Beers v. Ross

• Decision Date: 13 March 2007
• Docket Number: No. 34123-9-II.,No. 34137-9-II.,34123-9-II.,34137-9-II.
• Citation: 137 Wn. App. 566,154 P.3d 277
• Court: Washington Court of Appeals
• Parties: Ronald L. and Sherry A. BEERS, Appellants, v. Deanna ROSS, unmarried; and Washington State Finance Commission; and The Leader Mortgage Co. nka U.S. Bank Home Mortgage, Respondents.

154 P.3d 277

137 Wn. App. 566

Ronald L. and Sherry A. BEERS, Appellants, v. Deanna ROSS, unmarried; and Washington State Finance Commission; and The Leader Mortgage Co. nka U.S. Bank Home Mortgage, Respondents.

No. 34123-9-II.

No. 34137-9-II.

Court of Appeals of Washington, Division 2.

March 13, 2007.

Alan Neil Rasmussen, Attorney at Law, Spanaway, WA, for Appellants.

Shelly K. Speir, Troup Christnacht Ladenburg McKasy et al, Tacoma, WA, David Conrad Neu, Kirkpatrick & Lockhart Preston Gates Ell, Seattle, WA, for Respondents.

QUINN-BRINTNALL, J.

¶ 1 In 2001, Deanna Ross moved next door to Ronald and Sherry Beers. For several years, the neighbors shared a 15-foot-wide driveway that ran from 168th Street to their Spanaway homes. But in early 2005, the Beers told Ross that she could no longer use the driveway and then sued, seeking to quiet title to a portion of the driveway that ran over Ross's property and an injunction restraining Ross from maintaining a fence that she erected on the property line that impeded the Beers' use of the driveway. Ross filed a document entitled "Answer, Defenses, and Counterclaims" in which she acknowledged ownership of the property, denied the Beers' substantive allegations, and counterclaimed to quiet title and to enjoin the Beers from trespassing on the Ross property and from verbally assaulting or harassing Ross, her children, and her invitees.

¶ 2 The Beers did not timely reply to Ross's counterclaims. Ross moved for summary judgment and dismissal of the Beers' claims and for judgment on the pleadings of her counterclaims. The trial court denied the Beers' request for leave to file a late reply to Ross's counterclaims. In an order dated September 27, 2005, the trial court dismissed the Beers' claims with prejudice and granted Ross summary judgment on her counterclaims.

¶ 3 The trial court denied the Beers' timely motion to reconsider and awarded Ross $7,425 in attorney fees, $205.24 in costs, and $50 in damages. The trial court later granted Ross's motion to cancel the Beers' notice of lis pendens.

¶ 4 Because the trial court improperly excluded Ronald Beers's affidavit and belated response to Ross's counterclaims and because the record reveals material issues of disputed fact, we reverse the trial court's award of summary judgment and remand the matter for trial.

FACTS

¶ 5 When the Beers moved into their home in 1986, a driveway ran from 168th Street to the Beers' home. Ross purchased her property in April of 2001, believing that anyone living or visiting the Beers or Ross properties could use the driveway. Even though the driveway was located primarily on the Beers' property, at one point it curved eastward around a utility pole onto Ross's property for about five to seven feet.

¶ 6 In early 2005, the Beers told Ross that she could no longer use the driveway. In February, the Beers sued to quiet title to the five to seven feet of Ross's property on which the driveway curved around the utility pole. After the Beers sued Ross, she erected a fence along the property line. The fence impeded but did not block the Beers' use of the driveway. The Beers amended the complaint to include a request for trespass damages and an order to remove what they characterized as a spite fence.¹ As described above, the trial court granted Ross's summary judgment motions to dismiss the Beers' complaint and award her summary judgment on her counterclaims and the Beers appealed.

¶ 7 On appeal, the Beers argue that the trial court erred when it (1) granted summary judgment in Ross's favor on their claims and on Ross's counterclaims; (2) denied the Beers' motion for leave to file a late reply to Ross's counterclaims; (3) granted Ross attorney fees and costs; and (4) cancelled the Beers' notice of lis pendens.

ANALYSIS

SUMMARY JUDGMENT DISMISSING THE BEERS' COMPLAINTS

¶ 8 Washington law favors resolution of cases on their merits. Smith v. Arnold, 127 Wash.App. 98, 103, 110 P.3d 257 (2005). We review a trial court's summary judgment decision de novo. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). In conducting our review, we weigh all facts and any reasonable inferences from those facts in the light most favorable to the nonmoving party, the Beers. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990)); Van Dinter v. City of Kennewick, 121 Wash.2d 38, 44, 846 P.2d 522 (1993); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

¶ 9 Here, the Beers contend that the trial court improperly excluded material evidence by refusing to consider Ronald Beers's declaration. And, citing Marshall v. A C & S, Inc., Ross argues that the trial court was prohibited from considering Ronald Beers's declaration because it conflicted with his sworn deposition testimony. 56 Wash.App. 181, 185, 782 P.2d 1107, (1989).² But Ross reads Marshall too broadly; Marshall does not require that the trial court exclude a contradicting declaration from consideration on summary judgment. Duckworth v. Langland, 95 Wash.App. 1, 7-8, 988 P.2d 967 (1998), review denied, 138 Wash.2d 1002, 984 P.2d 1033 (1999).

¶ 10 We have previously addressed the scope of Marshall's evidentiary impact. In State Farm Mutual Automobile Insurance Co. v. Treciak, we noted that Marshall does not stand for the proposition that "statements in a party's affidavit are inadmissible . . . if the affidavit is inconsistent with an earlier deposition and fails to explain the inconsistency." 117 Wash.App. 402, 408, 71 P.3d 703 (2003) (quoting Schonauer v. DCR Entm't, Inc., 79 Wash.App. 808, 817, 905 P.2d 392 (1995), review denied, 129 Wash.2d 1014, 917 P.2d 575 (1996)), review denied, 151 Wash.2d 1006, 87 P.3d 1186 (2004). Rather, we observed that the Marshall court addressed the sufficiency, not admissibility, of the testimony. And because the Marshall court looked at whether there existed a material issue of disputed fact to withstand summary judgment. Treciak, 117 Wash. App. at 407, 71 P.3d 703 (citing Marshall, 56 Wash.App. at 185, 782 P.2d 1107).

¶ 11 In Treciak, we also noted that there exists a "basic evidential premise that on summary judgment, a later declaration should be considered in light of other evidence presented in the case to determine whether sufficient evidence raises a factual issue." 117 Wash.App. at 408, 71 P.3d 703.

¶ 12 Here, relying on a widespread misunderstanding of Marshall, the trial court excluded Ronald Beers's declaration when it considered the summary judgment motion. Reviewing de novo Ronald Beers's declaration in light of other evidence presented, we note that the declaration does not flatly contradict his deposition testimony. Ross argues that, for example, Ronald Beers's declaration that he "made a continuous habit to drive over the established road to avoid a utility pole located on the west fifteen feet of my land," directly contradicts his deposition testimony that he did not use the curved portion of Ross's property. Clerk's Papers at 247. We disagree. The two statements do not directly contradict other testimony that he had consistently used the driveway since he moved onto the property many years before Ross purchased her property. Nor are Ronald Beers's statements in his declaration inconsistent with the photographic evidence depicting the history of the driveway's route. The trial court should have considered these statements.

¶ 13 Reviewing de novo all the facts and all reasonable inferences in the Beers' favor, as we must, the Beers demonstrated at least two material issues of disputed fact—historic use of the driveway and whether use of neighbor's property for ingress and egress was permissive or adverse—sufficient to overcome summary judgment and dismissal of their claims.

MOTION TO ALLOW UNTIMELY RESPONSE TO COUNTERCLAIMS

¶ 14 On August 18, 2005, Ross filed a motion for summary judgment dismissal of the Beers' claims and a motion for summary judgment on her counterclaims. We have already held that Ross's motion for summary judgment dismissing the Beers' claims was improper. We turn now to Ross's motion for summary judgment on her counterclaims.

¶ 15 With the trial court's permission, the Beers amended their original complaint twice. Ross responded to each amended complaint with answers, affirmative defenses, and counterclaims. The Beers did not separately reply within the required time to the counterclaims, which were generally antithetical to their claims. Ross based her motion for summary judgment on her counterclaims solely on the Beers' failure to reply. On August 19, 2005, the day after Ross moved for summary judgment, the Beers filed a motion for leave to file a late reply to the counterclaims. Then 10 days later, the Beers filed a reply to Ross's counterclaims without leave of the court.

¶ 16 On September 23, 2005, the trial court heard both the Beers' motion for late reply and Ross's summary judgment motions. The court denied the Beers' motion to file a late reply to the counterclaims and granted Ross's motions for summary judgment. And the court granted Ross's request for attorney fees, costs, and an award of $50 in damages.

¶ 17 The Superior Court Civil Rules require a reply to a counterclaim; it is not optional. Jansen v. Nu-West, Inc., 102 Wash.App. 432, 438, 6 P.3d 98 (2000) (citing CR 7(a)), review denied, 143 Wash.2d 1006, 20 P.3d 945 (2001). Absent a contrary court order, a reply must be filed within 20 days and must fairly meet the substance of any averment denied. CR 12(a)(4). Jansen, 102 Wash.App. at...