Stefankiv v. Keo
| Decision Date | 07 December 2009 |
| Docket Number | 63128-4-I |
| Court | Washington Court of Appeals |
| Parties | MYKHAYLO and HANNA STEFANKIV, husband and wife, Appellants, v. BERN and SAVOUTH KEO, husband and wife, Respondents. |
UNPUBLISHED OPINION
Mykhaylo and Hanna Stefankiv challenge the summary dismissal of their trespass and nuisance claims against their neighbors, Bern and Savouth Keo. They contend the trial court erred in considering inadmissible evidence and in determining the Keos' sewer line, which runs over their property occupies an implied easement. But we conclude the Stefankivs' evidentiary arguments are without merit and no genuine issues of material fact exist with respect to the implied easement. The only reasonable inference from the uncontradicted evidence is that the Stefankivs' predecessor in interest, who owned both properties and installed the sewer line, intended to burden the Stefankivs' property with a sewer line easement. Accordingly, we affirm.
In 1988, Steven and Mary Stafford applied to the City of Lynnwood for permission to subdivide their property into two parcels of land. The city approved their application, and they recorded a short plat. The Staffords lived in a house on the northern parcel ("lot 1" or "front lot") directly abutting 188th Street Southwest. There was no house on the other lot ("lot 2" or "rear lot"). The Staffords' house was served by a sewer line extending to 188th Street Southwest that was originally permitted in 1963.
In 1989, while the Staffords still owned both parcels, they applied for a side sewer permit running across lot 1 to serve a house to be built on lot 2. After obtaining the permit, the Staffords installed the sewer line. In 1991, they sold lot 2 to Charles and Christine Cox, but they did not include an express sewer line easement as part of the conveyance. In 1993, the Coxes obtained a permit to improve the sewer line. In 1995, Bern and Savouth Keo acquired lot 2.[1]
The Staffords sold lot 1 in 1994. After a series of transfers the Stefankivs acquired it in 2005. At the time of their purchase, the Stefankivs' title insurance company provided them with the short plat recorded in 1988. While it did not show the location of any sewer lines, it referenced a drainage system for both houses. Two visible manholes in front of the Stefankivs' property on 188th Street Southwest serve the public sewer main. In 2007, the Stefankivs began a remodeling project. During excavation they damaged the sewer line serving the Keos' property.
Consequently the Stefankivs filed suit against the Keos for trespass and nuisance. They sought damages and an injunction ordering the Keos to remove the sewer line. The Keos moved for summary judgment dismissal, arguing that the sewer line occupied an implied easement. They submitted 16 exhibits in support of their motion, along with a declaration from their attorney that the exhibits were "true and correct" copies of various documents. The Stefankivs moved to strike several of the exhibits. Specifically, they objected to exhibit B (the 1963 side sewer permit), exhibit D (the 1989 side sewer permit), exhibit F (the 1993 side sewer permit), exhibit O (pictures of the two properties), and exhibit P (an estimate for the cost to relocate the Keos' sewer line). They also brought a cross-motion for summary judgment. The trial court denied the Stefankivs' motion to strike and granted the Keos' motion for summary judgment, dismissing the Stefankivs' claims with prejudice. The Stefankivs appeal.
Initially the Stefankivs contend the trial court erroneously denied their motion to strike because the evidence they objected to was inadmissible under CR 56(e). This court reviews evidentiary rulings made in connection with a summary judgment ruling using the de novo standard. Ross v. Bennett, 148 Wn.App. 40, 45, 203 P.3d 383 (2008); Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Under CR 56(e), affidavits submitted in support of a party's summary judgment motion must be made on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. CR 56(e); Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). However, an attorney need not have personal knowledge of the information conveyed by documents that he or she proffers in support of a summary judgment motion. Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn.App. 736, 745–46, 87 P.3d 774 (2004). In International Ultimate, the defendants objected to exhibits offered in support of a summary judgment motion, arguing that the affiant attorney lacked personal knowledge such that the exhibits were inadmissible under ER 602. Int'l Ultimate, 122 Wn.App. at 745. The court rejected their argument, concluding that the proper evidentiary challenge was based on either authenticity or hearsay. "If the documents are properly authenticated and are not excluded because of hearsay, then an attorney may rely on them in a summary judgment motion regardless of any lack of personal knowledge." Int'l Ultimate, 122 Wn.App. at 746.
The Stefankivs argue that the side sewer permits, exhibits B, D, and F, were not properly authenticated under ER 901[2] and that they are hearsay. But ER 901 is satisfied "when the party challenging the document originally provided it through discovery," as the Stefankivs did here. Int'l Ultimate, 122 Wn.App. at 747. And there is a well-established exception to the hearsay rule for public records. See Brundridge v. Fluor Fed. Servs., 164 Wn.2d 432, 450, 191 P.3d 879 (2008) (). The Stefankivs do not claim the permits are not what they purport to be or were not obtained from the City of Lynwood as public records.[3] They also assert that exhibit B is irrelevant, but they are incorrect. This document is relevant because it shows the sewer lateral that existed at the time the short plat was approved. The Stefankivs' motion to strike these exhibits was properly denied.
The Stefankivs also object to the admission of the pictures in exhibit O and the corresponding declaration by the Keos' attorney describing what the pictures show. They argue that the Keos' attorney did not have personal knowledge of the lots. In replying to this objection below, the Keos submitted a declaration by Bern Keo stating that he took the pictures and that the copies were a fair and accurate representation of the properties. This declaration is sufficient to authenticate exhibit O.
Finally, the Stefankivs argue that the cost estimate of relocating the Keos' sewer line, exhibit P, should have been stricken. This exhibit consists of a two-page estimate from Roto-Rooter, a plumbing and drain service. The Stefankivs object that the document amounts to expert opinion testimony and that the "author's qualifications and status as an expert witness were not disclosed notwithstanding the service of an interrogatory seeking information regarding experts." Appellant's Opening Br. At 18. But the document in question was available to the Stefankivs months before the summary judgment hearing, so there was no discovery violation. Moreover, the Stefankivs cite no pertinent authority to support their claim that the estimate constitutes expert testimony, inadmissible absent evidence that Roto-Rooter's employees are qualified to make such estimates. And their contention that the estimate is inadmissible hearsay is without merit because the document falls within the business record exception to the hearsay rule. It is apparent from the document that the estimate was made "in the regular course of business, at or near the time of the act, condition or event" recorded and that its "method and time of preparation were such as to justify its admission."[4] RCW 5.45.020.
The Stefankivs next argue that summary judgment was improper because there are genuine issues of material fact as to whether their property is burdened by an implied easement. In reviewing a summary judgment order, an appellate court engages in the same inquiry as the trial court.[5] Wingert v Yellow Freight Sys., Inc., 146 Wash.2d 841, 847, 50 P.3d 256 (2002). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We will affirm an order of summary judgment if reasonable persons could reach only one conclusion. Venwest Yachts, Inc. v. Schweickert, 142 Wn.App. 886, 893, 176 P.3d 577 (2008).
While easements are usually created expressly in a written instrument, the law also recognizes implied easements in some situations. See 17 William B. Stoebuck, Washington Practice, Real Estate & Property Law, § 2.4 at 89 (2d ed. 2004). "The party seeking to establish an easement implied from prior use generally must establish three key elements: (1) unity of title and subsequent separation by grant of the dominant estate; (2) apparent and continuous user; and (3) the easement must be reasonably necessary to the proper enjoyment of the dominant estate." MacMeekin v. Low Income Hous. Inst Inc., 111 Wn.App. 188, 195, 45 P.3d 570 (2002). However, unity of title and subsequent separation is the only absolute requirement. Roberts v. Smith, 41 Wn.App. 861, 865, 707 P.2d 143 (1985). The other two elements are merely "aids to construction in determining the cardinal consideration—the presumed intention of the parties as disclosed by the extent and character of the user, the nature of the property, and the relation of the...
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