No. 26520-0-III.The Court of Appeals of Washington, Division Three.
January 27, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-2-05265-6, Maryann C. Moreno, J., entered October 16, 2007.
Affirmed
by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Kulik, JJ.
UNPUBLISHED OPINION
SCHULTHEIS, C.J.
Gary and Mary Finney, Jack and Darla Finney, and Jerome and Mary Hustead (Finney/Hustead) appeal a judgment restricting the scope of an easement that runs through Michael J. and Traci Naccarato’s property. Finney/Hustead assign error to the trial court’s (1) admission of testimony from a land use expert, (2) restriction of the scope of the easement, and (3) denial of their request for attorney fees under CR 11. We affirm.
FACTS
The parties are adjacent landowners of property located in Section 17, Township 26 North, Range 45 East, in Spokane County. In 1987, Michael W. and Jan Naccarato purchased an 80-acre parcel of property in the south half of Section 17 and later conveyed three parcels of this property to their children and respective spouses.
In October 2003, Finney/Hustead purchased a 365-acre parcel of property (Finney/Hustead parcel) north of the Naccarato property, intending to sell it to a developer. This parcel had been extensively logged by previous owners. Access to the parcel is by a 10-to 12-foot wide road easement that runs across Traci and Michael J. Naccarato’s property.
This easement road was conveyed to Mark and Arlys O’Leary in 1985 by Melvin and Billie Carman, the Naccaratos’ predecessors in interest, as follows:
[A]n easement to construct and maintain a roadway over and across
The South half (S½) of the Southwest Quarter (SW¼) of Section 17 . . .
(Servient estate) for ingress and egress to
The Northwest Quarter (NW¼) and the North Half (N½) of the Southwest Quarter (SW¼) of Section 17 . . .
(Dominant estate)
in the approximate location of the existing roadway now being used by the Grantee and for such uses and purposes as may be required from time to time for the full use and enjoyment of the dominant estate.
Clerk’s Papers (CP) at 159; Ex. 1.
Shortly after purchasing their parcel, Finney/Hustead listed it for sale. In 2005, while showing the property to potential buyers, Jack Finney discovered a barbed wire fence blocking access to the easement. Traci Naccarato confronted him when he returned from showing the property and told him he had no right to use the road. The Naccaratos subsequently built a metal gate and a berm across the easement to prevent access.
On November 1, 2005, the Naccaratos filed a lawsuit against Finney/Hustead to quiet title to the easement, alleging abandonment and adverse possession. Finney/Hustead filed a counterclaim to quiet title to the easement, enjoin the Naccaratos from interfering with their use of the easement, and to recover attorney fees under RCW 4.24.350, RCW 4.84.185, and CR 11. Both sides filed motions for summary judgment, which the trial court denied.
At trial, Jack Finney testified that when he and the Husteads purchased the property they intended to sell it for the development of 10-to 20-acre parcels. He stated that as of the date of trial, the property was listed for $1.6 million and advertised as suitable for the construction of 36 homes. Jerome Hustead corroborated Mr. Finney’s testimony that the property was purchased with the intent to sell or develop the property. He stated that the Naccaratos’ obstruction of the easement had made it impossible to maintain the easement or show the property to prospective buyers.
Dwight Hume, the Naccaratos’ land use expert, testified about the potential impact of a housing development. He explained that the construction of a single house on the Finney/Hustead parcel would significantly increase traffic on the road and require doubling the width of the easement. He testified that if more than three houses were constructed on the parcel, the road would need fire access pullouts and turnarounds.
The Naccaratos testified about facts relating to their abandonment and adverse possession claims. However, these claims are not pertinent to this appeal and therefore we do not detail this testimony. To rebut the Naccaratos’ adverse possession claim, Finney/Hustead produced evidence of the historical use of the easement road to access timber on the Finney/Hustead parcel during the 1980s and 1990s.
The trial court ultimately rejected the Naccaratos’ abandonment and adverse possession claims, but restricted the scope of the easement, concluding that Finney/Hustead could not widen it to accommodate a housing development.
The court’s findings of fact provided:
9.2 The historic use of the Easement to date primarily has been for timber resource management purposes, including maintenance of the Easement itself, and construction, improvement and maintenance of logging roads, and timber harvesting, within the West Side. The Easement also has been used by the owners of the 365 Acre Parcel for access to the West Side for purposes of visiting and inspecting the West Side, and of evaluating, showing, marketing and selling the 365 Acre Parcel. When the 1985 Easement was granted, Mr. O’Leary was interested in accessing the 365 Acre Parcel for logging activities. That is what the road was used for beforehand. During the 1980s and 90s, the road was used for logging activities.
9.3 The traveled portion of the Easement road, which is about 10 feet to 12 feet wide in most places, has been suitable for single lane traffic by logging trucks and other equipment.
9.4 The primary use of the 365 Acre Parcel until 2001 was for timber resource production. Crown Pacific at that time concluded that the commercial timber resources on the property had been exhausted, and that timber resource management no longer was the best use for the property. Crown Pacific then transferred the 365 Acre Parcel to Patriot Investments for the purpose of marketing and selling the property for uses other than timber resource management.
9.5 The Defendants in their efforts to market the 365 Acre Parcel have said that the property is suitable for residential development, however the Defendants have no plans to develop the property themselves. The Defendants have advertised the 365 Acre Parcel for sale. In the advertisement, the Defendants state that the 365 Acre Parcel is being sold for development purposes, suitable for executive homes up to 36 lots with clustering. The asking price for the 365 Acre Parcel was $1,795,000.00.
9.6 Any development of the West Side for residential purposes would have to be in compliance with applicable zoning, growth management, environmental, land use, building code and other applicable laws. If the West Side is developed in the future for residential purposes, and if the Easement as part of such development is used for residential access, then there would be residential traffic on the Easement. Development of the road would be significant. For example if one house were constructed on the West Side of the 365 Acre Parcel, and the Easement were used for access to the house, the Easement would have to be widened to at least 20 feet and there would be about 10 trips per day on the Easement. That type of use would have a significant impact on the Easement. If there were more than three houses constructed on the West Side, and the Easement were used for access to those houses, there would be additional significant impacts on the Easement including fire access, pullouts, and turnarounds as well as increased traffic. The expanded scope and use of the Easement would be a significant and substantial burden on the Easement and the Naccarato Parcel.
CP at 596-98.
From these findings, the court concluded that a housing development would substantially burden the servient estate, stating:
[T]he language in the easement that says “from time to time” would not fit with a development of this property. If there was a development of the property, cars would be going in and out all the time. And that, to me, would be a significant and substantial burden on the servient estate.
I don’t think that’s something that was contemplated by the parties when they entered into this contract. My finding is the defendants have the right to use the road consistent with the current width; and they can use it to access their property; they can maintain it; they can do whatever they need to improve it. But to widen it significantly or to change the general character of it is something that was not contemplated by the contract.
Report of Proceedings (RP) at 528.
Finney/Hustead appeal.
ANALYSIS Admission of Hume Testimony
We first address whether the trial court erred in admitting Mr. Hume’s testimony. Finney/Hustead argue that the court improperly admitted Mr. Hume’s testimony because it pertained to the hypothetical scenario of a housing development on the Finney/Hustead parcel. The Naccaratos counter that the issue was not preserved for appeal because Finney/Hustead failed to object to Mr. Hume’s testimony.
Generally, in the absence of an objection, an alleged evidentiary error is not preserved for our review. State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995). Here, the record shows that Finney/Hustead objected to Mr. Hume testifying about zoning or county road restrictions, but did not specifically object to testimony about the impact of the proposed housing development. The court disallowed testimony pertaining to zoning or county regulations, but allowed Mr. Hume to testify about the impact of the proposed housing development. When Mr. Hume later testified about this impact, Finney/Hustead again did not object. In view of this failure to object, the issue has not been preserved for our review.
Nevertheless, even if we address the issue, Finney/Hustead’s argument fails. A trial court is granted broad discretion in deciding whether to admit testimony. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939
(2004). We see no abuse of discretion here. Contrary to the Finney/Hustead claim that the proposed housing development was hypothetical, the record shows that Finney/Hustead advertised the property for the development of 36 homes. Further, both Mr. Finney and Mr. Hustead testified at trial that they purchased the property with the intent to sell it to a developer. In view of these facts, the trial court’s admission of Mr. Hume’s testimony regarding the impact of a housing development was proper.
Scope of Easement
Next, Finney/Hustead argue that the trial court erred in limiting the scope of the easement because the easement’s granting language “allows for whatever use is `necessary to constitute full enjoyment of the premises.'” Br. of Appellant at 24-25. The Naccaratos respond that even a broad easement grant is limited by the requirement of reasonable use and that “the owner of a dominant estate cannot expand the scope of an easement to unreasonably burden the servient estate.” Br. of Respondent at 21.
We review findings of fact under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational trier of fact that the premise is true. Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). We review only those findings of fact to which error has been assigned. Findings to which error has not been assigned are verities on appeal. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We note that Finney/Hustead do not assign error to findings of fact 9.2-9.5. Therefore, we treat them as verities. Finally, we review questions of law and conclusions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
The interpretation of an easement is a mixed question of law and fact Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979). A court construing an instrument creating an easement must ascertain and give effect to the intention of the parties. Green v. Lupo, 32 Wn. App. 318, 321, 647 P.2d 51 (1982). “What the original parties intended is a question of fact and the legal consequence of that intent is a question of law.”Sunnyside, 149 Wn.2d at 880. The scope of an easement is determined by looking at the intention of the parties to the original grant, the nature and situation of the properties subject to the easement, and the manner in which the easement has been used and occupied. Logan v. Brodrick, 29 Wn. App. 796, 799, 631 P.2d 429 (1981).
While an easement will be construed to accommodate the reasonable use of the dominant estate, “the owner of the dominant estate can make no larger use of his easement or change its character in any way so as to increase the burden on the servient estate.” Little-Wetsel Co. v. Lincoln, 101 Wash. 435, 445, 172 P. 746 (1918). The servient owner has the burden of proving misuse of the easement. Logan, 29 Wn. App. at 800.
Finney/Hustead specifically contend that the trial court erred in concluding that the language of the easement was ambiguous and in relying on outside evidence to interpret its scope. They argue that the plain language of the deed allows for unrestricted use, which includes the right to use the easement to access a housing development.
We disagree. “A written instrument is ambiguous when its terms are uncertain or capable of being understood as having more than one meaning.” Green, 32 Wn. App. at 322. Where ambiguity exists in the deed, we consider the intentions of the original parties, the circumstances of the property, and the practical interpretation given the parties’ prior conduct or admissions. Sunnyside, 149 Wn.2d at 880; Rupert v. Gunter, 31 Wn. App. 27, 640 P.2d 36 (1982).
Here, the language at issue provided for “a roadway . . . for such uses and purposes as may be required from time to time for the full use and enjoyment of the dominant estate.” CP at 159. The trial court found the granting language imprecise, noting that it could find no cases interpreting the phrase “from time to time.” It found the phrase “for full use and enjoyment of the dominant estate” even more unclear because “the dominant estate does not have the right to do absolutely anything they want to do on this easement that runs through someone else’s property.” RP at 526.
We agree with the trial court’s assessment. We find the granting language unclear as to whether the use of the easement is unrestricted or limited, noting that it is silent as to whether the dominant owners may use the easement to access a housing development on the Finney/Hustead parcel. In his own deposition, Jack Finney conceded that he could not interpret the phrase “from time to time.” CP at 1064-65. Because the easement language is ambiguous, the trial court properly considered outside evidence in evaluating its scope. Green, 32 Wn. App. at 321-22.
We also conclude that the evidence supports the court’s findings of fact, most of which are unchallenged, and that these findings in turn support the court’s restriction of the scope of the easement.[1]
Although normal growth of a dominant estate is permitted, we agree with the trial court that the original easement grant did not contemplate a housing development on the Finney/Hustead parcel. The unchallenged findings indicate that the easement had been used for logging purposes and that the easement road is narrow and suitable for single lane traffic. Accordingly, the trial court properly prohibited Finney/Hustead from expanding the use of the easement to accommodate a housing development. Finney/Hustead’s proposed changes would impermissibly burden the servient estate.
CR 11 Attorney Fees
Finney/Hustead contend the court should have awarded them attorney fees based on CR 11 because the Naccaratos went forward with their lawsuit after Finney/Hustead advised them that their claims were baseless. They also argue that the court applied the wrong standard in denying their request for fees under CR 11. The Naccaratos counter that their claims were not frivolous because they survived summary judgment.
We review a decision to impose or deny CR 11 sanctions for an abuse of discretion. Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707
(2004). CR 11 is meant to prevent baseless filings and filings made for an improper purpose. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448
(1994). “A filing is `baseless’ when it is `(a) not well grounded in fact, or (b) not warranted by (i) existing law or (ii) a good faith argument for the alteration of existing law.'” MacDonald v. Korum Ford, 80 Wn. App. 877, 883-84, 912 P.2d 1052 (1996) (quoting Hicks v. Edwards, 75 Wn. App. 156, 163, 876 P.2d 953 (1994)). The trial court should impose sanctions only when it is “patently clear that a claim has absolutely no chance of success.” Skimming, 119 Wn. App. at 755. The fact that a complaint did not survive on the merits is not enough. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).
Further, “a court need not enter findings when the request for CR 11 sanctions is rejected. It is the decision to impose the sanction that must be supported by the record.” Skimming, 119 Wn. App. at 755. “[T]he threshold for imposition of these sanctions is high.” Id.
Here, Finney/Hustead requested attorney fees and costs under RCW 4.84.185, RCW 4.24.350, and/or CR 11 for being forced to defend against the Naccaratos’ abandonment and adverse possession claims. The court denied their request, concluding the Naccaratos’ lawsuit was not “frivolous as a whole.” CP at 582. We reject Finney/Hustead’s claim that this language establishes that the court applied the wrong standard. This language, in part, was simply referencing the standard for denial of attorney fees under RCW 4.84.185.
Further, the Naccaratos raised colorable issue of abandonment and adverse possession. They testified extensively about the disuse of the easement for over 10 years and their attempts to keep people off the easement. They supported their claims with references to applicable law. The fact that they did not ultimately prevail on their claims does not render them baseless. And nothing in the record suggests their lawsuit was filed to harass or delay proceedings. Under these facts, it cannot be said that the Naccaratos’ claims were totally without basis in law or fact. Accordingly, the trial court did not abuse its discretion in refusing to impose sanctions/attorney fees under CR 11.
Attorney Fees
The Naccaratos request an award of their attorney fees pursuant to RAP 18.1 and RAP 18.9 for being forced to respond to a frivolous appeal of the trial court’s denial of CR 11 attorney fees. Although the Finney/Hustead’s argument on the issue has not prevailed, it is not frivolous. Accordingly, the Naccaratos are not entitled to attorney fees for responding to the issue.
The judgment of the trial court is affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KULIK, J., concur.