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Kave v. Mcintosh Ridge Primary Road Association

Court of Appeals of Washington, Division 2

May 2, 2017

JAMES V. KAVE and HOLLY M. KAVE, individually and the marital community thereof, Appellants,
MCINTOSH RIDGE PRIMARY ROAD ASSOCIATION, a Washington State Corporation, Respondent.

          Maxa, A.C.J.

         This case involves the claims of McIntosh Ridge Primary Road Association (McIntosh) against James and Holly Kave for interfering with a trail easement and a community recreation easement on the Kaves' property that benefitted McIntosh. The Kaves appeal certain summary judgment rulings, the entry of a judgment against them following a jury trial, and the trial court's award of treble damages and reasonable attorney fees against them.

         In the published portion of this opinion, we hold that the trial court erred in (1) quieting title to an easement covering the trail's existing location without regard to the easement's legal description; and (2) awarding McIntosh treble damages and attorney fees for interference with the easements under RCW 4.24.630, which imposes liability when a person "goes onto the land of another" and causes waste or damage, because the statute does not apply to the Kaves' actions taken on their own property. In the unpublished portion of the opinion we reject the Kaves' remaining liability claims, but hold that McIntosh is not entitled to reasonable attorney fees under the Easements, Covenants and Restrictions (EC&Rs) applicable to McIntosh Ridge properties.

         Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.


         McIntosh Ridge is a community near Tenino that was created by the Weyerhaeuser Real Estate Development Company. In 2000, Weyerhaeuser recorded EC&Rs that encumbered all McIntosh Ridge properties. In 2004, the Kaves purchased two adjacent lots within the McIntosh Ridge community - lots 12 and 18A. At the time of the Kaves' purchase there were two recorded easements that burdened their property for the benefit of McIntosh - a trail easement and a community recreation easement.

         Trail Easement

         In 2002, Weyerhaeuser filed an amendment to the EC&Rs that created the trail easement. The amendment attached a document entitled "Legal Description." Clerk's Papers (CP) at 1782. The document identified "[a] 10 foot wide easement . . . lying 5 feet on each side of the centerline of the trail as built and located on the ground and generally described below, " and provided a detailed legal description of the easement's location. CP at 1782. The document then stated that the easement was generally shown on an attached area map, which depicted the easement's location on lots 12 and 18A. The area map referred to the easement as a "50' wide trail easement, " and stated that the purpose of the drawing was "to show the general location of the easement as a schematic representation." CP at 1783.

         A trail already was in place on lots 12 and 18A when the Kaves purchased those lots in 2004. But a 2012 survey commissioned by McIntosh showed that the existing location of a portion of the trail on the Kaves' property did not conform to its legal description.

         Community Recreation Easement

         The community recreation easement was a circular easement with a 100 foot radius. The circle included a triangular area of land sitting between three roads. Most of the community recreation easement burdened the Kaves' lot 12.

         Weyerhaeuser had placed numerous amenities in and around the community recreation easement before the Kaves purchased lot 12. These amenities included a picnic shelter, log benches, hitching posts, picnic tables, a log perimeter, a fire pit, a shed, and a flag pole.

         McIntosh alleged that before September 2010, the Kaves demolished the log benches and log perimeter, removed picnic tables, knocked over the hitching posts, and damaged the picnic shelter. In October 2010, McIntosh had the community recreation easement surveyed. The survey showed that the picnic shelter was partially outside of the easement and on the Kaves' property. Shortly after the survey was completed, the Kaves removed the picnic shelter. And McIntosh alleged that the Kaves knocked over the flag pole and destroyed the fire pit, which were entirely within the community recreation easement.

         Kaves' Lawsuit Against McIntosh

         In 2012, McIntosh performed some work on the triangular piece of land within the community recreation easement - pulling up tree stumps, clearing vegetation, grading and installing a ditch and culvert. The Kaves believed that there were wetlands in that area. An environmental consultant's report concluded that the recreational easement contained a wetland area and that McIntosh's activities had impermissibly disturbed this wetland.

         In August 2013, the Kaves filed suit against McIntosh, alleging that McIntosh's activities had harmed wetlands within the easement and had violated federal and state statutes and various EC&R provisions. The Kaves sought an injunction requiring McIntosh to restore the wetland and also requested damages for timber trespass under RCW 64.12.030 and waste under RCW 4.24.630. The trial court dismissed all of the Kaves' claims before trial.

         McIntosh's Counterclaims Against the Kaves

         In response to the Kaves' complaint, McIntosh in September 2013 asserted several counterclaims. McIntosh sought an order quieting title to an implied easement over the Kaves' property for the areas McIntosh had used and improved outside of the express easements. In addition, McIntosh sought relief under RCW 4.24.630 for alleged waste and damage to the trail and community recreation easements. McIntosh also asserted causes of action for conversion, breach of the EC&Rs, nuisance, and unjust enrichment.

         McIntosh moved for summary judgment to quiet title to the trail easement. The trial court granted the motion and stated that McIntosh "may use the trail in its current location and should take steps to document the current location of the trail to the extent the trail has shifted from its original and/or the legally described path." CP at 1916.

         The Kaves filed a motion for reconsideration of the trial court's quiet title ruling. They supported their motion with the 2012 survey map showing that a portion of the trail easement on their property did not conform to its legal description. And in response, McIntosh submitted portions of a deposition indicating that the trail may have shifted over the years. The trial court denied the Kaves' motion for reconsideration.

         The Kaves also moved for summary judgment seeking dismissal of McIntosh's counterclaims, including the RCW 4.24.630 claim. But the Kaves did not argue that RCW 4.24.630 was inapplicable to them because their alleged interference with the easements occurred only on their own property. The trial court denied the Kaves' motion, stating that there were material issues of fact on the counterclaims.

         Verdict and Post-Judgment Awards

         The case proceeded to trial and the jury rendered a verdict through a special verdict form. On McIntosh's RCW 4.24.630 claim, the jury found that the Kaves (1) had wrongfully injured personal property or improvements to land where McIntosh had an easement and caused damages of $12, 500, and (2) had caused waste or injury to land where McIntosh had an easement and caused damages of $1, 000.

         McIntosh filed a motion to treble these damages and for an award of reasonable attorney fees, both under RCW 4.24.630. The Kaves opposed the motion, arguing for the first time that RCW 4.24.630 was inapplicable because they did not go onto the land of another when interfering with the easements.

         Based on RCW 4.24.630, the trial court trebled the $13, 500 in damages related to damage to personal property in the easements and injury and waste to the easements. Regarding attorney fees, the court ruled that McIntosh was entitled to attorney fees under RCW 4.24.630 and made an express factual finding that McIntosh's multiple claims were largely intertwined. Therefore, the court awarded McIntosh its attorney fees incurred in pursuing all its counterclaims, totaling $237, 134.45.

         The Kaves appeal the trial court's judgment.


         A. Quieting Title to the Trail Easement

         The Kaves argue that the trial court did not have authority to quiet title to an easement at the trail's existing location. McIntosh argues that the trial court did not relocate the easement, but simply confirmed that the trail could be left in its existing location. We agree with the Kaves.

         1. Standard of Review

         We review a trial court's order granting or denying summary judgment de novo. Lyons v. U.S. Bank Nat'l Ass'n, 181 Wn.2d 775, 783, 336 P.3d 1142 (2014). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

         McIntosh argues that we should review equitable decisions made in the context of summary judgment for abuse of discretion. The general standard of review for a trial court's exercise of equitable authority is abuse of discretion. Emerick v. Cardiac Study Ctr., Inc., 189 Wn.App. 711, 730, 357 P.3d 696 (2015), review denied, 185 Wn.2d 1004 (2016). But the issue here is whether the trial court had authority to exercise its equitable powers to quiet title to the trail in its current location, not whether it properly exercised any authority it had. Whether a trial court has the authority to order equitable relief is a question of law that we review de novo. Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005).

         2. Analysis

         A trial court has authority to quiet title in the dominant owner to an easement based on the instrument creating the easement. See Kirk v. Tomulty, 66 Wn.App. 231, 240-41, 831 P.2d 792 (1992) (affirming the trial court's decree quieting title to an easement based on a metes and bounds description). Therefore, the trial court had authority here to quiet title in McIntosh to the easement described in the legal description attached to the second amendment to the EC&Rs.

         But McIntosh did not request that the trial court quiet title to the legally described easement. During oral argument on McIntosh's summary judgment motion, the trial court asked McIntosh's counsel, "What exactly are you asking for with respect to the trail easements?" CP at 2108. Counsel replied:

That wherever the trails are right now, if that's not where the legal easements are, that we do some sort of adjustment to say those are the trails, and we'll do a boundary line adjustment.

CP at 2108 (emphasis added). Counsel then confirmed that McIntosh was requesting to quiet title to the existing location. In its summary judgment order, the court granted what McIntosh requested: quiet title to the existing location of the ...

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