Lutz v. Buffington
| Decision Date | 02 March 2016 |
| Docket Number | No. 32878-3-III,32878-3-III |
| Parties | TOM G. LUTZ and KAREN LUTZ, husband and wife, Respondents, v. LISA A. BUFFINGTON and JOHN DOE BUFFINGTON, husband and wife, and The ESTATE OF DENNIS H. LEMLER and/or his heirs, and SETH LEMLER, and TONI LEMLER, husband and wife, and SCHUYLER LEMLER and JANE DOE LEMLER, husband and wife, and ALL OTHER PERSONS OR PARTIES UNKNOWN Claiming Any right, Title, Estate, Lien or Interest in the Real Estate Described in this Complaint, Appellants. |
| Court | Washington Court of Appeals |
SIDDOWAY, C.J. — After Lisa Buffington successfully sued to invalidate an express easement over the northern tip of her property that Tom and Karen Lutz had relied on for access to their land for almost 10 years, the Lutzes brought this action under RCW 8.24.030, asking the court to declare a private way of necessity. Following a bench trial, the court granted the Lutzes' requested relief conditioned upon their payment to Ms. Buffington of $12,430 for the taking and as severance damages, together with $35,911 in attorney fees and costs. The Lutzes satisfied the judgment.
Ms. Buffington appeals, arguing that the Lutzes' present action was a compulsory counterclaim in her earlier action and is barred by their failure to assert it, that the Lutzes failed to name as necessary parties other owners of property in the residential development where Ms. Buffington lives, that the Lutzes did not establish reasonable necessity, that they should have been denied relief on account of undue delay in seeking it, and that the compensation awarded for the taking was insufficient. We find no error or abuse of discretion and affirm. We award Ms. Buffington her reasonable fees and costs on appeal reduced by 30 percent to account for the extent to which unmeritorious assignments of error unnecessarily contributed to the cost of the appeal.
Ponderosa Park is a subdivision near Goldendale in Klickitat County. It is divided into parcels of about five acres in size. Private roads serve the subdivision.
In 1973, Tom and Karen Lutz purchased 10 acres of property adjacent to Ponderosa Park, known as lot 113. Lot 113 had no roadway access. The Lutzes reached the property on foot by using a walking path from a road within Ponderosa Park.
In March 1996, Ponderosa Parcels, Inc. (PPI), the developer of Ponderosa Park, entered into a real estate contract to sell lot 82 to Lisa Buffington and her now deceased husband, Dennis Lemler. The real estate contract was recorded with the Klickitat County auditor later that month.
Six months later, in September 1996, the Lutzes purchased lots 110 and 112 from Ernest and Jean Brokaw.1 The two lots were outside of but adjacent to Ponderosa Park, were adjacent to lot 113, and also lacked access. In connection with this purchase, Mr. Lutz negotiated for access with W. Kershaw, a principal of PPI and its then-president. Coincident with the Lutzes' purchase of the two parcels, PPI executed a grant of easement, granting to the Lutzes a nonexclusive perpetual easement "for the use of all roads located within all recorded Plats of the Ponderosa Park." Clerk's Papers (Oct. 23, 2014) (CP) at 68. Since the terminus of the closest private road to the Lutzes' property(Tamarack Road) was separated from lot 110 by the northern point of the triangular-shaped lot 82, PPI also conveyed a nonexclusive perpetual access easement "beginning along the Northerly boundary of . . . Lot 82 and extending Southerly for 60 feet, providing access . . . from that private road in Ponderosa Park named 'Tamarack.'" Id. The Buffingtons did not join in the conveyance of the access easement.
A map appended to the grant of easement roughly depicts the .08 acre piece of lot 82 that was subject to the easement with hash marks:
Image materials not available for display.
CP at 69 (partial).
The Lutzes' newly-acquired 10-acre lot 110 is located immediately to the east of lot 82. The grant of easement provided that in consideration for granting of the easements, the Lutzes "shall pay to the Ponderosa Park Owners' Association . . . a yearly assessment . . . which assessment is not to exceed the amount charged as a roadassessment to each lot owner in Ponderosa Park subdivision." CP at 68. The Lutzes paid the yearly assessment for the next 13 years until, in 2009, the homeowners' association refused to accept the payment.
Shortly after purchasing the additional two lots and acquiring the easement, the Lutzes used the roads in Ponderosa Park and the easement to construct a gravel access road that became Lutz Parkway. Consistent with the easement, Lutz Parkway crosses the northern tip of lot 82 at a maximum width of 60 feet in order to connect Tamarack Road to lot 110. The Lutzes used the roadway over the years to develop lots 110 and 113, including to install electrical power, other utilities, water wells and septic systems. Manufactured homes were placed on lots 110 and 113 and tenants have used Lutz Parkway for ingress and egress.
In 2006, Ms. Buffington filed a quiet title action to prevent the Lutzes and their tenants from using the corner of her lot for access. After identifying herself, the Lutzes, and their ownership of relevant land, her complaint alleged only the following:
In an answer and counterclaim, the Lutzes prayed that Ms. Buffington be denied her request for relief and that the court enter a judgment quieting title to the 1996 easement in them, free and clear of any claim of Ms. Buffington. They alleged that "[o]ne or all" of their parcels was or were "the dominant tenements benefited by" the 1996 easement.3 CP at 43.
Following a bench trial, the court invalidated the access easement over lot 82, concluding that PPI lacked authority to grant an easement over the lot after having sold it under contract to the Buffingtons. The court concluded that the Lutzes were on notice ofthe inability of PPI to grant them the easement because the real estate contract between PPI and the Buffingtons was recorded in March 1996.
The trial court did not quiet title in Ms. Buffington to lot 82 free from all claims, but only "free from any claim made by any person based upon that Grant of Easement executed by [PPI] and recorded on September 30, 1996, in Volume 340, Page 206-207, records of Klickitat County, Washington." CP at 56. Its April 9, 2009 judgment also stayed the effectiveness of its order quieting title for a period of 90 days from the date of entry, for reasons that do not appear in our record but, inferentially, anticipated this action to condemn a private way of necessity.4 It was toward the end of that 90-day period that, on June 30, 2009, the Lutzes filed this suit, seeking a private way of necessity along the same access that was earlier invalidated.
As affirmative defenses to this private condemnation action, Ms. Buffington contended both that the Lutzes' claim was a compulsory counterclaim in her 2006 quiet title action and was barred for their failure to assert it, and that the Lutzes had failed tojoin as necessary parties all other Ponderosa Park property owners. She later moved for summary judgment on both grounds. The trial court denied her motion.
At the bench trial, the Lutzes presented expert testimony that just compensation for the taking of an access easement on the northern tip of Ms. Buffington's property was $1,180. Ms. Buffington resisted any award of a way of necessity, but also claimed that she would have demanded close to $83,000 to convey the easement right and that the Lutzes' development of the road had diminished enjoyment of her property. She demonstrated her diminished enjoyment with evidence that the tenants on lot 113 had been investigated for marijuana production, that incidents of firearms discharged on or near the property had been reported, that tenants on both properties were observed exceeding the speed limit as they drove through Ponderosa Park, and that the tenants had been noisy and allowed their dogs to roam freely over Ms. Buffington's property.
Following a bench trial, the trial court entered judgment in favor of the Lutzes, granting them an easement by private way of necessity across lot 82, conditioned upon their paying the judgment amount within 60 days. The Lutzes timely satisfied the judgment. Ms. Buffington appeals.
The Washington State Constitution provides that "[p]rivate property shall not betaken for private use, except for private ways of necessity"5, "demonstat[ing] that a remedy for landlocked property was envisioned." Ruvalcaba v. Kwang Ho Baek, 175 Wn.2d 1, 6, 282 P.3d 1083 (2012). The legislature has effectuated the constitutional provision through RCW 8.24.010, under which, when "necessary for [a property's] proper use and enjoyment to have and maintain a private way of necessity . . . over or through the land of each other," an owner "may condemn and take lands of such other sufficient in area for the construction and maintenance of such private way of necessity." Compensation must be paid for the property condemned for a private way of necessity and the condemnee may be awarded its reasonable attorney fees and expert witness costs. RCW 8.24.030.
"Under [the] statute, the need for a way of necessity does not have to be absolute." Ruvalcaba, 175 Wn.2d at 7 (citing Brown v. McAnally, 97 Wn.2d 360, 367, 644 P.2d 1153 (1982)). "'It must, however, be reasonably necessary under the facts of the case, as distinguished from merely...
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