Mark Hanna, et ux v. Allan Margitan, et ux , 193 Wash. App. 596 ( 2016 )

YH``_¢§ED
Agat"‘§§ Z& 2;@%
§n the Ot``t``ice o§``tbe C§er§»: of Court
WA State Coiurt of A§)pea§s, i}§visio)t iii
IN TI~IE COURT O``F APPEALS OF THE STATE ()F WASHINGTON
DIVISION THREE
AND JENNIFER HANNA, No. 33159-8-111
husband and Wife,
Appeiiants,
V.
ALLAN AND GIN``A MARGITAN,
husband and Wife, and INLANI) POWER
AND LIGI_~I"I`` CO., HAROLD L. AND
PATRICIA CROWSTON, husband and
wtf@, DAN R. BOND, D_M. ana A_
BOND, RYKEN LIVING 'I``RUST,
STEVE and SHANNON MOSER,
husband and wit``e, DREW BOND and
AVISTA CORPORATION.
PUBLISHED OPINION
\_/\_/\../\~/\_/\../``-_/\../\,/\_/\../\_/\_/\_/\_/\../``~_/\_»/
Respondents.
LAWR'ENCI“;-BE°RREY, J . m Mark and jennifer Hanna (the Hannas) appeal the trial
court’s surnn‘rary judgment order and award of attorney fees and costs to respondents
The trial court ruied that respondents easements over the Hannas’ lot were vaiid, and
awarded respondents their reasonabie attorney fees and costs for defending what it found
to be a frivolous action The Hannas eontend: (1) easements that preexist a short plat, but
No. 33l59-8-lll``
Harma v. Mczrgz'tczn
which are not depicted thereon, are extinguished by operation of law; (2) because such
easements are extinguished they cannot he revived because the Land Use Petition Act
(LUPA), chapter 36.7()€ RCW, decisions are final if not tinieiy appealed; (3) after a short
plat is recorded, one cannot add a private easement without formally ainend.irig the short
plat; (4) the two 2002 private road easements in favor of Atlan and Gina Margitan (the
l\/_[argitaiis) are ineffective because they lack a present intent to convey; (5) the Margitans
violated the short plat by building their house outside the building area depicted on the
short plat; and (6) the trial court abused its discretion in awarding the respondents
attorney fees and costs under RCW 4.84.l85. With the exception of portions of their
sixth argurnent, we disagree with the Hannas’ contentions We conclude that the H_annas’
claims against the Margitans and inland Power & Light were not frivolous, and the trial
court abused its discretion in awarding those parties attorney fees and costs under
RCW 4.84. l 85. in ali other respects, we affirm We deny the respondents’ requests for
attorney fees on appeal
FACTS
Prior to the short subdivision that created Short Plat 1227-0(}, multiple easements
were recorded that affected the property later owned by the Hannas. For i_nstance, Avista
Cor oratioii’s redecessor recorded niulti le water stora e and water overfiow easements
l3 l3 §§
``No. 33159-8-1{1
Hanno v. Margz``tan
also Willz'ams, 54 Wn. App. at 634 (adverse use by servient estate); see also I{eg v.
Aildrecige, 157 Wit.fld 154, i6l, l37 P.'_’)d 9 (2006) (abandoitnient); see also Rao'ovz``ch v,
Sa)nadNuz/'ioz.‘, i()fi Wn. App. 30{), 305, 16 P.Sd 687 (2()01) (rnerger).
Th_e Hannas fail to cite any authority to support their position that the oniissi'oii of
an easement in a short plat, by itself, extinguishes the easement We find no authority
either. The preexisting easements that the Hannas argue were extinguished are express
easements that have been properly recorded Moreover, had the legislature intended that
a short plat omission could extinguish an easernent, it would have required all easement
holders to receive actual notice of a subdivision application so they could protect their
interests before an unintentional deprivation occurred Instead, only nearby property
owners are required actual notice before a subdivision of land. RCW 58.17.090(])('0).
We hold that easements omitted froin a short plat are not, soieiy by their omission,
extinguished. We, therefore, conclude that the trial court did not err when it confirmed
the validity of the easements omitted from the short piat.
2. Creation of easements after property is subdivided
The Hannas also argue that once a short plat is recorded, a party cannot alter the
subdivision by granting a private easement without formally arnending the short piat. in
support of their argument, they cite RCW 58.17.215 and M.K._K.I.
il
No. 33l59»8~lll
Ha)/ina v. Margz``tcm
RCW 58. l7.2l 5 provides in relevant part:
Alteration of subdivision_i’rocedure. When any person is interested in
the alteration ot`` any subdivision or the altering ot`` any portion thereot``. . . _
that person shall subinit an application to request the alteration to the
legislative authority of the city, town, or county where the subdivision is
located . . .
At``ter [proper notice, any required hearing, and] approval of the
alteration, the legislative body shall order the applicant to produce a revised
drawing ot`` the approved alteration of the final plat or short plat, which after
signature of the legislative authority, shall be filed with the county auditor
to become thc lawful plat ot the property
ln M.K.K.[, a landowner atteinpted to extinguish easements that were created in a
short plat, but the landowner failed to comply with the l``orinal requirements t``or amending
the short plat. M.K.KI., 135 Wn. App. at 650-53. We held that easements depicted in a
short plat could not be extinguished without t``orinally amending the short plat. Icz’. at 657~
6(). To permit one to informally change short plat depictions risks an illegal use that
otherwise would be caught by an agency charged with reviewing the short plat. Even
more obvious, to permit one to allow a use expressly prohibited by the notes contained on
the short plat results in an illegal use We therefore hold that changes to something
depicted on a short plat, or changes that permit something expressly prohibited by the
notes on the short plat, are ineffective unless the plat is formally amended as provided l:``or
inRCW 58.§'7.215.
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No. 33 159-8-111
Hcmna v. Margz``rczn
Here, nothing in the short ptat or the notes prohibited the owner of Parcel 2 or
Parcel 3 t``rom conveying an easement to Parcel l along the existing s\v_itchl_')acl-; road.
i\/loreover, nothing in the short plat or the notes prohibited the owner of Parcel 2 t``irorn
conveying a utility easement. Because there was no risk that any of these easements
created an illegal use *withiii the short piat, there is no need to require that the short plat is
formally arnended. We conclude that the trial court did not err when it confirmed the
validity of these three easements
C. Com)eyance ofrhe two 2002 easemenfsj”rorn Ms. Bond to the Margz``£ans
The Hannas also argue that the two easements, recorded on April 17, 2002, from
Ms. Bond to the l\/iargitaiis are ineffective because they fail to convey a present interest in
property in support of their arguinent, they cite Zurzz``rzo v. Raj``eii)skz``, i-fiO Wn. App. 215,
165 I_’.3d 57 (2007). in Zurzz``no, the purported easements were entitled "Private Road &
Utility Easernent[s]." ]a'. at 222. The documents stated, "‘This agreement made and
entered into [date], by the undersigned property owner, who is granting the easement
across their property.’ " Id. (eiiiphasis added). The documents t``urther state, " ‘ Whereas
this easement was created as a niediuin of ingress and egress for the benelit of . . . .’ " Id.
This court held that the above language failed to convey an easement "because the words
do not demonstrate a present intent to grant . . . an easement." Id.
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No. 33159-8-111
Hanm:r v. Margz``lan
Here, the purported easements are entitied "Private Road Easernent." CP at 7``10,
713. The documents state, "THI_S AGREEl\/IENT made and entered into [date], by the
13
undersigned property owners, who are granting the easement across their property . . . .
(CP at 7l0, 7l3 (einphasis added). The documents further state_, "WHER"EAS this
easement was created as a inediunr of ingress and egress for the benefit of . . . ." CP at
71(), 7l3 (einphasis added). 'fhe Zunz``no language and the language here is identical in all
material respects
The Margitans attempt to distinguish Zzmz``no on the basis of background facts
outside of the wording of the Zanz``no easenients. Although the background facts in
Zunz``no indicate that the "easeiiient" grantor had no present intent to grant the easerrient,
the Zuaino court did not base its decision on these extrinsic facts Rather, the Zuai``no
court based its decision on the Iangnage used in the "easernent" deeds.
We therefore must decide whether to follow this holding in Zunino or to overrule
_it. Although the grant language used in the easements before us is awkward and
imprecise, we rnttst be guided by the overarching rule for construing easerraents: "Courts
interpret easement grants to give effect to the parties’ original iiitent." Srzyder v. I"Iaynes,
152 Wash. App. 774, 779, 217 P.3d 787 (2009) (citing Brown v. Vc)ss, 105 Wii.Zd 366, 371,
7§5 P.Qd 514 (1936)). "What the original parties intended is a question of fact and the
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No. 33l59~S~ifl
Hanna v. Mctrg.itan
legal consequence of that intent is a question of law."`` Sunnysr``de Vailey Irrig. Dz``sf'. v.
Dz``ckz``e, 149 Wn.Zd 87'3, 880, 73 P.Bd 369 (2003).
The intent of the original parties to an easement is determined from
the deed as a whole. lf the plain ianguage is niiambiguous, extrinsic
evidence will not be considered. lf ambiguity exists, extrinsic evidence is
allowed to show the intentions of the original parties, the circumstances of
the property when the easement was conveyed, and the practical
interpretation given the parties’ prior conduct or admissions
[d. (internal citations omi_tted).
Here, as in Zrmz')io, we have irnprecise, awkward language as to the present intent
to grant an easement: One sentence is phrased in the present tense, while another sentence
is phrased in the past tense. We afsc have two facts coming from extrinsic evidence
First, l\/ts. Bond, the easement grantor, had sold Parcel l to the l\/largitans 10 days before
executing the documents under consideration Second, the newly purchased l\/£argitan lot
was near a recreational lak_e, but without the easements conveyed, the Margitaris would
not have easy legal access to the lal120 P.3d 56 (2()05).
"l``he trial court correctiy granted the Margitans summary judgment on this issue.
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No. 33159-8-111
Hcznncz v. Mcirgz``tan_
E. i"he trial court’s award of attorney fees and costs pursuant to
_RCW 4.84. 185
Finally, the Hannas chailenge the triai court’s award oli`` attorney fees and costs to
the respondents under RCW 4.84.1 85, which allows attorney fees for defending against a
frivolous action. Specit``icaiiy, the i~riannas argue that their claims were not frivoious, and
the trial court entered insufficient findings
RCW 4.84.185 reads, in pertinent part,
in any civil ac'tion, the court . . . rnay, upon written findings by the judge
that the action, counterciairn, cross-ci_aim, third party claim, or defense was
frivolous and advanced without reasonable canse, require the nonprevailing
party to pay the prevaiiing party the reasonable expenses, including fees of
attorneys, incurred in opposing such action, counterclaiin, cross»claiin, third
party clairn, or defense
"A frivolous action is one that cannot be supported hy any rational argument on
the law or facts." Rhz``neharl' v. Searrle Tz``rnes, Inc., 59 Wash. App. 332, 340, 798 P.Zd i §55
(1990).
in E[Zer v. East Sprague Mol'ors & R. V. ’s, Inc., 159 Wash. App. 180, 194, 244 P.Bd
447 (2010), we noted that an action involving innltiple parties inay, consistent with
RCW 4.84.185, be frivolous as to one party, but not frivolous to aiiother:
within the context of the statute and given the purpose of RCW 4.84185,
the only reasonable reading of the statute is that a defendant drawn into a_n
action without reasonabie cause and subjected to claims against it that,
considered as a whoie, are frivoious, inay be awarded expenses under
£7
No. 33159~8~lll
Hariiia v. Margi``!ctn
RCW ¢l.$¢l. l 85, regardless of the merit of the plaintiffs claims against other
defendants
"'l.``lie decision to make an award of attorney’s fees under RCW 4.84.l85 is left to
the discretion of the trial court and will not be disturbed in the absence of a clear siiowing
of abuse." lilii``ne!'zczi"t, 59 Wn. App. at 339-40. Under such standard, this court considers
"whether the court’s conclusion was the product of an exercise of discretion that was
inani``festly unreasonable or based on untenable grounds or reasons." Ti'ger Oi``l Corp. v.
Dep’r ofLiceiisi'i/zg, 38 Wash. App. 925, 938, 946 P.Zd 1235 ({997). "lfthe trial court’s
ruling is based on an erroneous view of the law or involves application of an incorrect
legal analysis, it necessarily abuses its discretion.°’ Di``x v. ]CT Gigi)_, Iric., 160 Wn.Zcl 826,
833,161}°.3€11()16(20()'7).
RCW 4.84.185 specifically provides that a court may award expenses of suit ‘“upon
written findings by the judge that the action . . . was frivolous." "When the Washington
legislatureiinteiids to require that an explicit finding must be made for a court to act, it
says so." fn the Matrer c)fRcipi``d Seft[emeiirs, L.,fci., 189 Wash. App. 584, 605, 359 P.3d 823(2015). ln Nori‘h Coasr Eleci‘ri``c Compcmy v. Se!z``g, lf)ivision One stated,
before awarding attorney fees under RCW 4.84. l 85, the court must make
written findings that the lawsuit in its entirety is frivolous and advanced
without reasonable cause. Again, the court summarily found that Selig’s
counterclaims were frivolous and advanced without reasonable cause. lt
did not specify why the counterclaims were baseless Without some
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No. 33§59-8-111
fiat/ma v. Margz``z‘an
explanation, we are unable to determine whether the trial court abused its
discretion in granting attorney fees under this statute Therefore, we
remand with directions to reconsider the RCW 4.84.185 basis for the award
and to enter appropriate findings if the award is confirmed on that basis
136 Wash. App. 636, 650, 151 P.3d 211 (2007) (i``ootnote omitted).
Here, in the order grantin_g attorney fees and costs to Inland Power & Light, the
trial court specifically found that "the plaintiffs faiied to present any evidence to
substantiate that a land use decision occurred that affected inland Power and Light Co. or
any oft/fre other defenda//zrs.” CP at 1035 (eniphasis added). A_lthottgh the remaining
orders granting attorney fees and costs oniy contain the stock "frivoious and advanced
without reasonable cause" ianguage, the specific findings contained in inland Power &
Light’s order are sufficient to allow this court to determine if the triai court abused its
discretion.z
As we noted above, there was no authority for the Hannas’ argument that the
recording of a short plat extinguishes easements not depicted on the short piat. For this
reason, we conclude that the trial court did not abuse its discretion when finding the
2 Althongh there is soine dispute regarding whether the Hannas preserved the
sufficiency of the findings issue, the Haiinas moved for reconsideration on the grounds
that their claims were not frivolous The sufficiency of the findings issue is intertwined
in this issue because "[w]ithout some explanation, [this court is] unable to determine
whether the trial court abused its discretion in granting attorney fees under [RCW
4.84.185]." N. Coasf_l£``lec. Co,, 136 Wn. App. at 65().
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No. 33159-8-111
Hcrrma v. Mczrgz'lczn
Hannas’ actions against Avista and the switehbacl< road users were frivolous in their
entirety
Also as noted above, the Hannas’ argument that the 2002 Bond to l\/Iargitan private
road easements were ineffective was based on Zunmo, binding authority to the trial court.
We therefore reverse the trial court’s finding that the Hannas" action against the
l\/largitans was frivolous in its cntirety, and siinilarly vacate the award of fees and costs
under RCW 4.84.185_
We riext consider whether the award of attorney fees and costs under
RCW 4.84.185 to inland Power & Light was an abuse of discretion The Hannas’
RCW 58.17.215 argument has some statutory support RCW 58.17.215 requires an
alteration to a short plat to be made through a formal short plat amendment Adding an
easement that is not depicted on a short plat is arguably an "alteration.°’ Because the
l~lannas’ argument was supported by a rationale argument on the law and t``acts, we hold
that the trial court abused its discretion when awarding attorney fees and costs to lnland
Power & Light, and sinnilarly vacate the award of fees and costs under RCW 4.84.185.
F. Arrorney‘fees on appeal
l_\/lost of the respondents have requested an award of attorney fees under
RCW 4.84.l85 and/or RAP l8.9(a). Attorney fees for a frivolous appeal are available
20
No. 33 159»8~111
Hanncz v. Mctrgz``tan
affecting the property fn addition, a "switchbacl<” roa_d crosses the property, and Harold
and Patricia Crowston, Dan R. and Mary Ann Bond, Dan l\/l. Bond and Annette Bon_d,
Steve and Sh_annon_ l\/ioser, and the Ryi44 Wash. App. 690, 697, 723 P.Zd 483 (1986)
(RCW 4.84.135 "is not a basis for recovery of fees on appeal.").
Onl_y Avista and inland Power & Light request an award of attorney fees for a
frivolous appeal under _RAP i8.9(a).3 RAP l8.9(a) provides this court may require the
payment of fees by a party who files a frivolous appeal. "[A]n appeal is frivoious if it
raised no debatable issues on which reasonable minds might differ and it is so totally
devoid of rnerit that no reasonable possibility of reversal exists.” Prorect the Penz'nsula ’s
Fulure v. Cily ofPortAr/zgeles, l75 Wn. App. Z{)l_, 22(), 304 P.Sd 9l4 (2013). "All doubts
as to whether the appeal is frivolous should be resolved in favor of the appellant."
Advocatesfor Responsz``b!e Dev. v. W Wash. Growfh Mgmf. Hectrz``ngs Bd., 170 Wash. 2d
577, ssa 245 pad 764 (20:0).
3 Speciifrcally, Avista requests attorney fees and costs pursuant to RAP l$§.l,
RAP 18.9, and RCW 4.84. l 85. "l``he Ryl135 Wash. App. 647, 653, 145 P.Bd 411 (2()06). Suiniiiaryjudgn;ieiit is proper
No. 33 159-8-1}[1
Hcznna v. Mczrgz‘tctn
if no genuine issue of material fact rernains, and the moving party is entitted to judgment
as a matter of Eaw. CR 5 6(c). "A material fact is one upon which the outcome of the
iitigation depends in whoie or in part." Arheri'on Condc). Apr.-Owners Ass ’n Bcz’. ofDz'rs.
v. Blur)/ze Dev. Co., iii Wn.?.d 506, 5}6, 799 P.Qd 250 (1990). judgment as a matter of
law is warranted "i_f reasonable people coufd reach one conclusion based on the evidence
when viewing the facts in the light rnost favorable to the nonmoving party." _O,S, T. v.
Regence Blue'$hz``e[d, 181 Wn.Zd 691, 7()3, 335 P.Bd 416 (2014).
B. S!'zort pfczts and easements
Th_e Han_nas first argue that the only valid easement burdening their property is the
4()~foot road and utilities easement depicted on the face of the short plat. The Hann_as
claim that (l_) the easements recorded prior to the short plat being recorded (beionging to
Avista and the switchback road users) were extinguished by operation of law as they were
onritted from the short plat, and (2) the easements purportedly created after the short plat
was recorded (belonging to the l\/largitans and inland Power & Light) are invalid because
informal atternpts to alter a short ptat are ineffective
l. An omission of an existing easement in a short plat does not, by
itself, extinguish an easement
"An easement is a property right separate from ownership that allows the use of
another’s §and without coinpensation." M.K.K.I., §35 Wn. App. at 654. "An easement
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No. 33159~8-111
Hcznna v. Mczrgz``zczn
appurtenant is an irrevocable interest in land which has been obtained for duly given
consideration.” Kir/c v, Tomu]zy, 66 Wash. App. 231, 238-39, 331 P.2d 792 (l992)
(em_phasi_s added). "]Easeinents appurtenant become part of the realty which they benefit
Unless limited by the terms of creation or transfer, appurtenant easements foitow
possession of the dominant estate through successive transfers." Green v. Lttpo, 32 Wn.
App. 3§8, 323, 647 P.2d 5£ (``1982). "[A] successor in interest to the servient estate takes
the estate subject to the easements if the successor had actu.a§, constructive, or implied
notice ofthe easement." 810 Props. v. Jump, l4l Wn. App. 688, 699, 170 P.3d §209
(2007). "Recording the easement with the county auditor gives constructive notice to any
successors in title." Wi``lhe[in v. Beyersn’or]", 100 Wash. App. 836, 846, 999 P.2d 54 (2000).
‘°Territination of easements is disfavored under the law." Cz``ty ofEcir/'zonds v,
Wi[[iarns, 54 Wash. App. 632, 636, 774 P.2d l24i (1989). Wh_cn an easement is expressly
granted, "[t]he extent and duration of the easement is to be determined from the terms of
the grant.” Zol:)rz``s’t v. Cul_z), 95 Wn.Zd 556, 561, 627 P.2d 1308 (1981), Easernents are
only extinguishable in specific situations, such as when the easement holder releases it in
an instrument that complies with the statute of frauds, the owner of the servient estate
uses the easement adverseiy, the easement is abandoned, or the dominant and servient
estate merge See Cowan v. Gladder, l20 Wash. §44, 206 P. 923 (§922) (instrument); see
l0