Hoover v. Warner
| Decision Date | 14 July 2015 |
| Docket Number | No. 45742–3–II.,45742–3–II. |
| Citation | 189 Wash.App. 509,358 P.3d 1174 |
| Parties | Greg HOOVER, Respondent, v. Scott WARNER and “Jane Doe” Warner, individually and the marital community comprised thereof; Ernest Warner and “Jane Doe” Warner, individually and the marital community comprised thereof, and Warner Farms, Appellants. |
| Court | Washington Court of Appeals |
David John Corbett, David Corbett PLLC, Tacoma, WA, for Appellants.
David John Corbett, David Corbett PLLC, Tacoma, WA, for Petitioner.
John Michael Morgan, Worth Law Group, Tumwater, WA, for Respondent.
¶ 1 Scott and Ernest Warner appeal a trial court's ruling finding them liable for negligence, nuisance, and trespass after their road grading project caused damage to Greg Hoover's property by impeding the natural flow of surface and subsurface waters. The Warners also appeal the permanent injunction entered in connection with the trial court's ruling, the court's decision requiring them to design and implement a remediation plan, and the court's award of fees and sanctions in Hoover's favor.
¶ 2 We hold that (1) substantial evidence supported each of the trial court's critical findings of fact, (2) the common enemy doctrine does not shield the Warners from liability because the “due care” exception applies, (3) the trial court properly found the Warners liable for damages caused to Hoover, (4) the trial court abused its discretion by granting an overly broad injunction, (5) the trial court did not abuse its discretion by awarding sanctions under CR 37(c), and (6) the Warners have waived any challenge to the remediation plan. Accordingly, we affirm in part and reverse in part.
¶ 3 Hoover purchased 7.5 acres of property in Yelm in 1999. Ernest1 owns a 20–acre parcel that borders the west and north sides of Hoover's property. Water naturally drains downward from Hoover's property onto Ernest's property in a north by northwest direction, with some of the water draining across Hoover's western-most boundary.
¶ 4 Before 2006, Hoover's property did not suffer from “ponding” or standing-water accumulation because of the natural composition of the surrounding soil. The soil on Hoover's property comprises a permeable layer of organic material on top of an impermeable layer known as “silt loam,” which developed from sediment in a glacial lake bed. With soil such as Hoover's, water typically drains by flowing through the uppermost organic layers until it reaches the impermeable silt loam, where it then travels in whichever direction is naturally sloped downward.
¶ 5 In 2006, the Warners commenced a development project on the portions of their property abutting Hoover's. According to Hoover, the project involved the creation of a new road adjacent to the western property line. Hoover understood that the Warners intended to clear the road as a way to gain access to a segment of their property that the Warners intended to subdivide. Hoover witnessed the Warners using dump trucks and heavy equipment to deposit and compact fill material to form the road. Hoover believed that the Warners knew that filling and grading that area would result in adverse drainage consequences to Hoover's property.
¶ 6 But according to the Warners, they transported no fill material into the area and they used heavy equipment only to “blade” vegetation off an existing roadway. The Warners claimed that they did nothing to change the grade on either the north or west property lines.
¶ 7 Shortly after the Warners completed their work, Hoover began to notice water collecting on his property. Hoover informed Scott that his property would not drain properly and requested that Scott do something to alleviate the growing problem. Over the course of the next few years, the Warners dug a series of ditches along the road to attempt to mitigate Hoover's drainage issues. While these ditches removed some of the pooling water, the Warners refused Hoover's request to dig additional ditches, citing their ineffectiveness. Instead, according to Hoover, the Warners promised to remove the road.
¶ 8 Ultimately, however, the Warners declined to remove the road, in part because Hoover complained to the Department of Ecology and the Department of Labor and Industries regarding the Warners' projects. Meanwhile, Hoover's drainage problems worsened.
¶ 9 The saturated soil caused the well that served Hoover's home to collapse and his septic system to fail. The encroaching water cracked the foundation in Hoover's home and invaded his crawl space. The water also reduced Hoover's available space to graze his horses. Thurston County then served Hoover with a violation notice after Scott complained that Hoover's septic tank failure caused waste to spill into roadside ditches.
¶ 10 In 2013, Hoover brought suit alleging several causes of action, including timber trespass, statutory waste, nuisance, trespass, and negligence. Hoover also sought temporary and permanent injunctive relief to preclude the Warners from continuing to impede his property's ability to drain and to prevent ongoing damage.
¶ 11 Before trial, as the parties conducted discovery, the Warners responded to two requests for admission from Hoover that are relevant to this appeal:
Clerk's Papers (CP) at 430–31.
¶ 12 At trial, the court heard extensive testimony involving several critical issues. Among these were the existence and use of fill material; the natural pattern of water flow between the two properties; whether the Warners' grading work did in fact impede that natural flow to cause Hoover's drainage complications; the efficacy of existing remedial measures and the availability of future remedial efforts; and what, if any, damages Hoover suffered.
¶ 13 As to the use of fill material, Hoover explained that during the Warners' 2006 project, he observed the Warners using dump trunks and heavy machinery to dump, spread, and compact an extensive amount of foreign fill material along the western boundary of his property to create a new road. In 2006, this new road raised the level of the ground as much as two feet. Hoover estimated that he saw the Warners use as many as 30 to 50 dump truck loads of material for this purpose.
¶ 14 Several of Hoover's current and former neighbors corroborated his version of the events. Scott Hyderkhan, who owned property north of Hoover's in 2006, recalled witnessing the Warners “continuously” dump loads of large rock for what in his view was “hundreds of feet.” 1 Report of Proceedings (RP) at 65. Linda Seamount, Hyderkhan's girlfriend, also noticed Ernest dumping truckloads of rocks and gravel. Likewise, Jerry Hoover,2 another nearby property owner, saw the Warners dumping fill dirt and rock in connection with the grading activity in 2006.
¶ 15 Other qualified witnesses also testified in support of Hoover's allegations. Joseph Vincent McClure, a structural engineer, opined that the road comprised recent fill. Similarly, Robert Manns, a Thurston County land use compliance coordinator, explained that he observed two or three feet of fill material, which he noticed because of the difference in height between the fill and the natural ground. Finally, Lisa Palazzi, Hoover's soil physics and hydrology expert, determined that fill material had been deposited as part of the 2006 project on a “more-probable-than-not” basis. 2 RP at 275.
¶ 16 But the Warners denied having brought fill material in, claiming instead that they were simply performing maintenance work on an existing road.3 William Halbert, the Warners' expert hydrologist, acknowledged the presence of fill by digging several “test pits,” but he opined that the material existed in the subject locations for at least 20 years. In Halbert's view, the material looked consistent with ground having been disturbed by “blading.”
¶ 17 As to the project's impact, Halbert and Palazzi generally agreed that the direction of the drainage and water flow is north and northwest across Hoover's property, but they disagreed regarding the extent of the impact that the Warners' grading project had on the otherwise natural occurrence. According to Halbert, the material in the western road was highly permeable and would not have been compacted enough by the heavy machinery to obstruct natural drainage.
¶ 18 In Halbert's view, it was not the Warners' project that caused the ponding and other adverse drainage issues. Instead, he opined that the source of the problem was overgrazing and compacting of the surrounding soil by Hoover's several horses, a problem that could be remedied by “rip[ping]” and revegetating the surrounding soil. 3 RP at 427. Halbert also believed that the existing ditches appeared to be sufficiently deep to alleviate ponding problems.
¶ 19 Palazzi was of a different mind. She observed standing water on Hoover's property and opined that the 2006 fill material had blocked natural flow pathways. Palazzi explained further that compacting and “smearing” by the Warners' heavy machinery exacerbated the drainage issues. Specifically, Palazzi testified that the presence of additional fill and the accompanying increased elevation impeded the surface water flow while the heavy machinery compaction obstructed the subsurface flow. According to Palazzi, an engineering solution was necessary to restore the normal drainage pathways because the existing ditches were not adequate...
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