Gould v. Hong Bin Im
| Decision Date | 05 March 2013 |
| Docket Number | No. 42098-8-II,42098-8-II |
| Parties | FREDERICK BEAU GOULD and JULIE P. GOULD, husband and wife, Respondents, v. HONG BIN IM and NANETTE MARIE IM, aka YOUNG B. IM, husband and wife, Appellants. |
| Court | Washington Court of Appeals |
WORSWICK, C.J. — After summary judgment on liability and a bench trial on damages, Hong Bong Im appeals a final judgment to Frederick Gould for breaching a well maintenance agreement. Im argues that the trial court erred by (1) considering supporting affidavits containing inadmissible evidence, (2) reforming the agreement on summary judgment because there was a genuine issue of material fact, and (3) awarding consequential damages that were unforeseeable and speculative. We hold that the trial court did not^err when it reformed the contract, that the damages award was not speculative, and that Im failed to preserve his other arguments for appellate review. We affirm.
In August 2007, Gould was remodeling and landscaping his real property with the intention to sell it later that year. In September 2007, Im disconnected Gould's property from the well that was its only source of water. Gould's property had a right to water from a well on Im'sproperty under a well maintenance agreement executed before either of them acquired their properties. But instead of identifying the parcel with the well, the agreement identified a different, vacant parcel that Im also owned. As a result of Im's refusal to allow reconnection to the well for approximately two years, Gould was unable to sell his property before real estate prices plummeted in 2008.
M.C. Daviscourt and his wife owned a property that included three houses, a well, and a creek. All three houses drew water from the well.
In 1991, Daviscourt divided the property into three parcels: The first parcel (Im Parcel 1) contained two houses and the well; the second parcel (Im Parcel 2) was vacant land adjacent to Im Parcel 1 and was the site of the creek; and the third parcel (the Gould Property) was on the other side of a road and had a house on it.
The same year, Daviscourt made a well maintenance agreement to "provide for future use, maintenance and repair of the well." Clerk's Papers (CP) at 259. In part, the agreement stated: (1) "[T]he owners will have the right to draw water from said well," (2) "[n]either part [sic] shall interfere with the use of the well by the other," and (3) "[t]he owners agree to pay a monthly charge . . . to share in electrical cost for the operation of the well pump." CP at 260. The agreement stated that it runs with the land and binds the Daviscourts' successors in interest. Daviscourt recorded two copies of the well maintenance agreement with the Mason County auditor.
The well maintenance agreement identifies the Gould Property and assigns it the right to use the well. However, the legal description in this agreement describes Im Parcel 2 as the parcel on which the well is located. In fact, Im Parcel 1 is the site of the well actually connected to the Gould Property.
After making the well maintenance agreement, Daviscourt sold the Gould Property to Nathan Cox in 1991. Daviscourt showed Cox that the Gould Property drew water from the well on Im Parcel 1. Cox paid Daviscourt a share of the monthly electric bill for the well pump. Daviscourt and his wife are now deceased.
In 2006, Cox sold the property to Gould. Im purchased both Im parcels in May 2007. In the summer of 2007, Gould was extensively remodeling and landscaping his property, preparing to sell it. While Gould owned the property, he did not pay for any part of the well's electricity bills.
After receiving electricity bills despite being away from the property, Im discovered that his well serviced the Gould Property. Based on his research of Mason County records, Im concluded that the well was a private well lacking permits for shared use and that he alone had a right to use it.
In August 2007, Im approached Gould's contractor, objecting to Gould's connection to the well. On August 14, Im sent Gould a letter that stated, "If I don't hear from you by the end of August, I will shut off the connection to your home." CP at 289.
Im received no reply, and Gould's contractor discovered the well was disconnected on September 10. The contractor reconnected the well, but Im disconnected it a second time. On September 17, the contractor found a note on Gould's door stating:
Well across the street is private. See county records. Do not trespass on our property to access well house. Mason County Sheriff has been informed. Hong 253-532-xxxx. I am taking legal action against the general contractor.
CP at 294. The contractor called Im and faxed him a copy of the well maintenance agreement the following day. Im admitted that he had disconnected the Gould Property from the well and refused to allow reconnection. The well remained disconnected until after August 24, 2009.
Gould commenced an action seeking quiet title in rights to use the well and damages for breach of the well maintenance agreement. Gould moved for partial summary judgment on liability and sought reformation of any mistake in the agreement. He presented a total of 12 supporting affidavits and declarations.
Im asserted that the well maintenance agreement was intended to give the Gould Property's owner the right to draw water from the creek on Im Parcel 2. In support of this assertion, Im presented the affidavit of a licensed surveyor who called the creek a "surface water well." CP at 227.
However, Im's predecessor averred that when he (the predecessor) owned the property "[t]he creek wasn't a well" and the only well on either parcel was the well on Im Parcel 1. CP at 248. Likewise, Gould's predecessor averred that the two Im Parcels contained only one well between 1991 and 2006. According to the declaration of Daviscourt's son, "In 1991 there wasonly one well on the properties." CP at 258. A.longtime neighbor's declaration added, "If there is a second well on Im's property, it is not the well that has continuously served Gould's house since at least 1985." CP at 255.
In his response brief, Im asserted that Gould's motion "relie[d] heavily on unsubstantiated hearsay and other inadmissible evidence," but Im did not specify which statements were inadmissible or cite legal authority in support of this assertion. CP at 244. Otherwise, Im asserted that there was a genuine issue of material fact because Daviscourt's intent was unclear.
In August 2009, the trial court granted Gould's motion, reformed the well maintenance agreement, and scheduled a trial to determine the amount of damages. Gould then reconnected the well, and the Gould Property sold for $1,100,000 in February 2010.
At the October 2010 trial, the trial court allowed both sides to present evidence,on whether Im had caused damages willfully. But the trial court's order in limine confined the evidence to the issue of damages and excluded testimony Im planned to offer to show his understanding of his rights in the well.
Gould presented testimony to establish damages. Gould's real estate agent testified that he was prepared to list the Gould Property for $1,600,000 in 2007, but that the disconnection from the well made the Gould Property unmarketable. An expert real estate broker testified that million-dollar properties listed by Gould's agent in 2007 sold on average for 97 percent of their list price. The broker further opined that $ 1,600,000 was a reasonably certain estimate of theGould Property's market value in 2007, but that its market value declined to $1,100,000 in 2010, when it was the only million-dollar property sold in the area.
The trial court found that Im breached the agreement in bad faith. The court's damage award included $455,000 in consequential damages, representing profits lost when Gould sold the property in 2010" instead of 2007 as planned.
Im argues that the trial court erred by considering supporting affidavits that contained hearsay and conclusory statements not based on personal knowledge. Gould responds that Im failed to preserve this argument for appeal. We agree with Gould.
CR 56(e) provides that "[supporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence." To preserve a claim that statements in a supporting affidavit are not admissible as evidence, a party must object to the specific deficiency or must move the trial court to strike the affidavit before entry of summary judgment. Parkin v. Colocousis, 53 Wn. App. 649, 652, 769 P.2d 326 (1989). Failure to object to an affidavit before the entry of summary judgment waives the objection. Bonneville v. Pierce County, 148 Wn. App. 500, 509, 202 P.3d 309 (2008).
Im argues that he preserved this objection by raising it below in his brief opposing summary judgment. That brief states only, "[Gould's] summary judgment motion relies heavily on unsubstantiated hearsay and other inadmissible evidence." CP at 244. But Im did not specify, either to the trial court or to us, which portions of Gould's 12 supporting affidavits were,in his view, inadmissible. Im failed to adequately specify the evidence's deficiency to the trial court, and thus he did not preserve this claim for appeal.
Im argues that reformation was unwarranted on summary judgment because a genuine issue of fact exists as to whether the well maintenance agreement's language differs from Daviscourt's intent. We disagree.,
We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court. Schmitt v. Langenour, 162 Wn. App. 397, 404, 256 P.3d 1235 (2011). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56...
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