Karla Eash v. Robert J. Russell ( 2013 )

FILED
DEC 24,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KARLAEASH, )
) No. 31059-1-111
Appellant, )
)
v. )
)
ROBERT 1. RUSSELL, an unmarried ) UNPUBLISHED OPINION
person and KATHERINE BACHMAN )
a.k.a. KATHERINE RUSSELL, and )
unmarried person, )
)
Respondent. )
KORSMO, C.J. - This appeal from a preliminary injunction ruling involves a
dispute between neighbors over watering a garden near the property line. We affIrm and
remand for trial.
FACTS
Appellant Karla Eash and respondents Robert Russell and Katherine Bachman are
neighbors. Respondents have a flower garden on the eastern boundary of their property
adjoining Ms. Eash's land. Ms. Eash has a fence on her side ofthe property line adjacent
to the garden area.
No. 31059-I-III
Eash v. Russell
Respondents water their plants and have placed a drip line on the side of the fence
facing their property. The watering of the area results in spray hitting the wooden
supports for the fence and also crossing the property line. Water also occasionally pools
on Ms. Eash's property.
Ms. Eash filed suit and noted a motion for a preliminary injunction to stop the
respondents from trespassing in person or by water. The court heard the matter 19 days
later. After taking testimony and hearing argument, the court entered an "Order Granting
Temporary Injunction." It enjoined the respondents pendente lite from "trespass or
entering upon the property of the plaintiff either in person or by flooding plaintiffs land
to the extent water pools on that land."
Ms. Eash then appealed to this court.
ANALYSIS
Appellant argues that the court heard evidence and converted the preliminary
injunction hearing into a trial on the merits, therefore entitling her to all of the requested
relief from trespass. Since we do not believe the court decided the case on the merits, we
reject Ms. Eash' s argument and affirm.
An order granting a preliminary injunction is reviewed for abuse of discretion.
Rabon v. City o/Seattle, 135 Wn.2d 278,285,957 P.2d621 (1998). The same standard
applies to a permanent injunction. City 0/ Bremerton v. Sesko, 100 Wash. App. 158, 995
P.2d 1257 (2000). Discretion is abused when it is exercised on untenable grounds or for
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No. 31059-1-III
Eash v. Russell
untenable reasons. Federal Way Family Physicians, Inc. v. Tacoma Stands Up for Life,
106 Wn.2d 261,264, 721 P.2d 946 (1986); State ex rei. Carroll v. Junker, 79 Wash. 2d 12,
26,482 P.2d 775 (1971).
The primary purpose of a preliminary injunction is to preserve the status quo until
such time that a trial on the merits can take place. State ex rei. Pay Less Drug Stores v.
Sutton, 2 Wash. 2d 523, 98 P.2d 680 (1940). Generally, the party seeking a preliminary
injunction must make the same showing on the merits as would be required for a
permanent injunction. See, e.g., Rabon, 135 Wash. 2d at 284. These include, showing "a
clear legal or equitable right, that there is a well-grounded fear of immediate invasion of
that right, and that the acts complained of have or will result in actual and substantial
injury." Id. at 284. Because the purpose of a preliminary injunction is to preserve the
status quo, "a preliminary injunction should not give the parties the full relief sought on
the merits of the action." McLean v. Smith, 4 Wn. App. 394,399,482 P.2d 798 (1971).
Ms. Eash argues that the court converted the preliminary injunction into a
permanent one by hearing the case on the merits. We disagree. A court is permitted to
take evidence at a preliminary injunction hearing and sometimes must do so in order to
determine whether the party has suffered actual or substantial injury. Tyler Pipe Indus. v.
Dep'tofRevenue, 96 Wash. 2d 785, 794, 638 P.2d 1213 (1982). However, when
conducting a preliminary injunction hearing, the court must not determine the ultimate
merits of the claim. Rabon, 135 Wash. 2d at 285.
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Eash v. Russell
Merely taking evidence does not convert a preliminary hearing into a final
hearing. Instead, we must look to the court's intent. Here, the trial court clearly intended
its ruling to be a preliminary injunction. The order itself identifies the relief granted as a
"Temporary Injunction." The order itself refers to the injunction as pendente lite or
"pending litigation." The court's letter to the parties indicates that it is granting a
preliminary injunction in part. The transcript of the June 29 hearing-two days after the
preliminary injunction hearing-expressly reminded the parties that the ruling was
"designed to prevent irreparable harm between now and the date of the trial." Report of
Proceedings (RP) (June 29, 2012) at 40. The court went on to advise the parties that all
of the issues eventually would "be decided at trial." Id.
The authorities Ms. Eash relies upon do not require a different result. In Rabon,
the court was primarily concerned with the legal questions of preemption and conflict of
laws. The court needed to review the facts, but it did not determine them as the action
was brought after an administrative appeal process had determined the facts of the case.
Rabon, 135 Wash. 2d at 283-84. Nothing in Rabon supports the proposition that taking
evidence at a preliminary hearing results in a trial on the merits.
Ms. Eash also argues that the court clearly erred by not ordering the removal of the
hose from her fence. If this had been a trial on the merits resulting in a permanent
injunction, we would agree. Even if de minimis, the act is a clear trespass presuming that
the fence is fully on Ms. Eash's property. The court did not remedy that condition
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Eash v. Russell
pending trial, however, because Ms. Eash did not establish that she was being
substantially injured by the action. After trial, however, the trespass-if such it be-
would be remediable. At this point, it is not.
The trial court did not abuse its discretion in granting only partial equitable relief
pending the expected trial on the merits. It had tenable grounds for denying reliefwhere
appellant had not established a significant harm would occur before trial.
The preliminary injunction is affirmed and the case is remanded for trial.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo, CJ.
WE CONCUR:
Kulik,1.
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