HomeMy WebLinkAboutThe Home Depot's Reply in Support of its Motion in Limine1
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 1 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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BEFORE THE CITY OF RENTON HEARING EXAMINER
IN THE CITY OF RENTON, COUNTY OF KING, STATE OF WASHINGTON
RE: The Home Depot, Appellant Deferral of Street Improvements: Outlot 1 (S. Grady Way & Talbot Rd. S.) AND Outlot 2 (Talbot Rd. S.) (LUA21-000452; C22003168)
NO. DEF 23001823 (OUTLOT 1)
AND
NO. DEF 23001824 (OUTLOT 2)
THE HOME DEPOT’S
REPLY IN SUPPORT OF ITS
MOTION IN LIMINE
Because the parties appear to agree on many (if not most) issues presented in the
Motion in Limine, Home Depot respectfully requests the Examiner enter the limiting orders
requested below.1
I. EVIDENCE RELIED UPON
This Reply brief relies upon the entire record to date in these actions and the
Declaration of Julie Wilson-McNerney filed herewith.
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1 This Reply brief incorporates the terms defined in the Motion.
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 2 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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II. AUTHORITY AND ARGUMENT
A. Evidence Of Settlement Discussions
The parties appear to agree they should be prohibited from entering evidence of
settlement discussions or compromise negotiations at the hearing, consistent with Evidence
Rule 408. City of Renton Response to Motion in Limine, submitted 9-15-2023 (“Response”)
at page 2 line 19 to page 3 line 2 (2:19-3:2). Accordingly, Home Depot requests an order
prohibiting the admission of evidence of a party offering, accepting, or promising to accept
valuable consideration to compromise (and resolve) a claim:
to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
ER 408. Such prohibition shall preclude introduction of evidence related to settlement or
compromise discussions that occurred “on or about July 11 and 12, 2023” for the purposes
stated in the rule.
B. Evidence and Argument Related to Grady Way Frontage Improvements
The parties appear to agree this appeal does not include challenges to any street
frontage improvements along Grady Way. The appeal currently relates only to Talbot Road
frontage improvements near Outlot 1 and Outlot 2. Motion at 3; Response at 3:4-11.
Accordingly, Home Depot respectfully requests the Examiner enter an order declaring
“the issue of whether Home Depot must underground the power lines and the amount of security
for the associated deferral” – which was submitted as part of Home Depot’s appeal DEF
23001823 – “is assigned to [and consolidated with] the modification request review and appeal
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 3 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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process,” consistent with the Order Denying the City’s Motion to Dismiss (“Dismissal Order”)
3:9-11.
Counsel for Home Depot and counsel for the City met and conferred on September 18,
2023 regarding the status of the City’s review of the modification request. Declaration of Julie
Wilson-McNerney, filed herewith (“JWM Decl.”) at ¶ 4. The City could not identify a date certain
upon which its decision on the request will be complete. Id. The closer that date moves toward
the hearing date, the harder it will be to consolidate it with the current appeal. For example,
pursuant to the current scheduling order, all prehearing motion deadlines have passed. Unless the
schedule is adjusted, the modification request appeal will have to proceed directly to hearing
without the opportunity to clarify or narrow the issues through prehearing motions practice.
Accordingly, Home Depot requests that unless and until a party successfully moves to
consolidate any appeal of the City’s decision on Home Depot’s modification request, the
Examiner prohibit the parties from presenting any evidence or argument relating to power line
undergrounding along Grady Way at the currently scheduled hearing.
C. Evidence and Argument Contesting Findings of Fact (FOFs) and Conclusions of Law (COLs) in the Dismissal Order
The City’s Response to “law of the case” motion in limine is misguided for two reasons.
First, the City relies upon a distinction in the law of the case doctrine between procedural and
substantive rulings that is not supported by the cited case law. Second, the City erroneously
applies the wrong version of the law of the case doctrine.
A prior decision of a court or quasi-judicial body is enforceable unless a party first submits
and prevails on a motion demonstrating error in or substantial injustice therefrom. See Sintra,
Inc. v. City of Seattle, 131 Wn.2d 640, 652, 935 P.2d 555 (1997); see also Lejeune v. Clallam
Cnty., 64 Wn. App. 257, 265, 823 P.2d 1144, 1148 (1992) (similarly, res judicata and collateral
estoppel apply to quasi-judicial actions). The City attempts to distinguish Sintra by asserting that
it involved an appeal of the substance of the case and not procedural matters. Response at 3:17-
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 4 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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23. The cases the City cites for this proposition, however, do not support or even hint at such a
distinction.
Second, none of the cases cited by apply the law of the case doctrine as it is asserted here.
The City’s cited cases involve appellate court review of a lower court or tribunal ruling on a
summary judgment motion.2 See Response at 4:3-22 citing Oltman v. Holland Am. Line USA,
Inc., 163 Wn.2d 236, 249 n. 10, 178 P.3d 981 (2008) (citing Hemenway v. Miller, 116 Wash.2d
725, 731, 807 P.2d 863 (1991) and Chelan County Deputy Sheriffs' Ass'n v. County of Chelan,
109 Wn.2d 282, 294 n. 6, 745 P.2d 1 (1987) (findings of fact unnecessary on appeal of a summary
judgment motion because the court of appeals reviews the decision de novo); Nelson v. Dep't of
Labor & Indus., 198 Wn. App. 101, 109, 392 P.3d 1138 (2017); Concerned Coupeville Citizens
v. Town of Coupeville, 62 Wn. App. 408, 413, 814 P.2d 243 (1991). As we know, the standard of
review of a summary judgment decision, on appeal, is de novo. See Durland v. San Juan Cnty.,
182 Wn.2d 55, 69, 340 P.3d 191 (2014). There is no surprise the “law of the case” doctrine would
not apply in that circumstance. But that is not relevant to these proceedings.
The parties are not appealing the Examiner’s Dismissal Order (which the Examiner
treated as a decision on summary judgment). Dismissal Order at 6:11-16. The parties are
attempting to litigate the items on appeal that were not resolved by the Examiner’s Dismissal
Order.
The term “law of the case” can be employed in two ways. The first refers to applying the
doctrine in subsequent appeals, by a second, third, or other, appellate review body – such as in an
appeal of a summary judgment decision. See Lutheran Day Care v. Snohomish Cnty., 119 Wn.2d
91, 113, 829 P.2d 746 (1992). The second “law of the case” doctrine, however, applies to prior
decisions made by the same adjudicative body, before the case goes up on appeal. It expresses
the principle that a court “will generally not…redetermin[e]…the rules of law which it has
2 The City cites another case, Neuson v. Macy's Dep't Stores Inc., 160 Wn. App. 786, 792, 249 P.3d 1054 (2011), which applies the summary judgment standard of review to an appeal of a ruling granting a motion to compel arbitration.
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 5 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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announced in a prior determination in the same case or which were necessarily implicit in such
prior determination.” See id. (citing 15 L. Orland & K. Tegland, Wash. Prac., Judgments § 380,
at 56 (4th ed. 1986)).
In this second context, the law of the case doctrine refers to the courts’ “broad authority
to dispose of cases in stages.” 18 Moore's Federal Practice - Civil § 134.22 (2023). Decisions
made by a court “during the course of litigation establish the law of the case.” Id. The doctrine
does not . . . limit the court’s power to reconsider or change its decision, it merely protects the ability of the court to build to its final judgment by cumulative rulings. All lower court decisions are reviewable on appeal, on timely motion for judgment as a matter of law, on timely motion for a new trial, and for 28 days following the entry of a judgment, by the court on its own motion.
Id.
The Examiner’s Dismissal Order disposed of the questions of fact and law decided in that
decision. Because the parties did not move for reconsideration, the Dismissal Order is now law
of the case. The parties should not be allowed to re-litigate the decisions made in it, unless first
filing a motion demonstrating error or prejudice. See DeYoung v. Cenex Ltd., 100 Wn. App. 885,
892, 1 P.3d 587, 591 (2000) (“A grant of summary judgment is a final judgment on the merits
with the same preclusive effect as a full trial.”) (Citation omitted).
Any other ruling effectively nullifies the Dismissal Order, destroying the purpose of a
summary judgment motion and abdicating the Examiner’s ability to build a final judgment by
cumulative rulings.
Given the above, Home Depot respectfully requests the Examiner enter an order
prohibiting evidence or argument at the hearing contesting any of the FOFs or COLs in the
Dismissal Order, unless a party first submits and prevails on a motion demonstrating error in or
substantial injustice therefrom.
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 6 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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D. Public Records Not Timely Disclosed In Response To Home Depot’s Public Records Request
The City’s objection that Home Depot’s public records requests (the “Requests”) are not
discovery is accurate, but ultimately focuses on form over substance. Response at p. 5.
The parties agree the Examiner has authority to rule on admissibility of evidence. Motion
at 2:11-17 (erroneously citing RMC 4-8-100.f, which should have been RMC 4-08-100.G.3.f);
Response at 2:14-17 (“The City concurs with the Home Deport authorities cited with respect to
the Hearing Examiner’s authority to rule on evidence and impose reasonable limits on the nature
and length of testimony and argument.”)
The Examiner has authority to order the parties to participate in a reasonable discovery
process. RMC 4-8-110.E.2.d. Such an order would be reasonable in this case, given that the
Examiner has noted, the record in this proceedings “is incomplete.” Dismissal Order at 2:4-5.
Re-formatting Home Depot’s public records Requests into discovery requests, though,
seems duplicative and pointless. The City has not argued the requests were inappropriate,
unreasonably expansive, or otherwise prejudiced the City in any way. The City has not argued
that it lacked sufficient time to respond to the Requests, which were submitted two months ago.
What is there to be gained by reformatting and resubmitting them to the City again?
There is no dispute. Home Depot is entitled to know what the City thought and did when
processing Home Depot’s civil construction plans, civil permit application, and deferral requests.
RMC 4-8-110.E.2.d; RCW 42.56.030 (purpose of the Public Records Act is “ to maintain
transparency of governmental process (see e.g., RCW 42.56.030)” (Response at 5:10-11)).
Asking the Examiner to require the City to timely respond to pending Requests, or to be precluded
from offering witnesses or evidence it failed to timely release, seemed to be the most efficient and
reasonable way to accomplish those goals. See also Lybbert v. Grant Cnty., 141 Wn.2d 29, 40,
1 P.3d 1124 (2000) (“the ‘trial by ambush’ style of advocacy . . . has little place in our present-
day adversarial system”).
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THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE - 7 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
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Accordingly, Home Depot respectfully requests that the City be precluded from calling
any witnesses or introducing any evidence at the hearing that are based on or arise out of:
1. public records responsive to the Requests that are relevant to any “other prehearing motions” that the City did not produce before September 15, 2023 (if any); and
2. any public records responsive to the Requests the City does not produce prior to October 1, 2023, which is about two weeks before Home Depot must submit its witness and exhibit lists.
E. 24-Hour Notice Of Witnesses To Be Called At Trial.
The parties appear to agree on this point as well. Response at 6:2-6. Accordingly, and
thus Home Depot requests an order directing the parties to exchange lists of witnesses that will
actually be called at the hearing, no less than 24-hours before the hearing. Emergency
situations and rebuttal witnesses would not be subject to such an order.
III. CONCLUSION.
Home Depot respectfully requests the Examiner enter the requested five orders in
limine, as described above.
Dated this 20th day of September 2023.
SCHWABE, WILLIAMSON & WYATT, P.C.
By: Maren Calvert, WSBA No. 53940 Julie Wilson-McNerney, WSBA No. 46585 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone: (206) 407-1516 Facsimile: (206) 292-0460 Emails: mcalvert@schwabe.com jwilson-mcnerney@schwabe.com For the Applicant/Appellant The Home Depot
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CERTIFICATE OF SERVICE - 1 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of September, 2023, I caused to be served the
foregoing THE HOME DEPOT’S REPLY IN SUPPORT OF ITS MOTION IN
LIMINE on the following party at the following address:
M. Patrice Kent, WSBA No. 42460
Sr. Assistant City Attorney
City of Renton
1055 S. Grady Way
Renton, WA 98057
Telephone: (425) 430-6480
pkent@rentonwa.gov
Attorney for The City of Renton
Cynthia Moya Renton City Clerk 1055 Grady Way Renton, WA 98057 CMoya@rentonwa.gov olbrechtslaw@gmail.com City Hearing Examiner
by:
U.S. Postal Service, ordinary first class mail U.S. Postal Service, certified or registered mail, return receipt requested hand delivery facsimile electronic service other (specify)
/s/ Lisa D. McKee
Lisa D. McKee, Paralegal/Legal Assistant