BJORGEN, C.J.
This is
the second appeal involving Robert Gunn's trespass and
quiet title claims against Terry and Petra Riely. In the
first appeal, [1] we reversed the trial court's award of
damages to Gunn under the waste statute, RCW 4.24.630, and
remanded for the trial court to determine damages under the
timber trespass statute, RCW 64.12.030. On remand, the trial
court awarded $459 in treble damages to Gunn under the timber
trespass statute. Because the timber trespass statute has no
attorney fee provision, it awarded $17, 500 in attorney fees
in equity to Gunn for the Rielys' bad faith based on the
prior trial court's findings of fact and conclusions of
law.
The
Rielys appeal, arguing that (1) the law of the case doctrine
precluded the trial court on remand from awarding attorney
fees in equity, (2) Gunn waived his claim for attorney fees
in equity, (3) attorney fees can only be awarded in equity
when a violation of a temporary injunction is involved, and
that the trial court on remand (4) erred in determining that
the Rielys engaged in bad faith conduct based on the prior
trial court's findings of fact and conclusions of law
which determined liability only under the waste statute, (5)
erred because the prior trial court's findings and trial
evidence show that the Rielys had "probable cause to
believe" that they had an implied easement under RCW
64.12.040, the mitigating circumstances exception of the
timber trespass statute, (6) abused its discretion in
awarding $17, 500 in attorney fees because, under the
proportionality doctrine, it failed to exclude costs related
to the nonprevailing claim of waste, and (7) abused its
discretion in finding that the Rielys were not the prevailing
party under RCW 4.84.250 and CR 68.
We hold
that the Rielys' contentions fail and affirm the trial
court.
FACTS
The relevant underlying facts are described in our opinion
resolving the first appeal:
Gunn and the Rielys own adjacent property in the Storm King
Ranch subdivision (Storm King) in Clallam County, Washington.
Joel Sisson, one of the Storm King developers, purchased the
Storm King land and subdivided it.... Gunn owns parcel 1 and
the Rielys own parcel 2.
. . . .
A grassy path (an old logging road) . . . runs roughly
parallel along the boundary line between Gunn's property
and the Rielys' property, and ends near the common corner
shared by parcels 1 [and] 2. . . . The grassy path is
entirely on Gunn's property and is about 75 feet from the
boundary line with the Rielys' property.
Between 2000 and 2009, the Rielys used the grassy path to
access parts of their property. During that time, Gunn
repeatedly told the Rielys that they did not have the right
to use the grassy path and that they were not welcome on his
land. The Rielys continued to tell Gunn that they believed
that they had a right to use the path. In the spring of 2008
Gunn went to the courthouse to inspect the deeds and
determined that the Rielys did not have an easement of
record. Also in 2008, the Rielys asked to purchase an
easement from Gunn, but he declined.
In 2009, the Rielys hired Oasis Well Drilling to build a well
on their property near the common corner. The Rielys directed
Oasis to use the grassy path for access to the Rielys'
property. When the Rielys directed Oasis to use the grassy
path, they were aware that Oasis planned to cut trees on the
grassy path to get to the drill site. Oasis cut down
approximately 107 of Gunn's trees along the grassy path
to make room for the equipment needed to drill the well.
Gunn v. Riefy, 185 Wn.App. 517, 519-20, 344 P.3d
1225, review denied, 183 Wn.2d 1004 (2015)
(Gunn I) (footnotes omitted).
Gunn
filed an amended complaint in 2013, alleging that the Rielys
were liable under the timber trespass statute, RCW 64.12.030
and subject to treble damages for a willful trespass. As an
additional theory, he alleged that the Rielys were liable
under the waste statute, RCW 4.24.630, for "wrongfully
caus[ing] waste or injury to the land." Clerk's
Papers (CP) at 316. Gunn also asked the court for injunctive
relief to remove and enjoin use of a well that the Rielys
installed 30 feet within the border of Gunn's property.
Further, Gunn requested injunctive relief to prevent the
Rielys from continuing to enter his property and asked for a
judgment quieting title against any claim of the Rielys for
an easement over the grassy path. The complaint also stated
that "[t]he award of damages for all claims will not
exceed . . . $10, 000." CP at 319.
As
litigation proceeded, the Rielys and Gunn stipulated to
dismissing Gunn's claim for injunctive relief concerning
the Rielys' well. Further, the Rielys made an offer of
settlement pursuant to RCW 4.84.250 and .280 to settle
Gunn's "[t]imber [t]respass [c]laim against
them" for $1, 000. CP at 269. The Rielys also made an
offer of judgment pursuant to CR 68, offering $1, 000 for the
timber trespass claim, $50 for service of process, $230 for
the superior court filing fee, and $200 for the attorney
fees. Gunn rejected these offers, purportedly because they
failed to settle the quiet title action.
At
trial, "Gunn moved in limine to . . . prevent the Rielys
from bringing a quiet title action to establish an implied
easement because the Rielys did not plead these claims and
Gunn did not have notice of these claims." Gunn
I, 185 Wn.App. at 522 (footnote omitted). The trial court did
not allow the Rielys to bring a quiet title action, but
permitted them to present evidence of an implied easement for
the limited purpose of defending against Gunn's claims.
Id.
At the
end of trial, the trial court entered the following pertinent
factual findings:
1. FINDINGS OF FACT
. . . .
1.14 Between 1999, when Mr. Gunn purchased his property, and
2009, when the tree cutting took place that [led] to this
litigation, Mr. Gunn recalled and recounted at least five
confrontations he had had with his neighbors, the Rielys, on
his property-some less friendly than others. . . .
1.15 During these contacts, however, Mr. Gunn testified
consistently that he made it clear that the Rielys were on
his property, that they were trespassing, that they were not
invited guests, and that they were not welcome.
. . . .
1.17 It appears that in the spring of 2008 the last contact
of significance occurred prior to the tree removal. . . .
. . . .
1.19 . . . [T]he two gentlemen had a conversation during
which Mr. Gunn made it clear that they were trespassing on
his property by using the grassy path and that there was no
easement there for their use. He testified that Mr. Riely
verbally pushed back by indicating that Mr. Sisson, the man
who sold parcel two to the Rielys, had represented to the
Rielys that they did in fact have the right to use the grassy
path as [an] easement to access their property.
1.20 Mr. Gunn told him that he had reviewed the county
records and that they did not have an easement.
1.21 Mr. Riely was not accepting of Mr. Gunn's
representation about the easement, but he did acknowledge
that one thing that conversation made absolutely clear was
that the property they were on was owned by Mr. Gunn, and
there was no question about that.
1.22 He questioned whether there was a discussion about them
having any right to use that property owned by Mr. Gunn. This
is where the Riely[]s big mistake came in. The property was
clearly owned by Mr. Gunn and that has never been contested.
1.23 The issue was whether or not the Rielys had obtained any
right of use with regard to that grassy pathway. The Riely[]s
did not then take reasonable steps to confirm their right to
use that portion of Mr. Gunn's property or they used it
knowing that they did not have a right to do so.
1.24 The next events of significance occurred on July 27
2009. Mr. Gunn was on vacation visiting his mother in
Minnesota. He got a call from ... his neighbor to the west,
indicating that someone was cutting trees on his property.
... He came home as quickly as he could. ... He then saw the
damage, counting 107 visible tree stumps, others perhaps not
visible, and all of the trees that had been cut and simply
piled or thrown alongside the grassy pathway, no attempt
having been made to remove them or clean them up.
. . . .
1.30 One thing is now clear after hearing all of the
testimony: There is not an easement of record for anybody
over the grassy path. . . .
1.31 . . . If there had been an easement in favor of Mr. and
Mrs. Riely, it would have . . . appeared on the deed. . . .
1.32 The question arises as to how Mr. and Mrs. Riely were to
know this when it had been represented to them by Mr. Sisson
that they had an access easement. Mr. Sisson was a little bit
unclear as to what he had told them, but I am satisfied from
the testimony that he made that representation. I think had
that not been the case, they would not have had any other
reason to think they had the right to use the grassy path.
1.33 So how would the defendants know? By looking at the face
of their deed where an easement would have to be described, .
. . [t]he preliminary commitment for title insurance . . .[,
or] their policy of title insurance itself.
. . . .
1.39 The biggest mistake the defendants made was not making
that inquiry when the issue had obviously been raised by Mr.
Gunn in no uncertain terms.
1.40 The Defendants have raised the issue that the trees were
cut on Mr. Gunn's
...
