Opinion
No. 60809-6-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 98-2-15235-4, Jay V. White, J., entered October 12, 2007.
Reversed and remanded by unpublished opinion per Grosse, J., concurred in by Agid and Lau, JJ.
Waste is antipathetic to injunctive relief. Where a remedy is no longer consistent with the principles of justice and right, it ceases to be equitable. In this case, the actual relief the injunction seeks to secure by its prospective application is infeasible and the associated costs so disproportionate to the harm the injunction is meant to remedy that it is manifestly unreasonable to not relieve a party of its terms. Thus, we reverse and remand.
FACTS
This is the third time this case is before this court on appeal. The underlying facts may be found in our two prior unpublished opinions in this matter dating from 2002 and 2005. In brief, this case centers on two adjoining landowners who live in the lowest part of the valley between the McDonald and Sugarloaf mountains and the drainage, flow, and pooling of waters from these mountains.
Anderson v. Griffin, noted at 114 Wn. App. 1005 (2002); Anderson v. Griffin, noted at 127 Wn. App. 1036 (2005).
In 2000, the Andersons prevailed at trial, the jury having found substantial alterations by the Griffins to their own property altered the natural flow and distribution levels of water between the properties. In the first appeal, we held the Andersons were entitled to some form of equitable relief and that the trial court had erred in denying their request for injunctive relief and awarding them only $4,000 in damages.
On remand, the trial court fashioned an injunction that required the Griffins, after obtaining all necessary permits, to undertake work on both their own land and on that of the Andersons' so as to restore the natural flow and distribution of waters between the properties. Because increased logging may have altered the amount of water flow in the area, and because of seasonal variances, the injunction did not specify an exact level of dryness that the Griffins needed to achieve. Both parties bore the burden of any increased water flows caused by factors other than the Griffins' property modification.
On the second appeal, we upheld the mandatory injunction and its terms, but found that review of certain ancillary matters, including permitting requirements, was premature and not yet ripe as King County had yet to deny any requested permit. The Griffins successfully obtained a permit to perform work on their own property and contend they have done all work necessary under the injunction's terms.
The Griffins were ultimately denied the necessary permits to perform the work on the Anderson property as had been ordered. The trial court, however, denied their motion to modify the mandatory injunction despite this denial and the Griffins appealed. In the current appeal, the Griffins contend the trial court erred in denying their motion to partially modify and dissolve the mandatory injunction certifying that the Griffins had performed all work required on their own property. The Griffins also appeal the trial court's denial of their motion to cancel the lis pendens the Andersons hold on their property, and the denial of associated attorney fees.
The Andersons' cross-appeal and contend the trial court erred in denying them attorney fees and costs and their motion for CR 11 sanctions. Both parties request an award their attorney fees on appeal.
ANALYSIS
Equitable relief is not intended to be punitive. Courts have the inherent power to modify or even vacate an injunction that is not accomplishing its intended purpose. Continued prospective application of an injunction that necessarily leads to waste is inequitable and will not lie. CR 60(b)(6) is an appropriate vehicle by which to invoke this power. It is manifestly unreasonable to continue the prospective application of an injunction where full compliance is, if not impossible, highly improbable, and the associated costs have become wildly disproportionate to the harm the court seeks to remedy, leading to undue hardship to the party subject to the injunction. In our view, that is the circumstance here.
Pacific Sec. Cos. v. Tanglewood, Inc., 57 Wn. App. 817, 820, 790 P.2d 643 (1990) (citing Lubben v. Selective Serv. Sys. Local Bd. 27, 453 F.2d 645, 651 (1st Cir. 1972)).
Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 438, 723 P.2d 1093 (1986).
CR 60(b)(6) authorizes a court to "relieve a party . . . from a final judgment . . . [if] it is no longer equitable that the judgment should have prospective application." State ex rel. Bradford v. Stubblefield, 36 Wn.2d 664, 674-75, 220 P.2d 305 (1950); Pacific, 57 Wn. App. at 820-21.
We believe that circumstances have changed and the injunction's application is no longer just. When granting the injunction, the trial court contemplated that the necessary changes to the land would be completed within 12 months. Nearly six years later, the dispute between the parties continues and defies successful intervention of the courts. Moreover, the Griffins have spent substantial funds to comply and both parties have expended thousands of dollars on attorney fees.
Perhaps most significantly, King County has denied the Griffins' permit request to make the changes to the Andersons' land as ordered. The injunction expressly states that the Griffins must obtain all necessary permits and accomplish the injunction's terms without violating any applicable wetlands regulations. It is not disputed that the Andersons' land affected by the Griffins' actions is wetlands. Prior to the second appeal, the Griffins had obtained an advisory interpretation of the applicable codes from the county but had not yet been denied permits. Hence, we found review of those issues premature. Now, the record shows that the Griffins hired a land use and real estate attorney to assist them in obtaining the necessary permit, they met with the appropriate King County officials to learn what materials needed to be submitted as part of the permit request, and then submitted those materials, all at considerable expense, including hiring an engineering consultant. After the Griffins submitted their permit application, the county required additional studies be performed and further required that the Griffins receive approval from the U.S. Army Corp of Engineers. The Griffins complied with the county's request, incurring substantial additional expenses. In the end, King County formally denied the Griffins' permit request to perform restorative work on the Anderson property.
Though a trial court has wide discretion in granting equitable relief, a court does not have the power to order a party to violate the law, including wetlands regulations. Further, the Griffins have exhausted their administrative remedies with regard to the county's denial of the necessary permit. The continued operation of this injunction is clearly inequitable on this basis as well. The Griffins cannot fully comply with the injunction's terms without necessarily violating the law.
We also note that a court cannot order further alteration absent a necessary and indispensable King County as a party. And, even if King County were a party, we could not order it in the context of this case to issue a permit.
While we realize that vacating the injunction leaves the Andersons without a further remedy, we are convinced that there is no further remedy to be had. The equities require we reverse the trial court and its order denying the Griffins' motion to partially dissolve the March 4, 2004 mandatory injunction. Because we find the injunction is no longer equitable and must be lifted, it follows that the lis pendens must also be removed.
Attorney Fees and CR 11 Sanctions
While both parties contend they are entitled to attorney fees on the merits below and seek such an award on appeal, we decline to grant either party attorney fees on appeal. Moreover, there is no basis whatsoever in this case for CR 11 sanctions.
We reverse and remand with instructions to dismiss the injunction, to remove the lis pendens, and take other necessary and consistent steps to enter a final order in the case.
WE CONCUR: