Edward M. Goodman & Bernice S. Goodman, Res. v. Michael J. Goodman & Mary F. Goodman, Apps. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
EDWARD M. GOODMAN and No. 68416-7-1
BERNICE S. GOODMAN, husband
and wife,
Respondents,
MICHAEL J. GOODMAN and ORDER DENYING MOTION
MARY F. GOODMAN, husband and FOR RECONSIDERATION,
wife, CHANGING AND REPLACING
Appellants. OPINION
Appellants Michael and Mary Goodman filed a motion for reconsideration of the
court's opinion filed November 25, 2013. The panel has determined that the motion
should be denied but that the opinion should be changed and replaced as noted below.
Now therefore, it is hereby
ORDERED that on page 3, n.2: Delete the phrase "it was not admitted at trial" in
the sentence beginning "But Michael." It is further
ORDERED that on page 7, add a footnote to the last sentence in the first
paragraph ending with "Lot 2." The footnote shall read, "Without relevant authority or
compelling argument, Michael claims that the Shoreline Management Act precludes the
trial court from finding an implied easement in this case. In the absence of meaningful
authority, Michael does not establish grounds for any relief based on the Shoreline
Management Act. Cowiche Canyon Conservancy v. Boslev, 118 Wash. 2d 801, 809, 828
No. 68416-7-1
Order Granting Motion for Reconsideration,
Changing and Replacing Opinion
P.2d 549 (1992) (court need not address arguments unsupported by relevant
authority)." It is further
ORDERED that the amended opinion shall replace the original opinion filed
herein.
Dated this _t2_ day of January, 2014.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
EDWARD M. GOODMAN and No. 68416-7-
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BERNICE S. GOODMAN, husband r-a
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MICHAEL J. GOODMAN and UNPUBLISHED OPINION
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MARY F. GOODMAN, husband and 149 Wash. 2d 873, 879-80, 73 P.3d 369
(2003).
4 City of Tacoma v. William Rogers Co. Inc.. 148Wn.2d 169, 191,60P.3d79
(2002).
5 Sunnvside Valley. 149 Wash. 2d at 879-80.
6 Lodis v. Corbis Holdings. Inc., 172 Wash. App. 835, 861, 292 P.3d 779 (2013).
7 Keever &Assoc. Inc. v. Randall, 129 Wash. App. 733, 741, 112, 119 P.3d 926
(2005).
8Appellant's Br. at 4.
No. 68416-7-1/4
The road built in 1979 included Goodman Lane, the paved driveway up to
Lot 3, the driveway south downhill on Lot 2 to the beach area (portions of
which were paved) and the access to Lot 3 along the edge of Lake
Campbell. The construction of the road was completed before the short
plat was approved by the County.191
Michael asserts that Edward's evidence regarding the date the road was built was
"incompetent," while Michael admitted an aerial photograph and claims that it shows
that no road existed before 1980.10
At trial, Michael testified that the road was completed in 1986, and offered an
aerial photograph, Exhibit 32, which he claimed did not show the road as of 1980. But
Edward testified that he and Michael shared the expense of hiring a construction
company to complete work on the road in 1979, and offered family pictures taken during
the project, as well as various written records. Edward also testified that the road was
visible on Exhibit 32, and identified its location in relation to a dock and a trailer as they
existed on the property in 1979. Because we defer to the trial court's assessment of
credibility and resolution of this conflicting testimony, Michael's challenge to finding 36
fails.
Michael also challenges the trial court's conclusions regarding the existence of
the implied easements. An easement may be implied from prior use based on the
following three elements: "(1) unity of title and subsequent separation by grant of the
dominant estate; (2) apparent and continuous user; and (3) the easement must be
reasonably necessary to the proper enjoyment ofthe dominant estate."11 But unity of
9Clerk's Papers at 512.
10 Appellant's Br. at 5.
11 MacMeekin v. Low Income Hous. Inst.. Inc.. 111 Wash. App. 188, 195, 45 P.3d
570 (2002).
No. 68416-7-1/5
title and subsequent separation is the only absolute requirement.12 The other two
elements are merely "aids to the construction in determining the cardinal
consideration—the presumed intention of the parties as disclosed by the extent and
character of the use, the nature of the property, and the relation of the separated parts
to each other."13
Michael challenges conclusion 1, which states, "Prior to 1980, Lots 2 and 3 were
owned by Edward and Bernice Goodman and thus there was unity of title."14 He also
challenges the reference in conclusion 6 to Goodman Lane.15 Referring to Exhibit 27,
Michael claims that Edward "did not own or convey Lot 1 or Lot 3 of Short Plat 61-89."16
But Exhibit 27, depicting Short Plat 61-89, is the subdivision into four lots of the original
Lot 1 Edward sold to provide for Ruth's expenses.17 Michael does not dispute the trial
court's findings that Edward owned the two lots at issue in the litigation, Lot 2, which
Edward conveyed to Michael in 1980, and Lot 3, which Edward retained, of Short Plat
55-80.18 And Michael does not challenge the trial court's finding describing Edward's
12 Roberts v. Smith, 41 Wash. App. 861, 865, 707 P.2d 143 (1985).
13 Adams v. Cullen. 44 Wash. 2d 502, 505-06, 268 P.2d 451 (1954).
14 Clerk's Papers at 518.
15 Conclusion 6 provides, "An easement implied from prior use has been
established by the Plaintiffs as to the roadway constructed in 1979, including Goodman
Lane and the roadway down to and across the lake front of Lot 2, and as to the septic
system installed as described on page 5 of Exhibit 20." Clerk's Papers at 519.
16 Appellant's Br. at 6.
17 Finding of Fact 17 states, "Lot 1, which bordered Campbell Lake Road, was
sold to provide income to Ruth Goodman. It was later subdivided into 4 lots (Exhibit
#27)." Clerk's Papers at 510.
18 Michael does not challenge Finding of Fact 41, which states in pertinent part,
"Ed and Bernice Goodman conveyed Lot 2 of Short Plat 55-80 to Mike and Mary
Goodman on September 8, 1980 by quit claim deed." Clerk's Papers at 512.
No. 68416-7-1/6
easement over the original Lot 1 as to Goodman Lane. "On plat map 55-80 is a 60-foot
wide right-of-way access from Campbell Lake Road along the west side of Lot 1, which
is now Goodman Lane and part ofthe shared driveway."19 Conclusions 1 and 6 are
properly supported by these unchallenged findings.
Next, Michael contends that the trial court erred by concluding that Edward's use
of the disputed roadway and septic system was continuous before 1980 because he did
not build his home or reside on Lot 3 until 1991. But in unchallenged findings, the trial
court found that Edward put a travel trailer on Lot 3 before conveying Lot 2 to Michael in
1980, and continuously maintained and used the shared roadway to access the trailer
and the beachfront to work on the property and for recreation.20 As to the septic
system, Michael has not challenged the trial court's findings that Michael knew about
the septic system when Edward installed it in 1979, and that Edward connected the
septic system to his trailer in 1982 and his house in 1991, and used it continuously until
it was destroyed in 2010.21 These findings support the trial court's conclusion regarding
continuous use.
Michael also challenges the trial court's conclusion regarding reasonable
necessity, arguing that Edward failed to present evidence of relative costs of
substitutes. Absolute necessity is not required to establish an implied easement.22
"The test of necessity is whether the party claiming the right can, at reasonable cost, on
19 Finding of Fact 23; Clerk's Papers at 510.
20 Findings of Fact 37 and 64; Clerk's Papers at 512, 515.
21 Findings of Fact 73 and 80; Clerk's Papers at 516-17.
22 Evich v. Kovacevich, 33 Wash. 2d 151, 157-58, 204 P.2d 839 (1949).
No. 68416-7-1/7
his own estate, and without trespassing on his neighbors, create a substitute."23
Although Edward did not submit cost estimates and the trial court did not make findings
regarding costs of substitutes, Michael does not challenge the following findings: (1) the
topography of Lot 3, including the hill and a bog prevents vehicle access from Lot 4;24
(2) "There is no other practical or feasible access for vehicles or pedestrians to Lot 3
from a public road other than the shared driveway;"25 (3) Lot 3 contains a single natural
building site on top ofa rock;26 (4) Edward installed his septic system on Lot 2 because
"Lot 3 did not perc";27 and (5) although Edward has installed an alternative system on
Lot 3, he is "required by the County" to maintain the Lot 2 location "as a reserve drain
field."28 These findings support the trial court's conclusion that Edward's uses of Lot 2
are reasonably necessary. In sum, Michael fails to demonstrate error in the trial court's
determination regarding the existence of implied easements serving Lot 3 for use of the
driveway and septic system on Lot 2.29
23 Bays v. Haven, 55 Wash. App. 324, 329, 777 P.2d 562 (1989).
24 Findings of Fact 48-51; Clerk's Papers at 513.
25 Finding of Fact 52; Clerk's Papers at 514.
26 Findings of Fact 53 and 70; Clerk's Papers at 514-15.
27 Finding of Fact 70; Clerk's Papers at 515.
28 Finding of Fact 83; Clerk's Papers at 517.
29 Without relevant authority or compelling argument, Michael claims that the
Shoreline Management Act precludes the trial court from finding an implied easement in
this case. In the absence of meaningful authority, Michael does not establish grounds
for any relief based on the Shoreline Management Act. Cowiche Canyon Conservancy
v. Boslev. 118 Wash. 2d 801, 809, 828 P.2d 549 (1992) (court need not address
arguments unsupported by relevant authority).
No. 68416-7-1/8
Edward requests an award of attorney fees and expenses for a frivolous
appeal.30 An appeal is frivolous "if the appellate court is convinced that the appeal
presents no debatable issues upon which reasonable minds could differ and is so
lacking in merit that there is no possibility of reversal."31 Given Michael's failure to
challenge all but one of the trial court's careful and comprehensive findings of fact and
the lack of relevant authority or coherent argument to support his claims regarding the
trial court's conclusions, that standard is satisfied here.
Affirmed. Edward is awarded attorney fees subject to compliance with
RAP 18.1(d).
WE CONCUR:
/S&/ 6^1
30 RAP 18.9(a).
31 In re Marriage of Foley. 84 Wash. App. 839, 847, 930 P.2d 929 (1997).
8