Opinion
No. 54185-4-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-2-15235-4. Judgment or order under review. Date filed: 04/16/2004. Judge signing: Hon. Jay V. White.
Counsel for Appellant(s), Randall C. Jr Johnson, Badgley Mullins Law Group PLLC, 701 5th Ave Ste 4750, Seattle, WA 98104.
Counsel for Respondent(s), W. Theodore Vander Wel, Bank of America Bldg, 10500 NE 8th St Ste 1900, Bellevue, WA 98004-4358.
An injunction is an equitable remedy granted by a court in the exercise of its discretion. On remand with specific direction from this court, the trial court properly crafted an injunction. The scope of the injunction was in the range of the expert testimony. Other issues raised on appeal are not ripe for decision or the record is insufficient for proper review. We affirm the decision of the trial court.
FACTS
The case is before this court for a second time. The underlying facts are well-known to the parties and are set forth in the original unpublished opinion of this court. The case centers on a dispute between adjoining landowners regarding the flow of water from one property to another. The Andersons and the Griffins own adjoining property at the low point of a valley that has no outlet for surface water. The Griffin property is lower than the Anderson property and historically accepted surface water flowing off the Anderson property.
The Griffins performed extensive fill and excavation work on their property that altered the natural flow of water, changing the flow and the amount of water that collected on the Anderson property. The Andersons sued the Griffins for damages and for an injunction. A jury found the Griffins liable and awarded an amount to the Andersons for temporary damages to their property, but the trial court denied injunctive relief. The Andersons appealed.
This court affirmed the jury verdict for temporary damages, but also found that no adequate remedy at law was available to the Andersons, thus reversing the denial of injunctive relief. This court remanded the case for an appropriate injunction: `[t]he natural water flow off the Anderson property and onto the Griffin property must be restored.' `[T]he goal is to re-establish the natural water flow in a historic wetland area. Any dewatering or shrinkage of wetland areas on the Anderson property will merely return it to its natural condition.' `The proper relief is to restore the natural water flow onto the Griffin property rather than achieve a particular level of dryness on the Anderson property.'
On remand, the trial court held an evidentiary hearing. Based on the special verdicts entered by the jury at the original trial in June 2000, the opinion of this court, and the evidence heard on remand, the trial court entered findings of fact and conclusions of law and a mandatory injunction ordering the Griffins to restore the natural flow of water across and off of the Anderson property and onto the Griffin property within 12 months. Such restoration was to cause the Griffin property to accept the natural flow of water and the Griffins were ordered to make modifications to their property to accomplish the restoration. In imposing the injunction, the trial court also set forth that the Griffins must obtain the proper permits, if any, required for restoration of the property and shall accomplish the injunction in a manner that does not violate or run afoul of wetland regulations. The court specifically ordered the work to be accomplished within 12 months, but stated that it was not directing the Griffins to achieve a particular level of dryness on the Anderson property.
The Griffins appeal the injunction crafted by the trial court and its refusal to grant reconsideration in part.
ANALYSIS
The dispute before us concerns the parties' different interpretations of what this court intended by its opinion and order of remand. At the remand hearing, the trial court noted that the natural water flow off the Anderson property and onto the Griffin property was to be restored. The court acknowledged that the burden of any additional or increased flows across the Anderson property, from increased logging in the area or other actions not caused by the Griffins, was the burden of both properties, not just the Griffin property. Both the Griffins and the Andersons presented testimony from expert witnesses who gave differing opinions of the work necessary to comply with the remand order from this court. As each expert witness testified at the hearing, the trial court asked a number of questions to ascertain the meaning of the various proposals and what would be required to get the process completed in order to comply with the opinion from the Court of Appeals. The trial court included questions regarding the likelihood of county permitting issues and the time, including possible delays, that it might take to get the project done.
In entering its order, the trial court followed the recommendation of the Andersons' experts, but allowed some of the work to follow that proposed by the Griffins' expert. A review of the record of the remand hearing indicates there is substantial evidence to support the injunction issued by the trial court. There is no abuse of discretion.
A trial court's exercise of its equitable powers in crafting an injunction is reviewed by this court for an abuse of discretion. Wilhelm v. Beyersdorf, 100 Wn. App. 836, 848, 999 P.2d 54 (2000); see Willener v. Sweeting, 107 Wn.2d 388, 397, 730 P.2d 45 (1986).
In addition, the Griffins contend the trial court improperly refused their motions for post-trial relief. Motions for reconsideration and motions pursuant to CR 59 and CR 60 are addressed to the sound discretion of the trial court, and will be overturned only for an abuse of that discretion. There is no abuse of discretion. Under the CR 59 motion, the Griffins complained that requiring them to obtain permits to complete the work, while the work had not been fully investigated at the time of the remand hearing was an abuse of discretion and at the very least needed additional testimony at a later date. The Griffins offered additional evidence from the director of the Department of Development and Enviornmental Services to support their opinion that permits would be denied in this case. But to the extent their opinion may be valid, we believe these issues are not yet ripe for review. When or if the county denies permits, those issues will be proper for review.
Pacific Indus., Inc. v. Singh, 120 Wn. App. 1, 11, 86 P.3d 778 (2003).
Further, there is an insufficient record before this court to properly review the arguments. The Griffins seem to be hiding behind late-asserted wetland regulations to delay compliance with the injunction. If permits are actually determined to be necessary, the trial court may have to address those issues at a later time. To grant an additional hearing based on untimely declarations before the trial court based on incomplete evidence would have been an abuse of discretion. While the local agency may have some expertise in the wetlands issues, only the trial court has the full power and authority to resolve the Andersons' claims while issuing a mandatory injunction. The trial court did not err in denying the post-trial motion.
The Griffins challenge a number of findings of fact. These challenges repeat arguments made at trial or upon rehearing. A review of the record indicates substantial evidence to support the challenged findings.
The Griffins also contend the trial court abused its discretion by refusing to vacate the final judgment and provide for additional hearings or redraft the injunction. The Griffins' proposals are too little, too late, or they are attempting to re-argue issues that the jury decided at the initial trial. There is no abuse of discretion.
Both parties seek attorney fees and costs on appeal. Considering this opinion, the Griffins' request is denied. Citing RAP 18.9 and 18.1, the Andersons seek attorney fees for having to defend against a frivolous appeal. Although it was argued that the Griffins are appealing merely to delay the inevitable, some of the issues presented are debatable and we will not grant fees and costs as sanctions. Because the Andersons do not cite other applicable law granting them the right to attorney fees or costs, their request is also denied.
The decision of the trial court is affirmed.