COURTFILED 

## OFAPPEALS V/SUO II. 

### ZOI /:

### JUN 17 

## fH 8: 36

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II JUSTIN M. NELSON and ALLISA S. No. 44240 - 0 -II ADAMS -

NELSON, Appellants,

v. SKAMANIA COUNTY, WASHINGTON, and SHANNON FRAME and JANE DOE FRAME, and the communitythereof, Respondents. UNPUBLISHED OPINION

LEE, J. — 

### Justin Nelson and Allisa Adams-Nelson sued Skamania County and Shannon 

### Frame, alleging thatthe County'sformer landfill operation on adjacent propertycaused debris to flow onto his property. 

### The County successfully moved for summaryjudgment arguing that all 

### ofNelson's claims were barred by applicable statutes oflimitations. Nelson appeals arguing (1) 

### the trespass from migrating debris is both continuing and abatable and the County is liable for damages until the 

### County removes the debris, (

### 2) ifthe trespass is not abatable, the County is liable under a theory of inverse condemnation for any takings that have occurred in the 10 yearsNo. 44240 - 0 -II

prior to Nelson 

### filing suit, and ( 3) 

### the trial court abused its discretion in failing to exclude 

### evidence ofacodeviolation Nelson received fouryears before filing this lawsuit. We hold that genuine issues of material fact preclude summary judgment on Nelson's trespass claim. 

### Accordingly, we reverse the trial court's dismissal ofNelson's trespass claim. 

### We also hold that Nelson is precluded by the subsequent purchaser rule from recovering under inverse condemnation, and therefore, we affirm the trial court' s dismissal of his inverse 

### condemnation claim. Finally,we holdthatthe trial court did not abuse its discretionwhen,atthe 

### summaryjudgment stage ofproceedings, it refrained from excluding evidence ofNelson's 2008 code violation. We remand for further proceedings on Nelson' s trespass claim. FACTS A. BACKGROUND 

### In 2005, Dan Huntington, a prior owner of Nelson's property, filed a complaint with Skamania County alleging that: 

### The portion ofthis property adjacent to County land is directly in the path ofa slide that is 

### heavily laden with garbage. The garbage, things like old water tanks, car parts, scraps of metal, etc., 

### is coming out of an old county landfill that was converted to the Mt. Pleasant Transfer Site. 

### The garbage is cluttering up the banks ofCanyon Creek [and] interfering with efforts to sell the property. Clerk' s Papers ( CP) at 135. 

### The record does not reflect whether the County addressed Huntington' s complaint. 

### In February 2007, Justin Nelson purchased approximately 10 acres of unimproved real property abutting Canyon Creek in Skamania 

### County. The southern boundary of Nelson's property is downslope and contiguous to property owned 

### by the 

### County. From the 1950s until 1978, the County used a portion of its property as a landfill / burn 

### dump. After ceasing
2No. 44240 -0 -II



### landfill / dump operations in 1978, the County began operating a solid waste transfer station on the site. 

### The County engaged in extensive clean - up efforts to remove solid waste which had been on the ground atthe site in the 1980s.

Although Nelson visited the property on three occasions before purchasing it,1 he alleges that he was unaware ofthe debris because inclement weather hindered his inspection efforts on 

### two visits, and he did not know where the property boundaries were located on the third visit. 

### Shortly after purchasing the property, Nelson commissioned a 2007 survey to confirm the 

### property boundaries, andthe surveyortold him thatthere was "alot ofgarbage" onthe property. CPat50. 

### In October 2008, Nelson showed the property to Washington Department of Fish & Wildlife (WDFW) employee, William Weiler. 

### After seeing the property, Weiler relayed the following to anotherWDFW employee: 

### I have not yet contacted Skamania County, but I find it inconceivable that they didn[' t] know about this. Their garbage transfer station was built on the site of 

### theirformerdump site,andto myunderstanding, closed inthe 1970's. Clearly, 

### the site was not adequately reclaimed and due to unstable 

### slopes / mass wasting, I was literally walking on cars, car parts, paints, electrical equipment, tires, garbage of all sorts. The area where the garbage originates is a perennial tributary to Canyon [ Creek], which continues to slide into Canyon Creek. 

### I observed debris for a good halfmile downstream along Canyon Creek, 

### and ifI walked further,there is no doubtthatthe dump materials would have also been in the Washougal River. 

### In my 18 years with WDFW, this is the largest toxic waste site I' ve ever seen in association with a 

### fishbearing stream. A lot of folks need to lookat this and come up with a restoration plan. CP at 137.

1 Nelson purchased the property from Shannon Frame, a successor owner to Huntington.No. 44240 - 0 -II 

### In November 2008, Department ofEcology Inspector Derek Rockett visited the site with Nelson and Weiler. Rockett concurred with much ofWeiler's assessment and noted: 

### F]irst priority atthis site should be the prevention ofanyfurther solid waste / land 

### slides, possibly through bank stabilization and / or creating a buffer between the edge of the bank and the solid waste from the landfill. An environmental 

## assessmentmayneedtobedoneandpotential restorationwillbeintense. CP at 140. 

### A January 2009 minute entry from the Department of Ecology's Environmental 

### Report Tracking System indicates that Ecologywould "be following up withthe county" onthe issue. CP at 140. 

### The record does not reflect whether any follow up occurred or whether the Countytook any action. 

### Yakama Nation Fisheries Habitat Biologist Greg Morris visited the site on multiple
occasions between 2008 and 2012. Based on his observations, Morris concluded that " it appears 

### thatthe garbage strewn throughout Mr. Nelson's property.and in the creek is ofthe same source
and continuously migrating down the hill from its origin, the old Skamania 

### County landfill." CP at 189. Certified Geologist Warren Krager visited Nelson' s property in 2012. He observed that 

### large, bulky refuse is largely exposed at and above the ground surface" and that smaller refuse 

### is " thoroughly mixed with silt soil, basaltic gravel and organic matter from natural, long term slopetransport processes such as soil creep, freeze - thaw cycles, snow slides, erosion by running
water, and sliding and 

### falling aided 

### by gravity." CP at 171. Krager also analyzed aerial photographs from 1993 to 2011 and concluded that August 2009 photographs showed that " a 

### light colored debris flowscar is visible from the Skamania CountyTransfer Station" thatwas not present in 2006 photographs. CP at 172.

4No. 44240 - 0 -II Krager opined that " multiple landfill refuse laden debris flows from [ 

### the County's 

### property] havebeen moving intothe lowerravine on [Nelson's property] from at leastas earlyas

summer of 2005 and continuing through late summer of 2009." CP at 172 - 73. He concluded that " without massive clean up and environmental restoration ... releases of landfill refuse onto 

### private land and into public water courses will continue unabated for decades into the future." CP at 173. B. PROCEDURE 

### On March 13, 2012, Nelson filed a complaint in Clark County Superior Court, which he later amended on April 17. The amended complaint alleged causes of action against Skamania 

### County for (1) inverse condemnation, (2) private nuisance, (3) public nuisance, (4) common law nuisance, ( 5) waste, ( 6) common law trespass, and ( 7) negligence. The complaint also alleged 

### thatthe property' s former owner, Shannon Frame, breached "his warranties ofseizin and rightto 

### convey-because, atthe time ofconveyance, aportion ofthe propertywas possessed by Skamania County." CP at 13. 

### The County moved for summaryjudgment, arguingthat Nelson's claimswere "barred by limitations, absence of standing and other diapositive defenses." CP at 30. 

### Specifically, the 

### County argued that (1) Nelson's inverse condemnation claimwas barred bythe 10 -year statute of limitations because any potential , taking occurred decades before; (

### 2) Nelson lacked standing to bring an inverse condemnation claim under the subsequent purchaser rule; (3) Nelson' s claims 

### fortrespass and nuisance were, in actuality,negligent damage to real property claims and should be treated as such; ( 4) 

### Nelson's trespass and nuisance claims were barred by statutes of limitation; (5) the waste statute, RCW 4.24.630, was inapplicable to the facts ofthis case; and (6)

5No. 44240 - 0 -II 

### the two - year statute of limitations governing negligent injury to real property barred Nelson's negligence claims. 

### The County also argued that Nelson's suitwas retaliatory in nature because, in September 2008, Nelson was cited for a code violation for having a campfire during a burn 

### ban and for clearing brushwithin 100 feetofCanyon Creekwithout appropriate permits. Nelson opposed summaryjudgment arguing that (1) the statute of limitations should not bar the trespass, nuisance, negligence, and inverse condemnation claims because the debris migration has been continuous in nature, and (2) the subsequent purchaser rule should not bar his 

### inverse condemnation claim because he was unaware ofthe debris before buying the property
and Nelson paid significantly more for the property than Frame. Nelson included
affidavits /

declarations from Morris and Krager, 

### a certified copy of Krager's Engineering Geologic Reconnaissance and Observation Report, Huntington' s 2005 complaint, and the information from Weiler and Rockett with his motions opposing summary judgment. Nelson also moved " under the authority of CR 7(b), ER 401, ER 402, and ER 403" to " exclude all . 

### evidence ofpriorregulatory proceedings against" him. CP at 170, 191. 

### Atthe hearing on the County's summaryjudgment motion,the trial court "indicated [its] intention to dismiss all of plaintiffs' claims against the 

### County other than for ` continuing trespass ' and requested additional 

### briefing on that claim. CP at 216. The court also denied 

### Nelson's request to exclude evidence of Nelson's code violation because his activity on the 

### property " may indeed be relevant as to what [Nelson] may have contributed to whatever' s going

on that he' s alleging on his property" and that such evidence may be " subject to a motion in 

### limine in frontofajury" ora "specificjury instruction" at alater stage inthe proceeding. Report
of Proceedings (RP) ( Oct. 5, 2012) at 13.
6No. 44240 - 0 -II In its supplemental 

### briefing, the 

### County argued that "[ i]n those cases where a continuing 

### trespass was found, the defendant had continued to actively engage in the tortious conductwhich

was the subject of the trespass.... No comparable circumstances exist here." CP at 217. The 

### County also argued, without evidentiary support, that " 

### the doctrine of continuing trespass is unavailable in this case because that cause ofaction is possible only ifthe condition created by the defendant can be removed ` without unreasonable 

### hardship and expense. "' . CP at 219. 

### Nelson responded that the Countyhad failed to present any evidence concerning the abatability 

### ofthe condition and " underthe established rule, the limitation period is triggered by continuing damages, without regard for continuing acts." CP at 230. 

### The trial court ruled that the County 

### was entitled to summaryjudgment as amatteroflaw. Later,the trial court amended its ruling to
also dismiss Nelson' s breach ofwarranty deed claim against Shannon Frame. Nelson appeals. 2 ANALYSIS A. TRESPASS CLAIM 

### Nelson argues that the trial court erred in granting the County's motion for summary judgment on its trespass claim because material issues offact remain concerning the abatability
of the condition created 

### by the 

### County' s trespass. Nelson has presented sufficient evidence to 

### raise a genuine issue of material fact regarding whether the debris flowing onto his land is abatable. Therefore, summaryjudgmentwas not appropriate.

2 Nelson has not challenged the summary dismissal of his claims for ( 1) private nuisance, ( 2) public nuisance, ( 3) common law nuisance, ( 4) waste, (5) negligence, (6) and breach of Frame' s warranties of seizin and right to convey. 

### Accordingly, we refrain from addressing them in this appeal. RAP 10.3( a)(6); Cowiche Canyon 

### Conservancy v. 

### Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 ( 1992). 7No. 44240 - 0 -II.
1. Standard ofReview We review a trial court' s summary judgment ruling de novo. Torgerson v. One Lincoln Tower LLC, 166 Wn.2d 510, 517, 210 P.3d 318 ( 2009). 

### Summaryjudgment is appropriate only ifthe pleadings, affidavits, depositions, and admissions on file demonstrate the absence ofany 

### genuine issues ofmaterial fact, and the moving party is entitled tojudgment as a matter oflaw. CR 56( c). A material fact is one on which the outcome ofthe litigation depends in whole or in part. Atherton Condo. Apartment — Owners Ass 'n Bd. ofDirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 ( 1990). We consider " all the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party." Atherton, 115 Wn.2d at 516. 

### The moving party is held to a strict standard. Any doubts as to the existence ofa genuine issue
of material fact is resolved against the moving party." Atherton, 115 Wn.2d at 516. 

### Summaryjudgment is subject to a burden-shifting scheme. 

### Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 ( 1989). The initial burden to show the nonexistence of genuine issues of material fact is on the moving party. 

### Young, 112 Wn.2d at 225. 

### Ifthe moving 

## party satisfies its initial burden,the inquiry shifts to the nonmoving party to " present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. Circumstantial, indirect, and inferential evidence will suffice to discharge the plaintiff's burden" under summary judgment. Rice v. Offshore Sys., Inc., 

### 167 Wn.App. 77, 89, 272 P.3d 865 ( 2012). A plaintiff "must meet his burden ofproduction to create an issue offact but is not required to resolve that issue on summary judgment." Rice, 167 Wn.

### App. at 89. However, " a 

### complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." 

### Celotex Corp.v. Catrett, 477 U.S. 317, 323, 106
8No. 44240 - 0 -II S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986). 

### Summary judgment should only be granted if the nonmoving party fails to show that a genuine issue as to a material fact exists. Seven Gables 

### Corp. v. MGM/UA Entm' t Co., 106 Wn.2d 1, 12 -13, 721 P.2d 1 ( 1986).

2. Statute of Limitations The applicable statute of limitations in atrespass case depends on whether the trespass is continuing or permanent. Whether a trespass is continuous or permanent determines when the 

### statuteoflimitations begins accruing and what damages are availableto aplaintiff. For a permanent trespass, RCW 4. 16.080' s three - year statute of limitations for trespass
upon real property begins accruing 

### immediately.3 This is because " where a use which causes 

### damage to adjacent property is permanent in nature, its effect upon the market value of that 

### property is also permanent and is ascertainable at the time it becomes known that the use will
continue." Cheskov v. Port of Seattle, 55 Wn.2d 416, 420, 348 P.2d 673 ( 1960). With a

3 

### Contrary to the County's assertions, both negligent and intentional trespass are recognized as continuing torts in Washington ( see Pac. Sound Res. v. Burlington N Santa Fe 

### Ry. Corp., 130 Wn. 

### App. 926, 941, 125 P.3d 981 ( 2005), review denied, 158 Wn.2d 1011 ( 2006)) and both are subject to RCW 4. 16.080' s three - year statute of limitations. Zimmer v. Stephenson, 66 Wn.2d 477, 483, 403 P.2d 343 ( 1965). Four published appellate decisions since the Zimmer decision — Mayer v. 

### City ofSeattle, 102 Wn. 

### App. 66, 75, 10 P.3d 408 ( 2000), review denied, 142 Wn.2d 1029 ( 2001); Will v. Frontier Contractors, 121 Wn.

### App. 119, 125, 89 P.3d 242 ( 2004), review denied, 153 Wn.2d 1008 ( 2005); 

### Wallace v. Lewis County, 134 Wn. App. 1, 13, 137 P.3d 101 2006), and Wolfe v. 

### Dep' t of

### Transp., 

### 173 Wn. App. 302, 306, 293 P.3d 1244, review denied, 177 Wn.2d 1026 ( 2013) —

### have incorrectly stated or implied that negligent trespass claims are subject to RCW 4. 16. 130' s two - year statute of limitations for " reliefnot hereinbefore provided." But Zimmer is explicit about the three - year statute of limitations for negligent trespass upon real 

### property and is binding. Zimmer, 66 Wn.2d at483.
9No. 44240 - 0 -II

permanent trespass, " the proper measure of damages ... is the difference in market value ofthe land before the 

### injury and 

### immediately after." Cheskov, 55 Wn.2d at 420.

In a continuing trespass, damage accrues " every 

### day the trespass continues. 

### Every
moment, arguably, is a new tort." 

### Woldson v. Woodhead, 159 Wn.2d 215, 219, 149 P.3d 361 2006). Thus, " the statute of limitations does not run from the date the tort begins; it is applied retrospectively to allow recovery for damages sustained within three years of

### filing." Woldson, 159 Wn.2d at 223. 

### Damages are " recoverable from three years before filing until the trespass is
abated or, if not abated, until the time of trial[;] ... prospective damages are not allowed. " 4 Woldson, 159 Wn.2d at 223. 

### T]he reasonable abatability of an intrusive condition is the primary characteristic that distinguishes a continuing trespass from a permanent trespass." Fradkin v. Northshore Util. Dist., 96 Wn. App. 118, 125, 977 P.2d 1265 ( 1999). " A trespass is abatable, irrespective of the 

### permanency of any structure involved, so long as the defendant can take curative action to stop the continuing damages.... ` without unreasonable 

### hardship and expense. ' Fradkin, 96 Wn. 

### App. at 125 -26 ( quoting Mangini v. Aerojet — Gen. 

### Corp., 12 Cal. 4th 1087, 1097, 51 Cal. Rptr. 2d 

## 4The Countyrelies heavilyon dictafrom ourdecision in Wallace, 134Wn.App.at 13, to argue that actionable damages in continuing trespass may not be attributable to problems existing before the retrospective three - year statute of limitations. " A statement is dicta when it is not necessary to the court' s decision in a case.... Dicta is not 

### binding authority." Protect the 

### Peninsula's Future v. CityofPortAngeles, 175 Wn.App.201, 215, 304 P.3d 914, review denied, 178 Wn.2d 1022 ( 2013). Our discussion in Wallace about damage attributable to preexisting 

### problems on the land occurs after our holding that the plaintiff "failed to allege and to show any actionable damage resulting from intentional continuing trespass 

### by the County" and is dicta unnecessary to our 

### holding. Wallace, 134 Wn.

### App. at 17. 

### Woldson is explicit in holding that it is immaterial when a continuing tort begins because damage continually accrues until the trespass is abated. Woldson, 159 Wn.2d at 223.
10No. 44240 - 0 -II 272, 912 P.2d 1220 ( 1996)). The law does not presume that " an encroachment will be permanently maintained," 

### and the "trespasser is under a continuing dutyto remove the intrusive
substance or condition." 

### Fradkin, 96 Wn.App. at 126. 

### Here, the County moved for summary judgment on the grounds that the resulting condition caused by the trespass was not abatable, precluding the applicability of the rules governing continuing torts. It then became Nelson's burden to establish a material issue of fact 

### concerning whether the condition created by the County's trespass was abatable, and thus, a continuing trespass. 

### Nelson presented sufficient evidence to raise a genuine issue ofmaterial fact concerning 

### whetherthe damage to his property is abatable. Nelson presented evidence that the Department 

### ofEcology concluded thatthe " first priority atthis site should be the prevention ofany further
solid waste /

land slides" and the potential need for " intense" restoration. CP at 140. In addition, Krager concluded that " without massive clean up and environmental restoration ... releases of landfill refuse onto private land and into public water courses will continue unabated for decades into the future." 

### 5 CP at 173. 

### Krager and the Department ofEcology's discussion of restoration raises a genuine issue ofmaterial fact asto whetherthe debristrespassing onto Nelson's property is abatable. Werethe debris truly permanent and not abatable, restoration would be a fruitless effort. Moreover, a 

### trespass is abatable, irrespective ofthe permanency of any structure involved, so long as the

5 The County argues that Krager' s. report is inadmissible on procedural grounds. However, CR 56( e) provides that "[ s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Krager' s report, referred to in his sworn affidavit, is certified 

### and is properly before us.
11No. 44240 - 0 -II defendant can take curative action to stop the continuing damages." 

### Fradkin, 96 Wn. App. at 125 - 26. Because genuine issues of material fact remain as to whether the trespass is abatable, 

### making it, as yet, unclear when the statute of limitations should run on this claim, summary judgment on this ground is inappropriate. B INVERSE CONDEMNATION 

### Nelson also argues thatthe County is liable to compensate him under atheory ofinverse
condemnation. 

### The County contends that the statute of limitations bars this claim or, alternatively, that the subsequent purchaser rule precludes recovery. As explained above, 

### material issues of fact remain concerning the permanency of the County'strespass, making summary dismissal on the statute of limitation grounds inappropriate. However, the subsequent purchaser rule bars Nelson' s inverse condemnation. Accordingly, the trial court's summary dismissal ofthis claim was appropriate. 

### To prevail on an inverse condemnation action, the plaintiffmust establish a " taking" by the government. Borden v. 

### City ofOlympia, 113 Wn. 

### App. 359, 374, 53 P.3d 1020 ( 2002). A 

### taking consists ofan appropriation ofprivate property without exercise ofthe power of eminent domain. Phillips v. 

### King County, 136 Wn.2d 946, 957, 968 P.2d 871 ( 1998). A plaintiff must
establish more than simply interference with the owner' s property rights. Rather, "there must be

a permanent or recurring interference that ` destroys or derogates' 

### a fundamental ownership interest." 

### Keene Valley Ventures, Inc.v. City ofRichland, 174 Wn.App. 219, 223, 298 P.3d 121 quoting Borden, 113 Wn.

### App. at 374), review denied, 178 Wn.2d 1020 (2013).

12No. 44240 - 0 -II 

### Here, as discussed above, material issues offact remain concerning the abatability ofthe
condition created 

### by the 

### County' s trespass. Therefore, genuine issues of material fact remain as 

### to whetherthe County has permanently interfered with Nelson's property rights. However, Nelson's inverse condemnation claim is barred by the subsequent purchaser
rule. 

### The subsequent purchaser rule does not allow a purchaser who has bought property 

### previously damaged by a government taking to bring a claim because " it is the original owner
who suffers from the true harm" and the subsequent purchaser " pays a price that presumably
reflects the diminished property value in light of this earlier taking." 

### Wolfe v. Dep't ofTransp., 173 Wn.

### App. 302, 308, 293 P.3d 1244, review denied, 177 Wn.2d 1026 ( 2013). " Because the 

### rightto damages for an injuryto property is apersonal right belonging to the property owner,the rightdoes notpass to a subsequentpurchaserunless expressly conveyed" orthere is a newtaking that occurs after acquiring the property. 

### Hoover v. Pierce County, 79 Wn. App. 427, 433 -34, 903 P.2d 464 ( 1995), review denied, 129 Wn.2d 1007 ( 1996). 

### To establish a new taking, the subsequent purchaser must show additional governmental action that causes a measurable decline in market value. 

### Wolfe, 173 Wn.App. at 308 - 09. 

### Here, the County's debris flow clearly began damaging Nelson's property long before he purchased it. 

### The statutory warranty deed conveying the propertyto Nelson does not expressly include the right to recover for the migrating debris. Moreover, Nelson has neither alleged nor 

### offered any evidence ofany new governmental action by the County contributing to the debris
slide onto Nelson' s property after his purchase. 

### Accordingly, Nelson cannot recover under an inverse condemnation claim as a subsequent purchaser. Because the subsequent purchaser rule

13No. 44240 - 0 -II 

### precludes recovery on Nelson's inverse condemnation claim, we affirm summaryjudgment on this claim. C. MOTION TO EXCLUDE 

### Nelson argues that the trial court abused its discretion in failing to exclude evidence of his own 2008 code violation. 

### We review a trial court's evidentiary rulings for an abuse of discretion. Mutual ofEnumclaw Ins. Co. v. 

### Gregg Roofing, Inc., 

### 178 Wn. App. 702, 728, 315 P. 3d 1143 ( 2013). " Therefore, we will overturn the trial court' s ruling on the admissibility of 

### evidence only if its decision was manifestly unreasonable, exercised on untenable grounds, or based on untenable reasons." Mutual of Enumclaw Ins. Co., 178 Wn. 

### App. at 728. The trial 

### court did not abuse its discretion byfailingto exclude evidence ofNelson's 2008 codeviolation. Here, the trial court explained that it would not exclude evidence ofNelson's 2008 code 

### violation for having a campfire during a burn ban and for clearing brush within 100 feet of Canyon Creek without appropriate permits because "[ 

### i]f indeed we're going to go forward on 

### continuing trespass, that may indeed be relevant as,to what your client may have contributed to
whatever' s going on that he' s alleging on his property." RP ( Oct. 5, 2012) at 13. Moreover, the 

### trial court indicated that discussion ofretaliatory intent could be subject to a motion in limine or 

### that a specific jury instruction could be given in relation to the impact of the code violation. Under these circumstances, the trial court clearly did not abuse its discretion when it refrained 

### fromexcluding potentially relevant evidence atthis early stage in the proceedings.

14No. 44240 - 0 -II 

### In summary, we reverse the trial court's summary judgment dismissal of Nelson's trespass claim; we affirm the trial court' s dismissal ofNelson's inverse condemnation claim; and 

### we hold that the trial court did not abuse its discretion in not excluding evidence of Nelson's 2008 code violation at this stage in the proceedings. Accordingly, we remand to the trial court for further proceedings on Nelson's trespass claim. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

15