IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON HOLDEN-MCDANIEL PARTNERS, LLC, Appellant,

v. CITY OF ARLINGTON, a municipal corporation; WOODLAND RIDGE, a joint venture; KAJIMADEVELOPMENT CORP., A JOINT VENTURE; ARLINGTON COUNTRY CLUB, INC., a joint venture; BNSF RAILWAY COMPANY, a Delaware corporation, Respondents. HOMESTREET BANK, formerly known as CONTINENTAL SAVINGS BANK; BANNER CORPORATION, formerly known as FIRST SAVINGS BANK OF WASHINGTON; VINE STREET FUND, LLC; U.S. BANK NATIONAL ASSOCIATION, a subsidiary of U.S. BANCORP; SEATTLE MORTGAGE COMPANY; PBW, LLC; GLENEAGLE COUNTRY CLUB ASSOCIATION; Petitioners No. 73528-4-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: January 9. 2017 

### Spearman, J. —Appellant Holden McDaniel Partners, LLC (HM) brought 

### claims against the City ofArlington, Burlington Northern Santa Fe (BNSF) Railway Company, and the developers of the neighboring property, Gleneagle, for designing, developing, operating and maintaining a stormwater managementNo. 73528-4-1/2 

### system that caused stormwater runoffand flooding on HM's property. The trial court 

### dismissed HM's claims on summary judgment based on a release agreement executed by the parties, the statute of limitations, and HM's failure to establish 

### damages. Because the trial court erred indismissing HM's claims based on the release agreement and because there are disputed issues of material fact as to whether HM established its claimed damages, we reverse the trial court on those issues. We otherwise affirm. FACTS 

### Appellant Holden-McDaniel Partners, LLC ("HM") owns property inArlington, Washington, at 18520 67th Avenue North (Property). HM purchased the Property in 1986 and manufactured steel under the company name HCI Steel Products, Inc. The Property was bordered by a forested hill to the east and by railroad tracks on the west. There was a culvert on the Property that carried drainage from the eastern slope across the Property and discharged it into a ditch near a right-of-way belonging to respondent BNSF. The water then passed through a culvert under the right-of-way and flowed to the south. Beginning in the 1980s, the area east ofthe Property was being developed into a residential community and golf course known as Gleneagle. In 1989, respondents Woodland Ridge, Kajima Development Corp., and Arlington Country Club, Inc. (WRJV) purchased the development rights to Gleneagle. Respondent City of Arlington (City) and WRJV entered into a rezone contract where WRJV paid the City to upgrade the downstream stormwater system to accommodate the increased stormwater runofffrom the project. The Property flooded in November 1990, whenNo. 73528-4-1/3 

### the stormwaterretention pond to the east (W-1) overflowed. The same thing happened in December 1994, November 1995, and December of 1996. In 1994, WRJV enlisted Triad Engineering (Triad) to develop a master 

### drainage plan for Gleneagle. Triad determined that the existing facilities were insufficient and on February 2, 1995, contacted the City to suggest that an enhanced system be constructed on HM's property. At that time, HM had submitted plans for a new manufacturing building. Itis unclear from the record whether HM had agreed to accommodate the runoff from Gleneagle as well as its own stormwater issues. Eventually HM agreed to move the existing culvert south and installed it "at a steeper slope and with an inlet configuration which allowed for greater surcharging at the upstream end.
.. ." Clerk's Papers (CP) at 1185. But it refused to install a larger pipe because itwould protrude above ground and make
the area unusable. The City issued a permit for HM's proposed new building but withheld authorization to begin construction because HM would not install a pipe with greater carrying capacity. On May 5, 1995, HM filed suit under Snohomish County Superior Court cause No. 95-2-03498-3 against the City for damages resulting from the delay in permitting and withholding of construction (Permit Lawsuit). HM brought statutory claims under RCW 64.40.020, which allows an action "fordamages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority," and under 42 U.S.C. § 1983 for denial of substantive due process, id. At the same time HM filed the complaint, italso filed a "Claim for Damages" which alleged that the City negligently approved the stormwaterNo. 73528-4-1/4 collection, retention, and discharge system for Gleneagle, causing damage to the Property in the amount of $750,000. CP at 660. The Claim for Damages referenced
a letter to the City dated March 20, 1995, wherein HM informed the Citythat it "may very well have liability" for the flooding on HM's property. CP at 663. A few days later, HM filed suit against WRJV and other developers under

cause No. 95-2-03599-8 for failing to implement an appropriate stormwater collection, retention, and discharge system and causing surface water to be discharged onto the Property (Flooding Lawsuit). On July 7, 1995, HM added the City as a defendant in the Flooding Lawsuit, in which its claims against the City mirrored those contained in the Claim for Damages. On August 31, 1995, the court granted the City's motion to consolidate the two lawsuits under cause No. 95-2- 03599-8. In September 1995, the City granted HM's building permit in exchange for a prescriptive drainage easement across the Property. On September 26, 1995, HM executed a hold harmless agreement in favor ofthe City "to the extent that a 24" x 36" drainpipe is inadequate to handle the flow ofsurface water legally conveyed to [HM's] property " CP at 1364. Also in 1995, WRJV enlisted Higa Engineering to design an additional upstream detention facility known as pond W-2. The pond was constructed and finished in 1996. On November 24, 1998, HM and the City reached a settlement in which HM 

### agreed to release certain of its claims against the City (Release). On motion of the court clerk, the consolidated lawsuit was dismissed without prejudice for want of prosecution in 2000.No. 73528-4-1/5 In 1999 the City installed a second culvert under the railroad tracks to alleviate backwatering. In 2001, the City retained Earth Tech to design a 67th Avenue improvement project that involved widening the roadway and redirecting the outflows from W-1. Earth Tech designed a v-notched weir that would limit the flow to HM, and excess water was rerouted to a new facility north of 188th Street 

### known as the Triangle pond. As part of the improvements, the City lowered the road
near HM's northbuilding. The City claims this was done at HM's request. HM disputes this claim. 

### HM experienced noflooding at all on itsproperty from 2003 until 2009, when 

### flooding occurred after a series ofstorms. Also in thatyear, HM replaced its onsite filtration system. In 2007, thebusiness wassold to Bluescope Buildings North 

### America, Inc. (BBNA). BBNA leased theProperty and facilities from HM until 2012 when theparties reached an agreement releasing BBNA from the leasein exchange for $2.6 million. 

### In January 2011, HM filed suit againsttheCity, WRJV and other Gleneagle investors, alleging thatthedevelopers were negligent in their design and maintenance ofGleneagle's stormwater system. HM alsoclaimed that the City was 

### negligent in its design, construction, and maintenance ofthestormwaterfacilities that receive waterfrom Gleneagle, and for reviewing and approving Gleneagle's 

### permit and design. HM also brought an inverse condemnation claim againstthe City. 

### HM alleged that theCity's negligence had caused increased flooding ofthe 

### Property, which constituted an ongoing nuisance aswell as pasttrespass ofsurfaceNo. 73528-4-1/6 

### waters and the threat of future trespass. HM claimed that it had incurred clean up and restoration costs for past floods and was facing a loss ofover $6 million ifit
were to lose its lease with BBNA due to flooding. In 2012, HM added BNSF as a 

### defendant, claiming that BNSF had contributed to the increased flooding byfailing to maintain its portions ofthe stormwater system. The parties brought multiple motions for summaryjudgment in early 2015. 

### The trial court dismissed each of HM's claims that arose from alleged conduct by the Cityand WRJV that occurred before May 5, 1995, concluding that the Release precluded any liability on those claims. The court also found that res judicata barred the assertion of HM's claims against the City and WRJV that arose before November 24, 1998, the date the Release was signed. The court also dismissed HM's claims against the City and WRPV because itfound that HM's evidence failed to establish an issue of material fact as to its claimed damages. The court dismissed HM's intentional tort claims for nuisance and trespass, concluding that those claims were subsumed within HM's negligence claims. Italso dismissed the claims against BNSF, finding that they were precluded by the statute of limitations. Finally, the court excluded a letter offered by HM in support of its damages claim, concluding that itwas inadmissible hearsay. HM appeals these rulings. DISCUSSION We review a trial court's grant of summaryjudgment de novo. Camicia v. Howard S. Wright Constr. Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014). Summaryjudgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. SeeNo. 73528-4-1/7 

### CR 56(c); Camicia. 179 Wn.2d at 693. When making this determination, we consider all the facts and make allreasonable, factual inferences in the light most favorable to the nonmoving party. Young v. Kev Pharmaceuticals. Inc.. 112 Wn.2d 216, 226, 770 P.2d 182(1989). The Scope ofthe Release The Release first states that for the sole consideration of $750,000, HM discharges: The City ... and all other persons ... from any and all claims
... relating to all claims set forth in and described in Plaintiff's Complaint and Amended Complaints in Snohomish County Cause No. 95-2-03599-8 and/or 95-2-03498-3.1 CP at 1107. Next, the Release explicitly provides that any claims related to future flooding on HM's property are excluded from the release, unless they fall within a specific exception. It states: This Release does not release any future claims which the Plaintiff may have... against the City of Arlington, ... or any other person, ... relating to flooding on Plaintiffs property, except to the extent said claims arise out of the conduct described in the Complaint and Amended Complaints in Snohomish County Cause No. 95-2-03498-3. jd. It is abundantly clear from this language that the Release does not apply to any future claims that HM might have regarding flooding on its property, unless the claims arise from conduct described in the cause No. 95-2-03498-3 complaint. At

1 As previously noted, cause No. 95-2-03498-3 was the original cause number of the Permit Lawsuit which was consolidated with the Flooding Lawsuit under cause No. 95-2-03599-8. There was no amended complaint filed in the Permit Lawsuit, however, there were two amended complaints filed in the Flooding Lawsuit.No. 73528-4-1/8 issue is what conduct the parties intended to describe by reference to that complaint. We interpret settlement agreements the same way as other contracts. McGuire v. Bates. 169 Wn.2d 185, 188, 234 P.3d 205 (2010) (citing Mut. of Enumclaw Ins. Co. v. USF Ins. Co.. 164 Wn.2d 411, 424 n.9, 191 P.3d 866 (2008)). We attempt to determine the parties' intent by focusing on their objective manifestations as expressed in the agreement. Id at 189. We generally give words their ordinary and usual meaning unless the entirety ofthe agreement clearly demonstrates a contrary intent. Hearst Commc'ns. Inc. v. Seattle Times Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). But we interpret only that which was written, not what was intended to be written, jd The parties' subjective intent is generally irrelevant if "an intention corresponding to the reasonable meaning ofthe words used" can be imputed. ]d HM contends that the reference in the Release to the Permit Lawsuit complaint is to the conduct described inthe complaint, that is, claims for flooding 

### damages arising out of the City's alleged wrongful withholding ofHM's authorization to begin construction. The City and WRJV contend the reference is to the conduct described in the complaint and the Claim for Damages that was filed at the same 

### time. They contend the Claim for Damages was attached to the complaint when it
was filed and served on the City. Citing Superior Court Civil Rule (CR) 10(c), they 

### argue that as a result, the Claim for Damages became a part of the complaint. The City and WRJV also contend that the settlement agreement makes no sense unless it is read to include future flooding damages.

8No. 73528-4-1/9 HM disputes that the Claim for Damages was attached to the complaint. And

even if itwas attached, HM disputes that the document falls within the reach of CR 10(c). They also contend the Claim for Damages was filed for the sole purpose of providing the City with the statutorily required 60-day notice of HM's claims against 

### it. (See former RCW4.96.020 (1995), in effect at the time.)2 HM points out that just

over 60 days following service of the Claim for Damages, it amended the complaint 

### in the Flooding Lawsuit adding the Cityas a defendant.3 HM further points out that had the Claim for Damages actually been part ofthe Permit Lawsuit, the claims would have violated former RCW 4.96.020 and been barred as a result. HM also argues that the language ofthe Release is plain and unambiguous and should be given effect as written.

2 Former RCW 4.96.020 provided as follows: (1) The provisions of this section apply to claims for damages against all local governmental entities. (2) All claims fordamages against any such entity fordamages shall be presented to and filed with the governing body thereofwithin the applicable period of limitations within which an action must be commenced. (3) All claims for damages arising out of tortious conduct must locate and describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place of the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time ofpresenting and filing the claim and for a period of six months immediately prior to the time the claim arose .... (4) No action shall be commenced against any localgovernmental entity fordamages arising out of tortious conduct until sixtydays have elapsed after the claim has first been presented to and filed with the governing body thereof.... 3The trial court initially determined that HM filed the Flooding Lawsuit onlyfive days later, instead ofwaiting 60 days. On HM's motion forreconsideration, the courtacknowledged its error on this point, but itconcluded that "the result is the same." CP at 35.No. 73528-4-1/10 We first address the City and WRJV's reliance on CR 10(c) to argue that as
a matter of law the Claim for Damages was incorporated into the Permit Lawsuit complaint. We conclude that their reliance is misplaced. CR 10(c) states: Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part ofthe same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereoffor all purposes. 

### Citing P.E. Systems. LLC v. CPI Corp.. 176 Wn.2d 198, 289 P.3d 638 (2012), the City and WRJV argue that our supreme court "made it clear" that a document 

### attached to the complaint is part of the complaint. Br. of WRJV at 29, Br. of the City at 20. Butthe holding of the case does not stretch the application of CR 10(c) 

### nearly so far as that. At issue in P.E. Systems, was whether a contract attached to an answer to a complaintbecame a part of the pleading. The court noted that the 

### rule expresslystates that it appliesto "written instruments" and that '"[i]nstrument' has a specific legal meaning: 'A written legal document that definesrights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share 

### certificates.'" ]d at 204 (quoting BLACK'S LAW DICTIONARY 869 (9th ed. 2009)). 

### Thecourt easily concluded that the purported contract fell within the meaning ofa "written instrument" and held that under CR 10(c) "the contract does become part of 

### thepleadings by simply attaching it " Id The court cautioned, however, that "exhibits that stretch the definition of a 'written instrument,' such as affidavits, are 

### extrinsic evidence that may not be considered as part ofthe pleadings." |d at 205 

### (citing Rose v. Bartle. 871 F.2d 331, 339 n.3 (3d Cir. 1989)).

10No. 73528-4-1/11 The City and WRJV nevertheless argue for an expansive view of the definition of "written instrument" as that term is used in CR 10(c), but they cite no 

### Washington authorityin support of that position. Instead, they rely on a number of federal cases citing to the similarly worded Fed. R. Civ. P. 10(c). For example, they note that in P.E. Systems. 176 Wn.2d at 204, our supreme court cited Tiernev v. 

### Vahle. 304 F.3d 734, 738 (7th Cir. 2002) with approval. In that case, the court held 

### that "[bjecause the letterwas attached to the complaint, it became a part ofit for all purposes." Tiernev at 738. Butin indicating its approval of the case our supreme 

### court noted only thatTiernev held that the "weight ofauthority permits attachment of documents such as contracts to pleadings for federal rule 12(b) or 12(c)purposes." P.E. Systems, 176 Wn.2d at 204-05. (Emphasis added). The court clearly did not 

### adopttheview advanced by theCity and WRJV thatany document attached to a pleading becomes a part ofthepleading itself.4 Neitherthe City norWRJV explain how the Claim for Damages purportedly attached to the PermitLawsuit complaintfalls within the definition of a written 

### instrument as expressedby oursupreme court in P.E. Systems. Neither suggests thatit defines rights andduties like a contract, will, promissory note or share certificate or that it establishes any entitlements orliabilities. It is a claim for

4Indeed, following its limited approval ofTiernev's apparently expansive reading ofthe 

### federal rule, theP.E. Svstem court cited approvingly thenarrow approach taken in Rose, 871 F.2d at 339n.3. Therethe Rosecourt noted "[t]he case law demonstrates, however, that the typesof 

### exhibits incorporated within the pleadings by Rule 10(c) consist largely ofdocumentary evidence,^ 

### specifically, contracts, notes, and other 'writing[s] on which [a party's] action ordefense is based'," (citing 5C. Wright & A. Miller, Federal Practice and Procedure, § 1327, at489). And interestingly, although the courtin Tiernev spoke in expansiveterms aboutthe scope offederal Rule 10(c), the letteratissue in that case isactually consistentwith theview expressed in Rose. The plaintiffs in thatcaseclaimed theletterwasboth defamatory andretaliatory againsttheplaintiffs' exercise of 

### theirconstitutional rights. Thus, the letterwas awriting on which the plaintiffs' action was based.

11No. 73528-4-1/12 damages but it is not by any stretch, documentary evidence that forms the basis for the claim. We conclude that the Claim for Damages is more akin to an affidavit and,

as such, it is extrinsic evidence and not, as a matter of law, a part of the document

to which it was attached. Next, the City and WRJV argue vigorously that we should interpret the Release to include the claims inthe Flooding Lawsuit because otherwise, in their 

### view, "the settlement agreement makes virtually no sense[.]" Br. of the City at 27. See Br. ofWRJV at 27-28. We turn first to the plain language ofthe Release. It 

### unambiguously states that HM specifically reserved the right to bring future flooding 

### claims "except to the extent said claims arise out ofthe conductdescribedin the 

### Complaint... in Snohomish County Cause No. 95-2-03498-3." CP at 1107. It is undisputed that the claims arising out the conduct in the Permit Lawsuit are unrelated to the claims alleged in the Flooding Lawsuit. It is also undisputed that the 

### Claim for Damages, which does address the claims in the Flooding Lawsuit, isnot explicitly mentioned anywhere in the Release. 

### Despite theunambiguous clarity ofthelanguage in the Release, theCity and WRJV argue that we musttake into account what, in their view, the settlement 

### agreement was intended toaccomplish. The City points outthat in reaching the 

### agreement it intended to "end[] the litigation, including future claims related to 

### 'permanent orprogressive damage' arising out ofthe litigated subject matter." Br. of theCity at 30. ButtotheextenttheCity believed theRelease included all future flooding damage onHM's property without exception, thatbeliefisin direct contradiction to theplain language in the Release. The Releaseprovides "[tjhis

12No. 73528-4-1/13 Release does not release any future claims which the Plaintiff may have
... against the City ofArlington
... or any other person ... relating to flooding on the Plaintiff's property" unless the claims arise out ofthe Permit Lawsuit. CP at 1107 (emphasis added). It is well settled that courts are not at liberty to rewrite contracts to reflect a party's unexpressed, subjective intentions. Hearst Commc'ns. 154 Wn.2d at 503. And that is what the City and WRJV ask us to do here. 

### Accordingly, we hold the trial court erred in denying HM's motion for 

### summary judgment dismissal of the affirmative defense ofrelease and in granting dismissal of HM's claims on that ground.
Res Judicata 

### Res judicata prohibits a partyfrom bringing a claim already litigated or a claim that could have been litigated in a prior action. Pederson v. Potter. 103 Wn. 

### App. 62, 67, 11 P.3d 833 (2000). This doctrine prevents repetitive litigation ofthe
same matter, ensuring integrity and finality in the legal system, id. at 71. A 

### threshold requirement of resjudicata is a finaljudgment on the merits in the prior suit. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004). 

### Onceobtained, a priorjudgment has preclusive effect when a second action is identical in: (1) persons and parties; (2) cause ofaction; (3) subjectmatter; and (4) 

### quality ofpersons for/against whom theclaim ismade. Yakima County v. Yakima County Law Enforcement Officers Guild. 157 Wn. App. 304, 327-28, 237 P.3d 316 

### (2010). Whether resjudicata bars an action is a question oflaw wereview de novo. Kuhlman v. Thomas, 78 Wn. App. 115, 120, 897 P.2d 365 (1995).

13No. 73528-4-1/14 The parties do not appear to dispute that there was no judgment on the merits entered in this case. After the Release was signed the parties took no further 

### action with regard to obtaining ajudgment. Instead, the case was dismissed without 

### prejudice on the court clerk's motion "for want ofprosecution" pursuant to CR 41(b)(2). It is well settled that a dismissal order entered without prejudicewill not 

### support a resjudicata defense because it is nota finaljudgment.5 Young v. Kev Pharmaceuticals. Inc.. 112 Wash.2d 216, 223, 770 P.2d 182(1989) 

### Nevertheless, the City and WRJVargue that the prior settlement "ended the 

### litigation for all intents and purposes." Br. ofCity at 37-38. Citing Rasmussen v. Allstate. 45 Wn. App. 635, 726 P.2d 1251 (1986), they contend that even in the 

### absence ofa final judgment on the merits, the Release triggered resjudicata. In Rasmussen. following a caraccident, a passenger secured partial paymentfrom the tortfeasor and then brought suit against Allstate and Farmers seeking 

### underinsured motorist (UIM) coverage. Allstate disputed that the policy included 

### UIM coverage butthetrial court ruled otherwise and Allstate appealed. While the 

### appeal was pending, Allstate settled with thepassenger, but apparently did not dismiss theappeal. Allstate then prevailed in an action seeking contribution from Farmers. Farmers appealed and the case was consolidated with Allstate's appeal challenging the coverage finding. In considering Allstate's appeal, the court reviewed the settlement agreement betweenAllstate and the passenger. The

5The City appears to argue that dismissal without prejudice can beafinaljudgment. Br. of the City at38. Itcites Gazin v. Hieber. 8Wn. App. 104. 113. 504 P.2d 1178 (1972). for the 

### proposition that a"[djetermination ofwhatconstitutes afinaljudgmentin the contextofresjudicata has always been a 'matterofsubstance and notform.'" Br. ofthe City at38. Butbecause itcites no authority holding that adismissal without prejudice is afinaljudgment, we rejectthe argument.
14No. 73528-4-1/15 agreement provided that, in consideration for the sum received, the passenger agreed to: release and forever discharge ALLSTATE INSURANCE COMPANY ... from any and all rights, claims, including claims for underinsured motorist benefits, or damages of any kind, known or unknown, existing or arising in the future, resulting from or related to injuries or damages arising from an accident that occurred on or about October 6, 1981. 

### id at 637. The court concluded that itneed not reach Allstate's claim on appeal
because the 

### "compromise agreement constitutes a merger and bar of all existing claims and causes of action and is as binding and effective as a final 

### judgment itself. Gregoryv. Hamilton, 77 Cal.App.3d 213, 142 Cal.Rptr. 563 (1978); 15AAm.Jur.2d Compromise and Settlement § 24 (1976). It is res judicata ofall matters relating to the subject matter 

### of the dispute. Handlev v. Mortland. 54 Wash.2d 489, 342 P.2d 612 

### (1959); In re Estate ofPhillips. 46 Wash.2d 1, 278 P.2d 627 (1955). Therefore, the scope ofthe coverage by Allstate is no longer an issue." id 

### Despite its broad language, the City andWRJV's reliance onRasmussen for the proposition that a settlement agreement is resjudicata, in the absence ofa judgment, ismisplaced. First, thetwo cases cited in supportofthe assertion, Handlev and Phillips, both involved settlement agreements that were followed by 

### entry of judgments. In Handlev. thecourt, in approving the settlement ofa minor's claim entered "findings offact, conclusions oflaw, andjudgment." id at491. In Phillips, the parties agreed to settle a dispute about the distribution of the decedent's estate. The court held that "[a]n order settling the final account of an administrator and a decree of distribution entered on the basis of such a 

### compromise orsettlement are resjudicata ofall matters relating to the subject matter ofthe controversy." id at 14 (citing McClure v. Calisoell Duck Club. 157

15No. 73528-4-1/16 Wash. 136, 288 Pac. 217 (1930)). In this case, because the settlement agreement 

### was notfollowed by entry of either ajudgment or a decree, we conclude that res 

### judicata is inapplicable.6 

### Furthermore, regardless of whether res judicata applies, it iswell settled that the law favors private settlements of disputes and is inclined to view themwith 

### finality. Stottlemvre v. Reed, 35Wn. App. 169, 173, 665 P.2d 1383 (1983). Butthe finality oftheRelease atissue here is not in dispute. The parties disagree on the scope ofthe Release, specifically whether it includes damagesfor flooding as asserted in the Claim for Damages. That dispute is to be resolved byresorting to 

### principles ofcontract interpretation, not according to the law regarding the 

## enforceability ofjudgments, id at 171. We reverse the ordergranting the City and WRJV summaryjudgment on this issue. HM's Claimed Damages From post-1995 Conduct 

### HM argues thatthetrial court erred when it entered partial summary 

## judgmentwith regard to damages. Thetrial court concluded that HM could not establish anyflooding damages because there was no netincrease infrequency of flooding after 1995. Relying on HM's expertwitness, Malcolm Leytham, the court 

## found that priorto the developmentofGleneagle, HM's propertyflooded at arate of

6

We also rejectthe argumentbythe City andWRJV that Pederson. 103 Wn. App. at67 is 

### controlling Thatcaseconsideredwhetherthe "confession ofjudgment" atissue in thatcasecould 

### qualify as ajudgmenton the merits. Thecourtheld thatitcould "becausethe Pedersons knewof theirpotential claims againstthe Potters when they settled and signed the confession ofjudgment. 

### They had the opportunityto be heard on these claims, and have them disposed of, butchose notto do so" id. at71 Butagain, in Pederson. unlike this case, ajudgmenthad in fact been entered. In addition, the confession ofjudgmentreflected thatthe Pedersons had abandoned all oftheirclaims 

### againstthe Potters. Here, it is undisputed that HM reserved atleastsome ofits claims.

16No. 73528-4-1/17

once every 25 years. By 1995, however, after the development of Gleneagle and the construction of Pond W-1, HM's property flooded at a rate of once every three years. By 1998, following installation of Pond W-2 and the 36" x 24" pipe across HM's property, the flood rate was reduced to once every 15 years. But, after additional work by the City, including installation ofTriangle Pond and lowering 67th Avenue, the flooding worsened to once every ten years by 2003
. The court concluded, however, that because flooding once every ten years was better than


### once every three years, "no rational trier of fact could findthat [HM] suffered 

### flooding damage more severe than was negotiated forin the prior litigation." CP at 24. The City and WRJV adopt this reasoning on appeal. 

### HM argues that there are disputed issues ofmaterial fact about whetherthe City is responsible for the improvementfrom every three year flooding to every 

### fifteen yearflooding. It points toevidence that the improvementwas due primarily, if notsolely, to HM's installation ofthe larger 36" x24" pipe and relocating itto a 

### steeper slope.7 It further argues that the City's installation ofTriangle Pond and

7TheCity argues that thistheory was notarguedbelow by HM until itsmotion for reconsideration. The City andWRJV also argue thatLeytham's deposition testimony does not support thetheory. HM argues thatthereason for theimprovement in flooding conditions from every three years in 1995 toevery fifteen years in 1998 wasnot a contested issue until thetrial court's summaryjudgmentdecision. HM contends thatuntil then, theparties were using 1998 as the baseline for determining whetherflooding conditions hadworsened. Therecord supportsHM's argumentonthis point. See CP at2576; 2578-79. The City and WRJV arecorrect that Leytham did not specifically testify in supportofthetheory HM argued in themotion for reconsideration, i.e., that laying theculvert pipe at a steepergrade accounted for theimprovement by 1998. But it isa reasonable inference from the evidence that was presented below. Viewing the evidence in the light mostfavorable to HM, as we must, it is sufficient to raise a material issue of fact as to HM's 

### damages claim. We also note that in response toHM's motion for reconsideration, the City argued to thetrial court, and does so here onappeal, that evenaccepting HM's new theory, theevidence of 

### HM's damages claim was insufficienttosurvive its motion for summaryjudgment. SeeBr. ofthe City at 45-47. Butthese issues were not addressed by the trial court and we do not address them here.

17No. 73528-4-1/18 lowering 67th Avenue is solely responsible for the increase to every ten-year flooding. If a rational factfinder were to credit HM's evidence itcould conclude that the City and WRJV bore some liability for the five-year increase in flooding frequency. Because resolution ofthe damages issue turns on questions of 

### credibility, the trial court erred when itgranted summaryjudgment on this issue.
HM's Intentional Tort Claims 

### HM argues that its claims fortrespass should not have been dismissed because there is an issue of material fact as to whether WRJV intended to flood the 

### Property, stating thatWRJV knew it's conduct was "'substantially certain'" toresult in flooding, or that there was a high probability of increasedflooding. Br. ofHM at 41. To establish intentional trespass, a plaintiffmust show (1) an invasion of 

### property affecting an interest in exclusive possession; (2) anintentional act; (3) reasonable foreseeability the act would disturb the plaintiff's possessory interest; 

### and (4) actual and substantial damages. Bradley v. Am. Smelting &Refining Co., 104 Wn.2d 677, 692-93, 709 P.2d 782 (1985). Intent requires proof that the actor 

### "desires to cause consequences of his act, or that he believes that the 

### consequences are substantially certain toresultfrom it." Bradley. 104Wn.2d at 682. At a minimum, this consists ofproofthat the actor has knowledge that the 

### consequences arecertain, orsubstantially certain, toresultfrom his conduct and proceeds in spite of the knowledge, id. 

### HM argues thattheCity and WRJV had "intent" becausethey knew thattheir actions were "'substantially certain'" to resultin flooding because the City 

### authorized theW2 pond todischarge at a rate greaterthan theknown capacity of

18No. 73528-4-1/19 the culvert located on the Property. HM is essentially arguing that the City and WRJV knew that the culvert was insufficient and failed to take that into account 

### when itdesigned and implemented the various elements of a stormwater 

### management system. Aclaim forfailure to act sounds in negligence and does not 

### support the intentional act needed for trespass. Estate of Pricev. City of Seattle. 106 Wn. App. 647, 660, 24 P.3d 1098 (2001). HM's claims against BNSF 

### HM argues that the trial courterred whenitfound that BNSF had nostatutory orcommon law duty to accept waterfrom upstreamentities and dismissed its 

### negligence claims against BNSF. According to HM, by voluntarily allowing the City and Gleneagle to use theditch as a stormwater disposal facility, BNSF assumed a 

## duty to maintain the ditch in good repair. BNSF argues that it has no duty to HM nor did itassume one when itallowed the ditch to be used for disposal of surface water. 

### In ordertobring a claim for negligence, a plaintiffmustfirst establish thata 

## legal duty exists. Christensen v. Roval School Dist. No. 160. 156Wn.2d 62, 124 P.3d 283 (2005). HM argues thatBNSF's duty arises underthe Restatement 

## (Second) of Torts §365 (1965), where apossessorofland is liablefor physical harm caused by thedisrepair ofa structure orother artificial condition ifthe exercise ofreasonable care would have made itsafe or disclosed the disrepair. 

### BNSF argues thatWashington courts have not adopted the Restatement and have declined to impose liability for dangerous disrepair.8

8Because we affirm thetrial courton thisground, we do not reach the issue ofwhether 

### HM's claims were also properly dismissed because they were filed outside the statute oflimitations.
19No. 73528-4-1/20 HM cites Phillips v. King County. 136 Wn.2d 946, 968 P.2d 871 (1998) and 

### Rothweiler v. Clark County. 108 Wn. App. 91, 29 P.3d 758 (2001), as supporting 

### the imposition of a duty to maintain a drainage system. But neithercase advances 

### HM's position; both address the responsibility ofmunicipalities to maintain public drainage systems, not obligations of private landowners. 

### HM argues that thedistinction makes no difference, quoting Phillips. 136 Wn.2d at 958, "'[g]enerally, municipal rights and liabilities as to surface waters are 

### the same as those ofprivate landowners within the city.'" Br. ofHM at 47.This is notcorrect. The statement from Phillips pertains to the liability fortrespass caused 

## by surface water, not aduty to maintain public drainage systems. The Phillips court explained that "many municipalities in Washington accept private storm water facilities for maintenance orownership afterthey are constructed in connection with 

## a new development. This occurs because homeowner associations or otherprivate
owners do not have thefunds ormotivation to do necessary maintenance to keep 

### the drainage facilities operating attheir maximum efficiency." id HM cannot 

### establish that aprivate landowner has the same duty as amunicipality to maintain the stormwaterdrainage facility that serves its property. We find thatthe trial court did not err when it found that BNSF had no duty. The Letter from BBNA's Counsel 

## HM argues thatthe trial courterroneously excluded aletterfrom BBNA's counsel thatindicated thatitwould no longer make payments onits leaseand 

## notified HM ofits potential claims related to flooding. HM argues thatthe letterfalls

20No. 73528-4-1/21 within the business records exception listed in RCW 5.45.020. The trial court was 

### not persuaded that itwas a business record. We use the de novo standard of review when reviewing all trial court rulings 

### madein conjunction with a summaryjudgment motion. Folsom v. Burger King. 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Washington's Uniform Business Records as Evidence Act "makes evidence that would otherwise be hearsay competent evidence." Cantrill v. Amer. Mail Line. 42 Wn.2d 590, 608, 257 P.2d 179 (1953). Under the statute, a record of a relevant act, condition, or event, 

### shall... be competentevidence ifthe custodian or otherqualified witness testifies to its identity and the mode of its preparation, and if itwas made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the 

### court, the sources ofinformation, method andtime ofpreparation were such as tojustify itsadmission. RCW 5.45.020. 

### WRJV argues thatthe letterwas properly excluded as hearsay and does not fall within the exception for business records. We agree. There is no statementfrom
a records custodian orother qualified witness about its identity orthatit had been madein the usual course of business at or near thetime ofthe actin question. 

### Neitherthe attorney's affidavit, northe date ofthe letter, supply the missing pieces 

## or provide the inherent reliability necessary to satisfythe exception. The trial court properly excluded the evidence as hearsay.
Fees and Costs 

### BNSF asks for an award of costs on appeal; upon submission of a costbill,


### weaward BNSF its costs underRAP 14.2. BecauseWRJV is not the prevailing 

## party its requestforfees and costs, pursuantto RAP 18.1 and RAP 14.3 is denied.

21No. 73528-4-1/22 Reversed in part and remanded for further proceedings consistent with this opinion. 

# =2. hCc/^fr*-^
WE CONCUR:

22