HomeMy WebLinkAboutSuperior Court Anderman Enterprises Order - PLN General - 1/17/1997 : superior Court of the fate of of gtotr� � _
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Al LOUN &TYNER
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JAMES B.SAWYER II,Judge _s Commissioners:
Department No.1 �� 0 Richard C.Adamson
TONI A.SHELDON,Judge �y goy Robert D.Wilson-Hoss
Department No.2 1889 Carrene M.Wood
P.O.Box"X"
Shelton,Washington 98584
(360)427-9670 Ext.289
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January 17 , 1997 /_1
Mr. Gary H. Sexton
Attorney at Law
1126 Highland Avenue
Bremerton, WA 98337
Mr. Randy Loun
Attorney at Law `
509 4th Street, Suite 6
Bremerton, WA 98337
Re: Anderman v. Medeiros, et ux. , et al._,
Mason County .Cause No. 91-2-00182-4
Dear Counsel:
Please find enclosed conformed copies of the executed Order on
Hartman's Motion for Summary Judgment. Subsequent to your
appearance on January 14, 1997, I went back and read not only the
cases brought to the Court's attention by Mr. Loun, but also all
four court files from. document number 1 to document number 207 . I
believe that the only remaining viable issue is regarding the sign.
Pleasc advise the Court regarding your anticipate length of trial .
Sid erely,
t
JAMES B. SAW R II, Judge
JBS:gb `
- Enclosure
cc: Superior Court File:
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's IN THE SUPERIOR COURT OF THE STATE OF WAS_ HINGTON
3 IN AND FOR THE COUNTY OF_MASON:- ; -
6 ANDERRfA.N ENTERPRISES, IINC. , -_.-._ -.-
NO. 91-2-00182-4
Plaintiff, )
8 - vs . )
ORDER ON HARTMAN'S
9 RICHARD MEDEIROS and JANE DOE ) MOTION FOR SUMMARY
MEDEIROS , husband and wife; ) JUDGMENT
y 10 ALLEN HOOVER and KAREN HOOVER, )
o_ husband and wife, )
11 )
Z° Defendants, )
=0 12 )
U
�LUwno RICHARD MEDEIROS and JANE )
z �''
•.'=m � 13 DOE MEDEIROS, husband )
HCc�
-j<< and wife, and ALLEN HOOVER,
'ZZ�: 14 and KAREN HOOVER, husband and )
�2:5o� wife, )
-S-2 15 )
'.►omw; Third Party Plaintiffs, )
o ` er 16 )
,= vs.No )
Z= 17 )
W
WALT GOIT and JANE DOE GOIT, )
< 18 husband and wife; JEFFREY )
< HARTMAN and JANE DOE HARTMAN, )
19 husband and wife; and THE )
HARTMAN FAMILY TRUST, )
-.J 20 )
Third Party Defendants. )
<:::T� 21 )
_r 22 This ;matter having come on regularly upon the HARTMAN
23 FAMILY TRUST, JEFFREY HARTMAN and JANE DOE HARTMAN'S Motion for
24 Summary Judgment, the Court having reviewed and considered the
CD
25 Summons and Complaint; the Second Amended Answer, Counterclaim and
26 Third Party Claims of both Hoovers and Medeiros' ; Third Party
27 Defendants' Motion for Summary Judgment; Declaration of Jeffrey
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ORDER ON HARTMANIS MOTION FOR SUMMARY JUDGMENT - 1
-
1 _
2 Hartman dated October 25, 1996 with attachments; the Declaration
3 of Jeffrey Hartman dated October 8 , 1993 ; Declaration of Jon L.
4 Rosander; Declaration of Jim Bennett; Third Party Defendant's
5 Memorandum in Re: Exhaustion of Administrative Remedies, Res
6 udicata and Collateral Estcrpel ; Har--man' s '-Ie morandun in Re :
7 Easement Usage (Hoovers Clain) ; Memorandum in Re: Agency; Landlord
8 Liability; Defendant' s Response to Motion for Summary Judgment;
9 the Court having heard argument of respective counsel for the
10 parties and considered additional documents specifically cited or
11 referenced by the attorneys, now therefore finds and orders as
follows:
12
13 1. That the construction and maintenance of drainage
ditches as constructed over the easement of which the Hoovers are
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15 the servient tenant are part of and necessary to the natural and
normal usage and development of an easement for ingress and
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17 egress.
18 2 . That drainage ditches and drain pipes -existed and were
19 maintained along the easement prior to the Hoovers' purchase of
the servient property. As such, any claim for damage caused by
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the construction, installation and maintenance of the drainage
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22 ditches and pipes within the easement area were personal to the
23 prior property owner.
3 . Defendants Hoovers' claims regarding construction, use
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and maintenance of drainage ditches and pipes on the easement as
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more particularly alleges in paragraph 43. is dismissed with
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prejudice.
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4 .. There remains issues of fact regarding Defendants
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ORDER ON HARTMAN'S MOTION FOR SUMMARY JUDGMENT - 2
1
2 Hoovers' claim as against the Hartman Family Trust seeking removal
3 of signs from the easement right of way.
4 5 . The Defendants Hoovers and Medeiros received notice,
5 atteneed 8 days of hearings and participated in the hearing before
6 edge Christine Clishe in 1991 . During said hearing, the
interests of the Medeiros ' and Hoovers were carefully considered
8 and placed before the administrative law judge in all respects
9 regarding surface mining operations, operations plans, reclamation
10 plans, violations of surface mining rules and regulations, water
11 discharge from the surface mining site, water channels, water
12 courses, safe outlets for discharge, and alleged damage to Hoovers
13 and Medeiros' as a resP t of the surface mining operations.
14 6 . Hoovers and Medeiros' were parties to those proceedings.
15 Having failed to timely file an appeal, their claims relating to
16 surface mining operations, water discharge and alleged damage
17 relating thereto are barred by the doctrine of res judicata. As
18 such, Medeiros' claims in their Second Amended Complaint as set
19 out in paragraphs 47, 48, 49 and 52 , and Hoovers claims as set out
20 in paragraphs 44 , 45, 48 and 49 are dismissed with prejudice.
21 7 . Medeiros and Hoovers were in privity with a party in the
22 surface mining hearing and proceedings and/or :were witnesses who
23 were fully acquainted with the hearing's character and object and
were interested in its results. As such, they are subject to the
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doctrine of collateral estoppel in all respects as set forth in
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paragraph 6 above.
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8 . Defendants Hoovers and Medeiros claims regarding any and
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28 all surface mining operations, operations and reclar.,ation plan
ORDER ON HARTMAN'S MOTION FOR SUMMARY JUDGMENT - 3
1
2 violations, surface water discharge or alleged damage resulting
3 therefrom more particularly as listed in paragraph 6 are barred by
4 the limitations of action and failure to exhaust administrative
5 remedies as set forth- in RCW 34 . 05. -
6 9 . The Defendants Medeiros and I:oovers received notice,
7 attended and actively participated in hearings before the
8 Pollution Control Board on May -19 , 1995, relating to various
9 alleged violations of solid waste management pursuant to RCW
10 i0. 95.
11 10. Plaintiffs were parties to the proceedings relating to
solid waste management and control in May, 1995. Having failed to
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timely appeal the dec"Ision of the Pollution Control Board on May
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14 31, 1995, Medeiros and Hoovers are barred by the doctrine of res
15 judicata regarding all claims relating to solid waste management.
As such, Medeiros' claims in the Second Amended Answer,
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Counterclaim and Third Party Claim as set forth in paragraph 50,
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and the Hoovers' claims contained in their Second Amended Answer,
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19 Counterclaim and Third Party Claim as alleged in paragraph 46
20 thereof, are dismissed with prejudice.
11. Defendants Medeiros and Hoovers were in privity to a
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22 party to the proceedings before the Pollution Control Board
regarding solid waste management and were witnesses fully
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acquainted with the hearings character and object and interested
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in its results. As such, Medeiros' and Hoovers' claims more
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specifically referenced in paragraph 10 above regarding solid
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waste management and any alleged damage resulting therefrom are
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barred by the doctrine of collateral estoppel.
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ORDER ON HART14ANIS MOTION FOR SUMMARY JUDGMENT - 4
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2 12 . Having failed to timely file any appeal from the
3 Pollution Control Board decision of May 31, 1995, or seek review
4 of the Mason County letter dated August 5, 1996, Medeiros' and
5 Hoover%s' claims relating to any alleged solid waste receipt,
6 recycling, or disposal are barred by the limitations of actions
7 and dcctrine of Exhaustion of Administrative Remedies as set forth
8 - in RCw 34 . 05 . 416 , RCW 34. . 05 . 419 , RCW 34 . 05 . 534 , and RCW
9 34 . 05. 570 (4) (b) .
10 13 . Any and all claims of Medeiros and Hoovers against the
11 Hartman Family Trust particularly including Hoovers claims in
12 paragraphs 43 , 44 , 45, 46, 47, 48, 49, 50, 51, and 52, and
13 Medeiros claims in paragraphs 47, 48, -49, 50, 51, 52, 53 , 54, and
14 55, are dismissed with prejudice excepting only the Hoovers' claim
15 in paragraph 43 seeking to enjoin continued placement of signs on
the easement area.
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17 14 . Any and all claims by Medeiros and Hoovers against Jeff
18 Hartman and Jane Doe Hartman particularly including Hoovers'
19 claims in paragraphs 43 , 44 , 45, 46, 48, 49, 50, 51 and 52, and
20 Medeiros' claims in paragraphs 47, 48 , 49, 52 , 53 , 54 and 55 are
dismissed with prejudice excepting only paragraph 47 in Hoovers'
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claims and paragraph 51 in Medeiros' claims, and relating only to
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the period of time between January 23 , 1993 and June 9, 1993 .
23 eday
DONE IN OPEN COURT this ofi�/ ,
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199�.
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27 9kS B. SAWYER, II, 1;Wdge
28 /
ORDER ON HARTMAN'S MOTION FOR SUMMARY JUDGMENT - 5
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2 Presented by: Approved for Entry
3 Notice of Presentation Waived:
4 SEXTON & O'BRIEN LOUN & TYNER
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6 G;RY Hf/ SEXTON RANDY LOUN
7 � . S . BIA. = 0^129 W. S . B.A. =14669 j
Attorney for Plaintiff Attorney for Defendants and Third
8 and Third Party Defendants Party Plaintiffs
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ORDER ON HARTMAN'S MOTION FOR SUMMARY JUDGMENT - 6
1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR MASON COUNTY
2 ANDERMAN ENTERPRISES, INC. , )
3 Plaintiff, ) NO. 91 2 00182 4
4 vs ) MOTION FOR RECONSIDERATION
)
5 i RICHARD MEDEIROS, et ux, et al . , )
)
6 Defendants. )
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8 COME NOW defendants/counter-claimants above named, by and
9 through their attorney of record, Randy W. Loun of Loun & Tyner,
10 moving the above entitled court for reconsideration of its grant of
11 Summary Judgment motion.
12 This motion is based upon the records and file herein and
13 subjoined declaration of defendant, Richard Medeiros.
14 DATED this day of January, 1997 .
15 LOUN & Y ER
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17 RANDY W. "LOUN, W BA #14669
Attorney for Defendants
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LOUN & TYNER
509 - 4`" St. Suite 6
Bremerton, WA. 98337
MOTION FOR RECONSIDERATION -1 Tel: (360) 377-7678 F= (360) 792-1913
1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR MASON COUNTY
2 ANDERMAN ENTERPRISES, INC. , )
3 Plaintiff, ) NO. 91 2 00182 4
4 vs ) DECLARATION OF RICHARD
MEDEIROS
5 )
RICHARD MEDEIROS, et ux, et al . , )
6 )
Defendants. )
7 )
8 I declare under penalty of perjury of the laws of the State of
9 Washington that the following is true and correct. My name is
10 Richard Medeiros and I am one of the defendants/counter-claimants
11 above named.
12 The court indicated we are bound by Judge Cliche' s decision in
13 April 1991. At that time, Judge Cliche was ruling on an action
14 filed on behalf of Anderman Enterprises, Inc. , which ceased to exist
15 as a corporation on January 22 , 1991.
16 Since under the corporate laws, no action except a winding up
17 of a business may be conducted by a corporation. The only action
18 Anderman Enterprises, Inc. was allowed to do as a matter of law was
19 to reclaim the mining site as required under their Surface Mining
20 Permit. At no time were they entitled to continue the operation of
21 the pit or to challenge any action taken by any administrative
22 agency toward them.
23 Therefore, there was no jurisdiction to hear an appeal by
24 Anderman Enterprises, Inc. , and Judge Cliche' s decision is void.
25 Further, upon Judge Cliche having reached her decision, I and
LOUN &TYNER
509 - 4`b St. Suite 6
Bremerton, WA. 98337
DECLARATION, OF RICHARD MEDEIROS -1 Tel: (360) 377-7678 Fax: (360) 792-1913
1 Alan Hoover requested that the decision be appealed as the Assistant
2 Attorney General on the case had not presented all of our evidence
3 nor allowed us to offer evidence other than as witnesses called by
4 her. We were told that we had no right to appeal and that any
5 further action by us would need to be brought in the form of a civil
6 action, which we did.
7 If the court does not reconsider its prior decision on any
8 other grounds, the gravel pit was substantially changed after Judge
9 Cliche ' s decision and those changes eliminated any natural water
10 run-offs and left no undisturbed areas adjacent to my property or
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11 that of Alan Hoover, and all discharges from April 1991 through
12 December 1993 , (December 1993 being the date when Belfair Sand and
13 Gravel took over the operation) , were a direct result of the actions
14 of Jeffrey Hartman, who owned the property and operated the
15 business.
16 I have researched title and found that Jeff Hartman
17 transferred ownership of the property from his name alone on January
18 22 , 1991 to himself and his wife, as trustees of the Hartman Family
19 Trust. As the owner/operator of the property, he has caused water,
20 sediment, toxic waste, and dust to intrude and trespass upon my
21 property. He has no easements to my property.
22 I am familiar with and have seen the back bordering property
23 boundary between Hoover' s property and the gravel pit and they had
24 constructed a berm some 20-30 feet onto Hoover' s property beyond the
25 property line, creating a physical encroachment onto his property.
LOUN &TYNER
509 - 4'h St. Suite 6
Bremerton, WA. 98337
DECLARATIOIJ OF RICHARD MEDEIROS -2 Tel: (360) 377-7678 Fax: (360) 792-1913
1 Finally, both Hoover and I filed claims that the original
2 action by Gary Sexton, attorney for Jeff Hartman, was done
3 maliciously and with intent to deny us access to government agencies
4 and the court to redress our grievances, and although the suit was
5 brought in the name of Anderman, since anderman did not exist, it
6 was an action brought by Jeff Hartman for his benefit, and should be
7 allowed to proceed to jury trial.
8 DATED at Bremerton, Washington, this day of January,
1997 .
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11 RICHARD MEDEIROS
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LOUN &TYNER
509 - 4'h St. Suite 6
Bremerton, WA. 98337
DECLARATION OF RICHARD MEDEIROS -3 Tel: (360) 377-7678 Far: (360) 792-1913