IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HUGH K. SISLEY and MARTHA E. ) SISLEY, both individually and on behalf ) oftheir marital community, Appellants,

v. CITY OF SEATTLE, a municipal corporation, Respondent. .) NOS. 69827-3-1 69828-1-1 (Consolidated Cases) DIVISION ONE

UNPUBLISHED OPINION FILED: February 3, 2014 

### 3 -~ CD cz;-; I ~n^' 

### Lau, J. —In this multi-decade long dispute overtheCity ofSeattle's housing jS^i•.! 

## codeenforcementactions involving numerous residential rental properties ownecPby 31, Hugh and Martha Sisley, the Sisleys appeal the trial court's partial summaryjudgment 

### order dismissing their state constitutional, tort, and certificate ofrelease claims. They do not appeal thejudgment entered afterthejury's adverse verdict on their contract claims or the denial oftheir new trial motion. Finding no error, we affirmthe partial summaryjudgment order ofdismissal. FACTS 

### Hugh and Martha Sisley own numerous Seattle residential properties that have been the subject ofseveral hundred municipal code enforcement cases, dating to the69827-3-1,69828-1-1/2
1980s. In May 2010, the Sisleys filed a complaintfor damages. By amended complaint, they alleged that the City violated state constitutional provisions governing privileges and immunities, due process, equal protection, and privacy, and engaged in "tortious conduct," by unlawfully or improperly (1) imposing vacant building monitoring fees, (2) imposing tenant relocation assistance fees, (3) transferring tenant utility bill arrearages to their home account, (4) installing or reinstalling water meters without consent, and (5) entering and searching their properties. They also alleged that City municipal courtjudgments entered in two code enforcement cases involving 6317 15th Avenue NE and 6515 16th Avenue NE were "excessive and in violation of state law." 

### Themunicipal courtjudgmentstotaled $368,000 and$247,400.1 Eachjudgment authorized continuing per diem penalties for uncorrected violations. The Sisleys filed a motion "seeking enforcement ofdefendant's procedures for confirming compliance with defendant's housing code." They asked the court to find that they "timely remedied the claimed Housing Code violations for the properties located at 6515 16th Ave. N.E. and 6317 15th Ave. N.E. and that the City has released them from all claims for the property located at 6317 15th Ave. N.E." They argued that
a certificate ofrelease issued by the City with respectto the 6317 15th Avenue NE code enforcement action "discharged and extinguished" the municipal courtjudgment and "all accumulated fines." Br. ofAppellant at 43.



### 1In October2011, this courtupheld the municipal court judgments over the Sisleys' claim thatthe penalty amounts exceeded the $75,000 claim limit applicable to district courts under RCW 3.66.020. City of Seattle v. Sislev. 164 Wn. App. 261, 263 P.3d 610 (2011), review denied. 173 Wn.2d 1022 (2012). -2-69827-3-1,69828-1-1/3


### On the City's summaryjudgment motion, the trialcourt ruled that (1) all state constitutional claims for money damages failed inthe absence ofaugmentative 

### legislation, (2) the public duty doctrine barred relief on all claims arising from the "City's housing and zoning enforcement actions includingtenant relocation assistance and vacant building monitoring," (3) res judicata barred the Sisleys' excessive penalty 

### argument, and (4) no genuine issue of material fact remained as to whethera "certificate ofrelease" issued bythe City in a code enforcementcase involving the 

### Sisley-owned property at 6317 15thAvenue NE released accrued civil penalties. The court also dismissed the Sisleys' tortious interference claim. 

### The Sisleys filed a second amended complaint alleging that (1) the City's utility bill collectionactions breached express and impliedcontractual duties and (2) the City 

### "unlawfully and tortiously refused to issue Certificates of Compliance" recognizing correction ofcode violations at two Sisley-owned properties. A jury rejected both claims, and on December4, 2012, the trial court enteredjudgmentforthe City. 

### The Sisleys do notchallenge the jury's verdict or the trial court's denial of their motion for a new trial. They appeal the trialcourt's partial summaryjudgment order 

### dismissing the state constitutional, tort, and certificate ofrelease claims. ANALYSIS 

### We review a grant ofsummaryjudgmentde novo, construing the facts and all reasonable inferences inthe lightmostfavorable to the nonmoving party. Hearst Commc'ns. Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). We 

### will affirm the trialcourt's ruling "ifthe pleadings, depositions, answers to interrogatories, 

### and admissions on file, togetherwith the affidavits, ifany, show that there is no genuine
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issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). The nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain. Seven Gables Corp. v. MGM/UAEntm'tCo., 106Wn.2d 1, 13, 721 P.2d 1 (1986). Further, we willnot look beyond the evidence and issues called to the trial court's attention. RAP 9.12. We may, however, affirm on any basis supported by the summaryjudgment record. Gontmakher v. City of Bellevue, 120 Wn. App. 365, 369, 85 P.3d 926 (2004). State Constitutional Claims The Sisleys sought money damages for alleged violations ofvarious state constitutional provisions. Washington law contains no counterpart to 42 U.S.C. § 1983, which creates a civil cause of action for violations ofthe United States Constitution by 

### persons acting under color ofstate law. Washington courts have "consistently rejected invitations to establish a cause ofaction for damages based upon constitutional violations 'without the aid ofaugmentative legislation.'" Blinka v. Wash. State Bar Ass'n, 109 Wn. App. 575, 591, 36 P.3d 1094 (2001) (quoting Svs. Amusement, Inc. v. State, 7 

### Wn. App. 516, 517, 500 P.2d 1253 (1972)); see also Reid v. Pierce County, 136Wn.2d 195, 213-14, 961 P.2d 333 (1998) (declining to recognize civil action for damages 

### premised on violation ofstate constitutional right to privacy). Because the Sisleys 

### identified no augmentative legislation supporting their claims for money damages, this claim fails.2


### 2TheSisleys' remaining contentions are unpersuasive. The Sisleysvoluntarily dismissed theirfederal law claims, leaving no basis for a section 1983 action in state court. And their public policy argument is up to the legislature, not the courts.69827-3-1, 69828-1-1/5

Tort Claims 

### The Sisleys also sought money damages based on allegations thatthe City unlawfullyimposed vacant building monitoring and tenant relocation assistance fees 

### undertheauthority ofits Housing andBuilding Maintenance Code.3 Thetrial court dismissed this claim on partial summaryjudgment, ruling that the public duty doctrine foreclosed relief. 

### The City's Housing and BuildingMaintenance Code requires quarterly inspection ofvacant buildings that are found to violate minimum standards. SMC 22.206.200. The City may impose vacant building monitoring fees. SMC 22.206.200. The code also 

### authorizes the issuance ofemergency orders directing closure of buildings found to pose imminent health or safety risks. SMC 22.206.260. The Citymay seek reimbursement for relocation assistance paid to displaced tenants. SMC 22.206.260. Here, the record establishes thatthe City imposed vacant building monitoring 

### fees inconnection with Sisley-owned properties at 1322 NE65th Street and 6418 

### BrooklynAve NE.4 The fees totaled $604. In both cases, theCity suspendedcollection efforts or reversed the fees.5 The record also establishes that the City imposed tenant


### 3Seattle Municipal Code chapters 22.200 - 22.208. 

### 4The Sisleys advise thattheirclaim relating to vacantbuilding monitoring fees "involves properties located at 1509 NE 66th Street, 6418 BrooklynAvenue NE, and 1322 NE 65th Street." Br. ofAppellant at 14 n.13. They raise no issue on appeal with regard to 1509 NE 66th Street. 

### 5TheCity reversed the fees associated with 6418 Brooklyn Avenue NE after a City employee "determined that City code required a notice ofviolation or Director's order be issued before vacant building monitoring fees could be sought." Resp't's Br. 

### at 10. The City now claims that determination was erroneous. We are notasked to review the merits ofthis issue.69827-3-1,69828-1-1/6
relocation assistance fees after issuing a series ofemergency orders directing the closure ofthe Sisley-owned property at 6526 15th Ave NE due to hazardous conditions. The Sisleys challenged that action, and the City sued to recoverthe fees. That suit was
one of four alleging failure to pay tenant relocation assistance fees. The City states it "exercised prosecutorial discretion" and dismissed three ofthe cases. Resp't's Br. at 12. Inthe fourth, the City obtained a finaljudgment. The Sisleys never paid the fees. "In a negligence action, whether an actionable duty was owed to the plaintiff is a threshold determination." Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). Our review is de novo. Munich, 175 Wn.2d at 877. When the defendant in a negligence action is a governmental entity, the public duty doctrine provides that a plaintiffmust show the duty breached was owed to him or her in particular, and was not the breach of an obligation owed to the public in general, i.e., a duty owed to all is a duty owed to none. Munich, 175 Wn.2d at 878. The public duty doctrine does not apply when the entity acts in a proprietary capacity, as opposed to a governmental capacity—that is, when the entity "engages in businesslike activities that are normally performed by private enterprise." Stiefel v. City of Kent. 132 Wn. App. 523, 529, 132 P.3d 1111 (2006). "The principal test indistinguishing governmental functions from proprietary functions is whetherthe act performed is for the common good of all, orwhether it is for the special benefit or profit ofthe corporate entity." Okeson v. City of Seattle, 150 Wn.2d 540, 550, 78 P.3d 1279 (2003); see, §£., Russell v. City of Grandview, 39 Wn.2d 551, 553, 236 P.2d 1061 (1951) (city engaged in a proprietary function when operating a municipal water plant and distribution system); Borden v. City of Olympia, 113 Wn. App. 359, 371, 53 P.3d 1020 (2002) (city engaged in a proprietary function when it "helped private

-6-69827-3-1, 69828-1-1/7 

### developers design, engineer, and pay for a new stormwaterdrainage system."); City of Mercer Island v. Steinmann, 9 Wn. App. 479, 482, 513 P.2d 80 (1973) (cityengaged in


### a governmental capacity when administering zoning ordinance). Anotherdistinguishing factor is whetherthe act involves the performance of"uniquely governmental duties." Hoffer v. State, 110 Wn.2d 415, 422, 755 P.2d 781 (1988) (state auditor acted in a governmental capacity when auditing public offices). 

### The Sisleys argue thatthe public duty doctrine does not apply because the City acted in a proprietary capacity when itimposed vacant building monitoring and tenant relocation assistance fees underthe authority of its housing code. Br. ofAppellant at 

### 38-39. To the contrary, our Supreme Court has recognized a "traditional public duty 

### rule" holdingthat "building codes impose duties that are owed to the public at large." Taylorv. Stevens County, 111 Wn.2d 159, 165, 759 P.2d 447 (1988). Consistentwith this rule, the City's Housing and Building Maintenance Code states: 

### The express purpose of this Code is to provide for and promote the health, safety and welfare ofthe general public, and not to protect individuals or create or otherwise establish or designate any particular class or group ofpersons who will or should be especially protected or benefited bythe terms of this Code. 

### SMC 22.200.020(G). There was nothing evidently "businesslike" aboutthe City's efforts to enforce this code. Stiefel, 132 Wn. App. at 529. The summaryjudgment record 

### contains no evidence that vacant building monitoring, for purposes ofcode compliance, and tenant relocation assistance are activities "normally performed by private 

### enterprise." Stiefel, 132 Wn. App. at 529. We conclude the Cityacted in a 

### governmental capacity and the public duty doctrine bars relief.

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The Sisleys argue inthe alternative that the "special relationship" exception applies. Br. ofAppellant at 39-41. Underthe special relationship exception, an entity may incur liability "ifthe plaintiffcan prove circumstances setting his or her relationship with the government apartfrom that ofthe general public." Cummins v. Lewis County, 156 Wn.2d 844, 854, 133 P.3d 458 (2006). "Aspecial relationship arises where (1) there is direct contact or privitybetween the public officialand the injured plaintiff which sets the latter apartfrom the general public, and (2) there are express


### assurances given by a public official, which (3) gives rise tojustifiable reliance on the part ofthe plaintiff." Taylor, 111 Wn.2d at 166. The exception "requires evidence ofthe plaintiff's inquiries and the [public entity's] specific assurances." Moore v. Wavman, 85 Wn. App. 710, 721, 934 P.2d 707 (1997); see, ag^, Sundberg v. Evans. 78 Wn. App. 616, 624, 897 P.2d 1285 (1995) (record, which included plaintiff's affidavit and transcript ofcounty employee's deposition, raised genuine issues ofmaterial fact regarding applicability of special relationship exception). The Sisleys claim thatthe City "made numerous promises" overthe years, and 

### thatthe summaryjudgment record "created a factual issue as to whetherthe Citywas in [a] special relationship with Mr. and Mrs. Sisley." Br. ofAppellant at 40-41. Contrary to RAP 10.3(a)(6), they fail to cite the record. "It is not the function of trial or appellate courts to do counsel's thinking and briefing." Orwick v. City of Seattle, 103 Wn.2d 249, 256, 692 P.2d 793 (1984). Nonetheless, our review ofthe record reveals no evidence thatthe City made specific assurances regarding vacant building monitoring or tenant relocation assistance fees. This claim fails.

-8-69827-3-1, 69828-1-1/9
The Sisleys also contend that the public duty doctrine does not apply to their tortious interference claim. See Vergeson v. Kitsap County, 145 Wn. App. 526, 543-44, 186 P.3d 1140 (2008) (public duty doctrine does not apply to intentional torts). They argue, "Inthis case, the City knew of Mr. and Mrs. Sisleys' business relationships involving their properties and has intentionally and wrongfully interfered with these relationships by engaging in repeated and protracted investigations that interrupted their business and scared away clients." Br. ofAppellant at 39 n.22. The Sisleys failed to meettheir burden to raise a genuine issue ofmaterial fact regarding the elements oftortious interference: (1) the existence of a valid contractual relationship or business expectancy, (2) the City's knowledge ofthat relationship or 

### expectancy, (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy, (4) proof that the City interfered for an improper purpose 

### or usedimpropermeans, and(5) resultantdamage.6 Hudson v. City ofWenatchee, 94 Wn. App. 990, 998, 974 P.2d 342 (1999). The claim is premised on a few sentences of 

### unsupported argument. For example, the Sisleys argue the City "interrupted their 

### business and scared awayclients."7 Br. ofAppellant at 39n.22. Thetortious
interference claim fails.



### 6Thetrial courtruled, "The City's enforcement of itshousing andzoning codes did not give rise to a claim oftortious interference with business expectations when the City's interest inprotecting the public's health, safety, and welfare outweighs the plaintiffs' rental interest." We may affirmthe trialcourt on any basis supported bythe summaryjudgment record. Gontmakher, 120 Wn. App. at 369. 

### 7The Sisleys citethetrial testimony ofcity employee Jill Vanneman tosupport their contention that "the City has admitted that itsubjects Mr. and Mrs. Sisley to more 

### oversight and enforcement action than anyone else inthe City." Br. ofAppellant at 27.69827-3-1,69828-1-1/10
For similar reasons, the Sisleys' remaining "negligence-based tort claims" also fail. Br. ofAppellant at 37 (formatting omitted). Their entire argument consists of two paragraphs: The City negligently managed Mr. and Mrs. Sisleys' personal municipal account. "Negligence consists inthe doing ofan act which a reasonable man would not have done, or in the failure to do an act which a reasonable man would have done under similar circumstances." Svs. Tank Lines v. Dixon, 47 Wn. 2d 147, 151, 286 P.2d 704, 706 (1955). A municipality has a duty to exercise reasonable care inthe course of enforcing the Housing Code and operating the electrical utility and water services. As setforth above, the City has breached this duty. The City has been hounding Mr. and Mrs. Sisley for years and even assuming arguendo the more recent mismanagement oftheir municipal accounts is simply bureaucratic 

### obstinacy or incompetence, Mr. and Mrs. Sisley have stated a cause of action for negligence because this perverse course ofconduct is unreasonable and economically harmful to their business and livelihood. Br. ofAppellant at 37. These "arguments" consist ofnothing more than a list of 

### unsupported complaints about the City. Counsel's arguments are not evidence. Bravo
v. Dolsen Companies, 71 Wn. App. 769, 777, 862 P.2d 623 (1993) (unsworn allegation 

### of fact inappellate brief falls outside materials that court can consider), reversed on other grounds. 125 Wn.2d 745, 888 P.2d 147 (1995). The Sisleys fail to even suggest which facts raise a material fact issue. We decline to "comb the record" to find support 

### theyfailed toprovide.8 Fishburn v. Pierce County Planning &Land Servs. Dep't, 161 Wn. App. 452, 468, 250 P.3d 146 (2011).



### When reviewing a grant ofsummaryjudgment, "the appellate courtwill consider only evidence and issues called to the attention ofthe trial court." RAP 9.12. 

### 8Even ifthe Sisleysidentified a genuine issue ofmaterial fact, wequestion whetherthey are entitled to further proceedings on their "negligence-based tort claims." Br. ofAppellant at 37 (formatting omitted). On partial summaryjudgment, the trial court 

### ruled, "The supply of power by City Light to the plaintiffs' properties is governed by -10-69827-3-1,69828-1-1/11 

### The Sisleys also assert thattheCity "improperlyinstalled waterservices."9 Br. of Appellant at 17 (formatting omitted). The trial court ruled, "There is no genuine issue of 

### material fact that the property at 6544 16th Ave. NEwas occupied afterthe City reinstalled a water meter at the property, and the plaintiffs were required to provide and pay for water after the individuals occupied the property." The Sisleys now claim the 

### trialcourt "incorrectly" found the property was occupied. Br. ofAppellant at 17. Trial court summaryjudgmentfindings are superfluous. Hamilton v. Huqgins, 70 Wn. App. 842, 848, 855 P.2d 1216 (1993). Our review of this issue is de novo. The record evidence indicates no material issues of fact. The trial court properly granted summary judgment. Penalty Judgments—Eighth Amendment Excessive Fines Clause The Sisleys also sought money damages premised on the two municipal court 

### judgments discussed above. They claim thejudgments violate the Eighth Amendment's 

### excessivefines clause and thusentitlethem to suefor money damages.10 They assert thepenalties wereconstitutionallyexcessive.11

contract." The Sisleys assigned no errorto this ruling. Arguably, they have waived all tort-based claims related to the City's "supply of power." 

### 9This assertion appears in the section oftheSisleys' opening brieftitled "Statement ofthe Case." It is unclear whether the assertion is part ofthe appeal and, if so, to which assignment oferror itpertains. See RAP 10.3(a) ("The brief ofthe appellant or [respondent] should contain
... (5) Statement ofthe Case. A fair statement ofthe facts and procedure relevant to the issues presented for review, without argument.") (emphasis added). 

### 10 "Excessivebail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const, amend VIII. In their opening brief, the Sisleys state, "Although ArticleI, § 14 of the Washington Constitution has an excessive -11-69827-3-1, 69828-1-1/12


### This claim fails on several grounds. First, the Sisleys cite no authority 

### authorizing a money damages claim based on an alleged excessive fines clause 

### violation. They rely on UnitedStates v. Baiakaiian, 524 U.S. 321, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998) (reviewing forfeiture imposed under federal statutes), and State v. WWJ Corp., 138 Wn.2d 595, 980 P.2d 1257 (1999) (declining to review untimely 

### argument regarding penalty imposed under state consumerprotection statutes), but neither case involved a money damages claimbased on an alleged excessive fines
clause violation. 

### Next, the United States Supreme Court has determined thatthe excessive fines 

### clause "'limits the government's power to extract payments, whether in cash orin kind, as punishment forsome offense.'" Baiakaiian. 524 U.S. at 328 (internal quotation marks omitted) (quoting Austin v. United States, 509 U.S. 602, 609-10, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993)). The Sisleys fail to address whetherthe enforcement 

### penaltiesconstitute punishment. See State v. Frodert. 84Wn. App. 20,29-30, 924 P.2d 933 (1996) ("As with the double jeopardy clause, the excessive fines clause only protects against 'punishment.'").



### fines clause, this memo analyzes the applicability of only the Eighth Amendment of the U.S. Constitution." Br. ofAppellant at 32 n.20. 

### 11 As a preliminary matter, ourrecord does notreflect precisely how much money the Sisleyspresently owe the City. The Sisleys assert, "Today, thetotal fines presently exceed two million dollars—more than $2,500,000, and the fines grow by $1,600 a day." 

### Br. of Appellantat 16. They do not explain how they calculated thisfigure. -12-69827-3-1,69828-1-1/13 Finally, to the extentthis claim arises under 42 U.S.C. § 1983, it fails because the 

### Sisleys dismissed all federal claims aftertheCity removed the case tofederal court.12 The trial court properly granted summaryjudgment dismissal. Certificate of Release 

### The Sisleys contend that the trial court erred in rulingthat a City-issued certificate of release released no accrued civil penalties with respect to code violations at 6317 15th Ave NE. Br. ofAppellant at41. The certificate stated: The above described property [6317 15th Ave NE] is released from all requirements ofthe NOTICE OF VIOLATION ofthe Seattle Municipal Code 22.206 dated June 27, 2008 for the following reasons: HOUSE WAS DEMOLISHED FOR REDEVELOPMENT. (Boldface omitted.) The City issued the certificate on August 3, 2012, nearly three 

### years afterthe municipal court entered a final $368,000judgment inthe case. The Sisleys argue thatthe certificate is a binding contract underwhich "the existingjudgment and all ofthe accumulated fines have been discharged and 

### extinguished." Br. ofAppellant at 43. They add, "The meaning ofthe City's 'Certificate of Release' should be determined and construed in the same manner as other 

### contractual documents." Reply Br. ofAppellant at 2. Neitherthe record nor reasoned argument supports these contentions. Among other elements, an enforceable contract requires an offer, acceptance, and consideration. FDICv. Uribe, Inc., 171 Wn. App.



### 12 Given our resolution ofthe excessive fines claim, we need not address the claim or issue preclusion question. However, we question whetherthe doctrines ofres 

### judicata or collateral estoppel apply to bar the Sisleys' EighthAmendment excessive fines claim involving the Seattle Municipal Courtjudgments, given the protracted 

### litigation history in this case involving priornear identical issues and claims between these parties. -13-69827-3-1,69828-1-1/14 683, 688, 287 P.3d 694 (2012). As a matter of law, the certificate of release is not a
contract. The dispositive question is whetherthe certificate satisfied orvoided the City's judgment. The Sisleys offer no plausible theory as to how satisfaction or voiding occurred. By its terms, the certificate releases the "above described property" from the requirements ofthe notice of violation. During her deposition, City employee Carol Anderson agreed with the statementthat "the Certificate of Release means thatthe person who received the Notice ofViolation is no longer obligated to take the corrective action . . . ." She did not testify that the certificate satisfies or voids existing penalty judgments. City employee Diane Davis explained via deposition thatthe City might issue a certificate to clear title: Q. Have you ever heard of a Certificate of Release? A. Yes. Q. What is your understanding [of]whatthat is? A. That is a document that is occasionally issued when there's some reason to suspend the Notice of Violation. The usual time we would issue one of those is ifthere was a, there was a violation on the record and the property was being transferred and needed to clear the title inorderfor the title company to acceptthe transfer. A Certificate of Release might be issued inthat circumstance preserving the rights or preserving the—making itclearthe violation still exists, but that it's being issued so that title can be transferred; in otherwords, it's not saying it's incompliance. It's specifically when we can't determine compliance that we would issue a Certificate of Release. The certificate itself states, "You are strongly encouraged to record this Certificate with 

### King County to ensure a cleartitle to this property." And while the certificate identifies "HUGH K AND MARTHA E SISLEY" as the property's owners, itnowhere references 

### the City's $368,000 municipal courtjudgment. On this record, the trialcourt properly

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found no genuine issue ofmaterial fact existed as to the enforceability ofthejudgment
or the underlying penalties. CONCLUSION Because the trial court properly granted partial summaryjudgment infavor ofthe City on all claims, we affirm the partial summaryjudgment order dismissing the constitutional, tort, and certificate of release claims.

WE CONCUR: 

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