Shulgan v. The Evangelical Lutheran Good Samaritan Society, No. 23392-8-III (WA 1/10/2006)
| Decision Date | 10 January 2006 |
| Docket Number | No. 23392-8-III,23392-8-III |
| Parties | DMITRIY M. SHULGAN and LYUBOV M. SHULGAN, and the marital community of them comprised, Appellants, v. THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, d/b/a SPOKANE VALLEY GOOD SAMARITAN VILLAGE, Respondent, STOLZ, INC., and AMERICAN WEST EXPLOSIVES, INC., d/b/a RIMROCK EXPLOSIVES, and BLASTING, INC., Defendants. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Spokane County. Docket No: 03-2-04057-1. Judgment or order under review. Date filed: 08/20/2004. Judge signing: Hon. Salvatore F Cozza.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Matthew Thomas Ries, Stamper Rubens Stocker & Smith PS, 720 W Boone Ave Ste 200, Spokane, WA 99201-2560.
Michael Kenneth Staub, Attorney at Law, Ste 200 Post Pl, 720 W Boone Ave, Spokane, WA 99201-2560.
Dmitriy M. Shulgan and Lyuban Shulgan (Shulgans) appeal from the trial court's summary dismissal of all of the claims brought by them against the Evangelical Lutheran Good Samaritan Society, doing business as Spokane Valley Good Samaritan Village (Good Samaritan). The Shulgans' amended complaint sought damages for cost of repair, restoration, and emotional distress arising from a dynamite blast on their property after Ms. Shulgan signed a letter authorizing Good Samaritan to `remove the upper crown of the rock wall'—part of a basalt cliff on the Shulgan property. Clerk's Papers (CP) at 61. The Shulgans also sought treble damages and attorney fees under RCW 4.24.630. The Shulgans' causes of action relevant to this appeal were based on trespass (including wrongful removal of minerals, and waste or injury to land, under RCW 4.24.630), strict liability, fraud, negligent misrepresentation, and negligence.
We reverse and remand for trial on the trespass and negligence claims, including the RCW 4.24.630 claims, because we conclude that there is a question of fact whether Good Samaritan exceeded the scope of the license the Shulgans gave it to `remove the upper crown of the rock wall.' We affirm the summary dismissal of the remaining claims.
The Shulgans immigrated to the United States from Russia in 1992. Neither of the Shulgans is fluent in English, although Ms. Shulgan understands English better than her husband. They reside on five acres of property they purchased in the Spokane Valley. The east border of their property included a basalt cliff that ran north and south along the border with Good Samaritan's property.
Since 1958, Good Samaritan has operated a nursing home and assisted living facility on a plateau overlooking the Spokane Valley. In 1995, Good Samaritan began to develop Good Samaritan Village Cottage Homes on land adjacent to its existing facility. These homes were to offer transitional living for, and were marketed to, seniors over the age of 55. Some of the homes were situated along the edge of the hill which had a crown of basalt rock approximately 10 feet high. Seeking to enhance the view from these lots, Good Samaritan decided to contact the Shulgans about removal of the rock crown from the top of the basalt cliff.
A day or two prior to August 1, 2002, Good Samaritan's director of housing, Tamara Gordon, and two men2 met with the Shulgans to discuss Good Samaritan's proposed project along their adjoining property boundary. The Shulgans' daughter helped translate. Mr. Shulgan understood very little, so he soon left Ms. Shulgan and the others, who continued to talk. However, Ms. Gordon had told both of the Shulgans that Good Samaritan wished to `even out the top of the hill,' and that the purpose was to install a fence at the top, `to be good neighbors.' CP at 59, 53. Ms. Shulgan told Ms. Gordon that Good Samaritan could have permission to `even out the top of the hill.' After Mr. Shulgan was no longer involved in the conversation, she also told Ms. Gordon that it would be all right to allow Good Samaritan to widen the existing ditch beneath the cliff. This was in order to catch any rocks and debris resulting from the project.
Prior to this late July visit from Ms. Gordon and the two men, Ms. Shulgan had authorized Good Samaritan to install the original ditch to catch rocks and debris from blasting Good Samaritan had done on its own property. There are no photos taken after the first blasting on Good Samaritan's property but prior to the blast at issue in this suit; however, the reasonable inference from the Shulgans' testimony was that it had had a minimal impact on their property. In any event, Ms. Gordon told Ms. Shulgan on this occasion that there would be a $500 check for the permission to `even out the top of the hill' and that she would return with the check in a day or two.
On August 1, Ms. Gordon returned to the Shulgans' residence and, again, the Shulgans' daughter served as makeshift interpreter. Again, Mr. Shulgan, who understood little, left the conversation and went about other business, but this was not until he had asked for and received an express assurance from Ms. Gordon that absolutely no blasting would occur with the project. After Mr. Shulgan left, Ms. Gordon presented Ms. Shulgan with a pretyped letter for Ms. Shulgan to sign. The Shulgans had both understood from the conversation on the prior day that Good Samaritan wished to `even out the top of the hill' so that a fence could be installed on top, `to be good neighbors.' The pretyped letter read as follows:
This statement of receipt acknowledges and grants permission to Spokane Valley Good Samaritan Village{} to remove the upper crown of the rock wall adjacent to Good Samaritan Village's property. Said statement also assures the property owner that the excavator will remove any spillage caused during excavation. As a further precaution, the existing restraint road will be widened.
Spokane Valley Good Samaritan Village appreciates your cooperation and as an expression of our gratitude offers you a one-time stipend of $500.
Thank you for the opportunity to visit with you. As the Director of Housing for Good Samaritan Village, please don't hesitate to call either myself of {sic} Jim Droppers, Executive Director{,} if we can be of any assistance.
CP at 61 (emphasis added).
Ms. Gordon obtained Ms. Shulgan's signature on the letter and left her with a copy of it and with the $500 check. On the copy of the letter was a phone number for Good Samaritan, and Ms. Gordon pointed this out to Ms. Shulgan as a contact number if needed.
Ms. Shulgan showed Mr. Shulgan the letter shortly after signing it and explained it to him as being `just another notification or a warning that they're going to do the ditch.' CP at 53. Ms. Shulgan also told Mr. Shulgan about receiving the $500 check associated with the letter Ms. Shulgan signed immediately after Ms. Gordon left the Shulgans' residence on August 1, 2002.
Some days later, Mr. Shulgan observed equipment come to widen the ditch. He felt he had not authorized the ditch to be widened but was unable to call anyone because his wife was not home and he was not able to communicate in English. Then, some days later, when the Shulgans observed what they believed to be holes being drilled, Mr. Shulgan worried that there was, in fact, blasting planned, contrary to what he had been told. Although the Shulgans repeatedly tried calling the telephone number Ms. Gordon had given them, there was never any answer.
On August 15, men came to the Shulgan home and informed them that they must leave immediately because the blast was going to occur. Mr. Shulgan started to object but was persuaded by his son that it was too late and that the blast was going to occur regardless of any protest. The Shulgans retreated to the area of their mailboxes, about 200 yards away, whereupon they heard a huge blast. Flying rock and debris landed on the Shulgans' property, and some of it dented the Shulgans' metal roof. Dirt the thickness of a finger landed inside the Shulgans' home. Another neighbor complained that the blast was so forceful that his concrete driveway had been cracked. In the course of the excavation, the blasting contractor had drilled 46 holes, loading them with 651 pounds of dynamite.
Virtually the entire basalt cliff on the Shulgans' property was destroyed, and they lost all of the beauty of the cliff and its vegetation. Additionally the market value of their property was diminished. Copies of before and after photos were reviewed by the trial court and were included in appellants' brief as appendices.
After the blast, Good Samaritan removed some of the rock from the Shulgans' property. The Shulgans then refused to allow the blasting contractor access to the property for any further rock or debris removal.
Standard of Review. When reviewing a summary judgment, this court undertakes the same inquiry as the trial court and considers all facts and reasonable inferences in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). `The question of whether an ambiguity exists in a contract is an issue of law reviewed de novo.' Stranberg v. Lasz, 115 Wn. App. 396, 402, 63 P.3d 809 (2003). A court may look to parol evidence to explain an ambiguity in a contract. State v. Nason, 96 Wn. App. 686, 691, 981 P.2d 866 (1999). A provision is not ambiguous merely because the parties suggest opposing meanings. Mayer v. Pierce County Med. Bureau, Inc., 80 Wn. App. 416, 421, 909 P.2d 1323 (1995). And, the interpretation of an unambiguous contract is a question of law, even if the parties dispute the legal effect of an unambiguous provision. Id. at 420.
The key issue in this appeal is whether there is an ambiguity in the letter presented to and signed by Ms. Shulgan, specifically, the language, `remove the upper crown of the rock wall.' CP at 61. For the reasons explained...
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