Bryan Kelley, , & Dorre Don LLC v. Beverly L. Tonda & Michael E. Tonda, Husband & Wife & the Marital Cmty. Composed Thereof, Kennan T. Southworth & Patricia C. Southworth, Husband & Wife, King Cnty. Wash., Mun. Corp.

• Decision Date: 27 March 2017
• Docket Number: No. 74423-2-I,74423-2-I
• Citation: 393 P.3d 824,198 Wash. App. 303
• Court: Washington Court of Appeals
• Parties: Bryan KELLEY, a married man as his separate property, and Dorre Don LLC, Appellants, v. Beverly L. TONDA and Michael E. Tonda, husband and wife and the marital community composed thereof, Kennan T. Southworth and Patricia C. Southworth, husband and wife, King County Washington, a Washington municipal corporation, Chicago, Milwaukee & St. Paul Railway Company of Washington (or its successors in interest), Respondents.

198 Wash.App. 303

393 P.3d 824

Bryan KELLEY, a married man as his separate property, and Dorre Don LLC, Appellants,

v.Beverly L. TONDA and Michael E. Tonda, husband and wife and the marital community composed thereof, Kennan T. Southworth and Patricia C. Southworth, husband and wife, King County Washington, a Washington municipal corporation, Chicago, Milwaukee & St. Paul Railway Company of Washington (or its successors in interest), Respondents.

No. 74423-2-I

Court of Appeals of Washington, Division 1.

FILED: March 27, 2017

Catherine C. Clark, The Law Office of Catherine C. Clark PLLC, 2200 6th Ave., Ste. 1250, Seattle, WA, 98121-1820, for Appellants.

Ambika Kumar Doran, Clayton Paul Graham, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, John Furse Briggs, Office of the Prosecuting Attorney, 516 3rd Ave., Rm. W400, Seattle, WA, 98104-2388, for Respondents.

Dwyer, J.¶1 Some cases simply must be tried. In today's legal culture, there seemingly prevails a belief that all lawsuits are somehow, someway subject to resolution by dispositive motion. But that never has been—and never will be—true. Instead, even where, as here, all of the key participants and eye witnesses are long since dead, a trial is necessary when the material facts are not agreed.

¶2 In this lawsuit, the key material fact in question is the bilateral intent of the parties to a conveyance of real property. The conveyance took place more than a century ago. Those involved in negotiating the transaction died long ago. Almost all of the pertinent evidence is documentary in nature. But none of these circumstances renders a trial unnecessary. To the contrary, because the evidence proffered raises competing inferences as to the intent of the parties to the transaction, fact-finding by trial is indispensable. Because the superior court viewed the situation otherwise, we reverse.

I

¶3 Bryan Kelley owns real property abutting Dorre Don Way in Maple Valley, Washington. His property adjoins Kennan and Patricia Southworths' property, which adjoins Beverly and Michael Tondas' property. In dispute is a 40-foot strip of land adjacent to Kelley's and the Southworths' property, extending down from Dorre Don Way and terminating before reaching the Tondas' property (labeled "Right of Way" below). A gravel driveway extends down the right-of-way, providing the Southworths and the Tondas with access to Dorre Don Way. From the end of the right-of-way to the edge of the Tondas' property is a separate tract of land that is not here at issue.

¶4 Since moving to Maple Valley in 1995, the Tondas have routinely used the driveway to reach Dorre Don Way and, from there, have crossed a small strip of land leading down to a public trail known as the Cedar River Trail. The Tondas state that the Southworths have taken numerous steps to prevent them from using the driveway, including planting trees in the driveway, moving boulders to block the driveway, and installing a locked gate to prevent the Tondas from accessing Dorre Don Way and the driveway upon returning home from the trail. For his part, Kelley maintains a fence around his property that partially protrudes into the right-of-way, although it does not prevent vehicles from accessing the driveway.

¶5 Unable to amicably resolve their neighborly differences, the Tondas sought assistance from King County, In a letter addressed to all three neighbors in 2005, the King County Road Services Division stated that it had determined that the driveway is "within a 40-foot strip of land that was originally deeded to King County for public highway purposes in 1908." In this letter the County also stated that it does not recognize the restrictions and provisions included in a recorded private easement purported to extend over the public right-of-way, that the County would install road signage at the intersection of the driveway and Dorre Don Way, and that all fencing within the right-of-way needed to be removed. The King County Division of Parks and Recreation also sent a letter to the Southworths, informing them that they needed to remove the fence along the trail corridor.

¶6 The County has repeatedly attempted to obtain compliance from Kelley and the Southworths. In early 2006, a county attorney sent a letter to the Southworths ordering them to remove all trees, rocks, and fencing within the right-of-way. In September of the same year, the King County Department of Development and Environmental Services sent a letter to Kelley ordering him to remove the portion of his fence that partially blocked the right-of-way, stating that he would be billed for all subsequent compliance inspections.

¶7 The Tondas then petitioned the County for permission to restore the driveway to its 1994 width—which would necessitate removing the trees and rocks extending down the sides of the driveway. The County required the Tondas to obtain the relevant permits and surveys prior to restoration. Before they could do so, the Southworths filed a petition asking the County to vacate the right-of-way. A hearing was held on the matter in April of 2009. A hearing examiner denied the petition. The Southworths appealed the hearing examiner's decision to the King County Council, which adopted the findings of the hearing examiner and denied the petition. Thereafter, the Tondas received a boundary line adjustment and the County granted them a permit to build a residence on their second lot, restore the width of the driveway, and remove obstructions from the right-of-way.

¶8 Kelley commenced this action before such work began. The trial court granted summary judgment in favor of the Tondas, concluding that the public right-of-way was originally conveyed to the County in 1907 and is still in existence today. Kelley timely appealed.¹

II

A

¶9 We review de novo a trial court's order granting summary judgment, performing the same inquiry as the trial court. MacMeekin v. Low Income Hous. Inst., Inc. , 111 Wash.App. 188, 195, 45 P.3d 570 (2002). An order granting summary judgment may be entered when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing a summary judgment order, we view the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Holmquist v. King County , 182 Wash.App. 200, 207, 328 P.3d 1000 (2014).

¶10 "The object and function of summary judgment procedure is to avoid a useless trial. A trial is not useless, but is absolutely necessary where there is a genuine issue as to any material fact." Barber v. Bankers Life & Cas. Co. , 81 Wash.2d 140, 144, 500 P.2d 88 (1972). "A material fact is one upon which the outcome of the litigation depends." Balise v. Underwood , 62 Wash.2d 195, 199, 381 P.2d 966 (1963). Importantly, "even if the basic facts are not in dispute, if the facts are subject to reasonable conflicting inferences, summary judgment is improper." Southside Tabernacle v. Pentecostal Church of God, Pac. Nw. Dist., Inc. , 32 Wash.App. 814, 821, 650 P.2d 231 (1982). Indeed, "[s]ummary judgment procedures are not designed to resolve inferential disputes." Sanders v. Day , 2 Wash.App. 393, 398, 468 P.2d 452 (1970). "It seems obvious that in situations where, though evidentiary facts are not in dispute, different inferences may be drawn therefrom as to ultimate facts such as intent, ... a summary judgment would not be warranted." Preston v. Duncan , 55 Wash.2d 678, 681-82, 349 P.2d 605 (1960) ; accord Weisert v. University Hosp. , 44 Wash.App. 167, 172, 721 P.2d 553 (1986).

¶11 The purpose of contract interpretation is to ascertain the intent of the parties. Roats v. Blakely Island Maint. Comm'n, Inc. , 169 Wash.App. 263, 274, 279 P.3d 943 (2012). Washington courts "follow the objective manifestation theory of contracts." Hearst Commc'ns, Inc. v. Seattle Times Co. , 154 Wash.2d 493, 503, 115 P.3d 262 (2005). Under this approach, "[w]hen interpreting an agreement, we focus on the agreement's objective manifestations to ascertain the parties' intent." Martin v. Smith , 192 Wash.App. 527, 532, 368 P.3d 227, review denied , 186 Wash.2d 1011, 380 P.3d 501 (2016).

¶12 A contract may consist of one or several writings. Smith v. Skone & Connors Produce, Inc. , 107 Wash.App. 199, 206, 26 P.3d 981 (2001). All writings that are part of the same transaction are interpreted together. RESTATEMENT ( SECOND ) OF CONTRACTS § 202(2) (1981).

[T]he terms of agreement may be expressed in two or more separate documents, some of these containing promises and statements as to consideration, and others, such as deeds ... embodying performances agreed upon rather than a statement of terms to be performed. In every such case, these documents should be interpreted together, each one assisting in determining the meaning intended to be expressed by the others.

5 MARGARET N. KNIFFEN, CORBIN ON CONTRACTS § 24.21, at 216 (1998). Writings are one indication of the parties' intent, but are not necessarily determinative of that intent. Indeed, this is why writings—not contracts—are reformed to reflect the true intent of the parties. W. Coast Pizza Co. v. United Nat'l Ins. Co. , 166 Wash.App. 33, 41, 271 P.3d 894 (2011) (citing A & A Sign Co. v. Maughan , 419 F.2d 1152, 1156 (9th Cir. 1969) ).

¶13 In Berg v. Hudesman , 115 Wash.2d 657, 669, 801 P.2d 222 (1990), our Supreme Court rejected the theory that contract language must be ambiguous before evidence of the surrounding circumstances is admissible. Accordingly, we may consider extrinsic evidence to assist us in ascertaining the intent of the parties in entering into a contract, regardless of whether the language used in the writings is deemed ambiguous. Hearst Commc'ns, Inc. , 154 Wash.2d at 502, 115 P.3d 262 ("[I]ntent of the contracting parties cannot be interpreted without examining the context surrounding an instrument's execution." (citing Berg , 115 Wash.2d at 668, 801 P.2d 222 )).

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