Theresa & Kent Boyle, V John & Brenda Leech , 436 P.3d 393 ( 2019 )

FILED
COON- A?PEALS.DIY I
5TAIE OF WAStilliGICIN
2019JAN 28 AM10: 16
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THERESA BOYLE and KENT
BOYLE, husband and wife, No. 79069-2-1
Appellants, DIVISION ONE
V. UNPUBLISHED OPINION
JOHN W. LEECH and BRENDA G.
LEECH, husband and wife,
Respondents. FILED: January 28, 2019
CHUN,J. — The Boyles brought a nuisance action against their neighbors,
the Leeches, for staining caused by debris from a tree on the latter's property.
The trial court granted the Leeches' motion for summary judgment, ruling as a
matter of law that the Boyles did not establish actionable nuisance. We affirm.
BACKGROUND
John Leech lived at his current residence as a child in the 1950s. He
moved back to the property in 1995 and currently lives there with his wife. A
coastal redwood tree has grown on the property since Leech first lived there, and
he believes that someone planted the tree in the 1930s. Leech estimates the
trunk of the tree sits approximately 70 feet from the boundary line with the
Boyles' neighboring property. He also estimates the branches stop
approximately 50 feet before the boundary line. Leech stated he has received no
prior complaints about the tree from the neighbors.
No. 79069-2-1/2
The Boyles moved into their home in July 2013. Wind blows debris from
the Leeches' tree onto the Boyles' property. Sometimes, this debris causes
staining. The staining does not remove easily, and requires power washing or
strong cleaning products.
The Boyles hired Brian Allen, a certified arborist, to inspect the tree on the
Leeches' property. Allen determined the sap and cones from the tree contains
tannic acid, which stains the Boyles' property. In his report, Allen stated the tree
"is dying slowly," causing excessive sap and cone production. Despite this
diagnosis, Allen noted the "[t]ree is not currently considered high risk." On a 1 to
10 health scale (1 being the highest risk, with the potential for critical failure at
any moment), Allen ranked the health of the tree as close to a 7. As a
recommendation, the report provides, "Due to client's motivations, and the
potential for continued and worsening damage to surrounding property, removal
is recommended."
Because of the staining, the Boyles filed a nuisance action against the
Leeches on September 28, 2016. The Boyles requested $5,000 in damages and
asked the court to order the Leeches to abate the nuisance.
On June 26, 2017, the Leeches moved for summary judgment, arguing
the Boyles failed to establish a prima facie case of nuisance.
The trial court granted the Leeches' motion for summary judgment on
August 25, 2017. The Boyles filed a motion for reconsideration, which the court
denied.
The Boyles appeal.
2
No. 79069-2-1/3
ANALYSIS
A. Nuisance
The Boyles assert the trial court erred by ruling that debris from a tree
wholly on a neighboring party's property cannot constitute a nuisance as a matter
of law. The Leeches argue the Boyles did not establish a nuisance caused by
any unlawful act or omission. Additionally, the Leeches contend the tree cannot
constitute a nuisance because it exists entirely on their property. We conclude
the trial court did not err by granting summary judgment in favor of the Leeches.
Appellate courts review de novo a trial court order granting summary
judgment. MJD Props. LLC v. Haley, 189 Wash. App. 963, 968, 358 P.3d 476
(2015). Thus, on review, an appellate court engages in the same inquiry as the
trial court and considers the facts in the light most favorable to the nonmoving
party. Lewis v. Krussel, 101 Wash. App. 178, 182, 2 P.3d 486 (2000). A trial court
properly grants summary judgment where the case presents no genuine issues
of material fact and a party is entitled to judgment as a matter of law. Lewis, 101
Wash. App. at 182. "A material fact is one that affects the outcome of the litigation."
Lewis, 101 Wash. App. at 182.
RCW 7.48.010 defines "actionable nuisance" as follows:
The obstruction of any highway or the closing of the channel
of any stream used for boating or rafting logs, lumber or timber, or
whatever is injurious to health or indecent or offensive to the senses,
or an obstruction to the free use of property, so as to essentially
interfere with the comfortable enjoyment of the life and property, is a
nuisance and the subject of an action for damages and other and
further relief.
3
No. 79069-2-1/4
In Washington,"an unreasonable interference with another's use and enjoyment
of property" constitutes a nuisance. Wallace v. Lewis County, 134 Wash. App. 1,
18, 137 P.3d 101 (2006)(citing Kitsap County v. Allstate Ins. Co., 136 Wash. 2d
567, 592, 964 P.2d 1173 (1998)); see also MJD Props. LLC, 189 Wash. App. at
970 ("An activity constitutes a nuisance when it interferes unreasonably with a
neighbor's use and enjoyment of his or her property.").
In nuisance cases, the trial court mainly considers whether a party
reasonably uses his or her property. MJD Props. LLC, 189 Wash. App. at 970;
Bradley v. Am. Smelting & Ref. Co., 104 Wash. 2d 677, 689, 709 P.2d 782(1985)
(providing that "unreasonableness of the interference is necessary for liability").
To determine whether a use is reasonable, courts balance the rights, interests,
and convenience unique to the case. Mustoe v. Ma, 193 Wash. App. 161, 169, 371
P.3d 544 (2016). Trial courts consider all the surrounding facts and
circumstances. Jones v. Rumford, 64 Wash. 2d 559, 563, 392 P.2d 808 (1964);
Mustoe, 193 Wash. App. at 169 ("In a nuisance case, the fundamental inquiry
concerns whether the use of certain land can be considered reasonable in
relation to all the facts and circumstances."). "While reasonableness is typically a
question of fact, a court may resolve such questions as a matter of law where
reasonable minds could come to only one conclusion." Lakey v. Puget Sound
Energy, Inc., 176 Wash. 2d 909, 924, 296 P.3d 860 (2013).
4
No. 79069-2-1/5
Here, the tree grows entirely on the Leeches' property, without branches
overhanging onto the Boyles' yard.' Leech believes the tree has been on the
property for 80 years. Aside from the Boyles, no neighbor has ever complained
to Leech about the tree.
The Boyles describe the tree as "a dying tree shedding toxic debris."
Though their expert opined that the tree is dying slowly, he determined the tree
remained relatively healthy. The expert's report describes the tree's debris as
"excessive" rather than toxic. The report further explains there is only a
"potential" for continued damage and recommends removal "due to client's
motivations."
The Leeches did not act unreasonably with regard to the tree, especially
given the tree is located entirely on their property. As such, the Boyles cannot
establish nuisance as a matter of law. The Leeches are not required to remove
the tree to prevent staining from occurring on the Boyles' property. Cf. Gostina v.
Ryland, 116 Wash. 228, 232, 199 P. 298(1921)("the person over whose land
[branches]extend may cut them off, or have his action for damages.. . but he ,
may not cut down the tree").
No published case in Washington (or elsewhere, apparently) addresses a
nuisance action regarding a tree situated wholly on another's property. However,
the Washington Supreme Court's opinion in Gostina, provides insight. In
Gostina, the Supreme Court determined that overhanging tree branches or
1 Additionally, nothing in the record suggests the tree's roots encroach onto the Boyles'
property.
5
No. 79069-2-1/6
encroaching roots onto a neighboring property constitute nuisances. Gostina,
116 Wash. at 231. Furthermore, a property owner who permits his or her tree to
extend onto a neighboring property commits "an unequivocal act of negligence."
Gostina, 116 Wash. at 232. Accordingly, the case holds a party may cut back to
the property line any tree branches or roots that intrude onto his or her property.
Gostina, 116 Wash. at 233. In dicta, the Court noted, "[t]he remainder of the trees
will doubtless shed their leaves and needles upon the [plaintiff's] premises; but
this they must endure positively without remedy." Gostina, 116 Wash. at 235.
Other courts have reached similar conclusions. In Cannon v. Neuberger,
1 Utah 2d 396, 268 P.2d 425 (1954), a plaintiff sued a neighbor to remove the
trees on their property that encroached onto his. The plaintiff appealed the trial
court's order, which denied his request for an order requiring the defendants to
either remove the trees at issue or control their growth to prevent them from
overspreading or dropping leaves, twigs, and branches. Cannon, 1 Utah 2d at
397. In affirming the trial court's order, the Utah Supreme Court noted as follows:
It is common knowledge that winds break branches from trees, and
that trees in this climate, hard wood or otherwise, shed twigs,
branches, leaves or needles. To hold trees to be nuisances subject
to abatement in equity, or subject to actions at law for damages,
merely because leaves or twigs or even branches in the ordinary
course of affairs may be blown from them onto neighbors' lots, would
be to condemn to abolition all shade trees in communities sufficiently
settled to have perils of such experiences.
Cannon, 1 Utah 2d at 399.
The Intermediate Court of Appeals of Hawaii discussed the issue in
Whitesell v. Houlton, 2 Haw. App. 365, 632 P.2d 1077 (1981). Although this
6
No. 79069-2-1/7
case also addressed tree branches that overhung a neighbor's property, the
court held "that overhanging branches or protruding roots constitute a nuisance
only when they actually cause, or there is imminent danger of them causing,
sensible harm to property other than plant life, in ways other than by casting
shade or dropping leaves, flowers, or fruit." Whitesell, 2 Haw. App. at 367.
Certainly, if natural debris from an overhanging tree should not constitute a
nuisance, neither should such debris from a tree that does not encroach onto
neighboring property.
Finally, in Ponte v. DaSilva, 388 Mass. 1008, 446 N.E.2d 77(1983), the
plaintiff suffered injury when she slipped on branches that had fallen onto her
property from a neighbor's overhanging tree. The Supreme Judicial Court of
Massachusetts held "[t]he failure of a landowner to prevent the blowing or
dropping of leaves, branches, and sap from a healthy tree onto a neighbor's
property is not unreasonable and cannot be the basis of a finding of negligence
or private nuisance." Ponte, 388 Mass. at 1010. Following Ponte, the Kentucky
Court of Appeals also concluded that Iiimposing liability upon a landowner for
damage resulting from the natural dropping of leaves and other ordinary debris
would result in innumerable lawsuits and impose liability upon a landowner for
the natural processes and cycles of trees." Schwalbach v. Forest Lawn Memorial
Park, 687 S.W.2d 551, 552(1985).
Wind blowing natural debris from the Leeches' tree causes staining on the
Boyles' property. We decide that this—debris from a tree wholly on another's
property—does not constitute a nuisance. Cases from other courts accord with
7
No. 79069-2-1/8
this conclusion. Therefore, the trial court did not err in granting summary
judgment in favor of the Leeches.2
B. Attorney Fees on Appeal
In their request for attorney fees, the Leeches cite RAP 18.1 and request
"any and all statutory costs and fees that they may be entitled to as the prevailing
party." However, RAP 18.1 "requires more than a bald request for attorney fees
on appeal. Argument and citation to authority are required under the rule to
advise the court of the appropriate grounds for an award of attorney fees and
costs." Stiles v. Kearney, 168 Wash. App. 250, 267, 277, P.3d 9 (2012). Because
the Leeches fail to provide any grounds for an attorney fee award on appeal, we
deny their request.
Affirmed.
WE CONCUR:
2 Because we determine the trial court did not err in ordering summary judgment, we
similarly decide the court properly denied the Boyles' motion for reconsideration.
8