Jensen v. Torr

• Decision Date: 30 June 1986
• Docket Number: No. 12880-9-I,12880-9-I
• Citation: 44 Wn.App. 207,721 P.2d 992
• Parties: Leif B. JENSEN, Jr., Appellant, v. Harvey J. TORR and Jane Doe Torr; and City of Kent, Respondents, Safeco Insurance Company, Defendant.
• Court: Washington Court of Appeals

Page 207

44 Wn.App. 207

721 P.2d 992

Leif B. JENSEN, Jr., Appellant, v. Harvey J. TORR and Jane Doe Torr; and City of Kent, Respondents Safeco Insurance Company, Defendant.

No. 12880-9-I.

Court of Appeals of Washington,

Division 1.

June 30, 1986.

Review Denied Oct. 7, 1986.

Patrick R. Burns, Burns & Donais, Auburn, P. Stephen DiJulio, Kent, for appellant Leif B. Jensen, Jr.

Leslie Wagner, Mark W. Davis, Curran, Kleweno, Johnson & Curran, Kent, for respondent Harvey J. Torr.

GEORGE H. REVELLE, Judge Pro Tem. ^*

Leif B. Jensen, Jr. (Jensen) appeals the trial court's judgment dismissing his action against the City of Kent (City) for wrongful revocation of his building and zoning permits and against his neighbors, the Torrs, for wrongful injunction and tortious interference with his contractual relationships and with the construction of his home. Jensen

alleges that the trial court erred in declaring the City immune from liability, in limiting his recovery for wrongful injunction to the amount of the injunction bond, in precluding testimony regarding damages for pain and suffering, and in awarding him less than the requested amount for other damages. The City and the Torrs cross-appeal the court's award of damages. We affirm.

FACTS

The issues in the case arise out of a judgment in a previous lawsuit brought by the Torrs against Jensen. On June 12, 1980, the City issued Jensen a zoning permit for the construction of his home in Kent. The City issued the building permit on June 30, 1980. Jensen started building around July 12, 1980. When construction began, the Torrs were concerned that Jensen's house would obstruct their view so they sought to have the issuance of the permits reviewed. On July 22, 1980, the superior court issued a temporary restraining order and order to show cause on behalf of the Torrs. On July 24, 1980, there was a hearing on the motion for the temporary restraining order, after which the court granted the order until August 14, 1980. The Torrs posted a $1,000 injunction bond.

A hearing was held on August 5, 1980, before the Kent Board of Adjustment (Board). Jensen did not receive notice of the hearing and was not present. The Board revoked the issuance of Jensen's zoning permit, which had the effect of nullifying the building permit.

On August 22, 1980, Jensen filed a petition in superior court for writ of certiorari to review the Board's action. On December 18, 1980, the court determined that the hearing before the Board was contrary to law, and the court remanded the matter back to the Board for rehearing. In February 1981, the Board reinstated the zoning permit. Jensen resumed construction and completed the house in July 1981.

On October 6, 1980, Jensen filed an affidavit opposing the imposition of the temporary injunction. In the affidavit, he In November 1981, Jensen filed the present action against the City and the Torrs. In an amended complaint he alleged that the City wrongfully revoked his building and zoning permits, and that the Torrs wrongfully obtained an injunction as well as tortiously interfered with his contractual relationships and with the construction of his home. On November 23, 1982, the court entered a partial summary judgment, limiting any liability of the Torrs for wrongful injunction to $1,000, the amount of the injunction bond.

requested that the injunction bond be set at $100,000. The court apparently denied the request.

At the bench trial in December, 1982, Jensen testified regarding the damages he incurred as a result of the delay in construction. He testified that his original plans were to borrow $50,000 interest free from his wife's parents. He was to have then built the house with the help of his cousin, a general contractor, and after completion of the home (anticipated in December, 1980) would have repaid his in-laws with a conventional loan at 13 percent interest, which Jensen testified was the then prevailing rate.

When Jensen finally began to build in February, 1981, financing was no longer available to enable him to construct the house himself. He had to obtain a $56,000 construction loan at 15 1/2 percent interest which was converted to a home mortgage at the end of construction at 17 percent interest. The difference in monthly payments was $170 per month. In addition, there was a 1 percent fee ($560) for the construction loan. He also testified that he had to pay $3,077.87 in sales tax for labor and materials. He and his wife had also planned to keep their old house to rent out for $350 per month beginning in December, 1980. The delay in construction forced them to give up the rental income and to eventually sell the house. He testified that his attorney's fees amounted to $5,259.

The court found that Jensen incurred $5,259 in attorney's fees and was damaged $5,000 for the difference in cost of mortgage financing when the home was completed. However,

the court limited the liability of the Torrs for the wrongful issuance of the injunction to $1,000 and concluded Jensen had no right in equity to recover attorney's fees from the Torrs. The court also concluded that the City was immune from liability for the acts of the Board. The judgment limited Jensen's total recovery to $1,000.

LIMITING LIABILITY TO BOND

Mr. Jensen first alleges that the trial court erred in limiting the Torrs' liability for wrongful injunction to $1,000, the amount of the injunction bond. CR 65(c) and RCW 7.40.080 provide that before an injunction or restraining order shall be granted, the requesting party must post a bond in an amount fixed by the court to cover damages and costs which may be incurred by the adverse party. In an action such as this for wrongful injunction, recovery is limited to the face amount of the bond plus interest from the date that the action is brought. Tacoma v. Sperry & Hutchinson Co., 82 Wash. 393, 397, 144 Pac. 544 (1914); Venegas v. United Farm Workers Union, 15 Wash.App. 858, 863, 552 P.2d 210 (1976). ¹ The public policy behind this rule is to encourage ready access to courts for good faith claims. Tracy v. Capozzi, 98 Nev. 120, 642 P.2d 591, 595 (1982), 30 ALR 4th 266; see Venegas, 15 Wash.App. at 863-64 n. 12, 552 P.2d 210.

Should the bond be inadequate, the person damaged directly by issuance or resistance of the injunction could only be compensated beyond the face amount of the bond by bringing a motion during the trial to increase the amount of the injunction bond. Venegas, at 864, 552 P.2d 210. In this case, a request to increase the bond was denied.

Under RCW 4.44.470, the setting of the bond is a matter solely within the trial court's discretion. Hockley v. Hargitt Jensen acknowledges that the rule in Venegas is the majority rule. However, he urges this court to adopt the minority position that a person suffering damages as a result of the wrongful issuance of an injunction may recover the face amount of the bond as well as additional actual damages proximately resulting from its wrongful issuance. E.g., Smith v. Coronado Foothills Estates Homeowners Ass'n, Inc., 117 Ariz. 171, 571 P.2d 668, 670 (1977), where the court found a $10 cash bond "patently insufficient" and thus held that under the circumstances the party requesting the injunction would be liable for damages in excess of the bond. The Smith court noted that there were only five other jurisdictions which followed this rule. Smith, 571 P.2d at 670. We decline to abandon the majority rule.

82 Wash.2d 337, 345, 510 P.2d 1123 (1973); see Yamaha Motor Corp. v. Harris, 29 Wash.App. 859, 865, 631 P.2d 423 (1981). The statute provides in part that after the bond is set, the court may require additional security on its own motion or on the motion of a party. "The courts shall exercise care to require adequate though not excessive security in every instance." RCW 4.44.470.

Jensen claims that this rule violates his due process rights under U.S. Const. amend. 14 and Const. art. 1, § 3. He argues that his constitutional rights were violated because he did not know what evidence the court considered in initially setting the bond and because he claims he was not given the opportunity at the initial hearing to present evidence in support of a greater amount. He cites several cases in support of his claim. Not only are these cases distinguishable, but he ignores the fact that under RCW 4.44.470 and the case law, he had the right to move immediately for a greater bond, thus enabling the court to have before it all of the evidence that he wished. He filed an affidavit supporting a $100,000 bond. The court apparently denied his request to raise the amount of the bond, and we cannot say that this denial was an abuse of discretion.

The trial court entered findings of fact, conclusions (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?

                of law and a judgment in the injunction action.  Jensen did not appeal that judgment and he should now

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