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Bevan v. Meyers

Court of Appeals of Washington, Division 1

August 25, 2014

Tanya L. Bevan , Respondent ,
v.
Clint Meyers et al. , Appellants

Page 40

Appeal from King County Superior Court. Docket No: 12-2-10602-9. Judge signing: Honorable L Gene Middaugh. Judgment or order under review. Date filed: 09/28/2012.

Gary Lee Raaen (of Law Office of G. Lee Raaen ); Pauline V. Smetka (of Helsell Fetterman LLP ); and Kenneth W. Masters (of Masters Law Group PLLC ), for appellants.

Samuel A. Rodabough (of Law Office of Samuel A. Rodabough PLLC ), for respondent.

Authored by Michael S. Spearman. Concurring: Mary Kay Becker, Linda Lau.

OPINION

[183 Wn.App. 179] Michael S. Spearman, J.

Page 41

¶ 1 This case arises from a dispute between neighbors over a shared property boundary. The respondent, Tanya Bevan, sued Clint and Angela Meyers seeking, among other things, to quiet title in the disputed property. The Meyerses counterclaimed for damages, to [183 Wn.App. 180] quiet title, and for trespass. Bevan brought a special motion to strike the Meyerses' counterclaim for damages under Washington's Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, RCW 4.24.525. Bevan alleged that the counterclaim violated the anti-SLAPP statute because it was based on an allegation that she had reported information to the Department of Public Health-Seattle & King County (KCHD). The Meyerses opposed the motion and attempted a second amendment to their counterclaim, this time omitting any explicit reference to Bevan's report. The trial court granted Bevan's motion and struck the counterclaim for damages. The trial court also awarded Bevan attorney fees and costs of nearly $19,000 and imposed a statutory penalty of $10,000. We affirm.

FACTS

¶ 2 The Meyerses and Bevan own adjacent parcels in rural King County, near Duvall, Washington. The Meyerses contend that the shared boundary between the properties was commonly understood to be marked by the end of the tree growth on the western edge of the Meyerses' property, where Bevan had clear-cut her parcel, leaving a line of stumps on the eastern edge of her property. Bevan disputes this contention, arguing that the boundary is actually as determined by a survey commissioned by her during the summer and fall of 2011.

¶ 3 The Meyerses planned to build a new home on their parcel. In anticipation of the new residence, the Meyerses installed a well and septic system, which were pending approval by KCHD. The Meyerses never obtained a survey to determine whether their home, well, and septic system were properly located on their property. In October 2009, the Meyerses obtained a building permit from King County and began construction.

¶ 4 During the 2011 survey of Bevan's properties, the surveyor determined that the Meyerses' well was located [183 Wn.App. 181] approximately 18 feet on Bevan's side of the property line. Additionally, the location of the well failed to account for the required 100-foot wellhead radius from adjoining property lines. As a result of the survey, Bevan also believed that the Meyerses had destroyed trees, stockpiled building materials, and removed survey stakes on her side of the property line without her permission.

¶ 5 On September 1, 2011, Bevan's surveyor e-mailed Ken Elliott, registered sanitarian at KCHD, and notified him that, based on the survey, the Meyerses' well had been installed on Bevan's property. On November 4, 2011, shortly after receiving a copy of the recorded survey, KCHD notified the Meyerses that it would not grant final approval for their well. The notice explained that the disapproval was because, according to Bevan's survey, the location of the " off-site well has not been authorized by either Public Health, or the neighbor [Bevan]." Clerk's Papers (CP) at 106. KCHD also denied the permit for the Meyerses' septic system because the input was not from an approved water source. Although advised of their right to appeal the permit denials, the Meyerses did not do so.

¶ 6 On March 27, 2012, Bevan filed this lawsuit against the Meyerses, alleging that they had felled trees, dug a well, and otherwise trespassed upon land that she owned. Bevan sought to quiet title in the disputed property and an award of damages. The Meyerses answered on July 6, 2012, denying Bevan's claims and asserting various defenses. They also asserted three counterclaims: for damages arising from Bevan's interference with their use and enjoyment of their property; to quiet title in the disputed property; and for trespass and associated damages. Later that same day, the Meyerses filed their first amended answer and counterclaim.

¶ 7 Bevan filed a special motion to strike the Meyerses' counterclaim for damages under RCW 4.24.525, the anti- [183 Wn.App. 182] SLAPP statute.[1] In

Page 42

her motion, Bevan asserted that the report to KCHD was an action involving public participation and petition and, because the Meyerses' counterclaim was based on this protected act, it violated the anti-SLAPP statute.[2]

¶ 8 In response, the Meyerses asserted that the anti-SLAPP statute does not apply to this private land dispute. They also argued that Bevan failed to establish that the Meyerses' counterclaim was based on an action involving public participation and petition because the gravamen of their counterclaim for damages was based on Bevan's interference with the quiet use and enjoyment of their property, not the report to KCHD. Consistent with this argument, the Meyerses filed a second amended answer and counterclaim that removed any reference to the report to KCHD. Bevan moved to strike the pleading because the Meyerses filed it without obtaining the permission of the trial court as required by CR 15(a). The trial court reserved ruling on the motion to strike but modified its order striking the counterclaim in the event the pleading was later accepted. Instead of striking specific paragraphs from the first amended counterclaim, the court struck the counterclaim for damages " insofar as they [sic] pertain ...


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