John Robinett Pension Plan & Trust, App. V. City Of Snohomish, Et Al., Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN ROBINETT PENSION PLAN &
TRUST, a Washington trust,
Plaintiff/Appellant,
V.
CITY OF SNOHOMISH, a Washington
municipality; and BICKFORD
INVESTMENTS, LLC, a Washington
limited liability company,
Defendants/Respondents.
No. 77380-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: November 5, 2018
CHUN, J. — John Robinett Pension Plan & Trust (the Trust) appeals the
denial of its CR 60(b)(3) motion. Because the Trust offers evidence that is
neither newly discovered as required by law, nor relevant, we affirm.
BACKGROUND
The Trust and Bickford Investments, LLC (Bickford) each own a parcel of
property in the City of Snohomish (the City). A 70-foot public right-of-way
separates the two parcels. The City dedicated the right-of-way as High Street in
1890.
In 2012, the Trust filed a quiet title action under Washington's "nonuse
statute" against the City and Bickford. Under the nonuse statute, if a city does
not open a road within five years of its dedication, the road reverts in equal

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shares to the property owners abutting the road.1 The Trust claimed the City did
not open the portion of High Street abutting the Trust's and Bickford's properties
for public use within five years of its dedication. As such, the Trust claimed the
road had reverted in equal shares to the predecessors of the Trust and Bickford.
After hearing cross-motions for summary judgment, the trial court granted
summary judgment in favor of the City and Bickford on November 16, 2016. The
court ruled, first, the Trust had not established an essential element of its nonuse
claim; and, second, the doctrine of!aches barred the claim.
The Trust appealed the trial court's summary judgment ruling.2
In May 2017, while preparing its reply brief on appeal, the Trust
discovered agreed findings of fact, conclusions of law, and a final order entered
on February 11, 2005, in Fischer Bickford, LLC v. City of Snohomish, Snohomish
County Cause No. 04-2-14360-6 (the 2005 Case). The plaintiff in the 2005 Case
brought a lawsuit under the nonuse statute against the City and an unrelated
defendant. In the 2005 Case, the plaintiff's property abutted several streets,
including a different portion of High Street,3 which the trial court referred to as the
"Unopened Streets." In the agreed findings of fact, the trial court stated "[t]he
City of Snohomish has never opened the Unopened Streets as public roads." In
the final order, the trial court vacated and reverted to the plaintiff only "the North
1 Laws of 1889, ch. 19, § 32, P. 603, see Wells v. Miller, 42 Wn. App. 94, 96-97, 708
P.2d 1223(1985).
2This court affirmed the trial court's summary judgment order on January 16, 2018.
3 The portion of High Street abutting the plaintiff's property in the 2005 Case is on
Block 27 and approximately three blocks east from the portion abutting the Trust's property,
which is on Block 30.
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No. 77380-1-1/3
half of High Street that abuts Block 27."
In light of this discovery, on May 15, 2017, the Trust moved to vacate the
summary judgment order under CR 60(b)(3). The Trust claimed the agreed
findings of fact proved the City conceded it had not opened High Street between
1890 and 1895, the years relevant to the Trust's nonuse claim.
In its response to the CR 60(b) motion, the City and Bickford argued the
evidence from the 2005 Case was a matter of public record and, therefore, did
not meet the legal standard for newly-discovered evidence. They further argued
the evidence was irrelevant because it concerned a different portion of High
Street.
The trial court denied the Trust's CR 60(b)(3) motion on August 10, 2017.
The court "determined that the evidence was not newly discovered as required
by law, and in any event is not relevant or probative to change the Court's
previous order."
The Trust appeals.
ANALYSIS
The Trust asserts the evidence from the 2005 Case is newly-discovered
evidence addressing the critical issue in this case. The City and Bickford
reassert their arguments from below that the evidence was neither newly
discovered, nor relevant. We agree with the City and Bickford.
Appellate courts "review the trial court's decision on a CR 60(b) motion for
an abuse of discretion." Vance v. Offices of Thurston Cty. Comm'rs, 117 Wn.
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No. 77380-1-/4
App. 660, 67', 71 P.3d 680 (2003). A court abuses its discretion if it makes a
decision that s manifestly unreasonable or based on untenable grounds. Vance,
117 Wn. App at 671.
Under CR 60(b)(3), "[o]n motion and upon such terms as are just, the
court may relieve a party. . . from a final judgment, order, or proceeding" if a
party finds "[
been discove
judgment un
]ewly discovered evidence which by due diligence could not have
ed in time to move for a new trial under rule 59(b)." To vacate a
er CR 60(b)(3), a party must demonstrate "the evidence (1) would
probably change the result if a new trial were granted,(2) was discovered since
trial, (3) coul not have been discovered before the trial by the exercise of due
diligence,(4) is material, and (5) is not merely cumulative or impeaching." Jones
v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d 380(2013). Parties may not
merely allege they acted diligently, but must explain why they did not discover
the evidence previously. Vance, 117 Wn. App. at 671.
Newly-discovered evidence does not include public records, which "are at
all times within reach of the complaining party, and it is because of lack of
diligence if[a party] fails to discover them." Starwich v. Ernst, 100 Wn. 198, 207,
170 P. 584 (1918); see also In re Hammer's Estate, 145 Wn. 322, 326, 260 P.3d
680(1927)(stating courts follow the rule announced in Starwich that public
records are not newly-discovered evidence).
The Trust concedes the documents from the 2005 Case are public
records. Instead of explaining why it failed to discover these public records, the
Trust merely sserts in a conclusory fashion, without citing any legal authority,
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No. 77380-1-/5
that this cou "should take judicial notice that discovery of the 2005 Superior
Court case containing judicial admissions was not discoverable through
reasonable due diligence." The Trust fails to make any showing of diligence or
explain why it did not discover the records earlier. As such, the trial court did not
abuse its discretion in concluding the public records were not newly discovered.
Furthe more, the Trust cannot make the required showing that the
evidence would change the result of the prior proceeding. While the Trust
asserted the pleadings from the 2005 Case concerned "identical facts and legal
issues," the rcord suggests otherwise. As the City and Bickford indicate, the
portion of High Street at issue in the 2005 Case was blocks from the portion of
High Street at issue in this case. Moreover, the Trust does not argue on appeal
that the evidence affects the City and Bickford's successful laches defense.
Because the Trust failed to prove the evidence warranted relief from judgment,
the trial court did not abuse its discretion in denying the Trust's motion.
Accordingly, we affirm.
WE CONCUR
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