IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN ROBINETT PENSION PLAN &

TRUST, a Washington trust,

Plaintiff/Appellant,

V.

CITY OF SNOHOMISH, a Washington

municipality; and BICKFORD

INVESTMENTS, LLC, a Washington

limited liability company,

Defendants/Respondents.

No. 77380-1-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: November 5, 2018

CHUN, J. — John Robinett Pension Plan & Trust (the Trust) appeals the

denial of its CR 60(b)(3) motion. Because the Trust offers evidence that is

neither newly discovered as required by law, nor relevant, we affirm.

BACKGROUND

The Trust and Bickford Investments, LLC (Bickford) each own a parcel of

property in the City of Snohomish (the City). A 70-foot public right-of-way

separates the two parcels. The City dedicated the right-of-way as High Street in

1890.

In 2012, the Trust filed a quiet title action under Washington's "nonuse

statute" against the City and Bickford. Under the nonuse statute, if a city does

not open a road within five years of its dedication, the road reverts in equal
No. 77380-1-1/2

shares to the property owners abutting the road.1 The Trust claimed the City did

not open the portion of High Street abutting the Trust's and Bickford's properties

for public use within five years of its dedication. As such, the Trust claimed the

road had reverted in equal shares to the predecessors of the Trust and Bickford.

After hearing cross-motions for summary judgment, the trial court granted

summary judgment in favor of the City and Bickford on November 16, 2016. The

court ruled, first, the Trust had not established an essential element of its nonuse

claim; and, second, the doctrine of !aches barred the claim.

The Trust appealed the trial court's summary judgment ruling.2

In May 2017, while preparing its reply brief on appeal, the Trust

discovered agreed findings of fact, conclusions of law, and a final order entered

on February 11, 2005, in Fischer Bickford, LLC v. City of Snohomish,Snohomish

County Cause No. 04-2-14360-6 (the 2005 Case). The plaintiff in the 2005 Case

brought a lawsuit under the nonuse statute against the City and an unrelated

defendant. In the 2005 Case, the plaintiff's property abutted several streets,

including a different portion of High Street,3 which the trial court referred to as the

"Unopened Streets." In the agreed findings of fact, the trial court stated "[t]he

City of Snohomish has never opened the Unopened Streets as public roads." In

the final order, the trial court vacated and reverted to the plaintiff only "the North

1 Laws of 1889, ch. 19, § 32, P.603, see Wells v. Miller, 42 Wn. App. 94, 96-97, 708

P.2d 1223 (1985).

2This court affirmed the trial court's summary judgment order on January 16, 2018.

3The portion of High Street abutting the plaintiff's property in the 2005 Case is on

Block 27 and approximately three blocks east from the portion abutting the Trust's property,

which is on Block 30.

2
No. 77380-1-1/3

half of High Street that abuts Block 27."

In light of this discovery, on May 15, 2017, the Trust moved to vacate the

summary judgment order under CR 60(b)(3). The Trust claimed the agreed

findings of fact proved the City conceded it had not opened High Street between

1890 and 1895, the years relevant to the Trust's nonuse claim.

In its response to the CR 60(b) motion, the City and Bickford argued the

evidence from the 2005 Case was a matter of public record and, therefore, did

not meet the legal standard for newly-discovered evidence. They further argued

the evidence was irrelevant because it concerned a different portion of High

Street.

The trial court denied the Trust's CR 60(b)(3) motion on August 10, 2017.

The court "determined that the evidence was not newly discovered as required

by law, and in any event is not relevant or probative to change the Court's

previous order."

The Trust appeals.

ANALYSIS

The Trust asserts the evidence from the 2005 Case is newly-discovered

evidence addressing the critical issue in this case. The City and Bickford

reassert their arguments from below that the evidence was neither newly

discovered, nor relevant. We agree with the City and Bickford.

Appellate courts "review the trial court's decision on a CR 60(b) motion for

an abuse of discretion." Vance v. Offices of Thurston Cty. Comm'rs,117 Wn.

3
No. 77380-1-/4

App. 660, 67' , 71 P.3d 680 (2003). A court abuses its discretion if it makes a

decision that s manifestly unreasonable or based on untenable grounds. Vance,

117 Wn. App at 671.

Under CR 60(b)(3), "[o]n motion and upon such terms as are just, the

court may relieve a party. . . from a final judgment, order, or proceeding" if a

party finds "[

been discove

judgment un

]ewly discovered evidence which by due diligence could not have

ed in time to move for a new trial under rule 59(b)." To vacate a

er CR 60(b)(3), a party must demonstrate "the evidence (1) would

probably change the result if a new trial were granted, (2) was discovered since

trial, (3) coul not have been discovered before the trial by the exercise of due

diligence, (4) is material, and (5) is not merely cumulative or impeaching." Jones

v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d 380 (2013). Parties may not

merely allege they acted diligently, but must explain why they did not discover

the evidence previously. Vance,117 Wn. App. at 671.

Newly-discovered evidence does not include public records, which "are at

all times within reach of the complaining party, and it is because of lack of

diligence if [a party] fails to discover them." Starwich v. Ernst, 100 Wn. 198, 207,

170 P. 584 (1918); see also In re Hammer's Estate, 145 Wn. 322, 326, 260 P.3d

680 (1927) (stating courts follow the rule announced in Starwich that public

records are not newly-discovered evidence).

The Trust concedes the documents from the 2005 Case are public

records. Instead of explaining why it failed to discover these public records, the

Trust merely sserts in a conclusory fashion, without citing any legal authority,

4
No. 77380-1-/5

that this cou "should take judicial notice that discovery of the 2005 Superior

Court case containing judicial admissions was not discoverable through

reasonable due diligence." The Trust fails to make any showing of diligence or

explain why it did not discover the records earlier. As such, the trial court did not

abuse its discretion in concluding the public records were not newly discovered.

Furthe more, the Trust cannot make the required showing that the

evidence would change the result of the prior proceeding. While the Trust

asserted the pleadings from the 2005 Case concerned "identical facts and legal

issues," the rcord suggests otherwise. As the City and Bickford indicate, the

portion of High Street at issue in the 2005 Case was blocks from the portion of

High Street at issue in this case. Moreover, the Trust does not argue on appeal

that the evidence affects the City and Bickford's successful laches defense.

Because the Trust failed to prove the evidence warranted relief from judgment,

the trial court did not abuse its discretion in denying the Trust's motion.

Accordingly, we affirm.

WE CONCUR

el..,...., 9

5