Gunn v. Riely

ROBERT GUNN, Respondent, v. TERRY L. RIELY and PETRA E. RIELY, husband and wife, and their marital community, and all Persons Claiming Any Leal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs' Title, or Any Cloud On Plaintiffs' Title Thereto, Appellants.

No. 48701-2-II

Court of Appeals of Washington, Division 2

September 12, 2017

UNPUBLISHED OPINION

BJORGEN, C.J.

This is the second appeal involving Robert Gunn's trespass and quiet title claims against Terry and Petra Riely. In the first appeal, ^[1] we reversed the trial court's award of damages to Gunn under the waste statute, RCW 4.24.630, and remanded for the trial court to determine damages under the timber trespass statute, RCW 64.12.030. On remand, the trial court awarded $459 in treble damages to Gunn under the timber trespass statute. Because the timber trespass statute has no attorney fee provision, it awarded $17, 500 in attorney fees in equity to Gunn for the Rielys' bad faith based on the prior trial court's findings of fact and conclusions of law.

The Rielys appeal, arguing that (1) the law of the case doctrine precluded the trial court on remand from awarding attorney fees in equity, (2) Gunn waived his claim for attorney fees in equity, (3) attorney fees can only be awarded in equity when a violation of a temporary injunction is involved, and that the trial court on remand (4) erred in determining that the Rielys engaged in bad faith conduct based on the prior trial court's findings of fact and conclusions of law which determined liability only under the waste statute, (5) erred because the prior trial court's findings and trial evidence show that the Rielys had "probable cause to believe" that they had an implied easement under RCW 64.12.040, the mitigating circumstances exception of the timber trespass statute, (6) abused its discretion in awarding $17, 500 in attorney fees because, under the proportionality doctrine, it failed to exclude costs related to the nonprevailing claim of waste, and (7) abused its discretion in finding that the Rielys were not the prevailing party under RCW 4.84.250 and CR 68.

We hold that the Rielys' contentions fail and affirm the trial court.

FACTS

The relevant underlying facts are described in our opinion resolving the first appeal:

Gunn and the Rielys own adjacent property in the Storm King Ranch subdivision (Storm King) in Clallam County, Washington. Joel Sisson, one of the Storm King developers, purchased the Storm King land and subdivided it.... Gunn owns parcel 1 and the Rielys own parcel 2.

. . . .

A grassy path (an old logging road) . . . runs roughly parallel along the boundary line between Gunn's property and the Rielys' property, and ends near the common corner shared by parcels 1 [and] 2. . . . The grassy path is entirely on Gunn's property and is about 75 feet from the boundary line with the Rielys' property.

Between 2000 and 2009, the Rielys used the grassy path to access parts of their property. During that time, Gunn repeatedly told the Rielys that they did not have the right to use the grassy path and that they were not welcome on his land. The Rielys continued to tell Gunn that they believed that they had a right to use the path. In the spring of 2008 Gunn went to the courthouse to inspect the deeds and determined that the Rielys did not have an easement of record. Also in 2008, the Rielys asked to purchase an easement from Gunn, but he declined.

In 2009, the Rielys hired Oasis Well Drilling to build a well on their property near the common corner. The Rielys directed Oasis to use the grassy path for access to the Rielys' property. When the Rielys directed Oasis to use the grassy path, they were aware that Oasis planned to cut trees on the grassy path to get to the drill site. Oasis cut down approximately 107 of Gunn's trees along the grassy path to make room for the equipment needed to drill the well.

Gunn v. Riefy, 185 Wn.App. 517, 519-20, 344 P.3d 1225, review denied, 183 Wn.2d 1004 (2015) (Gunn I) (footnotes omitted).

Gunn filed an amended complaint in 2013, alleging that the Rielys were liable under the timber trespass statute, RCW 64.12.030 and subject to treble damages for a willful trespass. As an additional theory, he alleged that the Rielys were liable under the waste statute, RCW 4.24.630, for "wrongfully caus[ing] waste or injury to the land." Clerk's Papers (CP) at 316. Gunn also asked the court for injunctive relief to remove and enjoin use of a well that the Rielys installed 30 feet within the border of Gunn's property. Further, Gunn requested injunctive relief to prevent the Rielys from continuing to enter his property and asked for a judgment quieting title against any claim of the Rielys for an easement over the grassy path. The complaint also stated that "[t]he award of damages for all claims will not exceed . . . $10, 000." CP at 319.

As litigation proceeded, the Rielys and Gunn stipulated to dismissing Gunn's claim for injunctive relief concerning the Rielys' well. Further, the Rielys made an offer of settlement pursuant to RCW 4.84.250 and .280 to settle Gunn's "[t]imber [t]respass [c]laim against them" for $1, 000. CP at 269. The Rielys also made an offer of judgment pursuant to CR 68, offering $1, 000 for the timber trespass claim, $50 for service of process, $230 for the superior court filing fee, and $200 for the attorney fees. Gunn rejected these offers, purportedly because they failed to settle the quiet title action.

At trial, "Gunn moved in limine to . . . prevent the Rielys from bringing a quiet title action to establish an implied easement because the Rielys did not plead these claims and Gunn did not have notice of these claims." Gunn I, 185 Wn.App. at 522 (footnote omitted). The trial court did not allow the Rielys to bring a quiet title action, but permitted them to present evidence of an implied easement for the limited purpose of defending against Gunn's claims. Id.

At the end of trial, the trial court entered the following pertinent factual findings:

1. FINDINGS OF FACT

. . . .

1.14 Between 1999, when Mr. Gunn purchased his property, and 2009, when the tree cutting took place that [led] to this litigation, Mr. Gunn recalled and recounted at least five confrontations he had had with his neighbors, the Rielys, on his property-some less friendly than others. . . .

1.15 During these contacts, however, Mr. Gunn testified consistently that he made it clear that the Rielys were on his property, that they were trespassing, that they were not invited guests, and that they were not welcome.

. . . .

1.17 It appears that in the spring of 2008 the last contact of significance occurred prior to the tree removal. . . .

. . . .

1.19 . . . [T]he two gentlemen had a conversation during which Mr. Gunn made it clear that they were trespassing on his property by using the grassy path and that there was no easement there for their use. He testified that Mr. Riely verbally pushed back by indicating that Mr. Sisson, the man who sold parcel two to the Rielys, had represented to the Rielys that they did in fact have the right to use the grassy path as [an] easement to access their property.

1.20 Mr. Gunn told him that he had reviewed the county records and that they did not have an easement.

1.21 Mr. Riely was not accepting of Mr. Gunn's representation about the easement, but he did acknowledge that one thing that conversation made absolutely clear was that the property they were on was owned by Mr. Gunn, and there was no question about that.

1.22 He questioned whether there was a discussion about them having any right to use that property owned by Mr. Gunn. This is where the Riely[]s big mistake came in. The property was clearly owned by Mr. Gunn and that has never been contested.

1.23 The issue was whether or not the Rielys had obtained any right of use with regard to that grassy pathway. The Riely[]s did not then take reasonable steps to confirm their right to use that portion of Mr. Gunn's property or they used it knowing that they did not have a right to do so.

1.24 The next events of significance occurred on July 27 2009. Mr. Gunn was on vacation visiting his mother in Minnesota. He got a call from ... his neighbor to the west, indicating that someone was cutting trees on his property. ... He came home as quickly as he could. ... He then saw the damage, counting 107 visible tree stumps, others perhaps not visible, and all of the trees that had been cut and simply piled or thrown alongside the grassy pathway, no attempt having been made to remove them or clean them up.

. . . .

1.30 One thing is now clear after hearing all of the testimony: There is not an easement of record for anybody over the grassy path. . . .

1.31 . . . If there had been an easement in favor of Mr. and Mrs. Riely, it would have . . . appeared on the deed. . . .

1.32 The question arises as to how Mr. and Mrs. Riely were to know this when it had been represented to them by Mr. Sisson that they had an access easement. Mr. Sisson was a little bit unclear as to what he had told them, but I am satisfied from the testimony that he made that representation. I think had that not been the case, they would not have had any other reason to think they had the right to use the grassy path.

1.33 So how would the defendants know? By looking at the face of their deed where an easement would have to be described, . . . [t]he preliminary commitment for title insurance . . .[, or] their policy of title insurance itself.

. . . .

1.39 The biggest mistake the defendants made was not making that inquiry when the issue had obviously been raised by Mr. Gunn in no uncertain terms.

1.40 The Defendants have raised the issue that the trees were cut on Mr. Gunn's

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