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Hoggatt v. Flores

Court of Appeals of Washington, Division 2

February 3, 2015

Bradley C. Hoggatt et al., Respondents
v.
Luis Flores, Appellant

Oral Argument, December 1, 2014

Appeal from Clark Superior Court. Docket No: 13-2-00862-2. Judge signing: Honorable Scott a Collier. Judgment or order under review. Date filed: 11/01/2013.

Darrel S. Ammons Jr., for appellant.

Bradley W. Andersen (of Landerholm PS ), for respondents.

Authored by Jill M Johanson. Concurring: Lisa Sutton, Bradley A. Maxa.

OPINION

Page 360

Jill M Johanson, J

[185 Wn.App. 766] [¶1] Luis Flores appeals a superior court order granting summary judgment in favor of Bradley and Connie Hoggatt. Flores argues that he is entitled to rescission under RCW 58.17.210, a statutory provision that permits an innocent purchaser of illegally subdivided property to seek either rescission or damages. Flores argues that the initial statutory violation (the sale or transfer of noncompliant property) triggered an absolute right to rescission in the purchaser's favor even after the property is brought into compliance with statutory subdivision requirements. We hold that because Flores failed to unequivocally seek rescission before the Hoggatts brought the property into compliance, Flores is no longer entitled to rescission. We affirm.

FACTS

I. Background

[¶2] In June 1993, the Hoggatts acquired a residence on seven acres of land in Cowlitz County. The Hoggatts legally subdivided the property into four lots. They sold three one-acre parcels and retained a four-acre lot with the original residence.[1]

[¶3] In April 2004, the Hoggatts again divided their property, but this time they did not do it legally through the subdivision process. They simply caused two distinct tax parcels to be created. One of these, tax parcel WC2001023, was a one-acre lot with the original residence. This they sold to Flores. The other, tax parcel WC2001025, was an undeveloped three-acre parcel they kept for themselves.

[¶4] In 2007, the Hoggatts wanted to build a residence on their undeveloped parcel. This parcel had only 20 feet of road frontage, 5 feet less than necessary under the Cowlitz County Code (CCC). In February, the Hoggatts filed an [185 Wn.App. 767] application requesting a variance. They attached a written narrative suggesting that if they were allowed to build a single-family residence, they would promise not to subdivide the parcel further. County officials noticed that the Hoggatts had not divided their property in compliance with subdivision regulations. The county approved the variance on condition that the Hoggatts would " apply for and receive approval of a Short Subdivision in accordance with the requirements of CCC 18.34 of Parcel WC2001025/WC2001023 prior to submitting an application of a single-family residence on the subject property." [2] Clerk's Papers (CP) at 817. The county did not require the Hoggatts to promise they would engage in no further subdivision.

[¶5] In an effort to satisfy the condition, the Hoggatts submitted a subdivision application, but they listed only their own three-acre parcel as the property to be subdivided. In October, the county responded, stating that the Hoggatts needed to obtain written approval from all property owners involved with the proposed plat. The Hoggatts asked Flores for his signature. Flores demanded that the Hoggatts pay all his expenses and attorney fees in connection with the matter. He also demanded that they enter a binding covenant not to further ...


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