Mccoy v. Kent Nursery Inc., 41105–9–II.

• Decision Date: 13 September 2011
• Docket Number: No. 41105–9–II.,41105–9–II.
• Citation: 163 Wash.App. 744,260 P.3d 967
• Court: Washington Court of Appeals
• Parties: Tom P. McCOY and Kathleen A. McCoy, Respondents,v.KENT NURSERY, INC., a Washington corporation doing business in Pierce County, Steven Mauritsen and “Jane Doe” Mauritsen, husband and wife, individually, and the marital community comprised thereof; Richard Mauritsen and Phyllis Mauritsen, husband and wife, individually, and the marital community comprised thereof; Stanley Michael Fenimore and Gayla A. Fenimore, husband and wife, individually, and the marital community comprised thereof; Fir Run Nursery, LLC, a Washington corporation doing business in Pierce County, Pierce County Public Works and Utilities, a Municipal Corporation and County Government, Appellants.

163 Wash.App. 744

260 P.3d 967

Tom P. McCOY and Kathleen A. McCoy, Respondents,

v.KENT NURSERY, INC., a Washington corporation doing business in Pierce County, Steven Mauritsen and “Jane Doe” Mauritsen, husband and wife, individually, and the marital community comprised thereof; Richard Mauritsen and Phyllis Mauritsen, husband and wife, individually, and the marital community comprised thereof; Stanley Michael Fenimore and Gayla A. Fenimore, husband and wife, individually, and the marital community comprised thereof; Fir Run Nursery, LLC, a Washington corporation doing business in Pierce County, Pierce County Public Works and Utilities, a Municipal Corporation and County Government, Appellants.

No. 41105–9–II.

Court of Appeals of Washington, Division 2.

Sept. 13, 2011.

Ronald Lamar Williams, Pierce Co. Pros. Ofc., John F. Salmon, III, Attorney at Law, Joseph Michael Diaz, Attorney at Law, Davies Pearson PC, Tacoma, WA, Albert Eugene Hammermaster, David C. Hammermaster, Attorney at Law, Sumner, WA, James Everette MacPherson, Kopta & MacPherson, Bainbridge Island, WA, for Appellants.Sarah L. Lee, Krafchick Law Firm, David Gross, Helsell Fetterman LLP, Colette M. Kostelec, Attorney at Law, Seattle, WA, Carolyn A. Lake, Goodstein Law Group PLLC, Tacoma, WA, for Respondents.VAN DEREN, J.

[163 Wash.App. 748] ¶ 1 Kent Nursery Inc.; Steven, “Jane Doe,” Richard, and Phyllis Mauritsen; Fir

Run Nursery LLC; Stanley Michael and Gayla Fenimore; ¹ and Pierce County Public Works and Utilities appeal from the trial court's orders (1) granting plaintiffs Tom and Kathleen McCoy a new trial, following a 16 day jury trial that resulted in a unanimous defense verdict, and (2) denying the Nurseries' and Pierce County's motion for reconsideration. The Nurseries and Pierce County argue that the trial court abused its discretion when it ordered a new trial based on juror misconduct and the Nurseries argue substantial evidence supported the jury's verdict. We agree, reverse the trial court's order granting a new trial, and remand for entry of the jury's verdict. We also grant costs on appeal to Kent Nursery and Fir Run Nursery, but we deny their requests for attorney fees.

FACTS

¶ 2 The McCoys filed suit against the Nurseries and Pierce County for damage caused by the failure of a clay tile pipe drainage system that runs under the Nurseries' property to a catch basin in a Pierce County right-of-way area and west under a road to the McCoy's property, ultimately discharging into Horse Haven Creek through the submerged end of the pipe. The pipe drainage system drains excess groundwater from the Nurseries' property, and an opening in the catch basin allows runoff water from the street to enter the drainage system.

¶ 3 According to Harold Louderback, former owner of the Nurseries' property, underground drainage pipes serving the Nurseries' property crossed the road and drained into a “slew” ² on the property west of the street as early as 1961. 8 Report of Proceedings (RP) at 898. John Westby then owned the land west of Louderback's that included the property the McCoys now own. In 1965, with Westby's permission, who then owned property west of Louderback's that included the property the McCoys now own, Louderback replaced some of the clay tile drainage pipe on Westby's property with higher-volume pipe. Louderback also dug an open ditch running to Horse Haven Creek on Westby's property as a new outlet for the drainage system. He did so partially because Westby wanted to drain the slough and because Westby's farmland was “quite wet” at the time. RP at 941–942.

¶ 4 Sometime after 1967, Louderback helped Harold Hahn, who then owned the western property that included the property the McCoys now own, expand the drainage system on the Hahn property, extending it so that it drained directly into Horse Haven Creek; and Louderback allowed the earlier ditch he dug to be filled. Louderback also helped Hahn replace a pipe that was crushed by cement trucks Hahn used in constructing a barn and garage on the property.

[163 Wash.App. 750] ¶ 5 In 1990, Kent Nursery purchased Louderback's property.³ In approximately 1993, Rolland Hartstrom Jr., purchased the western property that included the property the McCoys now own from Harold and Esther Hahn and subdivided it into four parcels. In 1995, Hartstrom sold the McCoys Lot 4, the parcel containing the Hahns' former house and garage. 4 RP at 264.

¶ 6 In late 1995, Hartstrom discovered water “bubbling” out of the ground on Lot 3 of his subdivided parcels. 3 RP at 229. In late 1995 or early 1996, Hartstrom sued the Hahns for failing to disclose the drainage pipe system running under the four parcels. The lawsuit ultimately resulted in the Hahns' repurchasing Lot 3 from Hartstrom in 1997, subject to a “permissive use agreement,” ⁴ which Hartstrom recorded against Lot 3. 3 RP at 221. Hartstrom described the permissive use agreement as a “license for permissive use,” granting Kent Nursery “permission for use and maintenance of existing storm water drainage pipe running under ... Kent Nursery property and passing through [Lot 3].” 3 RP at 240–41. But the permissive use agreement bore only Hartstrom's and his wife's signatures and it contained no affirmation or agreement to its terms by Kent Nursery or its agents. Hartstrom also admitted that he never sent a copy of the agreement to Kent Nursery or its agents.

¶ 7 In 1998, the McCoys purchased Lot 3 from Esther Hahn. Before purchasing Lot 3, the McCoys performed a title search, discovered the permissive use agreement, and became aware of the drainage system running under the parcel. As part of their purchase, the McCoys executed a “hold harmless agreement,” releasing Esther Hahn from liability for any damage resulting from the drainage system under Lot 3. 5 RP at 498–99. In executing the hold harmless agreement, Tom McCoy was aware that the drainage pipes ran under both Lots 3 and 4.

[163 Wash.App. 751] ¶ 8 In 2004, Tom McCoy drove a backhoe over Lot 3 to “knock[ ] down some sticker bushes.” 5 RP at 506. In early 2006, the McCoys first noticed water bubbling up out of two or three sinkholes on Lot 3 and water from across the street flooding their property. The flood waters flowed out of the catch basin, crested the road, and flowed westward across their property. Because the flooding recurred, the McCoys used a backhoe to build a dirt “berm” on their property, intending to divert the water. 4 RP at 272. The McCoys also used “several dump truck loads of fill dirt” to fill in the sinkholes, despite seeing drainage pipes in the holes, because they believed that the pipes were broken; but they did not examine them or attempt to replace them. 5 RP at 466. After the McCoys filled the sinkholes on Lot 3, the sinkholes on their property spread to Lot 4, multiplied, and worsened.

¶ 9 In early 2009, the McCoys sued the Nurseries and Pierce County; the Nurseries counterclaimed against the McCoys. The parties waived conducting voir dire on the record.

¶ 10 Creveling, a geologist and the McCoys' expert witness, opined that neither the heavy machinery on the McCoys' property nor the weight of the structures built on the property damaged the drainage pipes because of the pipes' depth and the soil's load bearing capacity. He also opined that, because the terminal point of the drainage system was submerged in Horse Haven Creek, backflow from the creek partially flooded a section of the pipes and contributed to the system's failure. He further opined that the drainage system did not remove groundwater from the McCoys' property. Finally, he opined that the drainage pipes collapsed because of the “tremendous amount of water leaving” the Nurseries through the system. 7 RP at 763.

¶ 11 Damon DeRosa, an engineer and another expert witness for the McCoys, stated that the maintenance work Pierce County performed, including “jet-rodding” ⁵ the catch basin and clay pipes, further damaged and increased the amount of water entering the system. He stated that he would never recommend “jet-rodding” clay tile pipe.

¶ 12 Dennis Dixon, a Pierce County Surface Water Management Division engineer and drainage analyst, was an expert witness for Pierce County. He informed the jury that, as early as 1931, surface water followed a natural drainage course through a swale moving westward across the McCoys' property into Horse Haven Creek. He also opined that, without the drainage system, surface water would naturally follow this same route through the McCoys' property.

¶ 13 Owen Reese, a civil engineer, hydrologist, and expert witness for the Nurseries, opined that the drainage system served to remove excess groundwater from the McCoys' property. He also stated that the drainage system on the McCoys' property follows portions of the swale's natural drainage course. He concluded that a blockage in the drainage pipes downstream from the catch basin was causing water to flow out of the catch basin. He also opined that filling a sinkhole containing a defective pipe could block the drainage system and cause sinkholes upstream from the blockage.

¶ 14 Both Steven Mauritsen, president of Kent Nursery, and Stanley Michael Fenimore, manager of Fir Run Nursery, confirmed that water from their properties enters the McCoys' property through the broken drainage system. They also said that, due to the broken drainage system and the McCoys' berm, the water flowing from the catch basin collected and deepened until it flooded the Nurseries' property, killing their trees and making portions of the land unusable for their businesses.

[163 Wash.App. 753] ¶ 15 The McCoys did not object to any of the trial court's jury instructions.⁶ The jury returned a special verdict finding that the Nurseries and Pierce County were not negligent and that the Nurseries had not trespassed on the McCoys' property. It also found that the McCoys were negligent and that their negligence proximately caused their own damages...