Opinion
No. 34571-4-II.
August 14, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-00590-3, Gary Tabor, J., entered March 17, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Armstrong and Hunt, JJ.
The Roberts bought beachfront property adjacent to the Dunns' in 1994. Since 2000, they have sued the Dunns four times: (1) alleging breach of contract in connection with the original sale and placement of a sand filter/septic tank system; (2) to obtain a restraining order against the Dunns' son Robert; (3) alleging Racketeer Influenced and Corrupt Organization Act (RICO) violations, as well as several tort claims, in federal court; and (4) (the current litigation) alleging several tort claims and one harassment claim. The Dunns countersued in this last case, arguing breach of contract under a settlement agreement in the first litigation. Following a bench trial, the court denied the Dunns' counterclaim and found in the Roberts' favor, granting damages, permanent injunctions, attorney fees, and costs. The Dunns appeal, asserting several arguments, none of which has merit. We affirm.
18 U.S.C. § 1961 et seq.
FACTS
Charles and Shirley Dunn sold Harold and Enid Roberts beachfront property adjacent to their parcel in August 1994. The deed included a guarantee that the Dunns would provide a suitable drainfield for the Roberts' property. The Roberts began building their home in the fall of 1998, but their site did not comply with Thurston County permeability standards. As a result, the Roberts and the Dunns agreed to a property line adjustment giving more land to the Roberts so that their property would comply with county code.
Charles Dunn passed away in February 2000, and their son Robert moved in next door to Shirley Dunn. All litigation between the two families occurred after Charles' passing.
The Roberts sued Shirley Dunn and the estate of Charles Dunn in September 2000, arguing that they failed to perform in accordance with the purchase and sale agreement and breached the parties' contract. The Roberts asked for specific performance to provide a septic system and damages.
The parties reached a settlement agreement (the Agreement) in 2002. The Agreement provided that the Roberts would relinquish their right to use the Dunns' dock, and that Shirley Dunn would agree to grant land to the Roberts under the property line adjustment her husband had agreed to. In return, the Roberts would grant her an easement allowing her to landscape the property, but both parties agreed that the land would remain permeable. Additionally, Shirley Dunn agreed to sign a septic easement requiring the following:
[T]he Roberts immediately apply for a waiver of the sand filter requirement for their septic system so that the sand filter portion of the easement may be converted to a pipeline easement and, if a waiver is not granted . . ., Roberts shall immediately apply for and attempt to obtain approval of an installation of an aerobic device in their septic tank . . . to eliminate the requirement for the sand filter and convert the sand filter easement to a pipeline easement. If neither of the foregoing can be accomplished, Roberts shall apply for approval for moving the sand filter to a location adjacent to the current drainfield on the top or upon the upper portion of the Dunn property. Roberts shall commence all such efforts immediately and shall employ Jim Dickinson, a licensed septic designer to assist with their application and installation.
Clerk's Papers (CP) at 224-25.
In 2003, the Roberts obtained a restraining order against Robert Dunn. They also sued Robert and Shirley Dunn in federal court, alleging RICO violations as well as nuisance, trespass, tortious interference with business expectancy, and outrage. The court dismissed these claims without prejudice, citing a lack of jurisdiction.
The Roberts sued Robert and Shirley Dunn again in 2004, alleging nuisance, trespass, tortious interference with a business expectancy, outrage, assault and battery, negligence, and harassment. The Dunns countersued, claiming that the Roberts had breached the 2002 settlement agreement and had "harassed and vexed" Shirley Dunn for years. CP at 205.
In April 2004, the trial court granted the Roberts a preliminary injunction prohibiting the Dunns from parking any vehicle within 20 feet of the Roberts' property; interfering with or restricting access to the Roberts' sand filter; interfering with any utility line to the Roberts' property; placing garbage or compost within 20 feet of the Roberts' property; blocking or interfering with the Roberts' access to their property; erecting scaffolding within 20 feet of the Roberts' property; damaging the Roberts' wall; shining flood lights on the Roberts' property; interfering with the Roberts' mail or defacing their mailbox; interfering with signage; causing logs to come onto the Roberts' beach; and filling out magazine or product requests in the Roberts' name.
The Roberts filed a motion for contempt in July 2004, claiming that the Dunns violated the preliminary injunction by stacking wood and parking within 20 feet of the Roberts' property, and preventing the sand filter from being repaired. The Roberts asked the court to assess civil contempt sanctions against the Dunns, award them attorney fees, and issue an order preventing Robert Dunn from coming within 500 feet of their property. The trial court granted the motion in part, finding that the Dunns had piled firewood next to the wall, had kept a light shining toward the Roberts' property, and had denied the Roberts access to the sand filter. The court ordered the Dunns to pay $250 for the firewood, $250 for the light, $1,000 for blocking access to the sand filter, and $1,000 in attorney fees.
The Dunns filed a motion to amend their pleadings in July 2005, asking for permission to add an additional counterclaim for damages and injunctive relief arising out of the Roberts' interference with the Dunns' use and enjoyment of the easement road running over the Roberts' property. The motion was denied.
The Roberts' response to this motion is not included in the record, but the Dunns also filed a reply brief, so it appears that the Roberts did respond.
The Dunns also filed a motion to consolidate this case with a suit filed by Shirley Dunn on August 25, 2005 (after the court denied the Dunns motion to amend their pleadings). In that complaint, Shirley Dunn alleged that the Roberts challenged her right to a 20-foot easement across their land and hindered and obstructed her from the reasonable and beneficial use of the easement. She asked for declaratory and injunctive relief, as well as general and special damages, attorney fees, and costs.
The Roberts opposed the motion for consolidation, calling it "an attempt at an end-run around" the order denying the Dunns' motion to amend. CP at 685. The trial court denied this motion as well.
In a December 2005 bench trial, the court denied the Dunns' countersuit, and found in the Roberts' favor. Specifically, the trial court found that (1) the settlement agreement required the Roberts to "explore other options" regarding the sand filter, (2) Robert Dunn sent 70 or more unsolicited magazine subscriptions to Enid Roberts, (3) Robert Dunn placed a "firewood wall" next to the Roberts' property in order to cause the Roberts grief, (4) the "firewood wall" obscured the Roberts' house number so that it was not visible from the street, (5) the trees planted on the Dunns' property near the Roberts' sand filter would likely damage the filter, (6) the Dunns were responsible for damage to the Roberts' driveway, (7) the Dunns' dogs had gone onto the Roberts' property, (8) Robert Dunn caused mice and log chips to go onto the Roberts' property, (9) the Dunns' vertical log wall was a fence and should not be more than eight feet high, (10) Robert Dunn's placement of compost or manure in a trench next to the Roberts' wall constituted harassment, and (11) some fires that Robert Dunn set were set to vex or annoy the Roberts. CP at 1102-06.
Based on these findings, the court concluded the following:
(1) it denied the counterclaim for breach of contract;
(2) held that Dunn's sending magazine subscriptions to the Roberts constituted outrage and harassment under chapter 10.14 RCW, and assessed damages of $10,850;
(3) held that the placement of the firewood wall constituted a nuisance;
(4) ordered that the trees planted near the sand filter be removed;
(5) prohibited placing items or parking in a currently landscaped area along one of the Roberts' walls, and prohibiting placement of anything against another wall that would obstruct the Roberts' house number;
(6) held that the Dunns committed trespass when they damaged the Roberts' wall;
(7) held the Dunns responsible for the damage to the Roberts' driveway;
(8) prohibited the Dunns from letting their dogs run free on the Roberts' property;
(9) held that Robert Dunn harassed the Roberts by intentionally causing mice and log chips to go onto their property;
(10) prohibited the Dunns from causing any logs or trees to come through the Roberts' property;
(11) Robert Dunn was not responsible for the Roberts' missing mail;
(12) Robert Dunn's placing compost or manure in a trench along the Roberts' wall was harassment;
(13) prohibited the Dunns from placing their compost bin next to the Roberts' wall;
(14) assessed general damages of $5,000 against Robert Dunn;
(15) prohibited the Dunns from driving heavy vehicles over the Roberts' driveway (while expressly declining to address the property rights issues involved);
(16) prohibited the Dunns from having more than eight wood fires outdoors per year; and
(17) ordered the Dunns to pay damages, attorney fees, and costs.
Following the judgment, the Roberts filed a motion for contempt in March 2006, alleging that the Dunns were in violation of the court's order. The court granted the motion, and found the Dunns in contempt. This appeal followed.
ANALYSIS
I. Res Judicata
The Dunns argue that this action should have been barred by res judicata. Specifically, they claim that they previously litigated several of the issues here in the September 2000 case and January 2003 anti-harassment suit. The Roberts' respond that res judicata does not apply. First, while they admit that the Dunns did originally plead res judicata as an affirmative defense, they assert that the Dunns should have also made a motion to the court on this issue and objected to the admission of evidence at trial. This is incorrect. Res judicata is an affirmative defense; generally, "if such defenses are not affirmatively pleaded, asserted with a motion under CR 12(b), or tried by the express or implied consent of the parties," they are waived. Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 76, 549 P.2d 9 (1976); CR 8(c). Here, the Dunns affirmatively pleaded the defense of res judicata by including it in their answer. We are unaware of authority that would require the Dunns to preserve their res judicata arguments by continuing to object as evidence is received.
Next, the Roberts argue that the previous litigation involved different causes of action and different facts. The 2000 litigation concerned different subject matter (septic and boundary line issues, not harassment and nuisance) and contained different causes of action (breach of contract, not torts). Also, that case was filed in 2000, and the conduct at issue here occurred between 2001 and 2005.
The party asserting the defense of res judicata bears the burden of proof. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004). Res judicata is the rule, not the exception: the general doctrine is that the plea of res judicata applies, except in special cases, not only to points upon which the parties actually required the courts to form an opinion and pronounce a judgment, but to every point that properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Hisle, 151 Wn.2d at 865 (quoting Schoeman v. N.Y. Life Ins. Co., 106 Wn.2d 855, 859, 726 P.2d 1 (1986)). However, res judicata does not bar claims arising out of different causes of action, or intend "to deny the litigant his or her day in court." Hisle, 151 Wn.2d at 865 (quoting Schoeman, 106 Wn.2d at 860).
Res judicata occurs when a prior judgment has a concurrence of identity in four respects with a subsequent action. There must be identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made. Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165 (1983) (citing Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 588 P.2d 725 (1978)).
A judgment is res judicata as to every question that was properly a part of the matter in controversy, but it does not bar litigation of claims that were not in fact adjudicated. Seattle-First Nat'l Bank, 91 Wn.2d at 226.
A. 2000 Litigation
The Roberts correctly argue that the 2000 litigation and the current litigation lack identity of cause of action, and therefore the current litigation is not barred by res judicata.
While identity of causes of action "cannot be determined precisely by mechanistic application of a simple test," Abramson v. Univ. of Haw., 594 F.2d 202, 206 (9th Cir. 1979), courts have considered the following criteria: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Rains, 100 Wn.2d at 663-64 (quoting Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 103 S. Ct. 570 (1982)).
The Dunns' res judicata argument fails on all four factors. The rights and interests established in the 2002 settlement (of the 2000 litigation), which established boundary lines between the two properties and set out the easement for the sand filter, were not threatened by the current litigation, but by the Dunns' conduct (i.e., blocking access to the sand filter). The evidence presented here is substantially different than the evidence presented in the 2000 litigation because it focuses on the Dunns' behavior between 2001 and 2004. Both suits concerned infringement of the Roberts' right to their sand filter located on the Dunns' property, but the current litigation focuses on the Roberts' rights against tortfeasors rather than their contract and property rights. Finally, while some facts are central to both cases, the current litigation focuses on events occurring after the first litigation commenced (and several events after it was settled).
B. 2003 Antiharassment Litigation
The Roberts also correctly argue that the 2003 litigation does not bar the current action. First, RCW 10.14.140 specifically states "[n]othing in this chapter shall preclude a petitioner's right to utilize other existing civil remedies."
Additionally, the 2003 litigation lacks identity of parties and causes of action with the current litigation. Shirley Dunn was not a named party in that case; the Roberts sued only Robert Dunn. While some of the evidence is similar, and the two cases arise out of a vaguely common nucleus of facts, the lack of identity of parties prevents the application of res judicata.
II. Interpretation of 2002 Settlement
The Dunns claim that the trial court erred in its interpretation of the 2002 settlement. Specifically, they argue that the court impermissibly considered parol evidence and, even if that evidence was permissible, it did not support a finding that the Dunns waived the settlement's requirements.
The Roberts, citing Denny's Rest., Inc. v. Sec. Union Title Ins. Co., 71 Wn. App 194, 201, 859 P.2d 619 (1993), respond that (1) extrinsic evidence is admissible to interpret the original meaning of a contract term, and (2) sufficient evidence supports the trial court's finding that the Roberts did not breach the settlement agreement.
We review findings of fact for substantial evidence, which is defined as a quantum of evidence sufficient to persuade a rational, fair-minded person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
The trial court found that "[t]he settlement agreement arising out of the 2000 litigation . . . required the Roberts to explore other options regarding the sand filter." CP at 1103. Substantial evidence does not support this finding. The Agreement expressly states what actions the Roberts were required to take regarding the sand filter; it did not merely require that they explore options. The testimony of Enid and Harold Roberts, Steven Peterson, and Shirley Dunn all indicates that the terms of the Agreement — including that the Roberts "immediately apply for a waiver of the sand filter requirement" — were understood. CP at 224.
Generally, parol evidence is not admissible for the purpose of adding to, modifying, or contradicting the terms of a written contract, in the absence of fraud, accident, or mistake. Lynott v. Nat'l Union Fire Ins. Co., 123 Wn.2d 678, 683, 871 P.2d 146 (1994) (quoting Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990)). However, such evidence is admissible to help the court ascertain the intention of the parties and properly construe the writing. Lynott, 123 Wn.2d at 683 (quoting Berg, 115 Wn.2d at 669).
Here, the parties' intent at the time they signed the Agreement is not at issue. The issue here is whether Robert Dunn modified or waived the Agreement so that the Roberts' obligations changed.
Independent, additional, consideration is required to validly form a modification to a contract. Labriola v. Pollard Group Inc., 152 Wn.2d 828, 834, 100 P.3d 791 (2004). Independent consideration involves new promises or obligations previously not required of the parties. Labriola, 152 Wn.2d at 834. No such new promises were made here — allegedly, Robert Dunn simply told the Roberts to "forget" about their obligations under the Agreement and leave the sand filter as is. 3 Report of Proceedings (RP) (Dec. 12, 2000) at 541. This was not a valid modification.
Waiver is the intentional relinquishment of a known right. O'Connor v. Tesdale, 34 Wn.2d 259, 263, 209 P.2d 274 (1949). In order to show a waiver, the existence of the intent to waive must be made clearly to appear. O'Connor, 34 Wn.2d at 263. In this case, the evidence does not clearly show that Robert Dunn intended to waive the rights of his property under the Agreement. His testimony and actions in filing the counterclaim indicate that he did not intend to waive his rights, but the testimony of Harold Roberts and James Dickinson indicates otherwise. On this record, we cannot definitively find waiver as a matter of law without a finding from the trial court regarding Robert Dunn's intent.
The Roberts also argue that the Dunns are equitably estopped from claiming that they did not waive the requirements of the Agreement. Equitable estoppel requires proof of (1) an admission, statement or act inconsistent with a claim later asserted; (2) reasonable reliance on that admission, statement, or act by the other party; and (3) injury to the relying party if the court permits the first party to contradict or repudiate the admission, statement, or act. Dep't of Ecology v. Theodoratus, 135 Wn.2d 582, 599, 957 P.2d 1241 (1998). Each element must be proved by clear, cogent, and convincing evidence. Theodoratus, 135 Wn.2d at 599.
There is such evidence here. Robert Dunn apparently advised the Roberts to leave the septic system where it was. He even testified in a deposition that he believed that the Roberts could leave their system where it was until it failed. The Roberts reasonably relied on Robert Dunn's statement and did not follow through on terms of the Agreement. Finally, the Roberts would be injured if the court permitted Robert Dunn to repudiate his statement.
Equitable estoppel is a question for the trier of fact unless only one reasonable inference can be drawn from the evidence. Colonial Imp. v. Carlton Nw., Inc., 121 Wn.2d 726, 737, 853 P.2d 913 (1993). Here, the Roberts testified that they believed they were to immediately apply for a waiver of the sand filter requirement under the terms of the Agreement. Clearly, they did not do so, and the evidence available could only lead a reasonable factfinder to conclude that Robert Dunn relieved them of that obligation. Because there is only one reasonable inference to be drawn from the evidence, we may consider whether equitable estoppel existed in this case as a matter of law.
We may affirm the trial court on any correct ground, even those the trial court did not consider. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986). Here, substantial evidence does not support the trial court's findings, but equitable estoppel dictates that the outcome — relieving the Roberts of their obligation under the Agreement — be upheld.
III. Relief Under Antiharassment Statute
The Dunns argue that the trial court "expressly held that the antiharassment statute, RCW 10.14, will allow . . . a second trial, in which the plaintiff can recover damages, costs, and attorney's fees. . . ." Appellant's Br. at 29. However, they offer no authority for this assertion, and the court's written conclusions of law contain no such holding. Under RAP 10.3(a)(6), we will not consider arguments not supported by citation to legal authority, and we will not comb the record to find support for an appellant's argument. We address the Dunns' more specific arguments below.
A. Permanent Injunctive Relief
The Dunns claim that the trial court's grant of a permanent injunction was improper under RCW 10.14.080(4) because the court did not specifically find that the Dunns were likely to resume the harassment when the order expired. The Roberts respond that the trial court's oral ruling and written findings of fact and conclusions of law satisfy the requirements of the statute. The trial court did not specify in the permanent injunction which portions coincided with which claims the Roberts sought injunctive relief in addition to their harassment claim.
RCW 10.14.080(4) requires that an antiharassment order issued for longer than a year be accompanied by a finding that the respondent is likely to resume unlawful harassment. The court did not enter a specific finding on this issue; nor does the oral ruling shed any light on the matter. However, because the Roberts prayed for injunctive relief on claims other than their harassment claims, we do not assume that the trial court entered its injunction solely as an antiharassment order.
While the court did not specify on this matter, the Dunns' violation of both the preliminary injunction and, later, the permanent injunction (both of which resulted in findings of contempt) certainly indicate that they were likely to continue the harassment without a permanent injunction.
A court has broad discretion when fashioning equitable remedies, and we review those remedies for abuse of discretion. Sorenson v. Pyeatt, 158 Wn.2d 523, 531, 146 P.3d 1172 (2006). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds. Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).
The permanent injunction (1) orders the Dunns to remove trees planted in close proximity to the sand filter, (2) prohibits parking or placing foreign objects in either the currently landscaped area next to the Roberts' wall or the "wing wall", (3) requires the Dunns to keep their dogs off the Roberts' property unless leashed, (4) prohibits the Dunns from causing logs or trees to come onto the Roberts' property, (5) orders the Dunns to cut a vertical log wall down to eight feet, (6) prohibits the Dunns from placing their compost bin next to the Roberts' wall, (7) requires that the Dunns travel over the Roberts' driveway only in a regular vehicle, (8) limits the number of outdoor fires the Dunns may burn. CP at 1107-10. None of these requirements is manifestly unreasonable under the circumstances, and none represents an abuse of discretion.
The Dunns repeatedly claim that there is no statutory authority for the court's determination that the fence must be under eight feet, but this is not entirely true. Thurston County requires building permits for fences over eight feet high (TCC 14.20.011); the trial court was apparently attempting to bring the Dunns in line with this requirement.
In their motion for reconsideration of the trial court's findings of fact and conclusions of law, the Dunns relied on TCC 23.40.060(D), which limits the height of fences within the Olympia Urban Growth Area to six feet tall. However, this ordinance is not applicable to the property at issue here; both the Roberts' and Dunns' properties are outside the Olympia Urban Growth Area.
Review by this court would have been simplified had the trial court specified which theory was used to support which element of the permanent injunction. For instance, the log wall is likely not harassment, but it would qualify as a nuisance because it exceeds the Thurston County height limit for unpermitted fences. However, the court's findings support its decision to issue a permanent injunction under at least one of the three theories in each instance. We may affirm the trial court on any correct ground. Nast, 107 Wn.2d at 308.
B. General Damages
The Dunns also argue that the trial court erred in awarding general damages, costs, and attorney fees under chapter 10.14 RCW. However, the Dunns offer no cite to the record to support their claim that the damages, costs, and fees were awarded pursuant to the anti-harassment statute.
First, chapter 10.14 RCW expressly allows attorney fees and costs. "The court may require the respondent to pay the filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney's fee."
RCW 10.14.090(2). The Dunns' argument regarding fees and costs has no merit. Next, the court did not specify in its award whether it was granting damages under the antiharassment statute or under general tort law. For example, Conclusion of Law 3 states:
The sending of the magazine subscriptions by Robert Dunn to the Roberts constitutes outrage. It also constitutes harassment pursuant to RCW 10.14. The Roberts are entitled to $10,850 with regard to the magazine subscriptions, that number being amount of time (70 hours) spent to deal with the magazine subscriptions multiplied by Mr. Roberts' hourly wage ($ 155 per hour).
CP 1106. Here, the court awarded damages for conduct that was both tortious and harassment.
Again, we do not assume that the damages were awarded pursuant to chapter 10.14 RCW violations rather than for tortious conduct. Moreover, the Dunns do not support their argument with cites to the record, as RAP 10.3(a)(6) requires. Their claim that the trial court improperly awarded damages under chapter 10.14 RCW is unpersuasive.
IV. Award of Costs and Attorney Fees
The Dunns claim that the trial court improperly included certain costs, as defined in RCW 4.84.010, in its calculation and award of attorney fees. The Roberts respond that the Dunns are incorrect — "costs" are not limited to those enumerated in RCW 4.84.010. Resp't Br. at 28. This argument is persuasive.
We review a trial court's award of fees and costs for an abuse of discretion. Bank of Am. v. David W. Hubert, P.C., 153 Wn.2d 102, 123, 101 P.3d 409 (2004). The trial court did not abuse its discretion here — the Supreme Court has expressly held that "[t]he phrase 'reasonable attorney fees' in and of itself supports an award not limited by 'costs' as described by RCW 4.84.010." Panorama Vill. Condo. Owners Ass'n Bd. of Dirs. v. Allstate Ins. Co., 144 Wn.2d 130, 142, 26 P.3d 910 (2001) (citing Louisiana-Pac. Corp. v. Asarco Inc., 131 Wn.2d 587, 605, 934 P.2d 685 (1997) (Sanders, J. concurring)). The right to recover "reasonable attorney fees," unlike the right to recover "costs," is not limited by statutory definition. Panorama Vill., 144 Wn.2d at 142.
The Dunns also argue that the Panorama rule does not apply because it did not involve the granting of attorney fees under a statute or contract. However, that does not distinguish Panorama from the instant case — here, the court awarded $1,000 in attorney fees under the settlement agreement (those fees specifically incurred while defending the Dunn's counterclaim), but the rest it awarded, as in Panorama, as "reasonable attorney fees." Judgment at 2.
V. Firewood Wall as a Nuisance
The Dunns argue that (1) there is insufficient evidence to support the trial court's conclusion that the firewood wall constituted a nuisance, and (2) the permanent injunction improperly created a "view easement" over the Dunns' property. Appellant's Br. at 36-37. The Roberts respond that sufficient evidence supported the trial court's finding, that the injunction does not create a "view easement," and that the injunction was within the court's broad discretion. Resp't Br. at 25.
We review findings of fact for substantial evidence, which is defined as a quantum of evidence sufficient to persuade a rational, fair-minded person the premise is true. Wenatchee Sportsmen Ass'n, 141 Wn.2d at 176. If substantial evidence exists, we will not substitute our judgment for the trial court's. Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 685, 314 P.2d 622 (1957).
Nuisance is defined as unlawfully doing an act which "either annoys, injures or endangers the comfort, repose, health or safety of others . . . or in any way renders other persons insecure in life, or in the use of property." RCW 7.48.120. Here, both Enid and Harold Roberts testified that they were frightened that the wall would collapse on them or the roadway. The wall obstructed the view of the Roberts' house number from the road, impairing the view of first responders and, consequently, the Roberts' safety. It also blocked access to the Roberts' sand filter. Substantial evidence supported the trial court's finding that the firewood wall was a nuisance.
In matters of equity, trial courts have broad discretionary power to fashion equitable remedies; we review equitable remedies for abuse of that discretion. Sorenson, 158 Wn.2d at 531. A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds. Havens, 124 Wn.2d at 168.
The permanent injunction prevents the Dunns from placing foreign objects (other than normal landscaping) in the currently landscaped area or within six feet of the Roberts' wall, and it also prevents them from obstructing the Roberts' house number. These are not unreasonable requirements. The injunction is therefore not an abuse of the trial court's discretion.
Furthermore, the injunction does not create a "view easement." It does not enjoin the Dunns from undertaking any activity that will block the Roberts' view. Ensuring that the house number is visible from the street is a matter of public safety and is not an unreasonable requirement.
Finally, the Dunns incorrectly state that the permanent injunction (preventing certain types of landscaping that would obscure the Roberts' house number) "must fail, because the Roberts did not demonstrate any clear legal right to impose controls over the Dunn property." Appellant's Br. at 38. This is simply not true — nuisance is not limited to any specific property. See RCW 7.48.230. Nuisance necessarily includes activities that take place on property other than that owned by the claimant. It is within the broad discretion of the court, when fashioning an equitable remedy to nuisance, to limit activities on property the plaintiff does not own.
VI. Log Wall as a Nuisance
The Dunns also argue that there was insufficient evidence to support the trial court's finding that the "vertical log wall is considered a fence and therefore cannot be more than eight (8) feet high." CP at 1105; See Appellant's Br. at 34. Because they allege that sufficient evidence does not support this finding, the Dunns claim that the court also erred in concluding that they must cut the wall so that it is not more than eight feet high. The Roberts respond that substantial evidence supports the trial court's finding that the wall was a nuisance and that the court's injunction was within its discretion.
We review findings of fact for substantial evidence. Wenatchee Sportsmen Assoc., 141 Wn.2d at 176. Here, substantial evidence supports the trial court's finding that the wall was a nuisance. In addition to the statutory definition above, Washington case law further defines nuisance as a substantial and unreasonable interference with the use and enjoyment of land. Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005). Enid Roberts testified that she could see the wall from everywhere on the bay side of the property and that looking at it was "very distressing." 1 RP at 198. The log wall, therefore, interfered with her enjoyment of the land (satisfying the Grundy definition) and annoyed her comfort and repose (satisfying the statutory definition).
As stated above, we review equitable remedies for abuse of discretion. Sorenson, 158 Wn.2d at 531. Here, the court concluded that the log wall was a nuisance, and it attempted to lessen the nuisance by requiring that the wall be shorter. This is not manifestly unreasonable, and therefore was within the court's discretion.
Additionally, the Dunns argue that the court did not base its eight-foot-high limitation on any legal standard. This argument is incorrect — as stated above, Thurston County Code prohibits unpermitted fences over eight feet in height. TCC 14.20.011. Moreover. the court is not required to base its injunction on any legal standard; it has broad discretion to fashion a remedy, and we will not overturn that remedy absent an abuse of that discretion. The Dunns' argument is not persuasive.
VII. Denial of Motion to Amend
The Dunns argue that the trial court abused its discretion in denying their motion to amend because the "easement issues" were a part of the Roberts' litigation, and thus it should have considered the Dunns' cross-claims. Appellant's Br. at 41-42. They also contend that the trial court essentially litigated these claims when it concluded that the Dunns had damaged the roadway and entered injunctive relief limiting the types of vehicles allowed on the roadway.
The Roberts respond that the Dunns were attempting to bring property claims in a suit about nuisance, trespass, outrage and harassment, and the trial court did not abuse its discretion in denying the motion to amend. Moreover, they claim that the trial court's findings did not address property rights but, instead, addressed the damage to the roadway.
We review a trial court's denial of a motion to amend pleadings for abuse of discretion. Bank of Am., 153 Wn.2d at 122. A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds. Havens, 124 Wn.2d at 168. CR 15 provides that a party may amend his pleading by leave of the court and leave shall be freely given when justice so requires. See Caruso v. Local Union No. 690 Int'l Bhd. of Teamsters, 100 Wn.2d 343, 349, 670 P.2d 240 (1983) (leave to amend should be freely given "except where prejudice to the opposing party would result") (quoting United States v. Hougham, 364 U.S. 310, 316, 81 S. Ct. 13, 5 L. Ed. 2d 8 (1960)). Undue delay on the part of the movant in proposing the amendment constitutes grounds to deny a motion to amend only "where such delay works undue hardship or prejudice upon the opposing party." Caruso, 100 Wn.2d at 349 (quoting Appliance Buyers Credit Corp. v. Upton, 65 Wn.2d 793, 800, 399 P.2d 587 (1965)).
Here, the Roberts' complaint was filed in March 2004. The Dunns did not file their motion to amend until July 2005. While the Roberts' response is not included in the record, it is very probable that this delay resulted in hardship or prejudice to them — according to them, the Dunns were violating the preliminary injunction and harassing them. It was not manifestly unreasonable to deny the Dunns' motion to amend; the trial court did not abuse its discretion in doing so.
VIII. Denial of Motion to Consolidate
The parties make the same arguments regarding the trial court's denial of the Dunns'
motion to consolidate as they did for its denial of the Dunns' motion to amend.
We review a trial court's denial of a motion to consolidate for abuse of discretion. Wash. Citizen Action v. Ins. Comm'r, 94 Wn. App 64, 72, 971 P.2d 527 (1999). Here, the trial court specifically avoided deciding any property rights issues regarding the driveway. It was not manifestly unjust to separate the Dunns' property rights claims from the Roberts' damage claims. The trial court did not abuse its discretion in denying the Dunns' motion to consolidate.
IX. Judgment Against Shirley and Robert Dunn
The Dunns claim that the court's award of general damages ($ 5,000) against Robert Dunn was improper because it neglected to specify which cause of action the award related to.
However, they offer no cite to legal authority stating that the court must specify on what theories it awards damages. The court found that Robert Dunn's conduct constituted nuisance and outrage; awarding general damages for commission of those torts was within the court's discretion. See Banuelos v. TSA Wash., Inc., 134 Wn. App 603, 613, 140 P.3d 652 (2006) (we review a trial court's decision to award damages for abuse of discretion).
The Dunns also claim that the judgment improperly imposes payment of damages jointly and severally on Shirley and Robert Dunn, despite the trial court's findings that Robert Dunn was the sole harasser/nuisance in certain instances.
The Dunns' claim is rather disingenuous. The judgment clearly states that the $5,000 in general damages was awarded against Robert Dunn only.
Moreover, as the Roberts point out, the Dunns did not challenge these findings or the judgment at the trial court. "[E]xceptions to the form of the findings or conclusions must be taken in the trial court, or be considered waived." Bignold v. Carr, 24 Wash. 413, 417, 64 P. 519 (1901). The Dunns claim that they did not waive this defect in the judgment, but they offer no cite to the record.
Even if the Dunns did not waive their right to object to the judgment, they admit that this was "in the nature of a clerical mistake." Reply Br. at 19. If the two defendants disagree with this "clerical mistake" in the judgment, they are allowed to take it up with each other in an indemnification action, but they have inadequately raised this argument before us.
X. Motion for Contempt
The Dunns argue that the trial court's order finding them in contempt "is moot and of no effect, to the extent that the Findings, Conclusion, Judgment, and consequent Permanent Injunction (CP 1112) are found to be erroneous." Appellant's Br. at 40. They contend that reversal of the trial court's injunction mandates reversal of the contempt order. The Roberts reply that the contempt orders are valid regardless of our ruling on the trial court's injunction.
Whether contempt is warranted in a particular case is a matter within the sound discretion of the trial court; unless that discretion is abused, it should not be disturbed on appeal. Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130 (1978). We will uphold a finding of contempt if we can find any proper basis for it. Trummel v. Mitchell, 156 Wn.2d 653, 672, 131 P.3d 305 (2006)
Here, there was a proper basis for the trial court's finding that the Dunns were in contempt — they had violated the permanent injunction. The court was forced to repeat its order to the Dunns that they cut the vertical logs to less than eight feet tall and remove the landscaping that they installed after the court entered the injunction. The court acted within its discretion to find the Dunns in contempt for violating the terms of the injunction.
ATTORNEY FEES
The Dunns request attorney fees pursuant to RAP 18.1 based on the settlement agreement and "based upon the law." Appellant's Br. at 49; Reply Br. at 21. The Roberts also request attorney fees and costs for the appeal based on RAP 18.1, RCW 10.14, the settlement agreement, and "any other applicable law." Resp't Br. at 30.
Rule 18.1(b) states that the party requesting fees must devote a section of its opening brief to the request for the fees or expenses; this procedure is mandatory. Pruitt v. Douglas County, 116 Wn. App. 547, 560, 66 P.3d 1111 (2003). The Dunns did not do so; we therefore deny their request.
The settlement agreement awards reasonable attorney fees and costs to the prevailing party. Additionally, as stated above, RCW 10.14.090(2) expressly permits the recovery of reasonable attorney fees and costs. Accordingly, we award attorney fees and costs of appeal to the Roberts.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
concur:
Armstrong, P.J. Hunt, J.