Opinion
No. 27128-5-III.
February 5, 2009.
Appeal from a judgment of the Superior Court for Stevens County, No. 06-2-00434-3, Rebecca M. Baker, J., entered April 22, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Korsmo, J.
The trial judge dismissed this suit for damages and an injunction on summary judgment after striking portions of the plaintiff's declarations. We conclude that the court properly struck portions of the declarations as speculative. We also conclude that the plaintiff's causes of action for waste, nuisance, and damage to land were not supported by legally sufficient evidence. The court, then, properly dismissed the suit, and we affirm.
FACTS
Darryl Matlen sued his neighbors, Paul and Corrina Moser, for damages and a permanent injunction. He alleged causes of action for waste, trespass, and private nuisance because the Mosers left garbage along an easement over their property that Mr. Matlen used to access his property. He claimed that the garbage lowered his home's fair market value and prevented him from selling it. He also asserted that the garbage damaged his car, snow plow, and the road.
The Mosers admitted that they put stuff, including siding, a mail box, a Crockpot, a metal sign, and a red bucket next to the easement but denied that this amounted to waste, trespass, or nuisance. They moved for summary dismissal. Mr. Matlen responded with his own declaration and that of his real estate agent, Allen Reilly. Mr. Reilly represented that Mr. Matlen would have had to discount the sales price of his home by $20,000 to $30,000 to sell his property in the summer of 2006 because of the garbage along the easement.
The trial court struck Mr. Reilly's declaration as speculative. And it struck portions of Mr. Matlen's declaration as inadmissible hearsay. The court ultimately concluded that the allegations in the complaint were not supported by competent evidence, and it summarily dismissed the suit.
DISCUSSION
Mr. Matlen contends that his damage claim is supported by one of the theories of recovery he alleged and should not have been dismissed.
We review a summary judgment de novo. Seybold v. Neu, 105 Wn. App. 666, 675, 19 P.3d 1068 (2001). We will affirm an order granting summary judgment 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." CR 56(c). Said differently, we will affirm the order if the nonmoving party (here, Mr. Matlen) fails to demonstrate the existence of an element essential to his case. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
We, accordingly, compare the facts produced at the trial court to the elements of the causes of action Mr. Matlen asserts support his claim for relief. Chapter 64.12 RCW — Waste and Trespass
Mr. Matlen alleges that the Mosers' actions violated chapter 64.12 RCW (waste and trespass). The chapter provides causes of action against tenants and guardians of land (RCW 64.12.020); for occupants of "unsurveyed land" (RCW 64.12.060); for injury to or removing vegetation (RCW 64.12.030); for cutting, breaking, or removing Christmas trees from state land (RCW 64.12.045); and for waste on public land (RCW 64.12.050). The Mosers are neither tenants nor guardians of the easement or Mr. Matlen's land. They own and reside on their land which is burdened by the access easement. Moreover, Mr. Matlen does not allege that the Mosers injured or removed any vegetation from his property. And the easement at issue is surveyed, private property as opposed to public land. Mr. Matlen's claim of waste and trespass upon the easement road, therefore, is not actionable under chapter 64.12 RCW. The trial court properly dismissed this cause of action.
RCW 4.24.630 — Liability for Damage to Land
Mr. Matlen next claims that the Mosers' actions violated RCW 4.24.630 (liability for damage to land and property) by "dumping garbage and refuse upon Matlen's easement." Clerk's Papers (CP) at 3. To recover damages under RCW 4.24.630, Mr. Matlen must show that the Mosers (1) entered his land, and (2) wrongfully caused waste or injury to his land.
Mr. Matlen has not shown the first element. Mr. Matlen does not own the "injured land" at issue. The "injured land" is an access easement that benefits Mr. Matlen's land and burdens the Mosers' land. An easement is a nonpossessory interest in another's land. Butler v. Craft Eng Constr. Co., 67 Wn. App. 684, 697, 843 P.2d 1071 (1992). The right is nonpossessory because the fee holders (here, the Mosers) possess and can use the land on which the easement lies as long as the easement holder (here, Mr. Matlen) can use the easement simultaneously. Hayward v. Mason, 54 Wash. 649, 652, 104 P. 139 (1909). Mr. Matlen, consequently, is not entitled to the protection that is given to those having possessory interests. Restatement of Property § 450, cmt. b (1944). For example, he cannot exclude others, including the Mosers, from using their land or the access road if their use does not interfere with his use. Id. Mr. Matlen has only that control necessary to enable him to use the easement that benefits his land. See City of Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986) (defining an easement as a right to use another's land).
The Mosers have not prevented Mr. Matlen from using the easement. The 64-foot-wide easement runs on the east and north sides of the Mosers' property. The Mosers placed their stuff alongside the north edge of the easement. And, while Mr. Matlen's truck may have run over a plastic barrel that was on the easement, the record does not show that the barrel or any other object blocked the easement entirely. In fact, the record shows the Mosers stored their items on their unburdened property, not on the easement. CP at 79-80. Mr. Matlen failed to demonstrate a prima facie case of liability under RCW 4.24.630. The Mosers were, again, entitled to summary judgment.
Chapter 7.48 RCW — Nuisances
Mr. Matlen also argues that the Mosers' actions were a private nuisance. A person is liable for nuisance when he or she substantially and unreasonably interferes with another's use and enjoyment of land. RCW 7.48.010; Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005). Any person whose property is injuriously affected by a nuisance may bring a nuisance action. RCW 7.48.020.
Injury, then, is an essential element that Mr. Matlen must demonstrate to avoid summary dismissal. Mr. Matlen argues that his expert's testimony is sufficient evidence of injury. But the Mosers argue that Mr. Reilly's declaration is speculative and, therefore, not admissible.
Mr. Matlen suggests in his complaint that he suffered three types of injury because of the stuff that the Mosers deposited next to the easement: (1) diminished real property value, (2) inability to market the property, and (3) damage to his car. To prove injury, Mr. Matlen had to produce specific facts that the fair market value of his property decreased. Haan v. Heath, 161 Wash. 128, 134, 296 P. 816 (1931).
Mr. Matlen supported his claim with two declarations, one by him and one by his real estate agent, Allen Reilly. The trial court rejected Mr. Reilly's declaration and portions of Mr. Matlen's declaration. We review de novo a trial court's evidentiary ruling made in connection with a summary judgment ruling. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). A court may not consider inadmissible evidence when ruling on a motion for summary judgment. King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994).
Matlen Declaration: Mr. Matlen represented in his declaration that his property's value declined; that it is now "virtually impossible" to sell his home given current market conditions; and that his car, snow plow, and the road have been damaged by the Mosers' garbage. CP at 101.
The party opposing a motion for summary judgment must offer "specific facts showing that there is a genuine issue for trial." CR 56(e). And those facts must be admissible in evidence. Id.
Mr. Matlen's declaration offers hearsay and no specific evidence of injury. Hearsay is inadmissible. ER 802. And his key statement that "Wells Fargo, as well as other financing companies, have told me that it will be virtually impossible for a buyer . . . to purchase a . . . home such as mine," was made by someone other than Mr. Matlen and offered to prove the truth of the matter asserted. CP at 102; see ER 801(c) (defining hearsay). It, therefore, is not competent evidence. See Dunlap v. Wayne, 105 Wn.2d 529, 535-36, 716 P.2d 842 (1986) (affirming decision excluding hearsay in summary judgment proceedings); see also Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 308-09, 151 P.3d 201 (2006) (stating that a party cannot use inadmissible hearsay to defeat summary judgment). Mr. Matlen also did not offer proof of damage to his vehicles or the road. His declaration merely repeats the allegations set out in his complaint. Mr. Matlen's declaration, then, does not support his nuisance claim. See Grundy, 155 Wn.2d at 6 (setting out the requirements for a claim in nuisance); see also Borden v. City of Olympia, 113 Wn. App. 359, 373, 53 P.3d 1020 (2002) (same).
Reilly Declaration : Mr. Reilly, Mr. Matlen's real estate expert, declared that Mr. Matlen would have had to reduce his asking price "$20,000 to $30,000 to get a sale" on his house in the summer of 2006. CP at 61. Expert testimony is admissible if the witness's expertise is established by the evidence, his opinion is based on material generally relied on by his professional community, and his testimony is helpful in deciding an issue in the case. Tennant v. Roys, 44 Wn. App. 305, 311, 722 P.2d 848 (1986); ER 702; ER 703. An expert must base his opinion on facts, not speculation or conjecture. Time Oil Co. v. City of Port Angeles, 42 Wn. App. 473, 480, 712 P.2d 311 (1985).
Mr. Reilly's declaration does not establish his expertise. Practical experience may be sufficient to qualify a witness as an expert under ER 702. State v. Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992). But Mr. Reilly's declaration merely states that he was an associate broker with Windermere in 2006. It does not show that Mr. Reilly had the "knowledge, skill, experience, training, or education" to form an opinion about injury or damage to Mr. Matlen's property. ER 702.
Moreover, Mr. Reilly's declaration is based on assumptions and speculation. And this is not competent evidence. See Riccobono v. Pierce County, 92 Wn. App. 254, 268, 966 P.2d 327 (1998) (reversing award for future economic loss because expert's opinion was based on assumptions for which there was no factual basis); Time Oil Co., 42 Wn. App. at 480 (concluding that expert's testimony was not helpful because it was based on an inadequate factual foundation). Mr. Reilly assumes that Mr. Matlen's property would have attracted a buyer had he marketed his property in the summer of 2006. He further assumes that Mr. Matlen would have had to discount the sales price by $20,000 to $30,000 to sell the property. There is no factual basis for either assumption. No one testified that potential buyers were interested in Mr. Matlen's property or properties like his. No one testified that those buyers were deterred by the Mosers' stuff or demanded a deep discount on the sales price. And no one testified as to how or why the presence of garbage along an access easement caused a $30,000 decrease in property value.
Mr. Reilly's declaration lacked the necessary specificity to show a genuine issue of material fact. See Time Oil Co., 42 Wn. App. at 480. The trial court properly struck the declaration as speculative.
CONCLUSION
Mr. Matlen had to raise an issue of fact for each element of his asserted causes of action to avoid the Mosers' motion for summary judgment. Young, 112 Wn.2d at 225. He had to do so by setting forth specific facts that raise genuine issues for trial. Hauber v. Yakima County, 107 Wn. App. 437, 448, 27 P.3d 257 (2001), aff'd, 147 Wn.2d 655, 56 P.3d 559 (2002). He has failed to do so. The trial judge then properly dismissed the suit on summary judgment.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, C.J. and Korsmo, J., Concur.