Philip Plattner v. Robert Bonnett And Janet Bonnett ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PHILIP BRENT PLATTNER, as Trustee No. 43938 -7 -II
of the PHILIP BRENT PLATTNER TRUST,
Appellant,
v.
ROBERT K. BONNETT and JANET A. UNPUBLISHED OPINION
BONNETT, husband and wife,
Respondents.
WORSWICK, C. J. — Philip Plattner appeals from the judgment entered in a property
dispute with his neighbors, Robert and Janet Bonnett ( collectively, Bonnett). Plattner argues that
the trial court erred by ( 1) ruling that a recorded agreement completely modified the dimensions
of an express easement, ( 2) failing to find that Bonnett created a nuisance in fact, (3) failing to
award Plattner treble damages and attorney fees under RCW 4.24. 630, and (4) violating his right
to due process by enjoining him to remove a gate and its posts. We disagree, deny Plattner' s
request for attorney fees on appeal, and affirm.
No. 43938 -7 -II
FACTS
John McCrory owned a piece of land adjacent to South Island Drive on Harstine Island.
In 1993, he divided it into two properties: the Plattner Property and the Bonnett Property.
McCrory also recorded a short plat showing the creation of a 30- foot - ide access, drainage, and
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utility easement benefitting the Plattner Property and burdening the Bonnett Property. An
unpaved, 8- foot -
wide road sat within the easement.
In 2004, McCrory sold the Bonnett Property to Bonnett. A Road Relocation Agreement
was attached to the recorded statutory warranty deed. The Road Relocation Agreement
contemplated the construction, by June 15, 2004, of a new road, part of which would be located
outside of the original easement. The Road Relocation Agreement further stated that "[ t]he
relocated easement shall equal the `` as built' dimensions and location of the road to be
constructed." Clerk' s Papers ( CP) at 381. The new road was in fact built by June 15, 2004.
Unlike the unpaved road, the new, paved road was 10 to 12 feet wide, and it partially sat on the
Plattner Property.
In 2006, McCrory sold the Plattner Property to Plattner. 1 The statutory warranty deed
contained nearly identical language about the relocated easement.
Plattner and Bonnett had a long series of disputes. After Plattner objected to Bonnett' s
installation of metal fence posts along both sides of the paved road, Bonnett removed the posts
1 Plattner purchased the property as trustee for the Philip Brent Plattner Trust. We refer to the
trust and the individual collectively as Plattner.
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along one side. In addition, Plattner repeatedly complained to Bonnett about the parking of a
trailer that encroached onto his easement.
Plattner installed a farm gate across the road near its entrance onto South Island Drive.
Bonnett complained that the need to open and close the gate made it difficult to access his house.
Plattner also installed a motion -
activated video camera that captured images of the road
and the Bonnett Property. Based on video footage, Plattner accused Bonnett of intentionally
damaging the camera.
Plattner commenced this case, seeking money damages, injunctive relief, and declaratory
relief. Plattner' s second amended complaint sought to quiet title to a 30- foot -
wide easement and
additionally asserted claims including interference with his right of easement, trespass, and
nuisance.
Bonnett counterclaimed, seeking injunctive and declaratory relief. Among other things,
Bonnett claimed that Plattner' s farm gate blocked the road and he requested its removal.
After a bench trial, the trial court determined that the Road Relocation Agreement
modified the entire express easement, so that the easement' s dimensions were coextensive with
those of the paved road. The trial court further determined that each party had interfered with the
other' s right of easement. Accordingly, the trial court ordered Bonnett to remove the split -
rail
fence and the remaining metal fence posts, and it ordered Plattner to remove his farm gate and its
posts.
No. 43938- 7- 11
In addition, the trial court determined that Robert Bonnett " inadvertently damaged"
Plattner' s video camera and awarded $ 309 in damages. CP at 73. But the trial court denied
Plattner' s claim for treble damages and attorney fees under RCW 4. 24. 630( 1), as well as
Plattner' s nuisance in fact claim.
Plattner appeals.
ANALYSIS
When reviewing a trial court' s decision following a bench trial, we determine whether
substantial evidence supports the challenged findings of fact and, if so, whether the findings of
fact support the of
conclusions . law. Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P. 2d 451986). Substantial evidence is a sufficient quantity of evidence to persuade a fair -
minded,
rational person that the finding is true. Bering v. Share, 106 Wn.2d 212, 220, 721 P. 2d 9181986). Unchallenged findings of fact are verities on appeal. In re Estate ofJones, 152 Wn.2d
1, 8, 93 P. 3d 147 ( 2004). We review conclusions of law de novo. Sunnyside Valley Irrigation
Dist. v. Dickie, 1.49 Wn.2d 8.73, 880, 73 P. 3d 369 ( 2003).
I. MODIFICATION OF THE EASEMENT
Plattner first argues that the trial court erroneously determined that the Road Relocation
Agreement modified the entire easement by making it coextensive with the paved road. We
disagree.
The interpretation of an instrument conveying an easement is a mixed question of law
and fact. Sunnyside, 149 Wn.2d at 880. The intention of the parties to the instrument is a
No. 43938 -7 -II
question of fact, but the legal consequence of their intention is a question of law. Sunnyside, 149
Wn.2d at 880.
When interpreting an instrument conveying an easement, the court' s duty is to give effect
to the parties' intention. Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P. 2d 1308 ( 1981). This
intention is derived from the instrument as a whole. Zobrist, 95 Wn.2d at 560. A court will
consider extrinsic evidence of the parties' intent only if the instrument is ambiguous. Sunnyside,
149 Wn.2d at 880. An instrument is ambiguous if its language is uncertain or more than one
interpretation is reasonable. Jensen v. Lake Jane Estates, 165 Wn. App. 100, 105, 267 P. 3d 4352011).
A. Challenged Finding ofFact
Plattner challenges the trial court' s finding of fact 15, asserting that it determined " the
easement did not need to be 30 [ feet] wide." Br. of Appellant at 16. Plattner claims that the
easement is 30 feet wide regardless of the road' s width; thus he argues that finding of fact 15 is
erroneous "[ a] s_amatter of law." Br. of Appellant at 22. But Plattner mischaracterizes the trial
court' s finding.
On its face, finding of fact 15 is a factual finding about the width of the road, not that of
the easement. Finding of fact 15 states in its entirety, " The road does not need to be 30 feet wide
in the curved area or at any point." CP at 72. Because Plattner fails to argue that finding of fact
15 is erroneous as a matter offact, we do not consider Plattner' s factual challenge further. See
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
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No. 43938 -7 -II
B. Conclusions ofLaw
Plattner claims that the Road Relocation Agreement modified only a portion of the
easement and that the easement' s other portions remained 30 feet wide under the original short
plat' s terms. Again, we disagree.
The parties do not dispute the effect of the original short plat. The original short plat
created a curving, 30- foot - ide easement across the Bonnett Property for access, drainage, and
w
utility purposes. But the parties dispute the effect of the Road Relocation Agreement.
In relevant part, the Road Relocation Agreement provided:
The Grantor and the Grantee hereby agree that due to the sight distance
requirements of the South Island Drive County Road and the existing access
easement to [ the Plattner Property and the Bonnett Property], said access
easement ... shall be relocated in a Northwesterly direction. This easement
relocation will be completed by June 15, 2004. The relocated easement shall
equal the " as built" dimensions and location of the road to be constructed and in
use by June 15, 2004. At all times this road shall provide access to both [ the
Plattner Property and the Bonnett Property], and at all times shall have a sufficient
road bed to allow for fire and other emergency vehicles to access both lots.
CP_ 381 ( emphasis added).
at
The parties agree that the Road Relocation Agreement was unambiguous, yet they
dispute its meaning. Plattner claims that the Road Relocation Agreement altered the road
easement only to the extent that the newly constructed road was outside the easement described
on the original short plat. In contrast, Bonnett claims that the Road Relocation Agreement
modified the entire easement so that it was coextensive with the newly constructed road.
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No. 43938 -7 -II
We hold that the Road Relocation Agreement is unambiguous because only one
2
interpretation is reasonable. See Jensen, 165 Wn. App. at 105. Nothing in the Road Relocation
Agreement itself suggests that only a portion of the easement was affected. By providing that
t] he relocated easement shall equal the `` as built' dimensions and location of the road to be
constructed and in use by June 15, 2004," the Road Relocation Agreement relocated the entire
easement. CP at 381.
Arguing to the contrary, Plattner cites 810 Properties v. Jump, 141 Wn. App. 688, 170
P. 3d 1209 ( 2007). But this case is unavailing. In Jump, two deeds specifically delineated the
width of an express easement, which was wider than the road it contained. 141 Wn. App. at 699.
The burdened landowner sought to limit the easement' s width to the actual width of the road,
claiming that the portions of the easement outside the road were unused. 141 Wn. App. at 699.
But the court rejected this argument as meritless, holding that the deeds determined the
dimensions of the express easement. 141 Wn. App. at 699.
Like the deeds in Jump, which determined the express easement' s width, the Road
Relocation Agreement determined the width of the express easement here. Plattner' s argument
3
fails.
2 Because the Road Relocation Agreement is unambiguous, we do not consider each party' s
alternative argument that extrinsic evidence supports its interpretation.
3 In a footnote, Plattner further asks us to amend the trial court' s ruling to clarify the location of
an implied easement. We decline to do so.
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No. 43938- 7- 11
II. NUISANCE IN FACT
Plattner next argues that the trial court erred by determining that Bonnett did not create a
nuisance in fact. We disagree.
A. Challenged Findings ofFact
Plattner further assigns error to two findings of fact that are relevant to his nuisance in
fact claim: findings 16 and 26. We reject these assignments of error because substantial
evidence supports both findings.
1. Finding ofFact 16
Finding of fact 16 stated in its entirety, " The Bonnetts installed metal fence posts
alongside the road. Some of the fence posts still remain. These posts do not meet the criteria for
a nuisance." CP at 72. Substantial evidence supports this finding. First, Robert Bonnett testified
that he installed the metal fence posts along the sides of the road and that the posts remained on
one side.
Second, the record supports the trial court' s finding that the metal fence posts did not
meet all the criteria of a nuisance in fact.4 A nuisance in fact exists if a person uses his property
in a manner that unreasonably interferes with another owner' s use and enjoyment of real
property. Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P. 2d 877 ( 1998). The record here contains
substantial evidence that installation of the metal fence posts was not unreasonable. Specifically,
4
The existence of a nuisance in fact is a question of fact. Wash. Chocolate Co. v. Kent, 28
Wn.2d 448, 454, 183 P. 2d 514 ( 1947); see also WILLIAM B. STOEBUCK & JOHN W. WEAVER, 17
WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW, § 10. 3, at 657 ( 2d ed. 2004)
W]hether a given activity is a nuisance is a heavily laden question of fact. ").
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No. 43938 -7 -II
Robert Bonnett testified that he installed the metal fence posts in an area he believed was outside
the easement to protect the roadway from further damage by heavy trucks accessing the Plattner
Property. Bonnett' s belief was correct, and Plattner' s challenge to this finding of fact fails.
2. Finding ofFact 26
Next, finding of fact 26 states in its entirety, " Any obstruction of the road easement by
the Bonnetts was temporary." CP at 74. The record shows that Bonnett parked a trailer, which
held a boat, on his property, and Plattner claimed that the trailer and boat encroached onto the
easement. But Bonnett eventually sold the boat because Plattner complained so often about it.
In addition, a flatbed truck blocked Plattner' s access while it was parked on the road to haul
away a shed that Bonnett sold.5 Robert Bonnett testified that the flatbed truck' s driver moved
forward so that Plattner could pass, and he did. Thus substantial evidence also supports the trial
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court' s finding that any obstruction was temporary.
Plattner appears to claim that the easement road was also obstructed by Bonnett' s
installation of metal fence posts and a split -
rail fence. But both were installed outside the road.
Because the road and the easement were coextensive, the metal fence posts and the split - ail
r
5 Bonnett testified that, for about one month, the shed sat adjacent to the road; he moved the shed
at Plattner' s request. Because the shed was not within the road, it did not obstruct the actual
easement.
6 Plattner further asserts that whether the roadway obstructions were temporary is immaterial to
whether they were actionable nuisances. Plattner is correct. A temporary condition can amount
to an actionable nuisance. See Miotke v. City ofSpokane, 101 Wn.2d 307, 332, 678 P. 2d 8031984) ( holding that the temporary nature of a nuisance affects the measure of damages).
Regardless, in concluding that Bonnett did not create a nuisance, the trial court did not rely on its
finding that the obstructions were merely temporary.
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No. 43938 -7 -II
fence were not " obstruction[ s] of the road easement." CP at 74. Plattner' s challenge to this
finding of fact fails.
B. Conclusions ofLaw
Plattner claims that the trial court erred by concluding that Bonnett did not create a
nuisance in fact. We disagree.
A nuisance is a substantial and unreasonable interference with the use and enjoyment of
another person' s land. Grundy v. Thurston County, 155 Wn. 2d 1, 6, 117 P. 3d 1089 ( 2005); see
RCW 7. 48. 010. The trial court' s conclusion that Bonnett did not create a nuisance is supported
by its findings because the trial court did not find that Bonnett acted unreasonably. In declining
to make that finding, the trial court considered Bonnett' s actions in installing the metal fence
posts, installing the split - ail fence, and planting trees along the property line.
r
Plattner claims that the trial court' s conclusion that Bonnett did not create a nuisance is
inconsistent with its order requiring Bonnett to remove the remaining metal fence posts and the
split - ail fence. But Plattner is mistaken. The trial court ordered removal of the metal fence
r
posts and split -rail fence because they interfered with Plattner' s right of easement. Even if
Bonnett interfered with the use and enjoyment of Plattner' s property, the interference is not a
nuisance in fact unless it was unreasonable. See Grundy, 155 Wn.2d at 6. The trial court' s
factual findings support its legal conclusion that Plattner did not establish a nuisance claim.
7 Because Plattner' s nuisance claim fails, the trial court did not err by failing to award damages
and reasonable attorney fees for the nuisance claim. Thus we decline to address Plattner' s
assertion that RCW 7. 48. 010 authorizes an award of reasonable attorney fees.
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No. 43938 -7 -II
III. STATUTORY TRESPASS
Plattner further argues that the trial court erred by ( 1) finding that Bonnett did not act
intentionally when injuring Plattner' s video camera and ( 2) failing to award treble damages and
attorney fees under RCW 4. 24. 630( 1). We disagree.
A. Challenged Finding ofFact
In finding of fact 23, the trial court determined that Robert Bonnett damaged a video
camera on the Plattner Property, but that the record failed to show by a preponderance of the
evidence that Bonnett did so intentionally. Plattner contends that " substantial evidence
contradicts the trial court' s findings" because the trial court failed to make the finding Plattner
promoted as to Bonnett' s intent. Br. of Appellant at 30. This argument lacks merit.
We do not retry the facts on appeal, weigh conflicting evidence, or judge the credibility
of witnesses. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P. 2d 1234 ( 1996); In re
Marriage of Thomas, 63 Wn. App. 658, 660, 821 P. 2d 1227 ( 1991). Instead, when the trial
court' s factual_findings have the support of substantial evidence, w_ accept those findings even
we
though we may have resolved the factual dispute differently. Sunnyside, 149 Wn.2d at 879 -80.
Plattner testified that his video camera captured images showing that Bonnett used a pair
of long -handled pruners to strike the camera twice. According to Plattner, Bonnett " wanted to
lens 1 Report Proceedings at 91. As the trier of
apparently try to destroy the of my camera." of
fact, the trial court had no obligation to believe this testimony. Scanlan v. Smith, 66 Wn.2d 601,
603 -04, 404 P. 2d 776 ( 1965). Plattner' s argument fails.
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No. 43938 -7 -II
B. Conclusions ofLaw
RCW 4.24. 630( 1) authorizes an award of treble damages, plus reasonable attorney fees
and costs, payable by any " person who goes onto the land of another and ... wrongfully injures
personal property or improvements to real estate on the land." See Clipse v. Michels Pipeline
Constr., Inc., 154 Wn. App. 573, 576 -77, 225 P. 3d 492 ( 2010). RCW 4. 24. 630( 1) further states
that " a person acts `` wrongfully' if the person intentionally and unreasonably commits the act or
acts while knowing, or having reason to know, that he or she lacks authorization to so act." See
Clipse, 154 Wn. App. at 580 ( a " wrongful" act must have been intentional).
Because Bonnett did not damage Plattner' s video camera intentionally, Bonnett did not
wrongfully injure Plattner' s personal property. Therefore RCW 4. 24. 630( 1) cannot support an
award of treble damages or reasonable attorney fees and costs.
IV. DUE PROCESS
Lastly, Plattner argues that the trial court violated his constitutional right to due process
of law by enjoining him to remove " his farm gate, including the southernmost post." CP at 76.
This argument lacks merit.
Citing Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 314, 70 S. Ct.
652, 94 L. Ed. 2d 865 ( 1950), Plattner claims that he was denied an opportunity to be heard
because Bonnett' s counterclaim alleged that Plattner' s gate —but not his gateposts— unlawfully
8
interfered with access to his driveway. But Mullane merely requires that a party receive notice
8
Plattner does not contest the trial court' s conclusion that his farm gate interfered with Bonnett' s
easement rights. He also does not deny that he was served with the counterclaim.
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No. 43938- 7- 11
reasonably calculated under the circumstances to apprise the party of the nature of the claims
against him. 339 U. S. at 314. Here, the allegations in Bonnett' s counterclaim were reasonably
calculated to apprise Plattner that his gate, including its posts, unlawfully interfered with
Bonnett' s property rights. Plattner' s claim fails.
ATTORNEY FEES ON APPEAL
Citing RCW 7. 48. 010 and RCW 4. 24. 630( 1), Plattner requests reasonable attorney fees
and costs on appeal. Under RAP 18. 1, the prevailing party is entitled to attorney fees on appeal
when applicable law authorizes the award. See McGuire v. Bates, 169 Wn.2d 185, 191, 234 P. 3d
205 ( 2010). We deny the request because Plattner is not the prevailing party.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06.040, it is so ordered.
We concur:
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