Noble v. Safe Harbor Family Preservation

• Decision Date: 09 October 2007
• Docket Number: No. 35227-3-II.,35227-3-II.
• Citation: 141 Wn. App. 168,169 P.3d 45
• Court: Washington Court of Appeals
• Parties: Fred NOBLE and Faith Noble, husband and wife, Respondents, v. SAFE HARBOR FAMILY PRESERVATION TRUST, a Washington trust, Appellant and Tillicum Beach, Inc., Respondent.

169 P.3d 45

141 Wn. App. 168

Fred NOBLE and Faith Noble, husband and wife, Respondents, v. SAFE HARBOR FAMILY PRESERVATION TRUST, a Washington trust, Appellant and Tillicum Beach, Inc., Respondent.

No. 35227-3-II.

Court of Appeals of Washington, Division 2.

October 9, 2007.

Michael Wayne Johns, Davis Roberts & Johns PLLC, Gig Harbor, WA, for Appellant.

Robert Lyndon Beale, McGavick Graves PS, Tacoma, WA, Robert Dryden Wilson-Hoss, Attorney at Law, Shelton, WA, for Respondent.

ARMSTRONG, J.

¶ 1 Fred and Faith Noble petitioned to condemn a private way of necessity across Safe Harbor Preservation Trust property based on our holding in Safe Harbor Family Pres. Trust v. Noble, No. 29134-7-II, 120 Wash.App. 1060, 2004 WL 569290, 2004 Wash.App. LEXIS 502 (March 23, 2004) (Safe Harbor I). In answer, Safe Harbor (Paul and Agnes Stokes) alleged that a feasible alternative route existed over the Nobles' adjoining landowners, Tillicum Beach, Inc. (Tillicum). The Nobles then joined Tillicum as a potential condemnee. The trial court found that an existing way over Safe Harbor property was the least burdensome and granted the Nobles an easement over Safe Harbor property. Thereafter the trial court found that Safe Harbor was responsible for Tillicum's involvement, and ordered: (1) Safe Harbor to pay Tillicum's attorney fees of $39,920 and costs of $226.20; and (2) the Nobles to pay Safe Harbor's attorney fees; however, the trial court reduced Safe Harbor's attorney fees by 70 percent (in order to award them only fees spent in litigating against the Nobles) to $6,596.25. Safe Harbor appeals the order requiring it to pay Tillicum's attorney fees and the order reducing its claimed attorney fees against the Nobles. We affirm.

FACTS

¶ 2 In Safe Harbor I we set forth the facts:

In the mid-1940s, Ernest and Beulah Worl subdivided their property off Highway 101 on the Hood Canal into two lots. On one lot they created a 10-foot-wide ingress and egress easement for the benefit of the other lot. They recorded this easement.

In 1972, Paul and Agnes Stokes acquired the servient estate once owned by the Worls. They deeded the property to Safe Harbor in 1985. The Stokeses continued to live on the property, which is now in trust for the benefit of their children.

In 1998, the Nobles acquired the dominant estate once owned by the Worls.

The record easement has not been used since 1972, if ever. Instead, the Nobles and their predecessors have entered off Highway 101 through a gate and crossed a paved courtyard on Safe Harbor's property [(easement by usage)] to access their own. The trial court specifically found that there was no evidence explaining why the access used was outside the record easement.

The Stokeses erected a barrier across the courtyard access sometime before the Nobles purchased their property. The barrier was in place when the Nobles purchased their lot and they noticed it, but they never asked the Stokeses about it or discussed using Safe Harbor's property to access their own.

Safe Harbor I, 2004 WL 569290 at *1, 2004 Wash.App. LEXIS at *2-3. We also explained that because the Skokomish Tribe would not issue the Nobles a development permit for their record easement, the Nobles only recourse was an action to privately condemn a way of necessity. Safe Harbor I, at *3, 2004 Wash.App. LEXIS *7.

¶ 3 The Nobles petitioned to condemn a private way of necessity across Safe Harbor's property. Safe Harbor answered that the Nobles had "a feasible alternative route" over Tillicum's property; Safe Harbor also counterclaimed for damages because the Nobles' condemnation action prevented Safe Harbor from finalizing a sale of its property. Clerk's Papers (CP) at 177-79. The Nobles then successfully moved to amend the original petition to join adjacent landowner Tillicum as an additional party defendant.

¶ 4 The trial court ruled that the Nobles' proposed route over Safe Harbor property was less burdensome than the route over Tillicum's property, it granted the Nobles an easement for ingress and egress over the proposed route, and awarded Safe Harbor $3,300 for its loss of the property's use.

¶ 5 Tillicum moved for attorney fees and costs against Safe Harbor, arguing that:

Where the factual claims [of a litigant] are not only unfounded, but the litigant fails to present any evidence in support of them at trial, then the [trial court] should consider these failures in determining a reasonable attorney fee to award to the opposing party.

CP at 92-93. The trial court ordered Safe Harbor to pay Tillicum's attorney fees and costs, explaining that:

Clearly in this case, [Safe Harbor] was responsible for involving [Tillicum] as a potential alternate condemnee in this action.

Under [Kennedy v. Martin, 115 Wash. App. 866, 65 [63] P.3d 866 (2003),] RCW 8.24.030[,] and a balancing of the equities present in this case, the court will grant the request of [Tillicum] for an award of attorney fees and costs from [Safe Harbor].

CP at 16. The trial court also awarded Safe Harbor attorney fees and costs from the Nobles, but it reduced the award because:

for purposes of an award of attorney fees, time stated on the billings to [Safe Harbor] should be reduced by 70 percent representing a conservative estimate of the time spent involving [Tillicum] as an alternate condemnee and the time spent regarding issues related to the potential sale of the [Safe Harbor] property.

CP at 19-20.

¶ 6 On appeal, Safe Harbor essentially argues that the trial court erred in ordering it to pay Tillicum's fees and reducing its award of fees and costs against the Nobles because (1) the Nobles joined Tillicum as a party and, thus, should be liable for Tillicum's fees, and (2) Safe Harbor had a right to raise the affirmative defense that the Nobles had a more feasible access route over Tillicum's property.

ANALYSIS

I. Tillicum's Attorney Fees

¶ 7 The right to an easement by way of necessity arose out of English common law. Horner v. Heersche, 202 Kan. 250, 253, 447 P.2d 811 (1968) (quoting Collins v. Prentice, 15 Conn. 39 (1842)). The majority of states still use the common-law approach to establish an easement by way of necessity. Horner, 202 Kan. at 252, 447 P.2d 811; see also Adams v. Planning Bd. of Westwood, 64 Mass.App.Ct. 383, 389-90, 833 N.E.2d 637 (App.Ct.2005); Stock v. Ostrander, 233 A.D.2d 816, 817-18, 650 N.Y.S.2d 416 (App. Div.1996); Carstensen v. Chrisland Corp., 247 Va. 433, 438, 442 S.E.2d 660 (1994). In common-law matters of equity, a trial court has broad discretion to create an equitable remedy. Sorenson v. Pyeatt, 158 Wash.2d 523, 531, 146 P.3d 1172 (2006) (quoting In re Foreclosure of Liens, 123 Wash.2d 197, 204, 867 P.2d 605 (1994)).

¶ 8 In Washington, chapter 8.24 RCW governs a condemnation proceeding for a private way of necessity. Brown v. McAnally, 97 Wash.2d 360, 366-67, 644 P.2d 1153 (1982) (RCW 8.24.010 implements the right to condemn a "private way of necessity" established in Washington Constitution article 1, section 16). Nonetheless, the statute grants trial courts considerable discretion in awarding fees and costs. RCW 8.24.030 provides: "In any action brought under the provisions of this chapter for the condemnation of land for a private way of necessity, reasonable attorneys' fees and expert witness costs may be allowed by the court to reimburse the condemnee." (Emphasis added.) Rather than mandating an award of fees and costs based on statutory standards, the legislature merely stated that the trial court "may" award fees and costs. That the trial court "may" award fees and costs necessarily grants the court discretion to decide what equitable grounds support an award and the amount of the award. See Kennedy, 115 Wash.App. at 872, 63 P.3d 866 (citing Beckman v. Wilcox, 96 Wash.App. 355, 367, 979 P.2d 890 (1999)) (a trial court has discretion to award fees in light of the circumstances in each case). Moreover, although the statute limits the recipients to condemnees, it does not limit the parties against whom the court may award fees and costs.

¶ 9 Courts have exercised broad discretion in awarding fees and costs under RCW 8.24.030. For example, the trial court may order one condemnee to pay the fees and costs of another condemnee. Kennedy, 115 Wash.App. at 874, 63 P.3d 866. The trial court may award a condemnee attorney fees and costs even though the condemnee has lost the feasible alternative issue. Sorenson v. Czinger, 70 Wash.App. 270, 279, 852 P.2d 1124 (1993) (statute grants the trial court discretion in awarding fees and costs without regard to who has prevailed). And the trial court may award attorney fees and costs against a condemnor who voluntarily dismisses its condemnation action. Beckman, 96 Wash.App. at 365-66, 979 P.2d 890 (statutory language suggests that the legislature intended broad application of RCW 8.24.030).

¶ 10 Safe Harbor argues that "the clear law set forth in RCW 8.24.030 and ... enunciated in Kennedy" requires the Nobles to pay Tillicum's attorney fees because the Nobles joined Tillicum in the action.

¶ 11 In Kennedy, the trial court ordered one set of condemnees to pay another's attorney fees after the former joined the latter in the action. Kennedy, 115 Wash.App. at 868, 63 P.3d 866. On appeal, the first condemnees argued that they should not be penalized for adding the second condemnee because they had a right to establish an alternate path for condemnation. Kennedy, 115 Wash.App. at 870, 63 P.3d 866. They also argued that only condemnors may incur liability under RCW 8.24.030. Kennedy, 115 Wash.App. at 872-73, 63 P.3d 866. We rejected both arguments, reasoning that "nothing in the language of RCW 8.24.030 or in the case law ... prevents a court from requiring the party responsible for involving the party seeking reimbursement of his attorney fees to pay those fees." Kennedy, 115 Wash.App. at 873, 63 P.3d 866.

¶ 12 Moreover, that Safe Harbor did not join Tillicum does not...