Appeal from Pierce County Superior Court. Docket No: 11-2-15350-4. Judge signing: Honorable Susan K Serko. Judgment or order under review. Date filed: 07/26/2013.
Michael K. Rhodes, Gregory S. Worden, and Emmelyn Hart (of Lewis Brisbois Bisgaard & Smith LLP ), for appellants.
Michael M.K. Hemphill (of Roberts, Johns & Hemphill PLLC ), for respondents.
Authored by Linda CJ Lee. Concurring: Lisa Sutton, Thomas R Bjorgen.
Linda CJ Lee, J.
[187 Wn.App. 915] ¶ 1 Brett Hayfield and Kathy Davis-Hayfield appeal the trial court's denial of their request for attorney fees under RCW 19.122.040 after the trial court found their neighbors, Beatrix and Robert Ruffier, liable for damage caused to the Hayfield home by an excavation on the Ruffier property. Because RCW 19.122.040 provides for a mandatory award of attorney fees to the prevailing party, we hold that the trial court erred in failing to award attorney fees to the Hayfields. Accordingly, we reverse the trial court's denial of attorney fees incurred at trial and remand for determination of the Hayfields' attorney fees below. We also award the Hayfields attorney fees on appeal.
¶ 2 The Hayfields and the Ruffiers live on adjoining high-bank waterfront property in Gig Harbor. In February 2011, the Hayfields noticed water accumulating in their basement. The basement had not leaked previously during their seven-year ownership of the house. The water appeared to be coming from under the washer and dryer, but when the Hayfields inspected the units, they found no leaking. They [187 Wn.App. 916] vacuumed up the water and hoped that it was an isolated incident.
¶ 3 At the same time that the water began infiltrating the Hayfield basement, Robert Ruffier was using a backhoe to dig out a two-foot diameter tree stump on his property. Ruffier excavated a trench around the stump that was about three feet deep, and he used the bucket of the backhoe to wiggle the stump out of the ground. He then backfilled the hole with dirt and compacted it by driving over the hole with the backhoe. Ruffier made no effort to identify any utilities before performing the excavation work and did not provide notice of his work to the Hayfields or anyone else. The Hayfields saw Ruffier performing this excavation work.
¶ 4 Water continued to accumulate in the Hayfields' basement, and they began pumping it out of a basement window. Over the next three weeks, the Hayfields contacted a series of plumbers, leak detection contractors,
and Pierce County officials to investigate the flooding. No one could identify the source of the water, and several inches of water remained in the basement.
¶ 5 In early March, the Hayfields discovered that three feet of water had entered their basement overnight and had caused extensive damage. The pumps could not keep up with the water entering the basement, ...