Hanson v. Estell

• Decision Date: 13 April 2000
• Docket Number: No. 17143-4-III.,17143-4-III.
• Citation: 997 P.2d 426,100 Wash.App. 281
• Court: Washington Court of Appeals
• Parties: Milton HANSON and Roberta Hanson, husband and wife, Respondents, v. Karen ESTELL and Daniel Estell, wife and husband, Appellants, Spokane County Sheriff's Department, Sheriff John Goldman and Jane Doe Goldman, husband and wife, Deputy Sheriff D.B. Henderson and Jane Doe Henderson, husband and wife, and Deputy John Doe Mulvey and Jane Doe Mulvey, husband and wife, Defendants.

997 P.2d 426

100 Wash.App. 281

Milton HANSON and Roberta Hanson, husband and wife, Respondents, v. Karen ESTELL and Daniel Estell, wife and husband, Appellants, Spokane County Sheriff's Department, Sheriff John Goldman and Jane Doe Goldman, husband and wife, Deputy Sheriff D.B. Henderson and Jane Doe Henderson, husband and wife, and Deputy John Doe Mulvey and Jane Doe Mulvey, husband and wife, Defendants.

No. 17143-4-III.

Court of Appeals of Washington, Division 3, Panel Three.

April 13, 2000.

Frank C. King, Spokane, for Appellants.

Milton A. Hanson, Roberta K. Hanson, Otis Orchards, for Respondents.

SCHULTHEIS, J.

For about five years Karen and Daniel Estell have been wrangling with neighbors Milton and Roberta Hanson over a 15-by 307-foot strip of land between their two properties. The Hansons won a prescriptive easement over this Estell-owned property. After the Estells tried to block access to the easement with a fence, the Hansons sued again, for contempt, violation of a court order, injunctive relief and other causes. All of the Hansons' claims were dismissed on summary judgment, but the Estells' counterclaims for trespass, frivolous lawsuit and an injunction went to a bench trial. The Estells lost on all three counterclaims and now appeal, contending (1) the Hansons clearly prosecuted their claims maliciously; (2) the Estells are entitled to an injunction ordering the removal of the Hanson barn that encroaches on the easement by one foot; and (3) the trial court erred in awarding attorney fees. We affirm all but the award of attorney fees and reverse that portion of the judgment.

In 1980 the Hansons bought several acres of farmland in Otis Orchards. At that time, they had a small barn along the boundary of the property where they boarded and trained racehorses. The barn burned to the ground in 1991 and the Hansons hired a contractor to build a new one on the same site in 1992. A Spokane County building inspector examined the apparent property line and approved construction of the new barn as properly set back. The previous owner of the Estell property—Leola Taylor—commissioned a survey that revealed one corner of the new barn encroached on her land 1 foot, diminishing to 0 inches over about 22 feet of Ms. Taylor's property. She objected to the unauthorized use of her property, but did nothing further.

In 1993 Ms. Taylor sold her property to the Estells. They bought knowing that the Hanson barn encroached on their land but did not object at the time because they felt "the one foot really didn't seem to be that big of an issue." On the other hand, the Estells were not happy that the Hansons drove over Estell property to get to their horse barn. The Estells put up a fence across the corner of their property that was being used by the Hansons. They also contacted the county building department, which wrote the Hansons that their barn did not comply with building regulations. In response, the Hansons brought suit against the Estells in 1993 for adverse possession, trespass, prescriptive easement and intentional infliction of emotional distress. All but the claim for prescriptive easement were later dismissed on summary judgment. The Hansons eventually obtained a prescriptive easement to a strip 15 feet by 307 feet along the Estell boundary. The easement, granted in 1996, provided for mutual use, including such uses as ingress and egress to the Hanson barn, pens and pastures to feed stock. The order also proscribed either party from blocking the easement or parking unattended vehicles there.

A few months later, the Estells moved for contempt before the same judge who granted the easement. They argued the barn was "blocking" the easement and that it must be removed. The judge denied the motion and suggested the parties mediate future disputes. Three days later, the Estells put up another fence across the easement. The Hansons removed it and again filed suit, as well as a temporary restraining order, against the Estells.¹ This complaint, filed in September 1996, alleged contempt of court, abuse of process, violation of 42 U.S.C. § 1983 and outrageous conduct, and sought an injunction restraining the Estells from

harassment designed to annoy, torment, pester, plague, molest, worry, badger, harry, heckle, persecute, irk, bully, bullyrag, vex, disquiet, grate, bother, tease, nettle, tantalize, ruffle, assault, display obnoxious behavior or disturb the peace of the Hansons[.]

This judge apparently refused to deal with the parties again, so they appeared before a different judge in January 1997 on cross-motions for summary judgment. The second judge dismissed the Hansons' claims for contempt and abuse of process, but continued the hearing on all the other issues so the Hansons could obtain another survey. Later, the Hansons agreed to the accuracy of the Estell survey and another hearing was held in March 1997. The judge dismissed the remaining Hanson claims. He partially granted the Estells' counterclaim for trespass, based on the encroaching barn, and left the issue of damages to be determined later. The Hansons again sought dismissal of the Estell counterclaims in May 1997, but withdrew the motion later. They filed bankruptcy in July 1997 and their attorney unsuccessfully moved to withdraw in August. After the bankruptcy stay was lifted, the matter was set for trial.

Trial was held in October 1997 on the remaining counterclaims of frivolous lawsuit and malicious prosecution. The Estells also sought an injunction for removal of the barn and to build a fence, as well as damages for trespass. A third judge presided at this bench trial. After hearing the testimony of Ms. Hanson, Ms. Estell and two expert witnesses, this judge denied the claims for frivolous lawsuit and malicious prosecution, finding there were legitimate issues for the court to resolve. Because a fence would block the easement and the barn does not, the judge denied the injunction. Based on an appraiser's estimate of the value of the land encroached upon by the barn, he awarded the Estells $100 as a one-time payment for the continuing trespass. The Hansons were awarded attorney fees and costs pursuant to RCW 4.84 as the prevailing party. This appeal followed.

The Hansons have not filed a respondents' brief. Accordingly, they were precluded from presenting oral argument and we make our decision based on the argument and record before us. RAP 11.2; In re Marriage of Gilbert, 88 Wash.App. 362, 366-67, 945 P.2d 238 (1997) (citing Adams v. Department of Labor & Indus., 128 Wash.2d 224, 229, 905 P.2d 1220 (1995)).

The Estells first contend the trial court erred in denying their counterclaim for malicious prosecution. They claim the record shows the Hansons instituted the present action without probable cause and with improper motives. Our review is limited to determining whether the court's findings of fact are supported by substantial evidence and whether they support the conclusions of law. Price v. Kitsap Transit, 125 Wash.2d 456, 465-66, 886 P.2d 556 (1994); Holland v. Boeing Co., 90 Wash.2d 384, 390-91, 583 P.2d 621 (1978). Substantial evidence is that quantum sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Price, 125 Wash.2d at 465-66,886 P.2d 556.

At common law, an action for malicious prosecution required the plaintiff to prove (1) the defendant instituted or maintained the alleged malicious prosecution; (2) lack of probable cause to institute or continue the prosecution; (3) malice; (4) the proceedings ended on the merits in favor of the plaintiff or were abandoned; and (5) the plaintiff suffered injury or damage as a result. Pay'N Save Corp. v. Eads, 53 Wash. App. 443, 447, 767 P.2d 592 (1989) (citing Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 497, 125 P.2d 681 (1942)). The Legislature later abrogated the fourth element by permitting a defendant to assert a counterclaim for malicious prosecution under RCW 4.24.350. Brin v. Stutzman, 89 Wash. App. 809, 818-19, 951 P.2d 291, review denied, 136 Wash.2d 1004, 966 P.2d 901 (1998). Such counterclaims are permitted in the interests of judicial economy and to protect defendants from meritless attacks. Id. at 819, 951 P.2d 291.

Proof of probable cause is an absolute defense to a claim of malicious prosecution. Hanson v. City of Snohomish, 121 Wash.2d 552, 558, 852 P.2d 295 (1993); Brin, 89 Wash.App. at 819, 951 P.2d 291. The Estells contend the Hansons had no probable cause to bring this most recent suit. As proof, they note that all the Hansons' claims were dismissed on summary judgment. The fact that the Hansons' claims were not successful is not determinative of the legitimacy of their arguments, however. The trial court in the instant action found their suit "neither frivolous nor brought maliciously, as there were legitimate issues" requiring resolution by the court. One of those issues was whether the Estells were in contempt of court for obstructing the easement with a fence. Another was whether the Estells abused the legal process to relitigate the resolved issues of the prescriptive easement and its use. While unsuccessfully argued, probable cause supported bringing these issues to the court.

Washington courts strictly limit the right to bring suit for malicious prosecution, "reasoning that such suits intimidate prospective litigants and that the public policy favors open courts in which a plaintiff may fearlessly present his case." Gem Trading Co. v. Cudahy Corp., 22 Wash.App. 278, 283, 588 P.2d 1222 (1978), aff'd, 92 Wash.2d 956, 603 P.2d 828 (1979). Arguably, both parties have exhibited malice in their continuing efforts to embroil the courts in their affairs. But considering the fact that the Estells put up a fence across the easement, blocking its use, only three days after a judge denied their attempt to have the barn removed, a lawsuit to prevent future violations of the easement was preferable to other, less...