Milner v. Carpenter Group, LLC

• Decision Date: 20 October 2020
• Docket Number: 53372-3-II
• Parties: DAVE MILNER, Appellant, v. CARPENTER GROUP, LLC., a Washington Limited Liability Company, Respondent.
• Court: Washington Court of Appeals

DAVE MILNER, Appellant, v. CARPENTER GROUP, LLC., a Washington Limited Liability Company, Respondent.

No. 53372-3-II

Court of Appeals of Washington, Division 2

October 20, 2020

UNPUBLISHED OPINION

Glasgow, J.

Dave Milner used the lower portion of James and Jean Carpenter's^[1]driveway for more than 10 years to access his property and to back in his boat because a hedgerow and swampy conditions made access to the road via the front of his property impractical.A dispute arose when the Carpenters ordered a survey to determine their property line.After the survey, they trimmed Milner's hedge back to the survey line, killing several shrubs in the process.

Milner filed a complaint alleging a prescriptive easement over the driveway.He also alleged timber trespass, specifically claiming that the Carpenters had trespassed onto his property with the intent to injure the shrubs and seeking damages.The Carpenters filed separate motions for summary judgment on the prescriptive easement and timber trespass claims, and Milner filed cross motions for summary judgment on both claims in response.The trial court granted summary judgment for the Carpenters on both motions.The Carpenters also sought attorney fees, but the trial court failed to grant their request.Milner appeals, and the Carpenters cross appeal on the trial court's failure to award attorney fees.

We affirm the trial court's grant of summary judgment to the Carpenters.We deny the Carpenters' cross appeal for attorney fees.

FACTS

I.Background

W Raymond and Alice Marie West purchased a lot in Silver Lake in 1991, and they sold the lot to Dave Milner in 2006.The lot is located on a cul-de-sac and also has waterfront access.The property description identifies Milner's lot as lot 21.It features a hedgerow at the front of the property along a cul-de-sac and along the boundary between lot 21 and lot 20.

Also adjacent to lot 21 is a 16-foot wide driveway to lot 19 that is shared with lots 18 and 20.Lots 18 and 20 have easements for use of the driveway on lot 19 but lot 21 does not.Below is a map depicting the placement of these lots, as well as lot 19's driveway:

(Image Omitted)

Clerk's Papers(CP)at 163.

There is a space in the hedges on lot 21 large enough to fit a vehicle so that it can exit lot 21 onto the driveway on lot 19.Milner uses a portion of the lot 19 driveway to access his property because the prior owners, the Wests, told him it was his driveway and because his direct access to the cul-de-sac is blocked by hedges.Milner also claims that direct access to the cul-de-sac across the roughly 38-foot frontage would be impractical if the hedges were removed because the land is swampy there.

The Carpenters created Carpenter Group LLC for real estate investing.They purchased lot 18 in 2005 and then purchased lots 19 and 20 in 2015.The Carpenters moved from lot 18 to lot 19, where the former owner, Delores Eaton, had lived since the 1980s.

In 2017, the Carpenters and Milner had a disagreement over Milner parking his car along what he believed to be his portion of the driveway.Milner had rarely spoken to the Carpenters or Eaton before then.The Carpenters subsequently had a survey done to establish their property line and began asserting their rights based on that survey.Milner retained an attorney who began preliminary negotiations with the Carpenters and their attorney to resolve the dispute.

The Carpenters then sent Milner a letter asking him to trim tree branches that were overhanging a building on lot 20.Before the deadline in the letter, and without notifying Milner, the Carpenters trimmed the branches of Milner's hedge shrubs that extended over the survey line from Milner's property on lot 21 onto the Carpenters' property on lot 20.The Carpenters then installed a fence and cut the branches of the overhanging tree.Milner claimed 8 to 10 shrubs died as a result of the trimming.James Carpenter claimed the hedge was still living and growing as of June 2018.

II.Procedure

Milner filed a complaint in Cowlitz County Superior Court alleging two causes of action: (1) that Milner had a prescriptive easement over a portion of the Carpenters' driveway and (2) that the Carpenters intentionally destroyed Milner's shrubs in violation of RCW 64.12.030, the timber trespass statute.

The Carpenters filed a motion for partial summary judgment asking the trial court to dismiss Milner's timber trespass claim.In their motion, the Carpenters argued they had a right to engage in self-help by trimming branches that grew onto their property.The Carpenters pointed to Milner's declaration, which acknowledges the shrubs were cut right up to the survey line, as evidence that the Carpenters did not trespass onto Milner's property.

Milner responded by filing a cross motion for partial summary judgment asking the trial court to conclude that the Carpenters committed timber trespass.Milner argued that the Carpenters intentionally injured his shrubs and must have trespassed onto his property to cut the branches to the trunks.Milner submitted several exhibits, including pictures of the hedges that were cut back, to show that the dead portions of the shrubs extended onto his side of the survey line.The trial court granted the Carpenters' motion for partial summary judgment, denied Milner's motion, and dismissed the timber trespass claim.

The Carpenters next filed a motion for summary judgment asking the trial court to dismiss Milner's remaining cause of action for a prescriptive easement.The Carpenters argued that Milner's use of the Carpenters' driveway was presumed permissive, and Milner failed to carry his burden of rebutting that presumption.The Carpenters also requested attorney fees.

Milner opposed the Carpenters' motion and filed a cross motion for summary judgment asking the trial court to grant his claim for a prescriptive easement across the Carpenters' driveway.Milner argued that his and his predecessors' use of the driveway was adverse because the hedges clearly blocked any other access to the property and because there was no evidence he had a cordial relationship with the Carpenters or their predecessors.He asserted there was no genuine issue of material fact as to this issue.

The trial court granted the Carpenters' summary judgment motion, denied Milner's motion, and dismissed Milner's remaining claim.In its order granting summary judgment, the trial court concluded that Milner had failed to overcome the presumption that his use of the driveway was permissive.The trial court did not enter an order awarding attorney fees.

Milner appeals the trial court's summary judgment dismissal of his two causes of action.Milner also asks this court to rule it was error for the trial court to include findings of fact and conclusions of law in its summary judgment order.The Carpenters cross appeal the trial court's failure to award attorney fees.

ANALYSIS

I.Summary Judgment Standard

In reviewing a grant of summary judgment, appellate courts apply de novo the same standard as trial courts: summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."CR56(c);DeVeny v. Hadaller,139 Wn.App. 605, 616, 161 P.3d 1059(2007).The moving party bears the burden of first showing that there is no genuine issue of material fact.Zonnebloem, LLC v. Blue Bay Holdings, LLC,200 Wn.App. 178, 183, 401 P.3d 468(2017)."Once the moving party has made such a showing, the burden shifts to the nonmoving party to set forth specific facts that rebut the moving party's contentions and show a genuine issue of material fact."Id.The nonmoving party"'may not rely on speculation [or] argumentative assertions that unresolved factual issues remain.'"KS Tacoma Holdings, LLC v. Shorelines Hr gs Bd.,166 Wn.App. 117, 126, 272 P.3d 876(2012)(quotingSeven Gables Corp. v. MGM/UA Entm't Co.,106 Wn.2d 1, 13, 721 P.2d 1(1986)).

Where reasonable minds could reach only one conclusion from the admissible facts in evidence, the issue may be determined on summary judgment.Sutton v. Tacoma Sch. Dist. No. 10,180 Wn.App. 859, 865, 324 P.3d 763(2014).We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party.Id. at 864.

II.Prescriptive Easement

Milner argues that the trial court erred in granting the Carpenters' motion for summary judgment and dismissing his prescriptive easement claim because Milner and his predecessors used the driveway in a way that was adverse and should have been known by the Carpenters and their predecessors for more than 10 years.He asserts that there is no genuine issue of material fact with regard to this claim.Milner also argues that the trial court erred when it reasoned that the owners of lot 21 had to interfere with the owners of lot 19's use of the driveway to gain a prescriptive easement over the driveway.Finally, Milner argues in the alternative that there is a genuine issue of material fact as to whether "the owners of Lot 19 knew, or should have known, that the Wests and [Milner] used the lower portion of the [driveway] as a matter of right, for over ten years."Br. of Appellantat 16.

The Carpenters respond that summary judgment was appropriate because Milner did not overcome the presumption of permissive use.We affirm the trial court's grant of summary judgment to the Carpenters.

A.Background on Prescriptive Easements

To establish a prescriptive easement, the person claiming the easement must show that the following five elements were...