SHERMAN v. DIEDRICH, 154 Wn. App. 1006 (2010)

SUE SHERMAN, Appellant, v. DENNIS DIEDRICH, Respondent.

No. 63574-3-I.The Court of Appeals of Washington, Division One.
January 11, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for Skagit County, No. 08-2-00439-5, Michael E. Rickert, J., entered April 29, 2009.

Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Leach, JJ.

APPELWICK, J.

In this action arising from a judgment dissolving a meretricious relationship, Sherman claims Diedrich negligently and/or contemptuously failed to fulfill his duty under the judgment to subdivide the couple’s real property. The superior court dismissed the negligence and contempt claims on summary judgment, concluded that the property could no longer be subdivided, and ordered the property sold and the proceeds divided. We affirm.

FACTS
Dennis Diedrich and Sue Sherman lived together for approximately ten years. In 1998, Diedrich filed suit in Snohomish County to dissolve the couple’s meretricious relationship and to quiet title to a 40-acre tract they had purchased together in Skagit county. The court ordered Diedrich to arrange for the property to be logged. Proceeds from the logging were to be used to subdivide the tract into two parcels. Sherman would then choose and receive title to one of the parcels.

The parties subsequently logged the property and split the proceeds but a subdivision never occurred.

In March 2008, Sherman filed the present action in Skagit County for partition and negligence. The complaint alleged that Diedrich had negligently failed to comply with the 1998 Snohomish County judgment regarding the subdivision of the property. It further alleged that the zoning in 1998 allowed 20-acre parcels, that the zoning had recently changed to require 40-acre tracts, and that the parcel was now unbuildable and could be subdivided only by suing Skagit County. Sherman requested a judgment “partitioning [Diedrich’s] half of the 40 acres over to plaintiff” and awarding damages for his negligent failure to subdivide the property.[1] (Capitalization omitted.) The complaint did not mention or request a finding of contempt.

Diedrich moved for partial summary judgment dismissing the negligence claim and ordering a partition by sale. He argued that Sherman had provided no evidence or authority supporting her negligence claim. Diedrich’s counsel submitted a declaration explaining why the property could not be subdivided under the current zoning.

In response, Sherman argued that Diedrich’s failure to comply with the 1998 Snohomish County order amounted to contempt and negligence. She alleged in a declaration that she had asked Diedrich to comply with the 1998 judgment from the outset and he always said “he was doing it.” (Capitalization omitted.) She further alleged that, because of Diedrich’s “contempt and . . . negligence on not following [through] with the judgment ordered by the court the land now, cannot be separated.” (Capitalization omitted.)

The court dismissed Sherman’s “claims for negligence and contempt” and ordered the property sold. The court’s order stated in part:

2. There are no facts submitted by Sherman which lead the court to view the acts or omissions of Diedrich as negligence and no court has made a finding pursuant to statute or common law that any act or omission by Diedrich amounts to contempt.
3. The physical subdivision is impossible and therefore constitutes, as a matter of law, great prejudice to the parties. Defendant is entitled to judgment as a matter of law against Sherman granting partition of the property by sale, which is the only other available remedy when physical division of the property cannot be accomplished. . . . After the sale is accomplished the parties shall report to the court and present their claims for accounting as required by the partition statute.

Sherman appeals.

DECISION
We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party.[2] Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.[3]

Sherman first contends the superior court erred in dismissing her claim for negligence. She fails, however, to provide pertinent authority or meaningful analysis supporting this claim.[4] In fact, the precise nature of her negligence claim remains unclear. Although the gist of her claim seems to be that she relied to her detriment on Diedrich’s alleged misrepresentations, Sherman has never asserted a claim for negligent misrepresentation or addressed all the elements of that or any other cause of action sounding in negligence.[5]
Nor has she provided facts supporting the elements of a misrepresentation or simple negligence claim.[6] Sherman thus failed to carry her burden on this claim, and the court properly dismissed it.

Sherman’s complaint did not assert a claim for contempt. Nor did she file a motion for, or request a finding of, contempt. Rather, she merely added a contempt theory in her subsequent briefing and response to Diedrich’s motion to dismiss her negligence claim. Thus, it is doubtful that this claim was properly raised. But, even assuming it was, Sherman did not adequately articulate or support it.[7]

Furthermore, RCW 7.21.030(2) and (3) provide that a court may order remedial sanctions or compensation for contempt only if the person allegedly in contempt “has failed or refused to perform an act that is yet within the person’s power to perform.” (Emphasis added.) Here, Diedrich’s counsel submitted a declaration on summary judgment explaining why subdivision of the property was no longer possible. Sherman conceded in her declaration that the current zoning did not allow subdivision, but claimed that the zoning could be changed by suing Skagit County. She failed, however, to submit any evidence demonstrating that subdivision was still within Diedrich’s power.

In addition, Sherman’s contempt theory appears to rest on the assumption that it was solely Diedrich’s responsibility to subdivide the property. But the 1998 judgment is ambiguous as to whether that responsibility was Diedrich’s or both Diedrich’s and Sherman’s.[8] In order for a judgment to be enforceable by contempt, the duty imposed on the alleged contemnor must be so clearly and specifically set forth that it can be understood without resort to construction or implication.[9] Because the judgment at issue here does not clearly make it Diedrich’s sole responsibility to subdivide the property, Sherman’s contempt theory fails.

Sherman’s remaining assignments of error are either beyond the scope of her notice of appeal, meritless on their face, and/or unsupported by adequate analysis and authority.[10]

Affirmed.

We Concur:

[1] Sherman sought damages for “loss of land use,” “loss of time having to [fight] the county,” and “costs plaintiff Sherman will pay [to fight] the County.” (Capitalization omitted.)

[2] Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

[3] CR 56(c); Vallandigham, 154 Wn.2d at 26.

[4] An appellant proceeding pro se must comply with all procedural rules, In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993), and failure to do so may preclude review. State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999). This court generally will not consider arguments that are unsupported by pertinent authority, references to the record, or meaningful analysis. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by authority); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (insufficient argument); State v. Camarillo, 54 Wn. App. 821, 829, 776 P.2d 176 (1989) (no references to the record), aff’d by 115 Wn.2d 60 (1990); RAP 10.3(a). Sherman fails to support the majority of her arguments with any authority or meaningful legal analysis. Her opening brief cites only two authorities: CR 38, which addresses the right to a jury trial, and RCW 7.21.010(1)(b), which defines contempt. Although she offers several additional authorities and arguments for the first time in her reply brief, these come too late. King v. Rice, 146 Wn. App. 662, 673, 191 P.3d 946 (2008) (argument and authority raised for the first time in reply brief comes too late); RAP 10.3(c). Moreover, with few exceptions, her arguments lack references to the record required by RAP 10.3(a)(5).

[5] The elements of negligent misrepresentation are: (a) the defendant made a negligent misrepresentation; (b) a party relied on the misrepresentation causing the party harm; and (c) the party was justified in relying on the misrepresentation. Restatement (Second) of Torts § 552 (1977).

[6] With respect to any misrepresentation claim, Sherman alleged below that she relied on representations that Diedrich was working on subdividing the property. But, she offered no facts showing that the representations wer negligently made or that her alleged reliance, which evidently spanned a number of years, was reasonable. With respect to any claim that Diedrich negligently failed to perform a duty under the 1998 judgment, she fails to provide any facts supporting a finding that his nonperformance was due to negligence.

[7] We note that we may uphold the trial court on any ground supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).

[8] The findings and conclusions state in pertinent part:

Specifically, this property should be logged and [Deidrich] should have the responsibility to arrange for the timber to be cruised and logged. From the proceeds of that logging, the costs for subdivision of the property will be paid and thereafter the property shall be divided physically, with [Sherman] having her choice as to which half of the acreage she wishes to retain.”

[9] See 20 Kenneth W. Weber, Washington Practice: Family and Community Property Law § 32.43, at 229-30 (1997); State v. Int’l Typographical Union, 57 Wn.2d 151, 158, 356 P.2d 6 (1960).

[10] The notice of appeal states that the appeal is taken from the order of partial summary judgment and the denial of Sherman’s motion for reconsideration. Sherman’s arguments regarding a subsequent order appointing a referee are beyond the scope of this notice.

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