Liffgens v. Dorny
| Decision Date | 14 June 2022 |
| Docket Number | 55539-5-II |
| Parties | JONATHAN LIFFGENS and ELAINE LIFFGENS, husband and wife, Appellants, v. LUKE DORNY and MARLO DORNY, husband and wife; and ELISABETH KANNE, |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Jonathan and Elaine Liffgens (collectively, the Liffgens) own a home on a lot of land on Bainbridge Island. (The Liffgens Property). Luke and Marlo Dorny and Elisabeth Kanne (collectively, the Dornys) own a lot that abuts the Liffgens' to the north. (The Dorny Property). The Dornys have an express easement that crosses a portion of the Liffgens Property for "access and utilities." The Liffgens appeal the trial court's order granting partial summary judgment to the Dornys in which the court dissolved a temporary injunction restraining the Dornys from using the easement to access their lot, and ruled that the Dornys could use the portion of the easement that burdens the Liffgens Property for ingress and egress. The Liffgens also appeal the trial court's award of damages and attorney fees to the Dornys following a bench trial on the issue of damages.
The Liffgens argue that (1) partial summary judgment was not appropriate because genuine issues of material fact existed regarding the scope of the easement, (2) the trial court was therefore required to balance the equities between the dominant and servient estate in a trial, (3) the trial court erred in ruling the temporary injunction was wrongful, (4) the trial court's award of damages was not supported by substantial evidence, (5) the trial court abused its discretion when it awarded attorney fees in excess of the value of the injunction bond, and (6) the trial court erred by awarding attorney fees beyond those necessary to dissolve the injunction. We hold that the Liffgens' arguments on (1)‒(5) fail, but we agree that the trial court erred by awarding attorney fees through trial on issue (6). Furthermore, we deny the Dornys' request for attorney fees on appeal. Accordingly, we affirm in part, reverse in part, and remand to the trial court to calculate appropriate attorney fees.
The Liffgens Property is a lot that includes their home on Olympic Terrace Ave NE on Bainbridge Island. The Liffgens Property is roughly a rectangle in the southwest corner of short plat number 4661, also called the DeGroot short plat. (Hereinafter, short plat.) The short plat is divided into four lots. The Liffgens Property is lot A in the short plat as shown in Image 1 below. Olympic Terrace Ave NE runs north-and-south to the west of the short plat. This is shown at the left extreme of the below image. Lots A, C, and D have all been developed. The undeveloped lot B is the Dorny Property.
(Image Omitted)
To access the properties in the short plat, an access road runs east-west from Olympic Terrace Ave NE. A 30-foot wide easement perpendicularly connects to this access road and bifurcates the middle of the short plat, running roughly north-south between lots A and D, and B and C, respectively. The width of the easement is divided evenly across the short plat's centerline, with 15 feet laying on either side of the lot division. The easement terminates 30 feet into lots B and C.
Within the easement, falling on its eastern side, there is a paved road, 10 feet in width, which existed before this dispute. This paved road abuts the Liffgens Property, serves lot C and does not touch the Dorny Property. It is labeled as "existing driveway" in Image 2, below. The center point of Image 2 is the intersection of the four lots.
(Image Omitted)
The short plat, including the easement, was created in 1988 after a subdivision application.
The Liffgens' deed describes their property, in pertinent part, as lot A, together with "[a]n easement for ingress, egress and utilities 30 feet in width as described and delineated in Short Plat No. 4661 recorded under Auditor's File No. 8804200074." CP at 1442 (emphasis added). The document creating the short plat from Auditor's File No. 8804200074 defines the Liffgens Property, in pertinent part, as "[l]ot A . . . Together with and [s]ubject to an access and utilities easement over, under and across a 30 foot strip the centerline of which is the East line of [the lot described as lot A]." CP at 311 (emphasis added).
CP at 311.
In August 2019, the Dornys obtained permits to build a home on their property. The building permit and approved site plan from the City of Bainbridge Island identified an area on the western portion of the easement as necessary for access to the Dorny Property during construction. This access area is marked as "temporary driveway for construction" on Image 2 above. (Hereinafter, new driveway.) CP at 29. The Dornys planned for the new driveway to run through the access and utilities portion of the easement, over the extreme northeastern corner of the Liffgens Property.
The Dornys' original building permit expired on March 4, 2020, and their financing and pricing for construction was tied to their permit timeframe and city-approved plan. The Dornys chose to create the new driveway because it was approved by the City and because their home builders informed them that large trucks, cranes, and other equipment would not be able to access the building site on the existing paved road. The location of an above-ground electrical transformer riser, labeled as the square with a "T" in Image 2, prevented the construction vehicles from making a 90-degree turn onto the Dorny Property off the existing paved road. CP at 19-20.
At some point before construction began on the Dorny Property, Jonathan Liffgens and Luke Dorny discussed the Dornys' plans. Jonathan Liffgens called the area within the easement a "buffer" between his "relaxation area" and the existing paved road. CP at 91. Jonathan Liffgens offered to relocate the transformer at the Liffgens' expense, rather than agreeing to the Dornys' new driveway, but Dorny rejected the idea because it might cause him cost and time overruns.[1]
Before installing the new driveway, the Dornys' workers were able to use the existing road to get one excavator onto the Dorny Property north of the transformer because it was a tracked vehicle that could turn 90 degrees in a fixed position. However, the workers were unable to get any other equipment onto the Dorny property.
On September 26, 2019, the Dornys installed the new driveway made of gravel within the western portion of the easement in the area defined by their site plan. To create the new driveway, the Dornys removed several trees that were within the easement on the Liffgens Property. The gravel the Dornys laid down as a road surface also covered a storm drain within the easement area.
On the morning of September 27, the Liffgens filed a "Motion for Temporary Restraining Order," which stated as a prayer for relief "that [the Dornys] be restrained and enjoined from removing any trees or shrubs, moving or disturbing the earth/dirt, or disturbing the [Liffgens Property] in any way." CP at 10. The Liffgens argued that the trial court should "'balance[] the inconvenience to the dominant estate with the hardship to the servient estate'" and declare the parties' respective easement rights. CP at 9 (quoting Steury v. Johnson, 90 Wn.App. 401, 404, 957 P.2d 772 (1998)).
The Liffgens appeared ex parte in superior court that same day before Judge Adams. The Liffgens' counsel stated that the Liffgens were "seeking a temporary restraining order" due to the Dornys activities in the easement area on the Liffgens Property. Verbatim Report of Proceedings (VRP) (Sept. 27, 2019) at 2. The Liffgens' counsel represented that the existing paved road provided unobstructed access to the Dorny Property and the Dornys construction efforts would not be improved by the new driveway. Jonathan Liffgens testified at the ex parte hearing and told the court the Dornys would not be prevented from developing their property if the temporary injunction was granted. Counsel further stated that the Dornys were moving in multiple pieces of heavy equipment without the new driveway and that the Dornys now had two access roads to their property. Jonathan Liffgens testified that the Dornys' clearing of the driveway put his electrical supply at risk and cut off a stream running to the covered storm drain.
After hearing argument from Liffgens' counsel and testimony from Jonathan Liffgens, Judge Adams stated that "for a temporary restraining order, I have to be satisfied that there's an emergency." VRP (Sept. 27, 2019) at 11. Jonathan Liffgens then further testified that the Dornys had removed six of his trees and buried a stream. Judge Adams responded, VRP (Sept. 27, 2019) at 11.
The court then signed a "Temporary Restraining Order with Order to Show Cause." CP at 11. Although the "motion" portion of the order requested the Dornys be restrained, the "ord...
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