Benjamin Orvold, Et Ux., App/cross-resp V. William Mershon, Et Ux.,, Resp/cross-appellant ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BENJAMIN ORVOLD and COREY
ORVOLD, husband and wife, and the No. 86628-1-I
marital community composed thereof,
DIVISION ONE
Appellant/Cross-Respondent,
UNPUBLISHED OPINION
v.
WILLIAM MERSHON and DEBRA
MERSHON, husband and wife, and the
marital community composed thereof,
Respondent/Cross-Appellant.
COBURN, J. — The parties are families owning property in adjacent lots of a
neighborhood with a roadway that ends in a cul-de-sac. The paved road that provides
access to both properties is on the Orvold property, which is thus a servient estate to
the Mershon property for ingress and egress by written easement and covenants. The
Orvolds alleged trespass and waste on their property arising from the Mershons parking
their vehicles on the easement road shoulder on the Mershons’ side of the cul-de-sac,
and sought injunctive relief to cease such parking as well as damages. They also
alleged harassment by the Mershons. The Mershons counter-claimed for harassment.
The trial court dismissed the Orvolds’ trespass claim under partial summary
judgment and their waste claim under CR 41 during a bench trial. The court found that
both parties had unlawfully harassed each other, issued restraining orders against both
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parties, and denied attorney fees to both. Both parties appeal the final order, and the
Orvolds appeal the summary judgment dismissal of their trespass claim.
We affirm the dismissal of the trespass claim where the Orvolds alleged that the
Mershons knowingly entered the Orvold property without permission, but in response to
the summary judgment motion clarified that they were not disputing the Mershons’ right
to park on the shoulder of the easement without permission from the Orvolds. Because
the trial court did not make all the necessary findings of fact to support the anti-
harassment order against both parties, we vacate the order and remand for further
proceedings. We also reverse the trial court’s denial of the Mershons’ request for
attorney fees for having successfully defended the Orvolds’ waste claim.
FACTS
Benjamin and Corey Orvold, and Debra and William (who goes by Alan)
Mershon, live across the street from each other in a Puyallup neighborhood that ends in
a cul-de-sac. When the original owners of the area created plats, they also included an
ingress-egress easement which provided that all owners were entitled to unrestricted
use of the street, in common with the other owners, including parking on the shoulder of
the road. The section of the roadway easement between the Orvold and Mershon
homes is within the boundary lines of the Orvold property.
The center of controversy in this litigation is a section of paved road shoulder on
the side of the cul-de-sac in front of the Mershon home where they sometimes park.
This is the “disputed area.” It is adjacent to a gravel parking strip that was created by
the previous owners of the Mershon home and subject of a prior litigation involving
those previous owners. Martin v. Orvold, No. 53831-8-II, slip op. at 1 (Wash. Ct. App.
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Mar 9, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2053831-8-
II%20Unpublished%20Opinion.pdf. In Martin, we held that the previous owners to the
Mershons had adversely possessed the gravel parking strip from the Orvolds. Martin,
slip op. at 17.
In 2021 the Martins sold their property to the Mershons. Tensions rose between
the Orvolds and Mershons around a month after the Mershons moved into the property.
The Orvolds were unhappy that the Mershons and their guests parked in the disputed
area even when their driveway or the gravel parking strip was not full. In early July, the
Orvolds’ counsel sent a letter to the Mershons telling them they did not have permission
to park anywhere on the Orvold property, including within the ingress and egress
easement.
In September 2021 the Orvolds sued the Mershons, alleging that despite their
formal notice and demand, the Mershons had continued parking on the Orvold property
“for two weeks without moving a vehicle, and including intentionally maneuvering
vehicles to ensure one is parked on the Orvold property at all times.” The complaint
alleges that the knowing entry of the Mershon vehicles on Orvold property “amounts to
trespass, and has caused damage to Plaintiffs and the Orvold Property, including but
not limited to any costs of restoration and Plaintiff’s lost use of the property.” The
Orvold complaint requested injunctive relief prohibiting the Mershons from parking “on
any portion of the Orvold property” as well as treble damages against the Mershons
under RCW 4.24.630, the statute governing liability for wrongful waste or injury to the
land. Additionally, the Orvolds sought an anti-harassment protection order under former
RCW 10.14.080 (2019).
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The Mershons filed a counterclaim for “quiet title/declaratory relief” which asked
that the court “issue declaratory relief quieting title as to the scope of the easement to
allow parking on the sides of the roadway in a non-interfering fashion to vehicular traffic
and ingress egress out of driveways and adjacent parking spaces.” They also
petitioned for an anti-harassment protection order under chapter 10.14 RCW. The
Mershons later amended their answer, removing the counterclaim of quiet title.
In January 2022 the Mershons moved for partial summary judgment dismissal of
the “trespass/injunction” claim. They presented evidence that the easement was
created for the benefit of all owners of properties abutting the easement and that it has
been a neighborhood practice for more than 10 years to allow parking along the paved
shoulder of the easement in a non-interfering manner.
In response to the motion for partial summary judgment, the Orvolds argued they
were not claiming that parking is never allowed and did not seek a judicial determination
as to whether parking on the easement is allowed. The Orvolds conceded that a Road
Maintenance Agreement (RMA) executed between previous owners of the lots at issue
provides the Mershons access and use of the easement. The RMA provides: “It is
agreed that each of the Owners is entitled to unrestricted us[e] of the Street, in common
with the other owners for foot and vehicular ingress and egress by themselves and their
invitees.” The court granted the motion for summary judgment in part, dismissing the
Orvolds’ trespass claim with prejudice while preserving a claim for waste. A bench trial
was held in late January and early February of 2023.
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After the Orvolds rested, the Mershons moved under CR 41 to dismiss the
unlawful harassment and waste claims. The court granted the motion as to the waste
claim. That left only the issue of unlawful harassment claimed by both parties.
The court found that both the Orvolds and Mershons had committed acts of
unlawful harassment against each other and entered restraining orders against both
parties. The court denied both party’s request for attorney’s fees, finding neither had
substantially prevailed. Both parties appeal the final orders. The Orvolds also appeal
the summary judgment order.
DISCUSSION
Summary Judgment Dismissal of Trespass Claim
Summary judgment is properly granted where the pleadings and affidavits show
there is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. Voorde Poorte v. Evans, 66 Wn. App. 358, 360-61, 832 P.2d 105(1992) (citing Meaney v. Dodd, 111 Wn.2d 174, 177-78, 759 P.2d 455 (1988)). A
‘material fact’ is a fact upon which the outcome of the litigation depends. Balise v.
Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963). The burden is on the party
moving for summary judgment to demonstrate there is no genuine dispute as to any
material fact, and reasonable inferences from the evidence must be resolved against
the moving party. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d
1346 (1979) (citing Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974)).
Summary judgment is then appropriate if the plaintiff, as the nonmoving party, “fails to
make a showing sufficient to establish the existence of an element essential to that
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party’s case, and on which that party will bear the burden of proof at trial.” Young v.
Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
“Trespass” is an “‘interfere[nce] with the right to exclusive possession of
property.’” Grundy v. Brack Family Tr., 151 Wn. App. 557, 566, 213 P.3d 619 (2009)
(alteration in original) (quoting Gaines v. Pierce County, 66 Wn. App. 715, 719, 834
P.2d 631 (1992)). 1 To establish such a claim, the plaintiff must establish “‘(1) an
invasion of property affecting an interest in exclusive possession, (2) an intentional act,
(3) reasonable foreseeability that the act would disturb the plaintiff's possessory interest,
and (4) actual and substantial damages.’” Id. at 567 (quoting Wallace v. Lewis County,
134 Wn. App. 1, 15, 137 P.3d 101 (2006)). A plaintiff “‘who cannot show that actual and
substantial damages have been suffered should be subject to dismissal of [their] cause
upon a motion for summary judgment.’” Lavington v. Hillier, 22 Wn. App. 2d 134, 149,
510 P.3d 373 (2022) (quoting Bradley v. Am. Smelting & Refining Co., 104 Wn.2d 677,
692, 709 P.2d 782 (1985)).
The Orvolds first challenge several findings from the order of partial summary
judgment. 2 However, we review summary judgments de novo, performing the same
inquiry as the trial court and viewing the facts (and reasonable inferences therefrom) in
the light most favorable to the nonmoving party. Ramey v. Knorr, 130 Wn. App. 672,
685, 124 P.3d 314 (2005) (citing Khung Thi Lam v. Global Med. Sys., 127 Wn. App.
657, 661, 111 P.3d 1258 (2005)). Because this court places no weight on any “findings
1
A plaintiff may bring an intentional trespass claim or a negligent trespass claim
(essentially a negligence claim). See Grundy, 151 Wn. App. at 566. Here, we address only
intentional trespass because that is what the Orvolds pleaded.
2
The Orvolds challenge summary judgment findings of fact 8, 9, 10, 13, 18, 19, 20, 21,
and 22.
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of fact” entered in that judgment, such findings are superfluous and carry no weight on
appeal. E.g. Hamilton v. Huggins, 70 Wn. App. 842, 848-49, 124 P.3d 314 (2005) (“The
function of a summary judgment proceeding is to determine whether a genuine issue of
material fact exists. It is not . . . to resolve issues of fact or to arrive at conclusions
based thereon.”). We decline to review the Orvolds’ assigned errors to the summary
judgment’s “findings of fact.”
The Orvolds correctly argue on appeal that an easement does not shield the
holder from an action for trespass where there is evidence of misuse, overburdening, or
deviation from the easement. Fradkin v. Northshore Util. Dist., 96 Wn. App. 118, 123,
977 P.2d 1265 (1999). But the Orvolds did not assert this theory in their complaint.
Under their claim of trespass and request for injunction, the Orvolds alleged that
• “Defendants knowingly entered the Orvold Property, without permission.”
• “Defendants knew, or had reason to know, that they lacked authority to enter
upon the Orvold Property.”
• “The foregoing conduct of Defendants amounts to trespass, and has caused
damage to Plaintiffs and the Orvold Property, including but not limited to any
costs of restoration and Plaintiffs’ lost use of the property.”
It is undisputed that the “trespass” alleged relates to the “disputed area” which is part of
the easement. After the Mershons filed their motion for partial summary judgment with
evidence of the existence of the easement and establishing the Mershons’ right to use
the easement and park on its paved shoulder, including the disputed area, the Orvolds
no longer disputed that the Mershons had the right to park in the disputed area and no
longer suggested they needed the Orvolds’ permission to do so.
In their response to the motion for summary judgment, the Orvolds claimed they
“have made clear throughout their pleadings, they are not seeking a judicial
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determination as to whether parking is allowed within the ingress and egress
easement.” They argued that the “issues are solely related to the Mershons’ intentional
misuse of the easement.” However, the Orvolds made no mention of the existence of
an easement in their complaint and did not seek to amend their complaint. “A party who
does not plead a cause of action or theory of recovery cannot finesse the issue by later
inserting the theory into trial briefs and contending it was in the case all along.” Dewey
v. Tacoma Sch. Dist. No., 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999) (citing Molloy v.
City of Bellevue, 71 Wn. App. 382, 385-86, 859 P.2d 613 (1993)).
The appeal before us is the dismissal of the Mershons’ trespass claim as
asserted in their complaint. The Orvolds conceded below that there is no genuine issue
of material fact as to whether the Mersons and their invitees could park in the disputed
area and could do so without the Orvolds’ permission. The Orvolds’ trespass claim thus
fails, and was properly dismissed on summary judgment, because the Orvolds failed to
establish a genuine issue of material fact as to an essential element (actual and
substantial harm) of their claim. See Lavington, 22 Wn. App. 2d at 149 (cited and
quoted above).
The Orvolds argue that the trial court committed a logical error by summarily
dismissing their claim of trespass while not dismissing a claim of waste for lack of
damages that they “had not pled.” But, under RCW 4.24.630 liability for trespass exists
if a party “wrongfully causes waste or injury to the land,” or “wrongfully injures personal
property or improvements to real estate on the land.” Porter v. Kirkendoll, 194 Wn.2d
194, 212, 449 P.3d 627 (2019). The Orvold complaint expressly requested “judgment
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against Defendants for triple damages pursuant to RCW 4.24.630, and otherwise
permitted by statute, rule or equity.”
In dismissing the trespass claim, the trial court observed that the Orvolds’ waste
claim under RCW 4.24.630 remained preserved for trial. The Orvolds do not cite to any
authority to support their argument that dismissal of one claim is error when a court
should have dismissed even more claims. It is obvious from the record that the Orvolds
brought the trespass claim as a way to prevent a potential future adverse possession
claim. When pressed to identify their damages, the Orvolds argued that the threat of
“future adverse possession claims” is a cognizable harm they experience from the
Mershons parking on the Orvolds’ property, which right could be defended by “an
injunction [which] is a proper remedy to prevent further trespass.” However, the issue of
adverse possession was not before the trial court and is not before this court. We
decline the Orvolds’ invitation to address any findings the trial court may have made as
to the issue of adverse possession, and conclude that the trial court did not err in
dismissing the Orvolds’ claim as to intentional trespass.
Anti-Harassment Orders
The parties each contend that they did not engage in unlawful harassment and
challenge the court finding otherwise. However, the court’s findings of fact are
insufficient to permit review.
The Orvolds, in addition to claiming that the Mershons parked in the disputed
area when their driveway was available for parking, alleged that the Mershons “have
acted aggressively and maliciously toward Plaintiffs, including confronting Plaintiffs on
their own property, calling them names, yelling and swearing at Plaintiffs, and keeping
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Plaintiffs and their home under surveillance.” The Mershons claim that since they
moved in, the Orvolds have harassed them by “parking in gravel parking space,
confronting guests, with threats, loud music, strategic parking of garbage/recycling cans
to interfere with ingress/egress, driving aggressively at invitees of the Mershons,
parking their car [in the disputed area] despite having more than enough parking on
their own side [of the road].”
They both requested an anti-harassment protection order under former chapter
10.14 RCW.
Under CR 52(a)(1), “[i]n all actions tried upon the facts without a jury . . . the
court shall find the facts specially and state separately its conclusions of law.” Following
a bench trial, we review a trial court’s findings of fact to determine whether they are
supported by substantial evidence, and then review whether those findings of fact
support the trial court’s conclusions of law. Tiller v. Lackey, 6 Wn. App. 2d 470, 484,
431 P.3d 524 (2018). Findings of fact “should at least be sufficient to indicate the
factual bases for the ultimate conclusions.” In re Det. of LaBelle, 107 Wn.2d 196, 218,
728 P.2d 138 (1986). A conclusion of law is “a result which follows from examination
and consideration of circumstances in a particular case and interpretation and
application of legal principles to those facts.” City of Tacoma v. O’Brien, 85 Wn.2d 266,
272, 534 P.2d 114 (1975). Where a trial court fails to enter the required factual findings,
an appellate court “cannot review an assignment of error which requires consideration
of whether there was sufficient evidence to support such findings.” State v. Denison, 78
Wn. App. 566, 570, 897 P.2d 437 (1995). However, findings of fact that do little more
than “parrot” statutory requirements may not be invalid if they are specific enough to
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permit a meaningful appellate review. Matter of W.W.S., 14 Wn. App. 2d 342, 363, 469
P.3d 1190 (2020) (citing In re Dependency of K.R., 128 Wn.2d 129, 143, 904 P.2d 1132(1995)).
The relevant portions of former RCW 10.14.020(2) (2011) provide:
(1) “Course of Conduct’’ means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a continuity
of purpose. “Course of conduct” includes, in addition to any other form of
communication, contact, or conduct, the sending of an electronic
communication, but does not include constitutionally protected free
speech. Constitutionally protected activity is not included within the
meaning of “course of conduct.”
(2) “Unlawful harassment” means a knowing and willful course of
conduct directed at a specific person which seriously alarms, annoys,
harasses, or is detrimental to such person, and which serves no legitimate
or lawful purpose. The course of conduct shall be such as would cause a
reasonable person to suffer substantial emotional distress, and shall
actually cause substantial emotional distress to the petitioner.
The alleged harassing course of conduct is therefore “tested both subjectively
and objectively in that it must be ‘such as would cause a reasonable person to suffer
substantial emotional distress, and shall actually cause substantial emotional distress to
the petitioner.’” Burchell v. Thibault, 74 Wn. App. 517, 521, 874 P.2d 196 (1994)
(quoting former RCW 10.14.020(1) (1987) and referencing City of Everett v. Moore, 37
Wn. App. 862, 866-67, 683 P.2d 617 (1984), which found an unlawful harassment
ordinance lacking an objective standard to be unconstitutionally vague and overbroad).
Both parties argue that they cannot be restrained by civil anti-harassment orders
because their conduct did not cause substantial emotional distress to the other party.
While the trial court did enter written findings of fact at the conclusion of trial,
none of the court’s findings established either that a reasonable person would have
suffered substantial emotional distress from a party’s actions, or that any member of the
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two families did, in fact, suffer such distress from the conduct of the other party. The
trial court instead listed conduct by the respective parties that it found “was not done to
harass” or “was done to harass” the other family. The trial court then found that the
“course of conduct as listed above constitutes unlawful harassment, pursuant to RCW
7.105.010.”3 Based on these conclusions that unlawful harassment had occurred, the
trial court restrained both parties. Nowhere does the trial court make any finding of
substantial emotional distress, objectively or subjectively. LaBelle, 107 Wn.2d at 218-
19; Former RCW 10.14.020(2). Although we may supplement otherwise-inadequate
written findings by reference to the trial court’s oral decisions or statements in the
record, the record before us does not contain an oral record of the trial court’s findings
and conclusions. 4 See State v. Holland, 98 Wn.2d 507, 518, 656 P.2d 1056 (1983).
We need not address any remaining arguments as to the harassment claims
from the parties because the lack of necessary findings as to substantial emotional
distress requires us to vacate the anti-harassment orders and remand for further
proceedings.
Injunction
The Orvolds requested a permanent injunction under RCW 7.40.020 to prevent
3
Both parties properly cited the applicable anti-harassment statute in their complaints,
former RCW 10.14.080. However, both parties later cited to the current civil protection order
statutes, chapter 7.105 RCW, in their motions for attorney fees. Afterwards, the trial court then
followed suit and also cited the new statute in its findings of fact and conclusions of law. But the
effective date of chapter 7.105 RCW is July 1, 2022. The applicable statutes in the instant case
are in former chapter 10.14 RCW (2019). The relevant definitions of “unlawful harassment” and
“course of conduct” did not substantially change. See RCW 7.105.010(6)(a) and (37)(a).
4
After closing arguments, the trial court instructed the parties to return for the reading of
the court’s draft findings later that afternoon, or possibly the next day if the court had an
unexpected scheduling conflict. However, no additional report of proceedings exists as to
findings and neither party cites to any finding of substantial emotional distress.
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the Mershons from damaging or parking “anywhere on the Orvold property,” which
presumably includes the disputed area. They requested the injunction as a remedy to
both their trespass claim and their harassment claim. They contend the court erred in
not granting their request.
The record is not altogether clear whether the trial court intended to grant an
injunction or conflated the injunction statute with its ability to restrain under the anti-
harassment statute. The court found
As to the Orvolds’ request for an injunction, under RCW 7.40.020:
a. The Orvolds have a clear legal and equitable right to use their property
as they see fit, without harassment from others;
b. The Orvolds have a well-grounded fear of immediate invasion of that
right, given the Mershons have purposefully harassed the Orvolds;
c. If the Mershons are not restrained, the Orvolds will suffer actual and
sustained injury.
But the court did not list the Mershons’ parking in the disputed area as harassing
conduct under finding of fact 36 where the court found
The following conduct of the Mershons was done to harass the Orvolds, to
wit:
a. Placement of the disabled camera to point at the Orvolds’ property;
b. Filming and cell phone recording of the Orvolds; and,
c. Name calling, under the totality of the circumstances.
But the court in finding of fact 28 said the “Mershons’ continuous, including
overnight parking from August 30, 2021 through September 2, 2021 blocking
access to the Disputed Area was harassment.” Despite the fact the Mershons
never requested an injunction, the court also found that
As to the Mershons’ request for an injunction, under RCW 7.40.020:
a. The Mershons have a clear legal and equitable right to use their
property as they see fit, without harassment from others;
b. The Mershons have a well-grounded fear of immediate invasion of that
right, given the Orvolds have purposefully harassed the Mershons;
and,
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c. If the Orvolds are not restrained, the Mershons will suffer actual and
sustained injury.
Moreover, the trial court made no mention of granting or denying an injunction in
its ruling.
We review a trial court’s decision to grant or deny an injunction and its
decision regarding the terms of the injunction for abuse of discretion. Kucera v.
Dep’t of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000). An injunction is
distinctly an equitable remedy and is “frequently termed ‘the strong arm of
equity,’ or a ‘transcendent or extraordinary remedy,’ and is a remedy which
should not be lightly indulged in, but should be used sparingly and only in a clear
and plain case.” Id. (quoting 42 AM. JUR. 2D Injunctions § 2, at 728 (1969)
(footnotes omitted)). “Accordingly, injunctive relief will not be granted where
there is a plain, complete, speedy and adequate remedy at law.” Id. (citing State
v. Ralph Williams’ N.W. Chrysler Plymouth, Inc., 87 Wn.2d 298, 312, 553 P.2d
423 (1976)). Specifically, parties who seek relief by temporary or permanent
injunction must show (1) that they have a clear legal or equitable right, (2) that
they have a well-grounded fear of immediate invasion of that right, and (3) that
the acts complained of are either resulting in or will result in actual and
substantial injury to them. Id. “An injunction is an extraordinary equitable
remedy designed to prevent serious harm. Its purpose is not to protect a plaintiff
from mere inconveniences or speculative and insubstantial injury.” Kucera, 140
Wn.2d at 221 (emphasis added) (quoting Tyler Pipe Indus., Inc. v. Dep’t of
Revenue, 96 Wn.2d 785, 796, 638 P.2d 1213 (1982)).
We do not review this issue because the record does not establish if the
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trial court granted or denied the request for an injunction. Even if the trial court
determined that an injunction is not warranted given the relief granted under the
anti-harassment statute, those orders are vacated and require remand.
Attorney Fees and Costs
Both parties challenge the denial of their request for attorney fees.
Whether a party is entitled to an award of attorney fees is a question of law that
we review de novo. Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191(2014). In Washington, attorney fees are recoverable by the prevailing party only when
permitted by contract, statute, or on a recognized ground of equity. Leingang v. Pierce
County Med. Bureau, Inc., 131 Wn.2d 133, 143, 930 P.2d 288 (1997).
The Orvolds requested attorney fees and costs under the anti-harassment
statute, though they cited to RCW 7.105.310 instead of the applicable former RCW
10.14.090(2) (1992). The Mershons requested attorney fees and costs under RCW
10.14.090 and also under RCW 4.24.630, the basis of the waste claim. The Orvolds do
not appeal the dismissal of the waste claim.
Under former RCW 10.14.090(2) the court may require the respondent in an anti-
harassment action to reimburse the petitioner for their incurred costs, including
reasonable attorney fees. 5 Because we vacate the anti-harassment orders and
remand, we need not address the denial of attorney fees on this basis.
Under RCW 4.24.630(1), “the person is liable for reimbursing the injured party for
the party's reasonable costs, including but not limited to investigative costs and
reasonable attorneys' fees and other litigation-related costs.” The mutuality of remedy
5
RCW 7.105.310(j) also provides for the award of reasonable attorney fees at the “broad
discretion” of the trial court. RCW 7.105.310(1).
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doctrine provides that if “one party would be entitled to receive attorney fees if it
prevails, the opposing party is likewise entitled to fees if it prevails.” Rowe v. Klein, 2
Wn. App. 2d 326, 342 n.2, 409 P.3d 1152 (2018); Fairway Est. Ass’n of Apt. Owners v.
Unknown Heirs, Devisees of Young, 172 Wn. App. 168, 182, 289 P.3d 675 (2012).
The trial court denied both parties’ requests for attorney fees because it found
that neither had substantially prevailed. The court applied the wrong test.
In general, a prevailing party is one which receives an affirmative judgment in its
favor. Schmidt v. Cornerstone Inv., Inc., 115 Wn.2d 148, 164, 795 P.2d 1143 (1990)
(citing Am. Fed. Sav. & Loan Ass’n of Tacoma v. McCaffrey, 107 Wn.2d 181, 195, 728
P.2d 155 (1986)). “If neither party wholly prevails then the party who substantially
prevails is the prevailing party, a determination that turns on the extent of the relief
afforded the parties. If both parties prevail on major issues, it is appropriate to let each
bear their own costs and fees.” Transpac Dev., Inc. v. Oh, 132 Wn. App. 212, 217, 130
P.3d 892 (2006) (citing Rowe v. Floyd, 29 Wn. App. 532, 535, 629 P.2d 925 (1981)).
But while the substantially prevailing standard set forth in Rowe may be appropriate in
some cases, it is inadequate where multiple distinct and severable claims are at issue.
“In such a situation, the question of which party has substantially prevailed
becomes extremely subjective and difficult to assess.” Instead, a trial court
should take a “proportionality approach” when requested to award
prevailing party attorney fees. “A proportionality approach awards the
plaintiff attorney fees for the claims it prevails upon, and likewise awards
fees to the defendant for the claims it has prevailed upon. The fee awards
are then offset.”
Transpac, 132 Wn. App. at 218 (citation omitted) (quoting Marassi v. Lau, 71 Wn. App.
912, 917, 859 P.2d 605 (1993), abrogated on other grounds by Wachovia SBA Lending,
Inc. v. Kraft, 165 Wn.2d 481, 490-91, 200 P.3d 683 (2009)).
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The waste claim is distinct from the harassment claims. The Mershons prevailed
in defending the waste claim and obtaining a dismissal. The trial court abused its
discretion in denying the Mershons’ request for attorney fees under RCW 4.24.630.
Fees on Appeal
The Orvolds and the Mershons both request attorney fees on appeal under RCW
7.105.310(1)(j).
RAP 18.1(a) provides for the recovery of reasonable attorney fees on appeal if
“applicable law grants to a party the right to recover reasonable attorney fees or
expenses on review” and the party properly requests it. Where a statute allows an
award of attorney fees at trial, an appellate court has the authority to award fees on
appeal. Bloor v. Fritz, 143 Wn. App. 718, 753, 180 P.3d 805 (2008) (citing Standing
Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 247, 23 P.3d 520 (2001)). Even
if the parties had requested attorney fees under the applicable statute, RCW
10.14.090(2), such an award is discretionary. We decline to award fees because neither
party has prevailed on appeal as to the issue of unlawful harassment.
CONCLUSION
The summary judgment dismissal of the Orvolds’ trespass claim was proper. We
vacate the anti-harassment orders against both parties for lack of necessary findings of
fact. Because the determination as to whether harassing conduct rises to the level of
“unlawful harassment” turns on whether the conduct causes a reasonable person to
suffer substantial emotional distress and also actually causes substantial emotional
distress, the trial court on remand is to reconsider its findings and conclusions as to the
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harassment claims based on the existing record. The trial court abused its discretion in
denying the Mershons’ request for attorney fees and costs under RCW 4.24.630, and
must reconsider their request on remand. We affirm in part, reverse in part, and
remand for further proceedings.
WE CONCUR:
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