BRYAN KELLEY, a married man as his separate property, and DORRE DON LLC, Appellants,
BEVERLY L. TONDA and MICHAEL E. TONDA, husband and wife and the marital community composed thereof, KENNAN T. SOUTHWORTH and PATRICIA C. SOUTHWORTH, husband and wife, KING COUNTY WASHINGTON, a Washington municipal corporation, CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY OF WASHINGTON (or its successors in interest), Respondents.
cases simply must be tried. In today's legal culture,
there seemingly prevails a belief that all lawsuits are
somehow, someway subject to resolution by dispositive motion.
But that never has been-and never will be- true. Instead,
even where, as here, all of the key participants and eye
witnesses are long since dead, a trial is necessary when the
material facts are not agreed.
lawsuit, the key material fact in question is the bilateral
intent of the parties to a conveyance of real property. The
conveyance took place more than a century ago. Those involved
in negotiating the transaction died long ago. Almost all of
the pertinent evidence is documentary in nature. But none of
these circumstances renders a trial unnecessary. To the
contrary, because the evidence proffered raises competing
inferences as to the intent of the parties to the
transaction, fact-finding by trial is indispensable. Because
the superior court viewed the situation otherwise, we
Kelley owns real property abutting Dorre Don Way in Maple
Valley, Washington. His property adjoins Kennan and Patricia
Southworths' property, which adjoins Beverly and Michael
Tondas' property. In dispute is a 40-foot strip of land
adjacent to Kelley's and the Southworths' property,
extending down from Dorre Don Way and terminating before
reaching the Tondas' property (labeled "Right of
Way" below). A gravel driveway extends down the
right-of-way, providing the Southworths and the Tondas with
access to Dorre Don Way. From the end of the right-of-way to
the edge of the Tondas' property is a separate tract of
land that is not here at issue.
moving to Maple Valley in 1995, the Tondas have routinely
used the driveway to reach Dorre Don Way and, from there,
have crossed a small strip of land leading down to a public
trail known as the Cedar River Trail. The Tondas state that
the Southworths have taken numerous steps to prevent them
from using the driveway, including planting trees in the
driveway, moving boulders to block the driveway, and
installing a locked gate to prevent the Tondas from accessing
Dorre Don Way and the driveway upon returning home from the
trail. For his part, Kelley maintains a fence around his
property that partially protrudes into the right-of-way,
although it does not prevent vehicles from accessing the
to amicably resolve their neighborly differences, the Tondas
sought assistance from King County. In a letter addressed to
all three neighbors in 2005, the King County Road Services
Division stated that it had determined that the driveway is
"within a 40-foot strip of land that was originally
deeded to King County for public highway purposes in
1908." In this letter the County also stated that it
does not recognize the restrictions and provisions included
in a recorded private easement purported to extend over the
public right-of-way, that the County would install road
signage at the intersection of the driveway and Dorre Don
Way, and that all fencing within the right-of-way needed to
be removed. The King County Division of Parks and Recreation
also sent a letter to the Southworths, informing them that
they needed to remove the fence along the trail corridor.
County has repeatedly attempted to obtain compliance from
Kelley and the Southworths. In early 2006, a county attorney
sent a letter to the Southworths ordering them to remove all
trees, rocks, and fencing within the right-of-way. In
September of the same year, the King County Department of
Development and Environmental Services sent a letter to
Kelley ordering him to remove the portion of his fence that
partially blocked the right-of-way, stating that he would be
billed for all subsequent compliance inspections.
Tondas then petitioned the County for permission to restore
the driveway to its 1994 width-which would necessitate
removing the trees and rocks extending down the sides of the
driveway. The County required the Tondas to obtain the
relevant permits and surveys prior to restoration. Before
they could do so, the Southworths filed a petition asking the
County to vacate the right-of-way. A hearing was held on the
matter in April of 2009. A hearing . examiner denied the
petition. The Southworths appealed the hearing examiner's
decision to the King County Council, which adopted the
findings of the hearing examiner and denied the petition.
Thereafter, the Tondas received a boundary line adjustment
and the County granted them a permit to build a residence on
their second lot, restore the width of the driveway, and
remove obstructions from the right-of-way.
commenced this action before such work began. The trial court
granted summary judgment in favor of the Tondas, concluding
that the public right-of-way was originally conveyed to the
County in 1907 and is still in existence today. Kelley timely
review de novo a trial court's order granting summary
judgment, performing the same inquiry as the trial court.
MacMeekin v. Low Income Hous. Inst., Inc., 111
Wn.App. 188, 195, 45 P.3d 570 (2002). An order granting
summary judgment may be entered when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). In reviewing a summary
judgment order, we view the facts and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Holmquist v. King County. 182
Wn.App. 200, 207, 328 P.3d 1000 (2014).
object and function of summary judgment procedure is to avoid
a useless trial. A trial is not useless, but is absolutely
necessary where there is a genuine issue as to any material
fact." Barber v. Bankers Life & Cas. Co..
81 Wn.2d 140, 144, 500 P.2d 88 (1972). "A material fact
is one upon which the outcome of the litigation
depends." Balise v. Underwood, 62 Wn.2d 195,
199, 381 P.2d 966 (1963). Importantly, "even if the
basic facts are not in dispute, if the facts are subject to
reasonable conflicting inferences, summary judgment is
improper." Southside Tabernacle v. Pentecostal
Church of God. Pac. Nw. Dist.. Inc., 32 Wn.App. 814,
821, 650 P.2d 231 (1982). Indeed, "[s]ummary judgment
procedures are not designed to resolve inferential
disputes." Sanders v. Day. 2 Wn.App. 393, 398,
468 P.2d 452 (1970). "It seems obvious that in
situations where, though evidentiary facts are not in
dispute, different inferences may be drawn therefrom as to
ultimate facts such as intent, ... a summary judgment would
not be warranted." Preston v. Duncan. 55 Wn.2d
678, 681-82, 349 P.2d 605 (1960); accord Weisert v.
University Hosp.. 44 Wn.App. 167, 172, 721 P.2d
purpose of contract interpretation is to ascertain the intent
of the parties. Roats v. Blakely Island Maint.
Comm'n, Inc.. 169 Wn.App. 263, 274, 279 P.3d 943
(2012). Washington courts "follow the objective
manifestation theory of contracts." Hearst
Commc'ns. Inc. v. Seattle Times Co.. 154 Wn.2d 493,
503, 115 P.3d 262 (2005). Under this approach, "[w]hen
interpreting an agreement, we focus on the agreement's
objective manifestations to ascertain the parties'
intent." Martin v. Smith. 192 Wn.App. 527, 532,
368 P.3d 227, review denied. 186 Wn.2d 1011 (2016).
contract may consist of one or several writings. Smith v.
Skone & Connors Produce. Inc., 107 Wn.App.
199, 206, 26 P.3d 981 (2001). All writings that are part of
the same transaction are interpreted together. Restatement
(Second) of Contracts § 202(2) (1981).
[T]he terms of agreement may be expressed in two or more
separate documents, some of these containing promises and
statements as to consideration, and others, such as deeds ...
embodying performances agreed upon rather than a statement of
terms to be performed. In every such case, these documents
should be interpreted together, each one assisting in
determining the meaning intended to be expressed by the
Margaret N. Kniffen, Corbin on Contracts §
24.21. at 216 (1998). Writings are one indication of the
parties' intent, but are not necessarily determinative of
that intent. Indeed, this is why writings-not contracts-are
reformed to reflect the true intent of the parties. W.
Coast Pizza Co. v. United Nat'l Ins. Co.. 166
Wn.App. 33, 41, 271 P.3d 894 (2011) (citing A&A Sign
Co. v. Maughan. 419 F.2d 1152, 1156 (9th Cir. 1969)).
Berg v. Hudesman. 115 Wn.2d 657, 669, 801 P.2d 222
(1990), our Supreme Court rejected the theory that contract
language must be ambiguous before evidence of the surrounding
circumstances is admissible. Accordingly, we may consider
extrinsic evidence to assist us in ascertaining the intent of
the parties in entering into a contract, regardless of
whether the language used in the writings is deemed
ambiguous. Hearst Commc'ns. Inc.. 154 Wn.2d at
502 ("[l]ntent of the contracting parties cannot be
interpreted without examining the context surrounding an
instrument's execution." (citing Berg. 115
Wn.2d at 668)).
The court may consider (1) the subject matter and objective
of the contract, (2) the circumstances surrounding the making
of the contract, (3) the subsequent conduct of the parties to
the contract, (4) the reasonableness of the parties'
respective interpretations, (5) statements made by the
parties in preliminary negotiations, (6) usages of trade, and
(7) the course of dealing between the parties.
Spectrum Glass Co. v. Pub. Util. Dist. No. 1 of Snohomish
County. 129 Wn.App. 303, 311, 119 P.3d 854 (2005)
(citing Berg. 115 Wn.2d at 666-68). However,
admissible extrinsic evidence does not include: (1)
"[e]vidence of a party's unilateral or subjective
intent as to the meaning of a contract word or term;"
(2) "[e]vidence that would show an intention independent
of the instrument; or" (3) "[e]vidence that would
vary, contradict or modify the written word." Hollis
v. Garwall. Inc.. 137 Wn.2d 683, 695, 974 P.2d 836
interpretation is a question of fact when a court relies on
inferences drawn from extrinsic evidence, but is a question
of law when "(1) the interpretation does not depend on
the use of extrinsic evidence or (2) only one reasonable
inference can be drawn from the extrinsic evidence."
Spectrum Glass Co., 129 Wn.App. at 311. As noted
above, summary judgment is inappropriate when more than one
reasonable inference can be drawn from the extrinsic
evidence. Kries v. WA-SPOK Primary Care, LLC, 190
Wn.App. 98, 120, 362 P.3d 974 (2015). Similarly, if two or
more meanings are reasonable, a question of fact is
presented. GMAC v. Everett Chevrolet, Inc.. 179
Wn.App. 126, 135, 317 P.3d 1074 (2014).
pertinent history of the 40-foot strip of land dates back to
the early twentieth century, when it was owned by the
Chicago, Milwaukee & St. Paul Railway Company of
Washington (Railroad). During that time, the Railroad was
engaged in a project to expand to the Pacific Northwest. In
order to secure the land necessary for such an expansion, the
Railroad entered into a number of agreements with local
governments for the exchange or purchase of land. Several
such agreements occurred between the Railroad and King
1907, the Railroad identified several strips of land owned by
King County that it wished to obtain for purposes of
constructing a railway from King County to Idaho. The parties
subsequently entered into a written agreement to memorialize
the desired exchanges of land. This 1907 writing describes
the county land that the Railroad wished to obtain as well as