### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHARON KAY and JIM HOWE, DIVISION ONE

Appellants, No. 77935-4-I V. UNPUBLISHED OPINION KING COUNTY SOLID WASTE DIVISION, a municipal corporation, FILED: June 3, 2019

Respondent. DWYER, J.

— Due to the negative impacts ofa landfill operated by King County, nearby resident Sharon Kay brought a civil action in which she claimed thatthese effects amounted to a total taking of her property and, in the alternative, thatthese effects amounted to a partial taking.1 After a trial, thejury found that Kay suffered a partial taking. Kay’s subsequent requestfor an award of attorneyfees was denied. Because her requestwas denied contrary to the letter and intent ofthe statute governing attorneyfee awards in inverse condemnation actions, we reverse.

Sharon Kay lives in a house adjacent to the Cedar Hills Regional Landfill,
a facility operated bythe respondent King County Solid Waste Division (the County). In 2013, a pipeline break atthe landfill led to the release ofsubstantial

1 Plaintiff Jim Howe brought unrelated causes of action against the King County Solid Waste Division. These claims are not at issue in this appeal.No. 77935-4-l12

amounts oftoxic gas. Subsequently, Kay brought claims againstthe Countyfor nuisance, trespass, negligence, inverse condemnation, strict liability, and negligent infliction of emotional distress. Before trial, the County made the following written settlement offer, providing forthe purchase of Kay’s property in exchange forthe extinguishment of her inverse condemnation claim: Dear Ms. Kay and Mr. Howe, With this letter, King County makes the following offerto purchase your property: PURCHASER: King County, Department of Natural Resources and Parks—Solid Waste Division SELLER: Sharon Kay or Sharon Kay and Jim Howe PROPERTY ADDRESS: 1523 229th Ave SE, Issaquah, WA 98027, APN: 222306-9135 PURCHASE PRICE: $552,000 Should you accept King County’s offerto purchase your property forthe price listed above, the parties will then agree on a mutually acceptable purchase and sale agreement and closing. Kay and Howe did not accept the offer. The parties proceeded to trial. Thejury made the following findings in its special verdict: QUESTION 6: Did the defendant’s actions create an inverse condemnation partial taking of any of plaintiffs’ properties? Kay residential property ANSWER: YES QUESTION 8: For each property you answered “yes” on Questions 5 or 6, and/or Question 7, what is the fair market value of that property before the taking? [ANSWER:] Kay residential property $650,000 QUESTION 9: For each propertyyou answered “yes” on Questions 5 or 6, and/or Question 7, what is the diminished fair market value afterthe taking?

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[ANSWER:] Kay residential property $585,000 QUESTION 10: As to any taking, what was the date that taking began? [ANSWER:] Kay residential property December7, 2013 Following the verdict, the trial court entered judgment. Thejudgment provided thatthe inverse condemnation had commenced on December 7, 2013, that Kaywas entitled to $65,000, the difference of her property’s unimpaired fair market value and impaired value, and that prejudgment interest on these inverse condemnation damages totaled $31 221 .37. Thejudgment did not award the Countyfee title to Kay’s property. The trial court summarily denied Kay’s subsequent motion foran award of attorneyfees and costs.

When, as here, an appeal concerns the interpretation ofa statute, we reviewthe trial court’s decision de novo. State v. Costich, 152 Wn.2d 463, 470, 98 P.3d 795 (2004). Our primary objective is to give effectto the legislature’s intent, derived by construing the language as a whole and giving effectto every provision. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). Ifthe language is unambiguous, we give effect to that language alone, as the legislature is presumed to mean what it says. State v. Radan., 143 Wn.2d 323, 330, 21 P.3d 255 (2001). If, however, the legislature’s intent cannot be discerned from the plain text ofthe statute, we “resort to principles ofstatutory construction, legislative history, and relevant case lawto assist us in discerning

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legislative intent.” Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001). The Fifth Amendmenttothe United States Constitution providesthat private property may not be taken for public use “withoutjust compensation.” Article 1, section 16 ofthe Washington Constitution similarly provides: No private property shall be taken or damaged for public or private use withoutjust compensation having been first made, or paid into courtforthe owner.

. . which compensation shall be ascertained by ajury. Two avenues of reliefare available to property owners, the value ofwhose property is totally or partiallytaken by government action. The first is a traditional eminent domain proceeding, wherein the government body (condemnor) seeks
or has already obtained actual ownership of, or an ownership right in, private property so as to use itfor public benefit. See, e.g., Pub. Util. Dist. No. 2 of Grant Countyv. N. Am. Foreign Trade Zone lndus., LLC, 159 Wn.2d 555, 565, 151 P.3d 176 (2007). In these cases, any settlement offerwill necessarily be an offerto purchase the specific property right at issue. Because the condemnor is required to identifythe specific property interestthat it seeks to acquire, in contemplating settlement, the parties intend to place a value on the identified interest. Thus, when settlement discussions fail, a subsequently entered judgment will necessarily reflectthe fair market value ofthe specific property right. See State v. McDonald, 98 Wn.2d 521, 525, 656 P.2d 1043 (1983). In such a case, a settlement offer can be easily compared to the finaljudgment, as each specifies a value for an interestthat is conveyed bythejudgment. See ~j~y of Seattle v. Seattle-First Nat’l Bank, 79 Wn.2d 490, 491, 487 P.2d 777 (1971).

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In the end, in return for a payment, the condemnor receives both the extinguishment ofthe claim against it and conveyance and ownership ofthe identified specific interest in the property. The second avenue of relief available to a property owner is an inverse condemnation action. An inverse condemnation occurs when the government takes ordamages propertywithout the formal exercise ofthe power of eminent domain. Dickqieserv. State, 153 Wn.2d 530, 534-35, 105 P.3d 26(2005). Damages in an inverse condemnation case are equal to the amountthe property has diminished in fair market value. Petersen v. Port of Seattle, 94 Wn.2d 479, 482-83, 618 P.2d 67 (1980). A successful plaintiffwill remain the owner ofthe property at issue but is awarded damages to compensate forthe diminished fair marketvalue ofthe property. The decline in value is measured as ofthe time of trial. Petersen, 94 Wn.2d at 482. In many inverse condemnation cases, the question ofwhether a taking has in fact occurred becomes an issue forthe trier offact; the condemnee avers thatthe condemnor has damaged ortaken some, most, or all ofthe value ofthe condemnee’s property. See, e.g., Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 648, 935 P.2d 555 (1997). Thus, unlike in an eminent domain action, where the specific property interest at issue is known and the existence ofa taking is not disputed, in many inverse condemnation actions the parties dispute not onlythe extent of liability but also the amount ofthe property interest taken or damaged and the value thereof. When thejuryfinds that only a partial taking has occurred,

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the condemnee receives damages forthe diminished value ofthe propertywhile retaining full title and ownership thereof.2 See, e.g., Petersen, 94 Wn.2d at 481. The legislature has provided further protection for property owners asserting or defending condemnation claims. “The legislature has recognized that awards in eminent domain proceedings, though constitutional, mayfall short of complete compensation because of litigation expenses.” Petersen, 94 Wn.2d at 487. To address this shortfall, ROW 8.25.070 provides forthe payment ofa condemnee’s attorneyfees in eminent domain actions. ROW 8.25.075 provides similar protections forthose pursuing inverse condemnation actions. A superior court rendering ajudgmentforthe plaintiff awarding compensation forthe taking or damaging of real property for public use withoutjust compensation having first been made to the owner shall award or allowto such plaintiff costs including reasonable attorneyfees and reasonable expertwitness fees, but only ifthe judgment awarded to the plaintiff as a result oftrial exceeds byten percent or more the highestwritten offerofsettlement submitted by the acquiring agencyto the plaintiffat leastthirty days priorto trial. ROW 8.25.075(3). “ROW 8.25.075 clearly manifests a legislative intent that ifa condemnor chooses to take propertywithout instituting condemnation proceedings, the
owner shall be reimbursed for his costs of litigation in obtaining his constitutionally guaranteedjust compensation.” Oity of Snohomish v. Joslin, 9 Wn. App. 495, 500, 513 P.2d 293 (1973). Thus, ROW 8.25.075(3) protects landowners who might otherwise exhausttheir resources in litigating a takings

2 The condemnee may not then bring a subsequent claim for damages already compensated, but maycommence a newaction should governmentactivity lead to afurtherdecline in the condemnee’s property’s value. Petersen, 94 Wn.2d at486. -6-No. 77935-4-117

claim by ensuring they are compensated fortheir attorneyfees and costs and, in this way, vindicating their rightto full and fair compensation fortheir losses. The requirement that a condemnor paythe condemnee’s attorneyfees may be avoided by a showing that the government entity made a qualifying good faith settlement offer, as defined in the statute. Once the government entity has shown that it has made such an offer, the condemnee mustthen showthatthe offerwas insufficient, as defined in the statute. Thus, ourfirst inquiry is whether the government made a qualifying settlement offer, i.e., one that allows for application ofthe statutorily required comparison. Oursecond inquiry involves conducting that comparison. Ill “Settlement agreements are governed by contract principles subjectto judicial interpretation in light ofthe language used and the circumstances surrounding their making.” Sherrod v. Kidd, 138 Wn. App. 73, 75, 155 P.3d 976 (2007) (quoting Stottlemyre v. Reed, 35 Wn. App. 169, 171, 665 P.2d 1383 (1983)). Accordingly, a settlement offer must conform to the requirements ofany other contract offer and must be analyzed as such. “Since only in very exceptional circumstances can informal contracts be created except by a manifestation ofassent ofthe parties to the terms ofthe promise and to the consideration for it, it is ordinarily necessaryfor one ofthe parties to propose to the otherthe promise which he will make for a certain consideration, orto state the consideration which he will give for a certain promise. That is, a proposal or offer is necessary.” Wetherbee v. Gary, 62

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Wn.2d 123, 127-28, 381 P.2d 237 (1963) (quoting 1 WILLIsT0N, CONTRACTS

### § 23 (3d ed. 1957)). In otherwords, an offer must be sufficientto allow, ifaccepted, enforcement of promises by both parties setforth therein—it must contain a specific description ofthe consideration to be given by both parties. The County’s settlement offer did contain a specific description of both parties’ consideration—it provided for payment of$552,000 to Kay in exchange forthe extinguishment of her inverse condemnation claim and the conveyance of title to the property at issue to the County. We analyze these elements of consideration as part ofthe County’s offerwhen comparing it to the final judgment. IV It is the meaning ofthe statute as it applies to the County’s offerthat is at the heart ofthe parties’ dispute. The County urges thatthe statute is unambiguous and that, per a plain language reading, its settlement offerwas sufficientto excuse payment ofattorneyfees. Kay urges thatthe statute is ambiguous, and that the intent ofthe legislature was to require comparison ofthe value ofthe settlement offer against the value ofthe final judgment. A The County advocates a plain language reading ofthe statute. Unambiguous language is given its plain meaning without adding language to the statute. Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155 (2006). “Courts may not read into a statute matters that are not in it and may not create

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legislation underthe guise of interpreting a statute.” Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002) (footnote omitted). The County contends that its offerwas sufficientto meet the requirements of RCW 8.25.075(3) because the amount of money awarded bythe final judgment was substantially less than its settlement offer—the County offered to pay Kay $552,000 before trial, and Kaywas awarded damages ofonly $96,221.37. The County is wrong. In arguing as it does, the County misapprehends its own offer. The County did not offerto pay Kay $552,000 in exchange forextinguishment of her
cause ofaction. Rather, the County offered to pay $552,000 to Kay in exchange forthe dismissal of herclaims against the County and conveyance offee title to her propertyto the County. But the finaljudgment did not award the Countytitle to Kay’s property. It only awarded the County extinguishment of Kay’s claims upon payment ofthe amount due. The plain text of RCW 8.25.075(3) requires that a private landowner be awarded attorneyfees in an inverse condemnation action except in the eventthat the condemnor can showthat the final judgment aftertrial did not exceed, by 10 percent or more, the highestwritten offer submitted bythe condemnorto the condemnee at least 30 days before trial. When we viewthe statute according to its plain words, it is clearthatthe County did not tendera qualifying offer. The finaljudgmentwas not comparable to the highestwritten offer made bythe County priorto trial. The finaljudgment provided Kay $65,000 in inverse condemnation damages, plus prejudgment

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interestfrom the date the damage commenced to the date ofjudgment—a total of$96,221.37. Thisjudgment allowed Kayto retain title to her property. The County’s offerdid not include any paymentfordamages. Instead, it required Kayto sell her propertyto the County, thereby extinguishing her condemnation claim. This was an entirely different bargain than thatwhich is embodied in thejudgment. Pursuantto the settlement offer, Kaywould have received $552,000 in exchange fordismissal ofthe inverse condemnation claim and transfer oftitle to her property to the County. Underthe finaljudgment, she may continue to live on and own her property and was granted $96,221.37. The County’s interpretation of RCW 8.25.075(3) is untenable. Its entire focus is on the amount of money it offered to pay—it ignores the consideration it demanded in return. Indeed, the County glosses overthe cleardifference between an offerthat requires the conveyance oftitle to real property and one that does not. Underthe plain language construction ofthe statute that it urges we adopt, its settlement offer cannot be compared to the finaljudgment. Thus, it failed to make a qualifying offer. As stated above, a valid offer requires a cleardescription ofthe consideration to be furnished by both parties should it be accepted. Wetherbee, 62 Wn.2d at 127-28. An offerto give a sum of moneywith nothing expected in return is simply a gratuitous promise and is too indefinite to be enforced. Huberdeau v. Desmarais, 79 Wn.2d 432, 439-40, 486 P.2d 1074 (1971). By contrast, a contract sets forth terms that, if accepted, may be readily enforced. Were the County’s written settlement offerto Kay accepted, the Countywould be

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able to seek specific performance to require Kayto conveytitle, while Kaywould be able to seek a monetary remedy ifthe Countyfailed to tender payment. The finaljudgment, however, differed materiallyfrom the terms ofthe offer, as it awarded Kay damages without requiring the conveyance oftitle to the land. B For her part, Kay avers thatthe wording ofthe statute is ambiguous, and thatthe intent ofthe legislature was to require comparison ofthe value ofthe settlement offer against the value ofthe finaljudgment. To discern this intent, Kay directs us to the statutoryscheme within which RCW 8.25.075 exists. ‘The principle of reading statutes in pan materia applies where statutes relate to the
same subject matter.” Hallauerv. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001). “In ascertaining legislative purpose, statutes which stand in pan materia are to be read togetheras constituting a unified whole, to the end that a harmonious, total statutory scheme evolves which maintains the integrity of the respective statutes.” State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974). In conducting our analysis herein, we lookto RCW 8.25.075’s similarly worded companion statute, RCW 8.25.070. Both statutes coverthe award of attorneyfees in condemnation actions. ‘The purpose of RCW 8.25.070 is to encourage settlement before trial and
ensure that each side makes a good faith effort to settle.” Olympic Pipe Line Co.
v. Thoeny, 124 Wn. App. 381, 399, 101 P.3d 430 (2004).~ It is a reasonable

~ RCW 8.25.075 was enacted, and RCW 8.25.070 amended, as partofthe Relocation Assistance and Real PropertyAcquisition Policy Act, Laws of 1971, 1st Ex. Sess., ch. 240. This actwas passed so that state and local governments could obtain financial aid in acquiring real property by meeting the requirements ofthe federal Uniform Relocation Assistance and Real -11-No. 77935-4-1/12

inference that the legislature’s intent was to ensurejust compensation for property owners in inverse condemnation actions and to encourage good faith settlement offers. Joslin, 9 Wn. App. at 500. Both section .070 and section .075 do this by excusing public entities from paying attorneyfees when a final judgment’s value does not exceed by 10 percent the value ofthe highestwritten settlement offer. The value ofthe finaljudgment herein is readily ascertainable: Kaywas allowed to retain title to her property, which thejuryfound to have an impaired value of$585,000, and received $65,000 in damages to coverthe difference between the impaired value and thatwhich thejuryfound would be the property’s unimpaired value: $650,000. In addition, she was awarded prejudgment interest in the amount of$31 221 ~37~4 Adding this to the $585,000 value ofthe property and the $65,000 she received in damages, the value to Kay ofthe finaljudgment
on her inverse condemnation claim was $681,221.37. The value to Kay ofthe settlement offerwas substantially less. Had Kay accepted the settlement offer, she would have received $552,000. But her claims would have been extinguished and she would have had to convey her property to the County. Contrasted with the $681 221.37 value ofthe final judgment, it is plain thatthe value ofthejudgment ($681 221 .37) exceeds bywell over 10 percentthe value ofthe County’s highestwritten settlement offer ($552,000).

PropertyAcquistion Policies Act of 1970, 42 U.S.C. §~ 4654, 4655, that litigation expenses, including attorney fees, be paid in certain cases.

~ Prejudgment interest may be awarded to successful inverse condemnation plaintiffs and, when it is, becomes part of the judgment awarded as a result of trial. Sintra, Inc., 131 Wn.2d at 656-57; accord Costich, 152 Wn.2d at 474-75.

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The divergence between whatwould have been required under a settlement as proposed bythe County and the finaljudgment highlights the folly ofconstruing the offer merely as thatwhich the County promised to give while ignoring that which it demanded in return. Accepting the County’s reading ofthe statute would produce unjust results in future litigation. Any inverse condemnee, bringing a suitto recoverthe difference between the impaired and unimpaired value of his or her property, would be denied an award of attorneyfees so long as the condemnor made an offerto purchase the entire property in an amount greaterthan the damages being sought. This would place condemnees in a position ofeither accepting an offerto sell their propertyfor less than its fair market value or continuing to litigate the inverse condemnation action without hope of recovering necessary litigation expenses. Such a state ofaffairs would essentially put an end to the government’s risk in such a lawsuit, frustrating the legislature’s goal. Courts are not required to read statutes in a mannerthatwould lead to absurd or unjust results. Univ. ofWash. v. City of Seattle, 188 Wn.2d 823, 834, 399 P.3d 519 (2017).Regardless ofwhether RCW 8.25.075 is viewed as ambiguous or unambiguous, the County loses. Accordingly, we reverse and remand to the trial court, with instructions to enter an appropriate award of attorneyfees to Kay. As Kay prevails in this appeal, we also exercise our discretion to grant her reasonable attorneyfees on appeal pursuantto RAP 18.1. Upon compliance with that rule, a commissionerofour courtwill enteran appropriate order.

-13-No. 77935-4-1/14 Reversed and remanded.

WE CONCUR:

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