the specific facts of each case, and is not a fixed rule. Little, 160 Wn.2d at 703.
CONCLUSIONS
The fact patterns in Morrone and VanderSloep are readily distinguishable from the
current code enforcement appeal. It appears to the City that Ms. Pendleton would have
the Hearing Examiner overlook direction from Little, wherein a fact-specific analysis
determines what is equitable and instead allow a general assertion of “counsel
miscommunication” to provide an unwavering determination of equitable excuse.
In this instance, it seems reasonable that three additional formal notices and a direct
request for communication over a period of months should not, for the purposes of
equity, be conflated with a single notice for a decision to which a party responded within
days as occurred in Morrone. Nor should it be conflated with counsel arguably not
receiving notice when the represented party then attempted to follow up with counsel.
Establishing a precedent wherein a party appearing before the Hearing Examiner can
merely assert “counsel miscommunication” without some reasonable bounds would have
the effect of the rendering the City’s appellate deadlines virtually unenforceable. This
could cause a substantial hardship on the City and development in the jurisdiction,
particularly to the extent that both the City and developers rely on enforceable deadlines
as final decisions for LUPA-related land use actions.
The City urges the Hearing Examiner to dismiss the appeal as untimely.
