Lavington v. Hillier

• Decision Date: 24 May 2022
• Docket Number: 54541-1-II
• Citation: 510 P.3d 373
• Parties: Lisa LAVINGTON, a single woman, Appellant, v. James T. HILLIER and Wanda L. Hillier, husband and wife; and Ray Parsons Construction, LLC, a Washington limited liability company and general contractor, Washington Contractor Registration No. RAYPAPC922D7, Respondents.
• Court: Washington Court of Appeals

510 P.3d 373

Lisa LAVINGTON, a single woman, Appellant,

v.James T. HILLIER and Wanda L. Hillier, husband and wife; and Ray Parsons Construction, LLC, a Washington limited liability company and general contractor, Washington Contractor Registration No. RAYPAPC922D7, Respondents.

No. 54541-1-II

Court of Appeals of Washington, Division 2.

Filed May 24, 2022

Kevin Hochhalter, Olympic Appeals PLLC, 4570 Avery Ln, Se #c-217, Lacey, WA, 98503, for Appellant.

Gregory Scott Latendresse, Preg O'Donnell & Gillett PLLC, 901 5th Ave., Ste. 3400, Seattle, WA, 98164-2026, John Edward Moore, James Patrick Mullins, Davis Rothwell Earle & Xochihua P.C., 701 5th Ave., Ste. 5500, Seattle, WA, 98104-7096, Patrick N. Rothwell, Davis Rothwell Earle & Xochihua P.C., 520 Pike St., Ste. 2500, Seattle, WA, 98101-4083, for Respondent.

PUBLISHED OPINION

Maxa, J. —

¶ 1 Lisa Lavington appeals the trial court's orders dismissing her unjust enrichment and intentional trespass claims against James and Wendy Hillier and Ray Parsons Construction, LLC (Parsons). Lavington's claims arose from the Hilliers’ and their contractor Parsons’ use without permission of a driveway on her property to access a construction site on the Hilliers’ property.

¶ 2 We hold that the trial court did not err in (1) granting summary judgment in favor of the Hilliers and Parsons on Lavington's unjust enrichment claim, (2) excluding evidence of trespass on a road right-of-way that was not a part of Lavington's property, and (3) granting a directed verdict and dismissing the intentional trespass claim against Parsons under CR 41(b)(3). However, we hold that the trial court erred in (1) excluding any evidence of emotional distress damages as a discovery sanction without considering the Burnet¹ factors, (2) limiting Lavington's recoverable damages to the lesser of the cost of restoring any property damage and the diminution in value of the property, and (3) dismissing the intentional trespass claim against the Hilliers under CR 41(b)(3).

¶ 3 Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

Background

¶ 4 The Hilliers owned property adjacent to Lavington's property. James Hillier² and Lavington are cousins, and their properties once were part of the same plat of land owned by James's and Lavington's grandfather. Historically, the Hilliers used a driveway on Lavington's property to access their property. However, the Hilliers also had a second access to their property on the other end of their lot.

¶ 5 In 2013 or 2014, the Hilliers were considering building a house on their property. James asked Lavington if she would grant him a formal easement of her driveway. Lavington denied the request.

¶ 6 In November 2014, the Hilliers began construction of a house on their property and hired Parsons as their general contractor. James told Parsons to use Lavington's driveway as needed for access in order to save money on construction costs. When Lavington discovered that Parsons was using her driveway, she spoke to the foreman of the construction crew and told him that they did not have permission to use her property. Parsons stopped using Lavington's driveway.

¶ 7 Lavington filed a complaint against the Hilliers and Parsons for intentional trespass and unjust enrichment, alleging that Parsons had damaged her property when using the driveway to access the Hilliers’ construction site.³ She alleged that she had suffered damages, including emotional distress.

Partial Summary Judgment on Unjust Enrichment Claim

¶ 8 The Hilliers and Parsons jointly moved for partial summary judgment dismissal of Lavington's unjust enrichment claim. They argued that Lavington had no evidence that she conferred a benefit on the Hilliers or Parsons or that the benefit came at Lavington's expense. In response, Lavington argued that the Hilliers and Parsons received a valuable benefit by using her driveway because they were able to avoid additional costs associated with using the other entrance to the Hilliers’ lot.

¶ 9 During Lavington's deposition, she had acknowledged that she did not give anything to Hillier that benefited him. But she stated that the Hilliers received a benefit from using the driveway because they saved money on construction costs. Scott Babbit, Lavington's expert, submitted a declaration in which he estimated that the Hilliers would have had to spend an extra $80,000 dollars had they not used Lavington's driveway for access.

¶ 10 The trial court granted the motion for partial summary judgment, dismissing Lavington's unjust enrichment claim with prejudice. The trial court stated that it could not find that Lavington actually gave anything to the Hilliers.

Lavington's Medical Records

¶ 11 The Hilliers requested production of Lavington's medical records, including mental health records, because she claimed emotional distress damages. Although Lavington originally provided an authorization to access her records, she withdrew the authorization because she chose to prove her damages without using her medical records. The trial court granted the Hilliers’ motion to compel production of Lavington's medical records and ordered Lavington to execute a stipulation for the Hilliers and Parsons to obtain her mental health records.

¶ 12 Lavington did not allow the Hilliers and Parsons to obtain her medical records as the trial court ordered. Therefore, the Hilliers and Parsons filed motions in limine to exclude any evidence of her alleged emotional distress. The trial court granted Parsons’ motion and precluded Lavington from claiming emotional distress damages. In reaching its decision, the trial court did not address the Burnet factors. Instead, the court merely ruled that it was precluding Lavington's emotional distress damages because Lavington did not produce her medical records as the court had ordered.

Evidence of Trespass on Road Right-of-Way

¶ 13 The Hilliers and Parsons jointly filed a motion in limine to exclude evidence of trespass on property that was not owned by Lavington. They argued that most, if not all, of the land on which they allegedly trespassed was within the right of way of the adjoining highway, not on Lavington's property. The Hilliers and Parsons produced a quit claim deed from February 10, 2014 that described Lavington's parcel as

All that portion of the following described tract of land in Government Lot four (4), Section thirty-five (35), Township twenty-two (22) North, Range three (3) West, W.M., which lies Northerly of the Northerly right-of-way line of State Highway No. 106 (Navy Yard Highway) .

Clerk's Papers (CP) at 577 (emphasis added).

¶ 14 Dan Holman, a land surveyor, provided a declaration in support of the Hilliers’ motion. He attached to his declaration the original deed from 1923, which described a right-of-way for state road known as the Navy Yard Highway (now known as State Route 106) that was 60-feet wide. However, starting in 1941, the deeds described what became of Lavington's property as laying "Northerly of the Northerly right-of-way line" of the Navy Yard Highway. E.g. , CP at 515. Based on his review of the deeds, Holman determined that Lavington's parcel was north of the northerly right-of-way line of SR 106.

¶ 15 In response, Lavington argued that the State had only an easement over the right-of-way and that she owned the underlying fee simple interest from the centerline of the highway.

¶ 16 The trial court granted the Hilliers’ and Parsons’ motion to exclude evidence of trespass on the road right-of-way because Lavington did not own that property.

Motion in Limine Regarding Trespass Damages

¶ 17 Parsons moved in limine to limit the measure of Lavington's damages to the lesser of the cost of restoring any damage to the property or the diminution in value the trespass caused. Similarly, the Hilliers moved in limine to exclude testimony from Lavington's expert, who was prepared to testify regarding his opinion of the rental value the Hilliers should have paid to use Lavington's driveway. The trial court granted the motion regarding the measure of damages, and excluded the expert's testimony because it did not relate to either restoration costs or diminution in value.

Bench Trial and Involuntary Dismissal

¶ 18 The parties proceeded to a bench trial on Lavington's intentional trespass claim. Lavington and James Hillier testified to the background facts stated above.

¶ 19 Lavington acknowledged that, before the construction, there was a family accommodation allowing the Hilliers to use the driveway to access their property. But she believed this did not extend to others. Lavington admitted that she only ever saw one construction truck use her driveway. She did not know how many trucks used her driveway or how big those trucks were.

¶ 20 Lavington stated that there was a change in grade of her driveway at the property line, the driveway was widened to accommodate construction vehicles, and crushed rock was spread on the driveway. She also stated that some trees were broken and that vine maples along her property line looked more sparse. However, almost all of the damage to trees Lavington identified occurred within the highway right-of-way. She could identify only one tree with a broken branch that was not in the right-of-way.

¶ 21 James testified that the Lavington and Hillier families were on good terms and that his family would use Lavington's driveway with no objection. James stated that he told Parsons that they could use the driveway as needed.

¶ 22 After Lavington presented her case in chief, the Hilliers and Parsons jointly moved for dismissal of Lavington's intentional trespass claim under CR 41(b)(3). The trial court granted the motion for dismissal regarding both parties and entered findings of fact and conclusions of law. The reason for the dismissal of the claim against the Hilliers was that Lavington did not prove that she suffered actual and substantial damages from the trespass. The reason for the...