The Geraldine A. Maniatis Living Trust v. Singh
| Decision Date | 22 December 2020 |
| Docket Number | 53127-5-II |
| Court | Washington Court of Appeals |
| Parties | THE GERALDINE A. MANIATIS LIVING TRUST, Respondent/Cross-Appellant, v. MALKIT SINGH and KAUR RANJIT, and the marital community composed thereof, Appellants/Cross-Respondents. JAY and ELEANOR KERGER, and KIM TOSCH, Respondents/Cross Appellants, v. MALKIT SINGH and KAUR RANJIT, and the marital community composed thereof, and the CITY OF TACOMA, a municipal corporation, TYE MINCKLER and KATHERINE MINCKLER, and the marital community composed thereof, Appellants/Cross-Respondents. |
UNPUBLISHED OPINION
The Geraldine Maniatis Living Trust (Trust) and Kim Tosch brought suit against Malkit Singh and Kaur Ranjit (Singh) and Tye and Katherine Minckler for trespass, waste, nuisance, and injunctive relief. The causes of action stem from water flowing downhill from the Singh's and Mincklers' properties onto the Trust's and Tosch's properties. The court found Singh and the Mincklers liable for intentional and negligent trespass, waste, and nuisance, and awarded injunctive relief.
Singh and the Mincklers appeal, arguing that substantial evidence does not support the court's findings that they caused the water to enter the Trust and Tosch properties or that they acted intentionally. They further argue that the trial court erred in failing to apply the common enemy doctrine, in denying their motion to dismiss, in finding that they had committed waste, in awarding injunctive relief, and in denying their request for fees and costs.
The Trust and Tosch cross-appeal, arguing that the court erred in granting Singh and the Mincklers' untimely motion for reconsideration. They also contend that the court erred by concluding that Singh and the Mincklers were not liable for statutory trespass and denying the resulting award of fees and costs under that statute. The Trust also argues that the court erred in excluding the testimony of its expert witness. Tosch argues that the court erred in finding that the water only drained from the Singh property onto the Trust property rather than directly onto the Tosch property.
We affirm the trial court's determination of liability for negligent trespass as to Singh but reverse the trial court as to its determination of liability for trespass and waste as to the Mincklers. We affirm on all other issues.
In 2011, Singh purchased two adjacent properties in Tacoma (the Singh properties). In 2013, he demolished the existing house on the property with an address of 2307. He then built a new home on each property. In January 2018, Singh sold one home to the Mincklers. Singh kept the other one.
The Singh properties slope down to the north and east towards properties owned by the Trust and Tosch. The Trust property is east of and downhill from the Singh properties and the Tosch property is north of and downhill from the Singh and the Trust properties.
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A wetland, designated by the city of Tacoma in 2008, and its associated buffer span the northern half of both Singh properties. The western portion of the Trust property and the southern portion of the Tosch property are designated as part of the wetland buffer.
A natural spring has existed and flowed continuously on the Singh properties since at least the 1970s. Before Singh's ownership, the spring daylighted in the crawl space of the 2307 home and flowed out from under the corner of the foundation. The spring joined with other water on the surface and flowed downhill into a man-made pool which overflowed. From the pool, the water traveled through a grassy swale into a rock lined ditch, and then onto the Tosch property. The water then entered a drainage system which carried the water to the street and into the city's storm sewers. At no time did the spring water or pond outflow reach the Trust property during the years prior to 2015.
In 2008, the owner of the properties before Singh applied for a wetland development permit from the city of Tacoma. In July 2009, the city issued the permit and the associated proposed wetland mitigation plan. At some point after he purchased the properties, the permit and the associated mitigation plan transferred to Singh's control. The mitigation plan stated that after development, there would be no significant change to the hydrology of the wetlands or to the volume of water leaving the site, and the overflow would continue to discharge onto the Tosch property.
In 2013, Singh razed the original home on the 2307 property and began construction of the new home in May or June of 2015. Sometime after, Singh graded the wetland and buffer areas. The grading did not remove a significant amount of soil but "gently levelled or gently graded" the area and removed the pond that previously collected the spring water. 3 Report of Proceedings (RP) at 465. The general slope of the Singh properties remained the same.
Singh installed a drainage system that included a series of drains that collected water from around the foundation and in the crawl space of the home on the 2307 property. Those drains collected the spring and ground water and directed it to a dispersion trench. The dispersion trench dispersed the collected water on the edge of the wetland. The dispersion trench was located uphill from the Trust property and terminated approximately ten feet from the Trust property line.
In June, James Maniatis began to notice water pooling in the northwest corner of his property. He contacted the city of Tacoma and Singh in July, asking that the water be stopped. In an attempt to address the water flowing onto the Trust property, Singh's contractor placed a hand-dug berm along the Singh/Trust property line in October 2015. The berm failed to stop the water because it was not engineered, built out of the correct materials, or maintained. It was subsequently removed.
On August 27, the city issued a correction notice to Singh for among other matters, allowing groundwater to discharge onto adjacent property, and for failing to comply with provisions of the wetland permit. On October 5, Singh received a stop work order that required him to address a number of issues including completion of the drainage system required by the wetland mitigation permit, as well as other violations unrelated to the wetland.
In the beginning of October, Tosch first observed wet and muddy ground on her property in the area adjacent to the Trust property. She described the area as "wet, mucky, and muddy." Clerk's Papers (CP) at 687 ( of Fact (FF) 39). On October 31, during a heavy rainstorm, water from the Singh properties flooded Tosch's property, going underneath the house, front porch, and pooling in the front yard. Subsequent comparable storms brought similar flooding.
A November 12 letter from the city informed Singh of the violations that precluded him from continuing construction of the homes. The letter listed multiple items that needed to be addressed, including the removal of foundation rock and the installation of crawl space drains per the original approved design, as well as the installation of a rock lined v-ditch to prevent uncontrolled water affecting neighboring properties. Singh continued to communicate with the city to remedy the outstanding compliance issues.
In an effort to have the city rescind the stop work orders Singh's wetland consultant responded to the city with a proposed plan to remedy the outstanding compliance issues and to modify the original wetland mitigation plan submitted in 2008. Karla Kluge, the senior environmental specialist from the city of Tacoma overseeing the wetland mitigation responded, expressed her concerns with the proposal, and denied the request for a minor modification. She concluded that the conditions on the site did not conform to the approved plan and did not provide for the same wetland as was originally proposed.
The city lifted the stop work order on May 9, 2016. Kluge sent a letter to Singh confirming that site conditions met the requirements of the mitigation plan. In the letter Kluge stated, "the applicant is reminded that the pre- and post-development flow to the wetland were analyzed by the applicant and approved by [the] City and these flows must not affect neighboring property owners." Ex. 26, at 4.
Following the May 9 letter, Singh did nothing to stop or abate the water flowing on to the Trust property. In August 2017, Singh completed the development of his properties and completed the work on the wetland pursuant to the mitigation plan. The city confirmed that Singh complied with all permits, including the wetland mitigation permit.
In February 2016, Tosch sued Singh, and approximately seven months later, the Trust sued Singh. The complaints alleged causes of action for both common law and statutory trespass, waste, and nuisance. The Trust sought injunctive relief and $500 in damages, fees, and costs pursuant to RCW 4.24.630. Tosch also sought damages, fees and costs, and an injunction. The court consolidated the cases.
In July 2017, Tosch hired a contractor to complete an addition to her home. While digging the foundation, the contractor pumped out significant amounts of water coming from below the surface. Tosch dug up the drain line to create a trench to intercept groundwater flowing onto her property. Prior to this, Tosch took no action to maintain the drain line on her property. The drain line failed because of the accumulation of dirt among the rocks.
From 2015 through trial, water flowed from the Singh properties onto the Trust property. Since at least late 2017, water flowed on the surface of the ground under the fence dividing their properties, several feet south of the north property line, and pooled in the northwest corner of the Trust property. The...
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