Edsel v. Gill
| Decision Date | 15 December 2020 |
| Docket Number | No. 53461-4-II,53461-4-II |
| Parties | ERNEST M. EDSEL, an individual, and JUDY LAMB, an individual, Appellants, v. PATRICK GILL, an individual; BARBARA BOWMAN, an individual; DEREK LAMOUREAUX, an individual; AMBERLEE D'APPOLIONIO, an individual, and JOHN DOES (1-10), Respondents. |
| Court | Washington Court of Appeals |
GLASGOW, J.—Ernest M. Edsel and Judy Lamb1 sued the landlords who owned the duplex next door to Edsel's home and their tenants over activities Edsel alleged constituted nuisance, trespass, and violation of an easement. The trial court granted the defendants' 2018 partial motion for summary judgment and the defendants' 2019 motion for summary judgment on the rest of Edsel's claims. Edsel appeals the 2019 summary judgment ruling. He also argues that the trial court erred by denying his motion to compel discovery and rejecting two declarations that he submitted. Edsel asks this court to grant two motions under RAP 10.4(d), challenges the trial court's award of attorney fees to the defendants, and requests attorney fees on appeal.
We reverse the trial court's dismissal of the burning nuisance claim against the tenants, alleging that they burned materials in their fire pit that caused noxious fumes and smoke to drift onto Edsel's property and into his home. But we otherwise affirm the trial court's 2019 summary judgment ruling. We do not review the trial court's 2018 partial summary judgment order because Edsel did not designate it in his initial or amended notice of appeal. We deny Edsel's motions to this court because RAP 10.4(d) does not permit a party to file a nondispositive motion in their brief. We remand for the trial court to reconsider its attorney fees award. We do not award attorney fees to any party on appeal.
In 2016, a trust, whose sole beneficiaries were Edsel and his wife Lamb, purchased a house in Bremerton, Washington. Edsel and Lamb moved into the house. Next door to Edsel and Lamb was a duplex owned by Patrick Gill and his wife Barbara Bowman. Gill and Bowman rented the duplex to two sets of tenants, Derek and Anna Lamoureux and Amberlee D'Appolionio and Joshua Dodge.
Edsel and his landscapers noticed marijuana plants growing in buckets and in the ground at Gill and Bowman's duplex. D'Appolionio had a medical marijuana license. Edsel notified the police about the marijuana plants, and an officer spoke with D'Appolionio but took no further action. Edsel also complained to the tenants and landlords about the tenants' use of a fire pit in their yard and vehicle noise.
A private driveway provides access to Gill and Bowman's duplex and other neighborhood properties, but does not abut Edsel's property. Mutual easements recorded in 1977 contained amaintenance provision for any private road built in the easement's common area in the future. According to Edsel, the tenants crowded the driveway with cars, failed to clean up trash, and used drugs in the driveway.
In 2018, Edsel sued Gill, Bowman, and two of their tenants, alleging nine causes of action. Count one alleged nuisance on the basis that the tenants grew marijuana plants in the yard of Gill and Bowman's duplex. Counts two and three alleged nuisance and trespass based on the argument that smoke and noxious odors from the tenants' fire pit wafted inside Edsel's home. Counts four and five alleged noise nuisance and trespass claims based on the defendants' use of loud vehicles. Count six alleged that the condition of the driveway constituted a nuisance because there was trash in the driveway and it did not comply with various local, state, and federal regulations for private roads. Count seven alleged that the defendants breached a maintenance agreement for the private common area driveway contained in the 1977 mutual easements. Counts eight and nine were nuisance and trespass claims based on the defendants' alleged failure to maintain English ivy on their side of the property, causing it to grow into Edsel's yard.
Edsel sought discovery from Gill and Bowman, who provided some of the materials Edsel requested but objected with regard to others. Edsel filed a motion to compel production of the remaining materials, including documents Edsel had provided to the landlords' insurer, Farmers Insurance, before losing his own copies. Edsel also sought materials from the landlords about their tenants. The trial court denied Edsel's motion to compel.
In 2018, Gill and Bowman moved for partial summary judgment seeking dismissal of Edsel's claims for noise trespass, common area nuisance, and breach of the common area maintenance agreement regarding the driveway. The tenants joined the landlords' motion.
Edsel then amended his complaint and substituted himself as plaintiff for Lamb, his wife. The second amended complaint was otherwise substantively identical to the initial complaint. Edsel responded to the defendants' motion for partial summary judgment two days before the hearing.
The defendants moved to strike Edsel's response and supporting declarations. The trial court granted the defendants' motion to strike because the response and supporting declarations were untimely. The trial court granted the defendants' motion for partial summary judgment, dismissing Edsel's noise trespass, common area nuisance, and breach of the common area maintenance agreement claims against both sets of defendants. Edsel filed a motion for reconsideration and clarification, which the trial court denied.
In 2019, the defendants moved for summary judgment dismissal of the rest of Edsel's claims. Edsel responded and filed declarations from himself, Lamb, David Herzog (who operated the landscaping business that worked on Edsel's property), Pedro Estrada and Marcelo Osorio (landscapers who worked for Herzog), and an unsigned and undated declaration from Dr. Helen Shaha (Edsel's and Lamb's primary care physician). The trial court denied Edsel's motion for a continuance to obtain Dr. Shaha's signature. Defendants moved to strike Edsel's responsive materials. The trial court declined to consider Herzog's declaration because it did not state it wassworn under the laws of Washington, and the court did not consider Dr. Shaha's declaration because it was unsigned and undated.
During the summary judgment hearing, counsel for the landlords stated, Clerk's Papers (CP) at 1382.
The trial court granted the defendants' summary judgment motion, dismissing the rest of Edsel's claims against both sets of defendants. Edsel then filed several posthearing motions, including a motion asking the trial court to reconsider or amend its summary judgment order. These motions were based on Edsel's assertion that the landlords' lawyer made a "judicial admission" allegedly conceding all liability when he stated, "[W]e're accepting as true Mr. Edsel's allegations." CP at 1327-329 (boldface omitted). The trial court denied Edsel's motion to reconsider or amend the summary judgment order. The trial court awarded attorney fees to the defendants, finding Edsel's claims frivolous.
Edsel appeals the trial court's denial of his motion to compel discovery, 2019 summary judgment order, order denying reconsideration, and award of attorney fees to the defendants. Edsel assigns error to the trial court's 2018 partial summary judgment order and the trial court's order denying his motion for reconsideration of that ruling, but he never designated either order in his initial or amended notice of appeal.
As an initial matter, we hold that neither the 2018 partial summary judgment order nor the order denying Edsel's motion for reconsideration of that ruling is properly before this court.
Under RAP 2.4(a), appellate courts generally review only decisions "designated in the notice of appeal." RAP 2.4(b) provides an exception that applies where "the order or ruling prejudicially affects the decision designated in the notice." For RAP 2.4(b) to apply, "'[t]he issues in the two orders must be so entwined that to resolve the order appealed, the court must consider the order not appealed.'" Cox v. Kroger Co., 2 Wn. App. 2d 395, 407, 409 P.3d 1191 (2018) (internal quotation marks omitted) (quoting Foster v. Gilliam, 165 Wn. App. 33, 45, 268 P.3d 945 (2011)).
The trial court's 2018 partial summary judgment order did not prejudicially affect its 2019 summary judgment decision. Had the trial court denied the defendants' 2018 partial summary judgment motion, it could still have dismissed Edsel's other claims in its 2019 summary judgment order. RAP 2.4(b) thus does not apply. The same is true for the order denying reconsideration. We also reject Edsel's argument that the defendants continued to litigate these claims by implied consent by answering Edsel's amended complaint. Nothing in the defendants' answers conflicted with the trial court's dismissal.
Edsel moves under RAP 10.4(d) for this court to vacate the 2018 partial summary judgment order and remand for the trial court to grant his motion to compel because, he claims, the discoveryhe should have received would have included dispositive evidence. Edsel also moves under RAP 10.4(d) for this court to reverse both summary judgment orders and remand for a trial on damages based on his theory that his opposing counsel made a judicial admission at the 2019 summary judgment hearing. We deny both motions.
RAP 10.4(d) provides, "A party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits." See Money Mailer, LLC v. Brewer, 194 Wn.2d 111, 130, 449 P.3d 258 (2019) (...
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