Woodward v. Lopez
| Decision Date | 30 April 2013 |
| Docket Number | No. 42757–5–II.,42757–5–II. |
| Citation | 174 Wash.App. 460,300 P.3d 417 |
| Parties | Bobbi WOODWARD, as Personal Representative of the Estate of Johanna Ellwanger, deceased, Appellant, v. Hector LOPEZ and Nita L. Lopez, and the marital community composed thereof; Trent Dale Herbert and Michelle Lee Herbert, and the marital community composed thereof; and Neda J. Herbert, a single woman, Respondents. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Joseph Philip Tall, Attorney at Law, Seattle, WA, for Appellant.
Matthew David Mills, Matthew D. Mills, Attorney at Law, PLLC, Bremerton, WA, for Respondents.
[174 Wash.App. 463]¶ 1 Bobbi Woodward, as personal representative of the Johanna Ellwanger estate,1 appeals the trial court's order granting partial summary judgment in favor of Hector and Nita Lopez, Trent and Michelle Herbert, and Neda Herbert (collectively the Lopezes). The trial court held that no genuine issue of material fact remained and as a matter of law (1) the express easement on the Lopez property does not benefit Ellwanger's short subdivision plat (SP) 432 lots, (2) no implied easement exists on the Lopez property for the benefit of Ellwanger's SP 432 lots, and (3) Ellwanger is not entitled to a private way of necessity through the Lopez property to access her SP 432 lots. Ellwanger also appeals the trial court's denial of her motion for reconsideration of its summary judgment order. We affirm the trial court's order granting summary judgment dismissal of Ellwanger's claim of an express easement. But we hold that Ellwanger produced evidence raising genuine issues of material fact that preclude summary judgment on the existence of an implied easement and private way of necessity. Accordingly, we reverse the trial court's order of summary judgment on those issues and remand for trial.
¶ 2 The parties' dispute arises from their respective interests in land that sits between State Route 16 and Bethel–Burley Road in Kitsap County, Washington. All the land at issue in this case was once owned by Florence Ford. In 1946, Ford conveyed a parcel of that land to a third party, which conveyance separated her remaining land into a north and south parcel. Ford excepted a 30 foot wide strip of land running along the eastern portion of the conveyed property that connects Ford's remaining parcels to the north and south. Neda Herbert owns the parcel Ford conveyed in 1946. 2
¶ 3 In 1977, Ford subdivided her two remaining parcels under Kitsap County short subdivision applications 431 and 432. Each short subdivision resulted in four lots: A, B, C, and D. SP 431 lies north of the Herbert property; and SP 432 lies south of the Herbert property. Lots A, B, and C of SP 431 are rectangular in shape and abut SR 16 to the east and abut Lot D to the west. Lot D abuts Bethel–Burley Road to the west, Olympic Drive to the northwest, and lots A, B, and. C to the east. All of the SP 432 lots are rectangular in shape and abut SR 16 to the east and Bethel–Burley Road to the west.
¶ 4 Each subdivision application included legal descriptions of the lots and a sketch of the subdivision. The application required legal descriptions that included reference to ingress or egress for all proposed parcels not having street frontage. The legal description of each of the lots in SP 431 stated that the lot is “[t]ogether with and subject to easements per sketch.”. Clerk's Papers (CP) at 88. The included sketch depicted a 60 foot wide easement along the east boundary of lots A, B, and C of SP 431.
¶ 5 The subdivision application for SP 432 did not mention or depict any easement. Neither the legal description of the lots nor the sketch included an easement benefitting or burdening any of the SP 432 lots. But a 1995 survey conducted for the Ford estate depicted the 60 foot easement through SP 431 lots A, B, and C and noted that the easement was for the benefit of lots A, B, and C of SP 431, and was to benefit all of the SP 432 lots.
¶ 6 When Herbert purchased her property in the mid to late 1960s, the northern and southern boundaries of the property were fenced.3 In 1996, Hector and Nita Lopez purchased lot C of SP 431, which lot adjoins the north side of the Herbert property.4 According to Herbert's deposition testimony, in 1998, a logging company clearing lot A in SP 432 knocked down the barbed wire fences that ran along the north and south boundaries of the Herbert property and put in a road within the 30 foot wide strip of land retained by Ford and the road and utility easement along the east 60 feet of lots A, B, and C of SP 431.
¶ 7 In 2007, Ellwanger obtained title to all of the lots in SP 432, lots B and D of SP 431, and the 30 foot wide strip retained by Ford in 1946. Ellwanger began to develop her SP 432 properties, but the Lopezes resisted when Ellwanger attempted to lay utility lines within the 30 foot wide strip and the 60 foot easement running through the Lopez property. Ellwanger sued the Lopezes, seeking (1) to quiet title in the 30 foot wide strip; (2) a declaration that her properties are dominant estates entitled to use the 60 foot easement through the Lopez property for ingress, egress, and utilities; and (3) money damages, fees, and costs.
¶ 8 The Lopezes moved for partial summary judgment, asserting that no material fact is in dispute and that as a matter of law: (1) the express easement on the Lopez property does not benefit the SP 432 lots, (2) no easement by implication exists on the Lopez property in favor of the SP 432 lots, and (3) Ellwanger is not entitled to a private way of necessity through the Lopez property for the benefit of her SP 432 lots. Ellwanger asserted that genuine issues of material fact remain about whether an implied easement exists on the Lopez property benefitting Ellwanger's SP 432 lots and whether the access to Ellwanger's SP 432 lots through the Lopez property is necessary.
¶ 9 Ellwanger produced a declaration of Frederick A. Kegel, a professional engineer and land surveyor, who met Ford sometime around 1978 to 1980. Kegel declared that “Ford intended to create an easement all the way across SP [174 Wash.App. 466]431 in order to maintain her right and the right of her heirs, successors and assigns, to grant further easement to her or assigned properties to the South (SP 432) via the 30 foot strip.” CP at 44. He also declared that Ford accessed her properties via the road within the 30 foot wide strip. Kegel stated:
The extension of a 60 foot wide access and utility easement across the full width of SP 431 is not a normal procedure unless the subdivider has the intent to extend access to adjoining properties, whether they own them or not. Based upon this fact, it is my opinion that ... Ford was well aware of the access problems to Lots. A, B, C, and D of SP 432 which the swamp alongside Bethel–Burley Road presented. Therefore, it would be prudent of her to keep her options open to access SP 432 across SP 431.
¶ 10 Ellwanger also provided a declaration from wetland expert Vaughn Everitt. Everitt declared that the west side of each of the SP 432 lots between the potential building sites and the Bethel–Burley Road is wetland. He explained that there are no existing roads to the SP 432 lots, so wetland fill and mitigation would be necessary to gain access from the Bethel–Burley Road. Everitt opined that because wetland mitigation typically costs $200,000 an acre, it would be “prohibitively expens[i]ve” to construct a road and lay utilities across the wetlands. CP at 38. Thus, he reasoned that the only reasonable access to the SP 432 lots is along the road within the 30 foot wide strip and the easement through the Lopez property.
¶ 11 The trial court granted the Lopezes' motion for partial summary judgment Ellwanger. unsuccessfully sought reconsideration.
¶ 12 Ellwanger argues that summary judgment was improper and that the trial court erred in denying her motion for reconsideration because several genuine issues of material fact remain regarding whether an implied easement exists and whether she is entitled to a private way of necessity through the Lopez property.5 We agree. Because we reverse the trial court's summary judgment order and remand for trial on the issues of implied easement and private way of necessity, we do not reach the trial court's denial of Ellwanger's reconsideration motion.
¶ 13 We review a trial court's order for summary judgment de novo, performing the same inquiry as the trial court. Ruvalcaba v. Kwang Ho Baek, 175 Wash.2d 1, 6, 282 P.3d 1083 (2012). “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.’ ” Visser v. Craig, 139 Wash.App. 152, 157, 159 P.3d 453 (2007) (quoting CR 56(c)).
¶ 14 The moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton Condo. Apartment–Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990). “ ‘After the moving party submits adequate affidavits, the nonmoving party must set forth specific facts which sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact.’ ” Visser, 139 Wash.App. at 158, 159 P.3d 453 (quoting Meyer v. Univ. of Wash., 105 Wash.2d 847, 852, 719 P.2d 98 (1986)). “If the nonmoving party fails to do so, then summary judgment is proper.” Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005).
¶ 15 We consider all evidence submitted and all reasonable inferences from the evidence in the light most favorable to the nonmoving party. McPhaden v. Scott, 95 Wash.App. 431, 434, 975 P.2d 1033 (1999). But a nonmoving party “ ‘may not rely on speculation [or on]...
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