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HomeMy WebLinkAboutLtr to Cynthia Moya, City of Renton Clerk 12-3-2024 (4899-7514-0355) December 3, 2024 Via E-Mail Only Cynthia Moya, City Clerk Specialist cmoya@rentonwa.gov Phil Olbrech olbrechtslaw@gmail.com Re: Code Compliance Appeal – Mt. Olivet Cemetery, Co. c/o James Colt Case No.: CODE-24-000261 Dear Ms. Moya, Our office represents Mt. Olivet Cemetery, Co., Inc., (“Mt. Olivet”) and its president, James Colt. As you know, Mr. Colt submitted an appeal of the City of Renton’s (the “City”) code violation against Mt. Olivet in the City of Renton Code Violation Case No. 24-000261 on October 29, 2024. Mt. Olive appeal arises from the City’s May 2024 alleged violation the City’s tree trimming-related ordinances. Over the months, the City conducted inspections of Mt. Olivet’s compliance with the violation’s remedial instructions but continued to find it in violation. Mr. Colt appealed the code violation on October 29, 2024. The City has requested the appeal be denied as untimely. However, because Mr. Colt’s untimely appeal was due to a good faith mistake of our office regarding which attorney was leading Mr. Colt’s appeal, we respectfully ask you to allow Mr. Colt to continue his appeal of Mt. Olivet’s code violation under principles of equity recognized in similar circumstances by Washington courts. Mt. Olivet contacted the undersigned law firm on May 13, 2024 and asked this firm to appeal the code violation at issue in this matter. Unfortunately, there was a miscommunication within the undersigned’s office as to which attorney was handling the appeal. Mt. Olivet would have had no reason to submit the appeal itself, as it in good faith believed the undersigned’s firm was handling the matter. As soon as the issue was uncovered – the undersigned submitted the notice of appeal. The untimeliness is of no fault of Mt. Olivet or Mr. Colt, and the City should allow the appeal to proceed consistent with case law in Washington. Under principles of equity, Washington courts allow a party to continue defending claims against it when mistake, inadvertence, surprise, or excusable neglect cause it to miss a responsive deadline. Morrone v. Northwest Motorsport, Inc., 22 Wn. App. 2d 1002, 2022 WL 1468789 (2022); VanderStoep v. Guthrie, 200 Wn. App. 507, 402 P.3d 883 (2017). In Morrone v. Northwest December 3, 2024 Page 2 Motorsport, the Washington Court of Appeals allowed a defendant to proceed with defending itself against the plaintiff’s claim because of an error caused by its attorney’s office’s misunderstanding regarding who was representing the defendant caused oversight of the deadline to respond to the plaintiff’s complaint. Id. at *5. Here, Mt. Olivet’s missed deadline is attributed to the same mistake, and the same reasons for the Morrone Court’s extension of the defendant’s time to respond should apply. In Morrone, the defendant Northwest Motorsport (“Northwest”), was sued by a former employee for a variety of claims. When the deadline for Northwest to respond to the lawsuit passed, the trial court granted the employee’s motion for default. The Court’s order of Northwest’s default served as the court’s acknowledgement of Northwest’s untimely response, and its decision that Northwest was thus prevented from meaningfully defending itself unless it could provide justification. After the court entered the order of default and scheduled an evidentiary hearing for four days later, Northwest still did not appear. Because Northwest failed to respond to the employee’s claims again, the court entered extensive findings of fact consistent with the employee’s testimony regarding Northwest’s alleged wrongdoing. Two days after the court entered findings of fact, and over a week after its deadline to respond to the employee’s complaint, Northwest finally responded. In its response to the order of default, Northwest’s attorney explained that the failure to appear was due to a “good faith mistake by counsel.” In her declaration, their attorney explained that the failure to timely respond was due to a miscommunication within her office, which resulted in learning about the order of default against her client after the order had been entered by the court. Northwest’s attorney moved to vacate the order of default, arguing at a hearing that Northwest did not “consciously decide[]” to not participate in the claims against it, but that it was “a mistake, not of the client, but [ ] a mistake that resulted as a result of miscommunications in my office.” The attorney further explained that when the complaint was filed and served against Northwest, Northwest tendered it through her office and requested that she tender it to their insurer. Because the attorney was not counsel to the insurer, the attorney’s assistant believed that the attorney would not be defending the case, but that other counsel for the insurance would be. The insurance did not notify the attorney that it would not be appointing counsel until the day the order of default was entered. Despite this explanation, the trial court denied Northwest’s motion to vacate the order of default against it. However, the Court of Appeals concluded that the trial court abused its discretion in denying Northwest’s motion to vacate. Applying the White test, because Northwest could show substantial evidence of its defenses, that failure to timely respond was due to mistake, inadvertence, surprise, or excusable neglect, that it acted with due diligence after notice of its untimeliness, and that the plaintiff would not suffer a substantial hardship if the default judgement ordered in its favor was vacated. The Court of Appeals determined that Northwest should be allowed to respond as a matter of equity. December 3, 2024 Page 3 Here, the good faith mistake causing Mt. Olivet’s untimely appeal of the code violation is analogous to the mistake in Morrone v. Northwest Motorsport. Thus, the principles underlying the reversal of the default judgment are appropriately applicable to reversing the Hearing Examiner’s dismissal of Mt. Olivet’s appeal. The City of Renton issued a violation against Mt. Olivet Cemetery Co., Inc., on May 6, 2024 regarding alleged failure to comply with city ordinances governing tree cutting. Inspections pursuant to the violation were conducted over the months, which continued to find violation of the tree ordinance. Mt. Olivet and Mr. Colt brought the violation to the undersigned’s office on May 13, 2024. Due to a good faith misunderstanding regarding who was responding to the City, the deadline for the appeal was missed. Here, we respectfully submit that the City should apply the same principles of equity as the Court did in Morron to allow Mr. Colt to continue defending against the unresolved claims against him and Mt. Olivet. Here, Mt. Olivet has substantial evidence to defend against the code violation. It can show the remedial actions it has taken since the violation was first issued in May. Second, it can show that the delayed appeal was due to inadvertent mistake that should be excused. Third, immediate diligence was taken upon learning of the untimely appeal. Lasher immediately discussed options with Mr. Colt and began researching its grounds for continuing this appeal, which it presents in this letter. Finally, we respectfully assert that the City will not suffer substantial hardship if it allows Mr. Colt and Mt. Olivet to continue the appeals process of the code violation issued against it. Similarly, in VanderStoep v. Guthrie, two insureds of American Family insurance, who were at-fault in a motor vehicle accident, consulted American Family to defend them in the claim the injured motorists filed against them. 200 Wn. App. 507, 517, 402 P.3d 883 (2017). The insureds sought defense counsel provided by American Family, and had a reasonable expectation that American Family would handle their case. Nonetheless, American Family failed to appear on the insured’s behalf. There, as in Morrone, because the insured’s failure to timely appear resulted from mistake, inadvertence, surprise, or excusable neglect, even despite American Family’s inexcusable oversight, the Court reasoned that the insureds should not be stripped of their ability to defend themselves due to American Family’s neglect. In VanderStoep, even where American Family’s failure to respond on the defendants’ behalf was “inexcusable,” the Court justified a late response because attributing American Family’s conduct to the defendants would be unfair to the defendants. Here, we respectfully argue that unlike American Family, our mistake was in good faith, though regrettable, and more analogous to the attorney’s mistake in Morrone. Accordingly, we respectfully request the City of Renton allow the claims of Mr. Colt’s appeal of the violations issued against Mt. Olivet Cemetery Co. to be considered on its merits despite its untimely submission. Thank you for your consideration. December 3, 2024 Page 4 Very truly yours, Cin M Romd che Julie M. Pendleton DIRECT LINE: (206) 654-2410 EMAIL: pendleton@lasher.com LASHER HOLZAPFEL SPERRY & EBBERSON PLLC December 3, 2024 Page 4 Very truly yours, Julie M. Pendleton DIRECT LINE: (206) 654-2410 EMAIL: pendleton@lasher.com