Clark County v. W. Wash. Growth Mgmt. Hearings Review Bd.

FILE
IN CLERKS OFFICE
MIPREME COURT, STATE OF WASHINGTON

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)
CLARK COUNTY WASHINGTON, )
CITY OF LA CENTER, GM )
CAMAS,LLC ) No. 85989-2
)
Petitioners, )
)
MACDONALD LIVING TRUST and )
RENAISSANCE HOMES, )
)
Respondents, ) En Bane
)
and )
)
BIRCHWOOD FARMS, LLC )
)
Respondent-Intervenor, )
) Filed MAR 2! 2013
v. )
)
WESTERN WASHINGTON )
GROWTH MANAGEMENT )
HEARINGS REVIEW BOARD, )
JOHN KARPINSKI, CLARK )
COUNTY NATURAL RESOURCES )
COUNCIL, and FUTUREWISE )
)
Respondents. )
No. 85989-2

GONZALEZ, J. -·This case presents a straightforward issue of appellate

procedure. The question is whether the Court of Appeals erred by reviewing separate

and distinct claims that had been resolved below and were not raised on appeal. The

parties were not challenging the disposition of those claims, and thus, the claims had

been finally adjudicated. The Court of Appeals nevertheless addressed the abandoned

claims sua sponte and reversed the lower court's unchallenged rulings. In order to

promote finality, judicial economy, predictability, and private settlement of disputes,

and to ensure vigorous advocacy for appellate review, we prohibit review of separate

and distinct claims that have not been raised on appeal. We thus vacate the portion of

the Court of Appeals' opinion reversing the superior court's unchallenged rulings.

I. FACTS AND PROCEDURAL HISTORY

This case originates from a September 25, 2007, Clark County ordinance (the

2007 Ordinance) de-designating certain lands from status as agricultural land of long-

term commercial significance (ALLTCS), see RCW 36.70A.170, and designating the

same land as urban growth area (UGA), see RCW 36.70A.l10. These designations

are part of the comprehensive planning required under the Growth Management Act

(GMA), chapter 36.70A RCW. Under the GMA, land that is outside of a city must

meet certain substantive requirements to be designated UGA, RCW 36.70A.l10(1),

and no city may annex territory outside of a UGA, RCW 35.13.005; RCW

35A.l4.005.

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No. 85989-2

On November 16, 2007, Respondents John Karpinski, Clark County Natural

Resources Council, and Futurewise (the Challengers) filed a petition with the Growth

Management Hearings Board (the Board) alleging that Clark County was not in

compliance with the GMA. See RCW 36.70A.280. The Challengers specifically

argued that under the requirements of the GMA, the various lands affected by the

2007 Ordinance had to be designated ALLTCS and could not be designated UGA.

Numerous parties were allowed to intervene.

In December 2007 and January 2008, the cities of Camas and Ridgefield began

proceedings to annex certain parcels-areas now referred to generally by the parties

as CA-l, CB, and RB-2 (collectively, the Annexed Lands)-that had been designated

UGA by the 2007 Ordinance. Notwithstanding the ongoing dispute before the Board,

the Challengers did not contest the annexations of the Am1exed Lands in any

proceeding, nor did any party bring the annexation proceedings to the attention of the

Board. In Apri12008, Camas and Ridgefield completed their annexations of the

Annexed Lands.

On May 14, 2008, the Board issued its final order, finding that Clark County

was not in compliance with the GMA. The Board specifically found that certain land

designations from the 2007 Ordinance were clearly erroneous, including designation

of the Annexed Lands as UGA. The Board also found that Clark County's clearly

erroneous designations would substantially interfere with the fulfillment of the goals

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No. 85989-2 ·

of the GMA and thus were invalid. See RCW 36.70A.302(1). The Board was still

unaware that the Annexed Lands had been annexed.

On June 11, 2008, intervenor city of La Center filed a petition for review in the

Clark County Superior Court, appealing the Board's final order. See RCW

36.70A.300(5); RCW 34.05.514. On January 7, 2009, Clark County filed a brief with

the superior court requesting reversal of the Board's order regarding Clark County's

designations under the GMA.

On February 26, 2009, the Challengers entered into a stipulation with

intervenor GM Camas LLC (GMC)-the owner of certain property contained within

CA-l-and agreed that because GMC's property had been annexed by the City of

Camas, GMC had prevailed. The stipulating parties submitted an order to the superior

court, which was entered, reversing the Board's order as to GMC.

On June 12, 2009, the superior court entered an order that resolved the various

remaining claims on appeal, including claims related to the Annexed Lands. The

court acknowledged its prior stipulated order regarding CA-l and concluded that due

to annexation, all claims related to RB-2 also were moot. The superior court also

reversed the Board's finding that Clark County's designation of area CB as UGA was

clearly erroneous, apparently unaware that CB also had been annexed.

The Challengers filed a timely notice of appeal seeking review of the superior

court's June 12, 2009, order. The Challengers' brief focused on substantive issues

related to various parcels not at issue here. On May 17, 2010, the Court of Appeals,

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No. 85989~2

on its own motion, ordered supplemental briefing regarding issues related to the

Annexed Lands. In response, the Challengers acknowledged the stipulation regarding

area CA-l and represented that all claims related to areas CB and RB-2 were moot

due to annexation. The Challengers explained that the Annexed Lands were not

"encompassed in their petition of appeal," that they "did not ... intend to seek review

related to those areas ... which were annexed," and "did not include argument related

thereto in their briefing." Appellants' Suppl. Br. at 1-3. Unsatisfied, the Court of

Appeals on June 1, 2010, ordered additional briefing regarding the authority

underlying the annexations by Camas and Ridgefield. The Challengers noted that

they had not challenged the annexations before the superior court. At this time, the

city of Camas represented to the Court of Appeals that it would be a necessary party

to any adjudication of the validity of the annexations.

On Aprill3, 2011, the Court of Appeals rendered its opinion. Clark County v.

W. Wash. Growth Mgmt. Hearings Review Bd., 161 Wn. App. 204, 254 P.3d 862

(2011). The Court of Appeals first addressed the validity of the annexations. The

court acknowledged that "the parties ... objected, arguing that the validity of the

annexations [was] not properly before [the] court," but the court reasoned that "issues

related to the annexations directly impact our ability to resolve pending issues on

parcels CA-l, CB, and RB-2 raised in this appeal." Id. at 222. The Court of Appeals

then framed the issue as "what effect, if any, the annexations had on the Growth

Board's jurisdiction to determine GMA compliance for parcels CA-l, CB, and RB-2."

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No. 85989~2

I d. at 223. The court concluded that "challenged county legislative actions pending

review are not final and no party may act in reliance on them," and thus the

annexations "did not deprive the Growth Board of jurisdiction over the challenge to

the County's actions." Id. at 223-24. Acknowledging the concerns of the city of

Camas as "a necessary party to the consideration of any questions involving the

validity of the annexations," the court "limit[ed] [its] holding only to the Growth

Board's authority to enter findings regarding the validity of the County's decisions

relating to these parcels." I d. at 226. The Court of Appeals then went on to address

various other claims on review. See id. at 226-49.

Clark County and GMC's successor in interest both sought discretionary

review by this court. The petitions for review assigned error to the Court of Appeals'

discussion of the Annexed Lands-which the Court of Appeals framed as a

determination of the Board's jurisdiction-and GMC's successor in interest also

emphasized the stipulation that had been entered by the parties regarding area CA -1.

Although the petitions for review raised additional issues, we granted review only on

the jurisdictional and parcel CA-l issues.

The essential issue now before us is whether the Court of Appeals erred by

addressing sua sponte the claims related to the Annexed Lands, which had been

resolved below and remained unchallenged on appeal.

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No. 85989-2

II. ANALYSIS

The Court of Appeals erred by adjudicating claims that were resolved below,

were not raised on appeal, and remained separate and distinct from the claims that the

parties raised on appeal. Appellate adjudication of claims resolved below and not

raised by the parties on appeal, when not necessary to properly resolving the claims

that are raised by the parties on appeal, thwarts the finality of unchallenged

stipulations and rulings, expends limited judicial resources, diminishes the

predictability of adjudication, discourages the private settlement of disputes, and

overlooks the need for zealous advocacy to facilitate appellate review. The Court of

Appeals' decision to address the Annexed Lands is contrary to our well-established

standards of appellate jurisdiction.

An appellate court must not disturb judgments or rulings except insofar as is

necessary to properly resolve the particular claims the parties have presented on

appeal. It is "a well-established rule that, on appeal from only a part of a judgment or

decree, the court may not review rulings which do not affect the part appealed from,

except where the part appealed from is so interwoven and connected with the

remainder, or is so dependent thereon, that an appeal from a part involves

consideration of the whole, and is really an appeal from the whole." Cook v.

Commellini, 200 Wash. 268, 270-71, 93 P.2d 441 (1939). In other words, when

various portions of a judgment are "separate and distinct," an appellate court must not

review those portions "from which no appeal [has] been taken." !d. at 271, 272

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No. 85989-2

("The portions ... not appealed from [become] res judicata, and ... legal and

binding, and the court [is] without power to set [them] aside."). This rule promotes

finality of judgments, advances judicial economy, ensures predictability, and

encourages the private settlement of disputes. Cf Hilltop Terrace Homeowner's

Ass 'n v. Island County, 126 Wn.2d 22, 30-31, 891 P.2d 29 (1995) (noting analogous

purposes of the doctrine of res judicata). Additionally, requiring an actual challenge

prior to undertaking appellate review avoids "the danger of an erroneous decision

caused by the failure of parties ... to zealously advocate their position." Orwick v.

City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984) (noting analogous purpose

of dismissing moot cases).

The scope of a given appeal is determined by the notice of appeal, the

assigmnents of error, and the substantive argumentation of the parties. See RAP

5.3(a) ("A notice of appeal must ... designate the decision or part of decision which

the party wants reviewed ... .");RAP 10.3(a), (g) ("The appellate court will only

review a claimed error which is included in an assignment of error or clearly disclosed

in the associated issue pertaining thereto."); RAP 12.1 (providing that "the appellate

court will decide a case only on the basis of issues set forth by the parties in their

briefs" except when "an issue which is not set forth ... should be considered to

properly decide a case"); see also State v. Olson, 126 Wn.2d 315, 318-24, 893 P.2d

629 (1995) (court will consider issue on appeal, notwithstanding technical violation of

procedural rules, when nature of challenge has been made clear without prejudice to

8
No. 85989-2

opposing party). Initially, the notice of appeal must properly designate the decision or

part of the decision that the party wants reviewed. RAP 5.3(a)(3); see also Sargent v.

Selvar, 46 Wn.2d 271, 272-73, 280 P.2d 683 (1955); Stewart v. Larkin, 74 Wash. 681,

687-88, 134 P. 186 (1913). This designation also subjects to potential review any

related order that "prejudicially affected the designated decision and was entered

before review was accepted." In re Dependency ofBrown, 149 Wn.2d 836, 840 n.2,

72 P.3d 757 (2003) (citing RAP 2.4(b)). After a decision or part of a decision has

been identified in the notice of appeal, the assignments of error and substantive

argumentation further determine precisely which claims and issues the parties have

brought before the court for appellate review. See, e.g., State v. Sims, 171 Wn.2d 436,

441-42, 256 P .3d 285 (20 11) (rejecting argument that broad notice of appeal brought

entire order and all related issues before the Court of Appeals because "[s]uch a

cursory conclusion fails to account for established limiting principles, including, for

example, that an appellant is deemed to have waived any issues that are not raised as

assignments of error and argued by brief'); Olson, 126 Wn.2d at 318-24; Johnson v.

Johnson, 53 Wn.2d 107, 113-14, 330 P.2d 1075 (1958) (holding that although entire

judgment was referenced in notice of appeal, separate and distinct portion not

assigned as error, "not having been raised on ... appeal, was res judicata" (citing

Cook)); cf Matthews v. Parker, 163 Wash. 10, 16-17,299 P. 354 (1931) (court would

adjudicate only that portion of decree relevant to the appellant seeking reversal).

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No. 85989-2

An appellate court's review is necessarily limited by the scope of a given

appeal. The court must address only those claims and issues necessary to properly

resolving the case as raised on appeal by interested parties. See Cook, 200 Wash. at

270-71; Johnson, 53 Wn.2d at 113-14; see also Ajax v. Gregory, 177 Wash. 465,475,

32 P.2d 560 (1934) ("It has long been the settled policy of this court, in disposing of

cases presented, to only decide the questions which are necessary to the decision of

the particular case."); Matthews, 163 Wash. at 17 ("It might be plausibly argued that

the excess ... addition should be apportioned equally .... Possibly, the location ...

[of the] improvements ... will answer that question, should it ever arise upon

conflicting claims of parties in interest. However, that is of no moment in our present

inquiry, since Parker has no interest or title to [that] land ... [and] is the only party to

this action complaining of the decree."); Stewart, 74 Wash. at 688; Krutz v. Dodge, 66

Wash. 178, 179-80, 119 P. 188 (1911); Littell v. Miller, 8 Wash. 566, 569, 36 P. 492

(1894) (noting that in order to grant relief to appealing party it would not be necessary

to alter judgment under review as to other party "not joining in [the] appeal," and

thus, the judgment as to that other party remained "in full force and effect" and was

not subject to modification). This "settled policy" ensures that appellate review is

undertaken only insofar as is necessary to resolve actual and residual disputes between

parties in interest. Ajax, 177 Wash. at 47 5. It also allows interested parties to rely on

unchallenged portions of judgments, notwithstanding any outstanding appeals

regarding other, separate and distinct portions of those judgments. See Grignon v.

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No. 85989-2

Wechselberger, 70 Wn.2d 99, 101, 102,422 P.2d 25 (1966) ("[A] party is not

precluded from enforcing the portion of a judgment not appealed from though he may

be appealing from another severable portion of the judgment."); Hinchman, 14 Wash.

at 356 ("[I]t is apparent that the appellant is entitled in any event to all that he

received, no matter what disposition is made of the case. His appeal is from portions

of the decree only, and we do not think that receiving such of the proceeds as would in

any event belong to him should be held to estop him from prosecuting the appeal.").

In accordance with our settled policy, an appellate court must not adjudicate resolved,

separate and distinct claims that are not raised by any party on appeal.

Appellate courts do retain wide discretion in determining which issues must be

addressed in order to properly decide a case on appeal. See, e.g., RAP 12.1(b); RAP

7.3; RAP 1.2. For example, appellate courts are allowed to consider and apply "a

constitutional mandate, a statutory commandment, or an established precedent" not

raised by the parties when "necessary for decision." City of Seattle v. McCready, 123

Wn.2d 260, 269, 868 P.2d 134 (1994); see, e.g., Hall v. Am. Nat'! Plastics, Inc., 73

Wn.2d 203, 205, 437 P.2d 693 (1968) (noting that courts "frequently decide crucial

issues which the parties themselves fail to present" (emphasis added)); Conard v.

Univ. ofWash., 119 Wn.2d 519, 527-28, 834 P.2d 17 (1992) (considering due process

claim raised sua sponte that addressed the same underlying dispute actually raised and

argued on appeal). Appellate courts are also allowed to seek out briefing regarding

issues deemed important to proper adjudication. See RAP 10.6(c); RAP 12.1(b).

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No. 85989-2

However, an appellate court must not adjudicate resolved claims that are separate and

distinct from the underlying disputes actually raised on appeal; such extraneous

claims need not be adjudicated in order to properly decide a case on appeal, and such

judicial action needlessly disturbs resolved matters, wastes judicial resources, creates

unfair surprise, interferes with and deters private settlements, and risks insufficient

advocacy on review. Such judicial action is not required by "the merits of the case

and the interest of justice" and thus, is not authorized by our court rules. RAP 12.2.

Simply put, an appellate court errs by adjudicating separate and distinct claims

resolved below and not raised on appeal.

The Court of Appeals erred in this case by addressing the resolved claims

related to the Annexed Lands, which were not raised on appeal. Those claims had

been resolved by stipulation, dismissal, and reversal, and no challenge was presented

to the Court of Appeals regarding those claims. Further, those claims, along with the

Annexed Lands generally, had no bearing on the claims and issues that actually were

presented to the Court of Appeals-involving entirely separate and distinct tracts of

land and designations under the GMA. The Court of Appeals did not contend that

adjudicating the status of the Annexed Lands was necessary in order to properly

resolve the issues actually presented on appeal; instead the Court of Appeals simply

asserted, incorrectly and without basis, that the issues related to the Annexed Lands

actually had been directly "raised in this appeal." 161 Wn. App. at 222. The parties

rightfully made clear that the Annexed Lands were in no way at issue. For these

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No. 85989-2

reasons, we vacate the opinion of the Court of Appeals insofar as it relates to the

Annexed Lands.

III. CONCLUSION

We vacate the Court of Appeals' opinion insofar as it relates to the Annexed

Lands. All claims related to the Annexed Lands were resolved below, were not raised

on appeal, remained separate and distinct from the claims and issues actually raised on

appeal, and should not have been addressed.

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No. 85989-2

,.

WE CONCUR:

14
Clark County, et al. v. W. Wash. Growth Mgmt. Hearings Review Bd., et al.

No. 85989-2

STEPHENS, J. (concurring)-! concur in the majority's decision to reverse

the Court of Appeals and reinstate the superior court's rulings. But, I would do so

on the basis of mootness. The majority purports to rely solely on the appellate

rules to hold that the petitioners failed to raise the proper issues. I am not

convinced. While an appellate court reviews only those portions of a decision the

appealing party designates, we also liberally construe the rules in determining a

party's compliance. RAP 1.2 provides in relevant part: "(a) Interpretation. These

rules will be liberally interpreted to promote justice and facilitate the decision of

cases on the merits. Cases and issues will not be determined on the basis of

compliance or noncompliance with these rules except in compelling circumstances

where justice demands, subject to the restrictions in rule 18.8(b)." As the majority

recognizes, appellate courts have wide discretion in determining what issues

should be addressed in order to properly decide a case. Majority at 11 (citing RAP
Clark County, et al. v. W Wash. Growth Mgmt. Hearings Review Bd., et al., 85989-2
(Stephens, J. Concurrence)

12.1(b), 7.3, 1.2). I believe we do a disservice to the Court of Appeals by not

respecting its discretion to address the issues involving the annexed lands.

Nonetheless, I would dismiss the claims challenging the annexation as moot

in the context of this proceeding. The claims in question originated in a petition to

the Growth Management Hearings Board (Board) challenging Clark County's

designation of certain lands under the Growth Management Act, chapter 36.70A

RCW. The cities of Camas and Ridgefield have annexed the lands in question, and

those annexations cannot be challenged in these proceedings. As a result, the

question of whether the Board properly reviewed Clark County's prior designation

of the annexed lands is moot. Dismissal should follow. See Seguin v. Barei, 163

Wash. 702, 703, 299 P. 655 (1931) (dismissing appeal where underlying interest in

disputed property was dissolved in separate proceeding).

-2-
Clark County, et al. v. W Wash. Growth Mgmt. Review Bd., 85989-2
(Stephens, J. Concurrence)

-3-