FILED
COURT OF APPEALS
DIVISION 11
2015 FEB - 3 IN 8 : 19
STATE OF WASHINGTON
BY
TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BRADLEY C. HOGGATT and CONNIE J. No. 45589 -7 -II
HOGGATT, husband and wife, and their
marital community,
Respondents,
v.
LUIS FLORES, a married man as his separate PUBLISHED OPINION
capacity,
Appellant.
JOHANSON, C. J. — Luis Flores appeals a superior court order granting summary judgment
in favor of Bradley and Connie Hoggatt. Flores argues that he is entitled to rescission under RCW
58. 17. 210, a statutory provision that permits an innocent purchaser of illegally subdivided property
to seek either rescission or damages. Flores argues that the initial statutory violation (the sale or
transfer of noncompliant property) triggered an absolute right to rescission in the purchaser' s favor
even after the property is brought into compliance with statutory subdivision requirements. We
hold that because Flores failed to unequivocally seek rescission before the Hoggatts brought the
property into compliance, Flores is no longer entitled to rescission. We affirm.
No. 45589 -7 -II
FACTS
I. BACKGROUND
In June 1993, the Hoggatts acquired a residence on seven acres of land in Cowlitz County.
The Hoggatts legally subdivided the property into four lots. They sold three one -acre parcels and
retained a four -acre lot with the original residence. 1
In April 2004, the Hoggatts again divided their property, but this time they did not do it
legally through the subdivision process. They simply caused two distinct tax parcels to be created.
One of these, tax parcel WC2001023, was a one -acre lot with the original residence. This they
sold to Flores. The other, tax parcel WC2001025, was an undeveloped three -acre parcel they kept
for themselves.
In 2007, the Hoggatts wanted to build a residence on their undeveloped parcel. This parcel
had only 20 feet of road frontage, 5 feet less than necessary under the Cowlitz County Code. In
February, the Hoggatts filed an application requesting a variance. They attached a written narrative
suggesting that if they were allowed to build a single -family residence, they would promise not to
subdivide the parcel further. County officials noticed that the Hoggatts had not divided their
property in compliance with subdivision regulations. The county approved the variance on
condition that the Hoggatts would " apply for and receive approval of a Short Subdivision in
accordance with the requirements of CCC 18. 34 of Parcel WC2001025 / WC2001023 prior to
1 These background facts are as set forth by Division One of this court in Hoggatt v. Flores, 152
Wn. App. 862, 218 P. 3d 244 ( 2009).
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submitting an application of a single - family residence on the subject property." 2 Clerk' s Papers
CP) at 817. The county did not require the Hoggatts to promise they would engage in no further
subdivision.
In an effort to satisfy the condition, the Hoggatts submitted a subdivision application, but
they listed only their own three -acre parcel as the property to be subdivided. In October, the county
responded, stating that the Hoggatts needed to obtain written approval from all property owners
involved with the proposed plat. The Hoggatts asked Flores for his signature. Flores demanded
that the Hoggatts pay all his expenses and attorney fees in connection with the matter. He also
demanded that they enter a binding covenant not to further subdivide their property for 25 years.
The Hoggatts agreed to pay his expenses and fees, but they would not agree to the covenant.
In May 2008, the Hoggatts filed a complaint in Cowlitz County Superior Court seeking to
enjoin Flores " to sign an application for short division of the properties at issue" or, alternatively,
for "an order allowing the filing of a short subdivision application for the properties at issue absent
any conditions." CP at 868. Flores counterclaimed, reserving the right to seek all relief allowed
by RCW 58. 17. 210.
The Hoggatts moved for summary judgment. During the summary judgment hearing, the
superior court requested that Flores specify the relief he sought. Flores responded as follows:
2 The applicable Cowlitz County Code provision is CCC 18. 34. 170( A), which provides,
No person shall sell, lease or transfer any real property which is less than five acres
in area without full compliance with this title. All development permits for the
improvement of any lot which is less than five acres in area, shall be withheld until
the provisions of this title are met, pursuant to Washington State Subdivision Law.
Also, the Administrator may revoke county development permits on parcels
divided and transferred or leased which do not comply with this title.
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At this point, Mr. Flores continues to hope that Mr. and Mrs. Hoggatt will see fit to
honor their promise to Cowlitz County and limit the short plat to two lots. If they
do not, and if he cannot force them to, he is leaning toward the remedy of rescission.
His doing so, of course, hinges on the court' s willingness to follow the rules set out
3]
in Busch v. Nervik, supra. [ His investigation is ongoing, however, and his point
of view may change.
CP at 923.
The trial court entered an injunction requiring the county to accept the subdivision
application for review without Flores' s signature. Flores obtained an order granting discretionary
review, which placed the legality of the injunction before Division One of this court.
In October 2009, Division One of this court affirmed the trial court' s issuance of the
injunction allowing the Hoggatts to proceed unilaterally. The court concluded that the Hoggatts
had established each of the necessary elements to support the injunction.4 Hoggatt v. Flores, 152
Wn. App. 862, 869, 218 P. 3d 244 ( 2009). In so holding, the court determined that nothing in RCW
58. 17. 210 prevents a seller from bringing an illegal subdivision into compliance with subdivision
laws. Hoggatt, 152 Wn. App. at 869. The court acknowledged that the Hoggatts, no less than
Flores, had a duty to conform the property to the applicable code provisions. Hoggatt, 152 Wn.
App. at 864, 869. The court also recognized that the Hoggatts were merely trying to do what they
should have done in the first place and that, in fact, there was no harm to Flores because his own
parcel would be fully compliant if the Hoggatts were able to legitimize their previously inadequate
3 Busch v. Nervik, 38 Wn. App. 541, 687 P.2d 872 ( 1984).
4 Flores does not claim, and the record does not show, that Flores made any attempt to stay the
trial court' s ruling pending appeal. This allowed the Hoggatts to remedy the improper subdivision
and thereby achieve compliance in April 2009. RAP 7.2( c).
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No. 45589 -7 -II
subdivision. Hoggatt, 152 Wn. App. at 870. In this way, the trial court' s ruling was mutually
beneficial to each party.
II. PROCEDURE
While Flores' s appeal was pending, the Hoggatts, consistent with the superior court' s
ruling, corrected the erroneous 2004 subdivision. Cowlitz County processed and approved a
proper short plat in April 2009, rendering both the Hoggatts' and Flores' s property compliant.
Division One issued its ruling and remanded the case to Cowlitz County Superior Court for further
proceedings.
In March 2012, Flores moved for partial summary judgment asking the superior court to
find that RCW 58. 17. 210 grants an aggrieved purchaser the " absolute right" to rescind the sale.
The superior court declined to make such a ruling. In its order denying Flores' s motion for
reconsideration, the superior court explained that RCW 58. 17. 210 does not confer an absolute right
of rescission because the statute clearly presents both damages and rescission as alternative
remedies. The court noted that the question remained as to whether a purchaser may demand
rescission if the property had been made compliant by the seller as opposed to the purchaser.
Subsequently, Flores obtained an order granting a venue change from Cowlitz County to
Clark County. There, in November 2013, the superior court granted summary judgment in the
Hoggatts' favor, ruling that Flores had no right to seek rescission under the statute. Flores appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review summary judgment orders de novo, viewing the facts in the light most favorable
to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109
No. 45589 -7 -II
P. 3d 805 ( 2005). Trial courts properly grant summary judgment where the pleadings and affidavits
show no genuine issue of material fact and the moving party is entitled to judgment as a matter of
law. CR 56( c).
II. RESCISSION NOT AVAILABLE
Flores contends that he is entitled to rescission under RCW 58. 17. 210 because a statutory
violation " triggers" the right to exercise rescission, and nothing in the statute precludes a
purchaser' s exercise of that right after the fact. We hold that Flores' s argument fails because the
Hoggatts brought the property into compliance before Flores unequivocally sought rescission.
Accordingly, Flores was not entitled to rescission as a matter of law because the statute' s plain
language established that rescission is only available to a purchaser as a remedy for
noncompliance.
Endeavoring to achieve consistency between property subdivisions and zoning standards,
and " to promote effective use of land," Washington State has enacted a comprehensive statutory
framework that requires conformity with subdivision laws before real property may be sold,
conveyed, or transferred. Ch. 58. 17 RCW. RCW 58. 17.210 proscribes a county from issuing
certain permits for increased development on land that is divided contrary to state and county
subdivision laws. It provides,
No building permit, septic tank permit, or other development permit, shall be issued
for any lot, tract, or parcel of land divided in violation of this chapter or local
regulations adopted pursuant thereto unless the authority authorized to issue such
permit finds that the public interest will not be adversely affected thereby. The
prohibition contained in this section shall not apply to an innocent purchaser for
value without actual notice. All purchasers' or transferees' property shall comply
with provisions of this chapter and each purchaser or transferee may recover his or
her damages from any person, firm, corporation, or agent selling or transferring
land in violation of this chapter or local regulations adopted pursuant thereto,
including any amount reasonably spent as a result of inability to obtain any
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No. 45589 -7 -II
development permit and spent to conform to the requirements of this chapter as
well as cost of investigation, suit, and reasonable attorneys' fees occasioned
thereby. Such purchaser or transferee may as an alternative to conforming his or
her property to these requirements, rescind the sale or transfer and recover costs
of investigation, suit, and reasonable attorneys' fees occasioned thereby.
RCW 58. 17. 210 ( emphasis added).
No Washington court has addressed whether the rescission remedy remains available to an
innocent purchaser when noncomplying property is sold' but where the seller brings that property
into compliance before the innocent purchaser unequivocally invokes the right to rescind. In
support of his position, Flores relies on Newport Yacht Basin Ass 'n of Condominium Owners v.
Supreme Northwest, Inc., 168 Wn. App. 56, 277 P. 3d 18 ( 2012). But there, the court concluded
only that the statutory scheme " clearly contemplates that illegally subdivided land may be bought
and sold," and that such transfers could not be voided by .a third party lest the statutory scheme
would be undermined. Newport Yacht, 168 Wn. App. at 74. That case does not purport to address
the issue presented here; that is, which statutory remedies are available to the purchaser of illegally
subdivided property that was subsequently brought into compliance by the seller who created the
illegal subdivision?
Similarly, Flores cites Hoggatt, where the court stated that "[ t]he aggrieved purchaser may
elect either to rescind or to recover damages." 152 Wn. App. at 864. That court also noted that
Flores still ha[ d] his choice of the statutory remedies under RCW 58. 17. 210 against the Hoggatts
for putting him in his present untenable position as the purchaser of an illegally created parcel of
land." Hoggatt, 152 Wn. App. at 870. But the Hoggatts' subdivision application was approved
while the first appeal was pending and, thus, the fact that the property was brought into compliance
was not before the Hoggatt court at the time it issued its decision. And there is little doubt that its
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No. 45589 -7 -II
statement regarding Flores' s choice of remedies was accurate on the information before it.
Accordingly, because the question has not been answered directly, statutory interpretation
principles govern the outcome here.
The meaning of a statute is a question of law reviewed de novo. Dep' t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). The goal of the inquiry is to ascertain
and carry out the legislature' s intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003
2014). When interpreting a statute, we first look to its plain language, and if the plain language
is subject to only one interpretation, our inquiry ends because plain language does not require
construction. Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P. 3d
308 ( 2009). A statute is ambiguous if "`susceptible to two or more reasonable interpretations, "'
but "` a statute is not ambiguous merely because different interpretations are conceivable.'"
HomeStreet, Inc. v. Dep' t ofRevenue, 166 Wn.2d 444, 452, 210 P. 3d 297 ( 2009) ( quoting State v.
Hahn, 83 Wn. App. 825, 831, 924 P. 2d 392 ( 1996), review denied, 131 Wn.2d 1020 ( 1997)).
Here, RCW 58. 17. 210' s plain language is not ambiguous because it is subject to only one
reasonable interpretation. The statute does two things: First, it declines to subject an innocent
purchaser of illegally subdivided property to the same development prohibitions that it does to
someone who creates an illegal subdivision. Second, it provides an innocent purchaser of
noncompliant property the option of either ( 1) recovering from the offending seller any damages
incurred in achieving compliance, or, ( 2) as an alternative to conforming the property to the
applicable subdivision requirements, rescind the sale or transfer and recover certain costs.
Notwithstanding the fact that Flores was initially entitled to rescind the transaction, he
opted instead to condition his cooperation with the compliance process on the Hoggatts' agreement
No. 45589 -7 -II
that they would not further subdivide their land, a guarantee that the Hoggatts were not legally
required to make. Hoggatt, 152 Wn. App. at 865. Because of Flores' s intransigence, the superior
court properly enjoined Flores from continuing to obstruct the Hoggatts' attempt to achieve
compliance. Hoggatt, 152 Wn. App. at 870. This ruling allowed the Hoggatts to complete the
process necessary to legitimize their previously improper subdivision and therefore bring both
their own property, as well as the parcel sold to Flores, into compliance. Accordingly, under RCW
58. 17. 210, Flores no longer had the right to rescind the sale.
If we were to read the statute to impose an absolute rescission right, as Flores urges, we
would contravene long- recognized statutory interpretation principles. This is true because "` [ e] ach
word of a statute is to be accorded meaning. "' HomeStreet, 166 Wn.2d at 452 ( quoting State ex
rel. Schillberg v. Barnett, 79 Wn.2d 578, 584, 488 P. 2d 255 ( 1971)). And whenever possible,
statutes are to be construed so "` no clause, sentence, or word shall be superfluous, void, or
insignificant.'" HomeStreet, 166 Wn.2d at 452 ( internal quotation marks omitted) ( quoting Kasper
v. City ofEdmonds, 69 Wn.2d 799, 804, 420 P. 2d 346 ( 1966)).
Flores' s statutory interpretation ignores and renders meaningless the " as an alternative to
conforming [ the] property" language. Flores never addresses the critical " as an alternative"
language. Furthermore, a court "` is required to assume the Legislature meant exactly what it said
and apply the statute as written. "' HomeStreet, 166 Wn.2d at 452 ( quoting Duke v. Boyd, 133
Wn.2d 80, 87, 942 P. 2d 351 ( 1997)). When read to give effect to all words, clauses, and sentences,
RCW 58. 17. 210 provides an innocent purchaser with the choice of remedies, but only does so to
the extent that the property is noncompliant. We hold that because the Hoggatts brought the
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property into compliance before Flores unequivocally sought rescission, Flores is no longer
entitled to rescission by the statute' s plain terms.
We affirm.
We concur:
MAXA,
SUTTON, J.
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