Michael Tefft, V. Richard Barber

Filed
Washington State
Court of Appeals
Division Two
June 29, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL TEFFT and ANGELA TEFFT, No. 54038-0-II
husband and wife, and Washington residents,
and
DAWN ALLEN and JASON HAENKE,
Washington residents,
UNPUBLISHED OPINION
Respondents,
v.
RICHARD C. BARBER, and DEBRA L.
CURTIS, Washington residents,
Appellants,
and
BRADLEY STUTLAND, a Washington
resident, and tenant to Appellants,
and
SANDRA LIVINGSTON, a Washington
resident, and tenant of Appellants.
Additional Parties.
SUTTON, J. — This appeal arises from a property dispute concerning three easements.
Michael and Angela Tefft and Dawn Allen and Jason Haenke (hereinafter property owners) now
own the property allegedly subject to the three easements, respectively parcels B and E. Richard
Barber and Debra Curtis previously owned the parcels and granted the easements. The superior
No. 54038-0-II
court ruled that the three easements by Barber and Curtis were invalid and terminated them,
ordered that Barber and Curtis’s tenant(s) vacate the land owned by the property owners, granted
partial summary judgment, and certified the case for interlocutory review under CR 54(b). Barber
and Curtis appeal the CR 54(b) order, the order for partial summary judgment to the property
owners, the order on entry of final judgment, and the order denying reconsideration.
We hold that the superior court did not err by (1) adopting the requisite findings of fact and
entering the CR 54(b) order, (2) granting partial summary judgment to the property owners and
invalidating the three easements, or (3) denying Barber and Curtis’s motion for reconsideration.
We affirm the superior court’s orders for entry of a final judgment, for partial summary judgment,
and for denial of reconsideration.
FACTS
I. BACKGROUND
This map demonstrates where each parcel is located:
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No. 54038-0-II
Clerk’s Papers (CP) at 658.
A. CURRENT AND FORMER PROPERTY OWNERS: PARCELS B AND E
At the time of the three easements at issue on appeal, Curtis owned parcel B to the west
and Barber owned parcel E to the east and parcels A and C to the north. Parcels B and E share a
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No. 54038-0-II
property line. A cabin1 straddles the property line between parcels B and E. In July 2010, Curtis
granted a cottage easement to Barber allowing him use of a cabin that was built over both parcels.
Barber’s property, parcel E, was foreclosed in September 2010, and Curtis’s property,
parcel B, was subject to sale in lieu of foreclosure in November 2010. After Barber and Curtis
lost their properties, they claimed the easements gave them ongoing rights despite the loss of their
parcels, and they relied on the easements to rent out the cottage.
The Teffts now own parcel B. Allen and Haenke now own parcel E.
B. EASEMENTS
1. The First Cottage Easement
Barber and Curtis both granted the first cottage easement over both parcels B and E. The
first cottage easement (No. 200906260301) stated that it was granted from “GRANTOR: RICHARD
C. BARBER (PARCEL(S): A, C, E) [AND] DEBRA L. CURTIS (PARCEL B),” to “GRANTEE: RICHARD C.
BARBER (PARCEL C),” filed on June 26, 2009. CP at 44 (capitalization altered). At the time this
easement was issued, Curtis owned parcel B and Barber owned parcel E.
2. The Access Easement
At the same time that the first cottage easement was granted, Barber (parcel E) and Curtis
(parcel B) granted an access easement to Barber (parcels A and C). It stated that an access
easement (No. 200906260300) was granted from “GRANTOR: RICHARD C. BARBER (PARCEL E)
[AND] DEBRA L. CURTIS (PARCEL B),” to “GRANTEE: RICHARD C. BARBER (PARCEL(S) A AND C),”
filed on June 26, 2009. CP at 51 (capitalization altered).
1
This structure is referred to as both a “cabin” and a “cottage” throughout the record. Thus, our
opinion refers to it by either title where appropriate.
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No. 54038-0-II
3. The Second Cottage Easement
The second cottage easement (No. 201007160586) filed on July 16, 2010, was granted
solely from Curtis to Barber. At that time, Curtis still owned parcel B and Barber still owned
parcel E. The second cottage easement stated in relevant part:
There is a cottage constructed on a portion of Parcel B, which Mr. Barber owns.
The purpose of this Easement Agreement is to grant Mr. Barber an easement for
the cottage on Parcel B.
The easement allows the cabin to occupy Parcel B as well as gives the Grantee the
right to use an area surrounding the cabin which is depicted on Exhibit B on the
PRIZM Surveying Inc. site plan.
CP at 58.
C. HARM CAUSED TO THE CURRENT PROPERTY OWNERS
In support of their motion for partial summary judgment, the current property owners filed
detailed declarations. They described the problems created by Barber’s and Curtis’s misuse of the
three easements and related issues with the tenant living in the cabin including access to the cabin.
The issues included maintenance, taxes and insurance, security issues, misplaced mail, yelling,
trespassing, blocking the driveway, trash pickup, property damage, threats, and other similar
actions.
Barber and Curtis routinely yelled at the property owners. The Teffts’ children were afraid
to play outside. Barber’s and Curtis’s misuse of the easements jeopardized the current property
owners’ security because they rented out the cottage without informing the property owners.
Barber, his tenant, and their pets repeatedly trespassed on the Teffts’ property, outside the
easement areas. Barber’s tenant blocked the driveway with vehicles. Tenant mail and packages
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No. 54038-0-II
were misdelivered to the property owners and tenant trash pick-up was incorrectly billed to the
Teffts because there was no legal address to distinguish the cabin from the Teffts’ home.
Barber and Curtis “threaten[ed] to turn the cottage into an [a]irbnb [rental] or offer it as a
homeless shelter.” CP at 24. The property owners feared that this type of use would further
heighten their privacy and security concerns regarding their homes.
Barber and Curtis repeatedly damaged the Teffts’ property. Curtis ran over driveway light
fixtures with her car and threatened to remove the security gate the Teffts installed along their rear
property line after they were robbed. Barber and Curtis drove over their yard. Barber failed to
pay for the water bill associated with the cottage, causing the Teffts to pay over $2,300 for cottage
water bills dating back to 2014 on Barber’s behalf just to keep the water running to their own
home.
Barber and Curtis claimed that they owned the cottage. The property owners responded
that the ownership of parcel B and parcel E was a matter of public record, along with the
responsibility for the corresponding property taxes.
II. PROCEDURAL HISTORY
The property owners filed their motion for partial summary judgment on March 1, 2019.
On March 29, the superior court granted partial summary judgment. The court determined that
the three easements were invalid and may be terminated by the property owners. The court ordered
Barber and Curtis to vacate the invalid easements within 30 days and to post a bond until they
vacated to protect the property owners from further liability and property damage.
On August 16, 2019, the superior court certified its order under CR 54(b) for interlocutory
appellate review and adopted the requisite findings of fact and conclusions of law. The court
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No. 54038-0-II
explained that the “over-arching issue” concerning the invalidity of easements, “if upheld, would
bring finality to the case.” Verbatim Report of Proceedings (VRP) (Aug. 16, 2019) at 9, 10. The
court ruled that the validity of the easements, as well as the consequences of any invalidity were
appropriate issues for interlocutory appellate review. The court also explained that it would retain
jurisdiction over remaining issues because they have not yet been addressed and were not
appropriate for interlocutory appellate review. Thus, the scope of this appeal is limited to the
invalidity of the three easements and the consequences of any invalidity.
Barber and Curtis appeal the order on CR 54(b), the order on entry of final judgment, the
order denying their motion for reconsideration, and the order for partial summary judgment.
ANALYSIS
I. STANDARDS OF REVIEW
A. CR 54(b) STANDARD
We review CR 54(b) orders for an abuse of discretion. Hulbert v. Port of Everett, 159 Wn.
App. 389, 404, 245 P.3d 779 (2011). A court abuses its discretion when its decision is “manifestly
unreasonable, or the discretion [is] exercised on untenable grounds or for untenable reasons.”
Nelbro Packing Co. v. Baypack Fisheries, LLC, 101 Wn. App. 517, 525, 6 P.3d 22 (2000). We
give the superior court’s judgment substantial deference. Nelbro, 101 Wn. App. at 525.
B. SUMMARY JUDGMENT STANDARD
We review an order granting partial summary judgment de novo, engaging in the same
inquiry as the superior court. Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 637, 389
P.3d 498 (2017). Summary judgment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
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No. 54038-0-II
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” CR 56(c). We construe all facts and their reasonable inferences in the light most favorable
to the nonmoving party. Dunnington, 187 Wn.2d at 638. A party moving for summary judgment
bears the burden of demonstrating that there is no genuine issue of material fact. Young v. Key
Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the moving party satisfies its burden,
the nonmoving party must present evidence demonstrating that a material fact remains in dispute.
Young, 112 Wn.2d at 225. If the nonmoving party fails to demonstrate that a material fact remains
in dispute, and reasonable persons could reach but one conclusion from all the evidence, then
summary judgment is proper. Dunnington, 187 Wn.2d at 638.
II. CR 54(b) ORDER: INVALIDITY OF THE EASEMENTS
Barber and Curtis argue that the superior court erred by entering the CR 54(b) order. They
argue that the court erred by not entering proper findings of fact and erred by limiting the issues
for interlocutory appellate review to the invalidity of the three easements.2 We reject these
conclusory arguments and hold that the superior court properly made the required findings and
correctly entered its CR 54(b) order limiting the appeal to the invalidity of the three easements.
To certify an issue for interlocutory appellate review under CR 54(b), a superior court must
determine: (1) there is “more than one claim for relief or more than one party against whom relief
is sought;” (2) there is “an express determination that there is no just reason for delay;” (3) enter
2
They also argue over the court’s use of the term “issue” in the order, claiming that it should have
used the term “claim” under CR 54(b). Appellants’ Br. at 19. We do not address this conclusory
argument. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
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No. 54038-0-II
“written findings supporting the determination that there is no just reason for delay;” and (4) there
is “an express direction for entry of the judgment.” Nelbro, 101 Wn. App. at 523; CR 54(b).
The superior court correctly found that the first element is indisputably met because there
are multiple claims or issues involved in this litigation, some of which the court did not approve
for review at this stage.
The court then correctly found that the second element, “an express determination that
there is no just reason for delay,” was met. Nelbro, 101 Wn. App. at 523. It concluded that
“certification does not prejudice the remaining claims and actually helps to narrow the issues
remaining for the [s]uperior [c]ourt to resolve.” CP at 563. Accordingly, the second element has
been met.
The court next addressed the third element, “written findings supporting the determination
that there is no just reason for delay,” by correctly adopting the findings of fact and conclusions
of law submitted by the property owners to support the CR 54(b) order. Nelbro, 101 Wn. App. at
523. The court then correctly confirmed there was no just reason to delay review of its order and
that entry of a CR 54(b) order for appeal was appropriate. Barber and Curtis do not assign error
to any of the court’s findings of fact. Accordingly, the findings are verities on appeal. Humphrey
Indus., Ltd. v. Clay St. Assocs., LLC, 176 Wn.2d 662, 675, 295 P.3d 231 (2013). The findings in
turn support the court’s conclusion that there is no reason for delay. Accordingly, the third element
has been met.
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Fourth, after granting partial summary judgment, the court correctly directed entry of a
judgment in favor of the property owners as to the invalidity of the easements. Because the
superior court met all four elements required for entry of a CR 54(b) order, we hold that it did not
err.
III. PARTIAL SUMMARY JUDGMENT ORDER
A. STANDING
Barber and Curtis argue that the superior court erred by granting partial summary judgment
to the property owners because they lack standing. We disagree and hold that the property owners
have standing.
1. Common Law Standing
“‘To have standing, one must have some protectable interest that has been invaded.’”
Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 812, 225 P.3d 213 (2009) (quoting Orion
Corp. v. State, 103 Wn.2d 441, 455, 693 P.2d 1369 (1985)). We apply “a two-part test for
determining whether a party has standing to bring a particular action.” Branson v. Port of Seattle,
152 Wn.2d 862, 875, 101 P.3d 67 (2004). “First, we ask whether the interest asserted is arguably
within the zone of interests to be protected by the statute or constitutional guaranty in question.”
Branson, 152 Wn.2d at 875. “Second, we consider whether the party seeking standing has suffered
from an injury in fact, economic or otherwise.” Branson, 152 Wn.2d at 876. Both prongs must
be met. Branson, 152 Wn.2d at 876.
First, the property owners have suffered the loss of peace, privacy, security, and the quiet
use and enjoyment of their homes because of the easements involved in this case. The property
owners have submitted sworn declarations asserting how Barber’s and Curtis’s misuse of the
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No. 54038-0-II
easement has caused them distress and anguish. The comfort and sense of safety a person feels in
their home is inarguably within the zone of interest in a case regarding a real property dispute.
Thus, the first part of the test has been met.
Second, the property owners suffered “from an injury in fact, economic or otherwise,”
because Barber and Curtis disturbed their quiet use and enjoyment of their homes with loud
confrontations, by intimidating the property owners from accessing their property within the
easement areas, by destroying objects of private property, by forcing the property owners to incur
debt due to unpaid public utilities, and by bringing noise and traffic onto their private property.
Branson, 152 Wn.2d at 876; CP at 23-25, 134-37. Thus, the second part of the test has been met.
Because both parts of the two-part test required for a party to have standing are met, we
hold that the superior court did not err by proceeding on the merits of the partial summary judgment
motion by the property owners.3
2. UDJA Standing
Because the property owners seek declaratory relief, we also consider the limitations of the
UDJA, chapter 7.24 RCW, which governs declaratory judgments in Washington. Branson, 152
Wn.2d at 877. The UDJA affords broad recourse to any person affected by an instrument like an
easement, and thus, courts will review the claim of a person affected by its validity. Standing
under the UDJA requires that a party present a justiciable controversy:
3
Barber and Curtis argue that the property owners should be estopped from questioning the
validity of the easements. However, as discussed in more detail below, the UDJA affords broad
recourse to any person affected by an instrument like an easement, and thus, courts will review the
claim of a person affected by its validity. Accordingly, we decline to address this argument further
because the property owners have standing.
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“(1) . . . an actual, present and existing dispute, or the mature seeds of one, as
distinguished from a possible, dormant, hypothetical, speculative, or moot
disagreement, (2) between parties having genuine and opposing interests, (3) which
involves interest that must be direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a judicial determination of which will be
final and conclusive.”
Branson, 152 Wn.2d at 877 (emphasis omitted; alteration in original; internal quotation marks
omitted) (quoting To–Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001)).
The first element is met because there is a dispute between the property owners and Barber
and Curtis as to the validity of the easements. The second element is met because the property
owners are interested in the invalidity of the easements and Barber and Curtis are interested in the
exact opposite. The third element is met because the controversy in this case involves access to
real property. Finally, the fourth element is met because a judicial determination will establish the
validity or invalidity of the easements at issue.
Because all four elements required for a party to have standing under the UDJA are met,
we hold that the superior court did not err by proceeding on the merits of the partial summary
judgment motion by the property owners.
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No. 54038-0-II
B. TERMINATION OF INVALID EASEMENTS
Barber and Curtis next argue that the superior court erred by determining that “since the
[e]asements are invalid, . . . they can be terminated by the current [p]roperty [o]wners” because
there was a notation of the second cottage easement on the property owners’ deeds that revived
Barber’s interest in the easement.4 Appellants’ Br. at 22 (quoting CP at 441). We disagree.
First, the first cottage easement and the access easement are invalid to the extent that Barber
was both the grantor and the grantee of the easements. A person cannot have an easement in his
or her own property. Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 853, 351 P.2d 520 (1960);
Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 778, 425 P.3d 560 (2018). Therefore,
the grantor and the grantee of an easement cannot be the same person. Johnson, 5 Wn. App. 2d at
778 n.7; see also 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL
ESTATE: PROPERTY LAW § 2.1 at 83 (2d ed. 2004) (stating the principle that “a grantor cannot grant
an easement in favor of herself where she owns what would be both the dominant and servient
parcels”).
Second, in the second cottage easement, Curtis could not grant an easement over a portion
of parcel E because she did not own that parcel. A person cannot grant an easement over property
that she does not own because easements can only be granted by the servient estate owner. See
Johnson, 5 Wn. App. 2d at 778.
4
Barber and Curtis appear to ask this court to grant them an easement by necessity. Because this
issue is beyond the scope of the CR 54(b) order, we decline to address this further.
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No. 54038-0-II
Third, the second cottage easement is invalid because it purports to grant an easement to a
building. The second cottage easement stated in relevant part:
There is a cottage constructed on a portion of Parcel B, which Mr. Barber owns.
The purpose of this Easement Agreement is to grant Mr. Barber an easement for
the cottage on Parcel B.
The easement allows the cabin to occupy Parcel B as well as gives the Grantee the
right to use an area surrounding the cabin which is depicted on Exhibit B on the
PRIZM Surveying Inc. site plan.
CP at 58. “‘An easement is a property right separate from ownership that allows the use of
another’s land without compensation.’” Johnson, 5 Wn. App. 2d at 778 (emphasis added)
(internal quotation marks omitted) (quoting Hanna v. Margitan, 193 Wn. App. 596, 606, 373 P.3d
300 (2016)). “Use of another’s land” means that one person is conveying to another person the
use of the first person’s land. See Johnson, 5 Wn. App. 2d at 778. An easement may not be granted
strictly for use of a building because an easement is by definition a nonpossessory right to use the
land of another. See Johnson, 5 Wn. App. 2d at 778.
This easement is not valid because it attempts to grant Barber an easement for use of a
building, the cottage, which cannot legally be done. Johnson, 5 Wn. App. 2nd at 778.
Because there was never a valid easement to begin with, we hold that the superior court
did not err by determining that “since the [e]asements are invalid . . . they can be terminated by
the current [p]roperty [o]wners.” CP at 441.
IV. SUPERIOR COURT’S DENIAL OF THE MOTION FOR RECONSIDERATION
Barber and Curtis argue that the superior court erred by denying their motion for
reconsideration. We disagree.
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We review orders on motions for reconsideration for an abuse of discretion. Fed. Home
Loan Bank of Seattle v. RBS Sec., Inc., 3 Wn. App. 2d 642, 648, 418 P.3d 168 (2018), vacated in
part on other grounds on remand, 12 Wn. App. 2d 1055 (Mar. 16, 2020). The superior court
abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds
or reasons. Fed. Home Loan Bank, 3 Wn. App. 2d at 648.
Here, Barber and Curtis filed a motion for reconsideration following the superior court’s
issuance of the order granting partial summary judgment. In this motion, they reiterated the
arguments they raised in opposition to the property owners’ motion for summary judgment. The
superior court orally denied the motion for reconsideration, ruling simply that
I’m making no change to my former decision. I’m confirming my former decision.
There shall be a surety bond, and that’s all I have to say. Thank you.
VRP (April 19, 2019) at 19.
As discussed above, the superior court did not err by granting partial summary judgment
to the property owners. It logically follows that the court also did not err by denying Barber’s and
Curtis’s motion for reconsideration. Accordingly, we affirm the superior court’s denial of this
motion for reconsideration.
CONCLUSION
We hold that the superior court did not err by (1) adopting the requisite findings of fact and
entering the CR 54(b) order, (2) granting partial summary judgment to the property owners and
invalidating the three easements, or (3) denying Barber’s and Curtis’s motion for reconsideration.
We affirm the superior court’s orders for entry of a final judgment, for partial summary judgment,
and order denying reconsideration.
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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.
SUTTON, J.
We concur:
GLASGOW, A.C.J.
MAXA, J.
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