Opinion
No. 25761-4-III.
April 8, 2008.
Appeal from a judgment of the Superior Court for Kittitas County, No. 04-2-00563-1, Michael E. Cooper, J., entered November 29, 2006.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Sweeney, C.J., and Schultheis, J.
By three separate orders, the Kittitas County Superior Court granted summary judgment dismissal of Owens Sons, Inc. (Owens) claims against the City of Cle Elum (City) for (1) inverse condemnation based upon presently reduced property value from future odor/stigma damages attributable to the City's updated wastewater treatment plant, (2) stigma damages based upon trespass/nuisance/negligence arising from a 2004 sewage spill onto Owens' adjacent property, and (3) overburdening of a road easement across Owens' property. Owens contends genuine issues of material fact exist and that a jury must decide each claim. We disagree and affirm all three dismissal orders.
FACTS AND PROCEDURAL HISTORY
Owens owns a 22.15-acre parcel in Kittitas County near the Interstate 90 (I-90)/State Route 970 interchange. The City owns immediately adjacent property where it operates its sewage treatment plant known as the Upper Kittitas County Regional Wastewater Treatment Facility (the Facility). The City originally constructed an aerated lagoon sewage treatment plant on the site in the late 1940s or early 1950s. The City's access to the site is by a 15-foot wide road easement across Owens' property. The easement was granted to the City in 1954 by Owens' predecessors, Richard and Frances Owens.
The Owens' property is mostly vacant timberland zoned Forest and Range, but grandfathered for industrial uses. Owens operates a meat processing and packing plant on a small northeast portion of the parcel. It also has a trucking operation and equipment storage facility in that location. Owens' property is upwind from the Facility.
According to Ray Owens, Sr. (now retired from Owens' business), when the easement was granted in 1954, a City employee typically used the road once or twice daily to check on the lagoons. Mr. Owens recalled that when the City upgraded the sewage treatment system in the 1970s, its use of the easement increased to about four trips per day. By 1990, there were perhaps 10 trips daily.
In 2002, the City began upgrading the Facility to a new system utilizing a sequencing batch reactor (SBR). This system discharges unstabilized residual solids into one of the existing lagoons, which was remodeled to increase depth, add a liner, and increase aeration. The upgrade was needed to accommodate an anticipated ten-fold increase in system users due to consolidation of neighboring service districts and population growth in the Cle Elum area. Additions include the cities of Roslyn and South Cle Elum, an I-90 rest stop, and the Suncadia master-planned community.
Sometime between January 30 and February 2, 2004, a line restriction occurred during construction of the Facility and resulted in an accidental discharge of wastewater sewage, grease and debris visible in the melted snow some 80 feet onto Owens' property. The spill invaded a horse pasture and found its way into a creek. A Department of Ecology (DOE) engineer estimated the raw sewage flowed at up to 400 gallons per minute. Douglas Owens discovered the spill. He estimated the rate to be hundreds or thousands of gallons per minute. The City cleaned up the spill to better-than-benchmark coliform levels while being monitored by the DOE. The City also took necessary steps to prevent future similar incidents.
During the construction activities at the Facility, there was a considerable increase in traffic on the easement road. Material hauling and concrete trucks made up to 30-40 trips daily during many months until construction was complete in May 2006. The City did pay Owens for a construction easement including the truck traffic. According to a Facility employee, the City's post-construction use of the easement has dropped back to an average of four trips daily. But company representative Don Owens says that number is still 20-30 roundtrips daily.
On September 24, 2004, the City filed a condemnation petition/complaint for ejectment to condemn an easement for an underground sewer line and temporary construction easement across the Owens property. In January 2006, Owens answered with counterclaims that included inverse condemnation due to property devaluation caused by alleged stigma/future odor effects of the Facility; separate claims for trespass, nuisance and negligence as a result of the 2004 raw sewage spill; and a breach of contract claim for alleged overuse of the 1954 easement.
On June 30, 2006, the City filed a motion for partial summary judgment to dismiss Owens' inverse condemnation claim for lack of any damage or taking attributable to the Facility. In response, Owens presented declarations and reports from Thomas R. Card (an expert in wastewater treatment facilities and odor modeling) and William Mundy, PhD, MAI (an expert real estate appraiser). According to Mr. Card, the Cle Elum Facility as designed and constructed will more likely than not dramatically increase the potential for future adverse odors that will be perceptible on Owens' property.
Dr. Mundy relied on Mr. Card's report to conclude that the likelihood of future odor from the Facility has already resulted in a loss in present value of Owens' property. Dr. Mundy also said the 2004 raw sewage spill and the possibility of recurrence creates a stigma effect that must be factored into the property valuation. He opined that absent the recent changes in the Facility, the highest and best use of Owens' property is as a Recreational Vehicle (RV) park with an October 2004 market value of $2.18 million. But due to the sewage spill, future odor, traffic, and other impacts, the property value must be based on an industrial use, which was $1.83 million in October 2004. He concluded that even with industrial use, the stigma effects of the Facility have reduced Owens' property value by an additional $201,300. Dr. Mundy concluded this $550,000 loss in value from the property's highest and best use potential is not a future loss, but has already occurred.
The City took the position that Owens' claim is most properly characterized as one of prospective nuisance unsupported by any evidence of actual damage. The City produced evidence that the Facility's environmental impact statement determined future odor impacts would be insignificant due to the infrequent nature of dredging and de-watering operations, the lack of odor-sensitive receptors in the vicinity of the Facility, and the prevailing wind currents. Moreover, engineer Alan Maas, who was the point person in the design/build phase of the Facility, gave deposition testimony that the Facility was well built and specifically designed to continuously control the occurrence of odor. He said that the Facility, if operated correctly, should have no significant odor impacts.
The court granted the City's summary judgment motion on the basis the alleged taking and damage was purely speculative. The court likewise granted a motion by the City to strike the Card and Mundy opinions as speculative.
The City also moved for partial summary judgment to dismiss Owens' easement overburdening claim. The court granted that motion on the basis reasonable minds could not differ that the increase in easement traffic was contemplated by the original easement parties, and Owens produced no evidence of overburdening.
Meanwhile, the City also moved for partial summary judgment to dismiss Owens' claims for trespass, nuisance, and negligence arising from the 2004 sewage spill. The court granted that motion on the basis Owens had no duty to disclose the spill to prospective buyers and that it had produced no evidence of damages or diminished property value to support any of the claims.
Owens appeals from all three partial summary judgment orders.
The City's condemnation petition/ejectment complaint has been settled.
SUMMARY JUDGMENT REVIEW STANDARDS
We review a grant of summary judgment de novo and engage in the same inquiry as the trial court. Hubbard v. Spokane County, 146 Wn.2d 699, 706, 50 P.3d 602 (2002). Facts and reasonable inferences are viewed in the light most favorable to the nonmoving party. Id. at 707; Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The moving party bears the initial burden of showing the absence of an issue of material fact. Once this burden is met, the burden shifts to the non-moving party to set forth specific, admissible facts showing there is a genuine issue of material fact for trial. Young v. Key Pharms., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). A grant of summary judgment is proper if reasonable persons could reach only one conclusion from the evidence presented. Wilson, 98 Wn.2d at 437. Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hubbard, 146 Wn.2d at 707.
ANALYSIS
A. Inverse Condemnation/Stigma Damages Claim
The question is whether the trial court erred in granting the City's motion to dismiss Owens' inverse condemnation claim on summary judgment. Owens contends the case is primarily about already-existing and recoverable stigma damages attributable to the Facility. Owens also contends the court erred in striking the expert opinions of Mr. Card and Dr. Mundy as speculative when those opinions provide evidence that Owens has already incurred stigma damages for presently reduced property value attributable to likely future odor. Owens concludes the existence of substantial impairment (the degree of damage) is a question of fact that must be presented to a jury. We disagree.
Constitution article I, section 16 (amend. 9) provides:
No private property shall be taken or damaged for public or private use without just compensation having been first made.
A "taking" occurs when government conduct interferes with the use and enjoyment of private property, with a subsequent decline in market value. Lambier v. City of Kennewick, 56 Wn. App. 275, 279, 783 P.2d 596 (1989), review denied, 114 Wn.2d 1016 (1990). "The term 'inverse condemnation' is used to describe an action alleging a governmental 'taking,' brought 'to recover the value of property which has been appropriated in fact, but with no formal exercise of the power'" of eminent domain. Id. (quoting Martin v. Port of Seattle, 64 Wn.2d 309, 310 n. 1, 391 P.2d 540 (1964), cert. denied, 379 U.S. 989 (1965)).
A party alleging inverse condemnation must establish the following elements: (1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that has not instituted formal proceedings. Phillips v. King County, 136 Wn.2d 946, 957, 968 P.2d 871 (1998). The measure of damage in a taking case is the diminution in the fair market value of the property caused by the governmental taking. Id. at 956-57; see also Highline Sch. Dist. v. Port of Seattle, 87 Wn.2d 6, 13 n. 5, 548 P.2d 1085 (1976).
The degree of impairment in an inverse condemnation case is generally an issue for the trier of fact to determine. See Keiffer v. King County, 89 Wn.2d 369, 374, 572 P.2d 408 (1977). But whatever the underlying legal basis for the alleged taking, no recovery may be had in the absence of actual damages. See Phillips, 136 Wn.2d at 956-57; Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877 (1998) (actionable nuisance must either injure property or unreasonably interfere with its enjoyment); Bradley v. Am. Smelting Refining Co., 104 Wn.2d 677, 691-92, 709 P.2d 782 (1985) (actual and substantial damages is an element of intentional trespass).
As Owens contends, stigma damages have long been awardable in Washington, and Mayer illustrates a recent example. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 132 P.3d 115 (2006). Mayer was a products liability/consumer protection case in which water damage and dry rot to a home structure resulted from a defective exterior stucco product. In upholding an award of "stigma damages" for the home's diminished value, the court reasoned:
[W]here the damage to real property is permanent, a plaintiff is entitled to recover not only for the costs of restoration and repair, but also for the property's diminished value. . . . The Court of Appeals noted that "[t]he Mayers presented unrebutted expert testimony that in addition to the repairs, they had suffered a permanent loss because they will have to disclose that the home is sided with EIFS, a known defective product." Mayer, 123 Wn. App. at 464. We affirm the Court of Appeals on the trial court's award of stigma damages.
Mayer, 156 Wn.2d at 694-95 (third alteration in original).
Thus, Mayer shows that stigma damages are awardable when there is no speculation that the harm affecting market value is from an existing identifiable problem.
Owens cites several other cases from Washington and other jurisdictions in the categories of unconstitutional taking/damaging, or nuisance, or a combination thereof, to illustrate that stigma damage awards are firmly recognized. None are controlling here.
A common theme in Owens' cited "taking" cases is that the underlying event or problem giving rise to unconstitutional taking or damage resulting in property depreciation was present, actually occurred, or persisted. Martin, 64 Wn.2d at 313 (persistent noise from low altitude jet traffic at Seattle-Tacoma International Airport caused property damage and fear); Cunningham v. Town of Tieton, 60 Wn.2d 434, 439-40, 374 P.2d 375 (1962) (jury allowed to determine whether actual contamination/odor from sewage lagoon engendered fear of future odor that reduced property value); Lange v. State, 86 Wn.2d 585, 593-95, 547 P.2d 282 (1976) (State's cumulative actions impairing marketability of property amounted to condemnation blight and a taking because property became unusable for owner's purposes); see also Richmond Elks Hall Ass'n v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330-31 (9th Cir. 1977) (public agency actions actually damaged Elks property and rendered it unmarketable and less useable for intended purpose).
A contrasting alleged "taking" case is Aubol v. City of Tacoma, 167 Wash. 442, 9 P.2d 780 (1932). There, appellants claimed reduced property value/marketability and breach of comfortable enjoyment due to apprehension that a newly-constructed dam reservoir eight miles away would fail and flood their land. The facility was constructed under statutory authorization without wrongdoing or negligence. Appellants presented no evidence that the reservoir was likely to break. The court held that article I, section 16 does not authorize compensation when such diminution, if any, in the value of land was caused by a legal act, which is in law " damnum absque injuria." Id. at 447-48. Thus, the presence of the dam itself was not a taking.
Similar to Owens' cited taking cases, a common theme in their nuisance cases is there was no speculation that the objects of fear, each with its own catalyst for damage or harm that led to property value "stigma," were either already present or would be manifest due to the very operation or existence of the facility. Ferry v. City of Seattle, 116 Wash. 648, 662-63, 203 P. 40 (1922) (reasonable expectation of disaster due to adverse soil conditions in earthen embankment holding reservoir; inherent magnitude of potential disaster caused depreciation in adjoining property values); Everett v. Paschall, 61 Wash. 47, 51- 53, 111 P. 879 (1910) (building of a tuberculosis sanitarium in a residential area enjoined as nuisance because presence of facility created tangible fear and dread of disease that caused decline in adjacent real estate values); Harris v. Skirving, 41 Wn.2d 200, 202, 248 P.2d 408 (1952) (substantial evidence supported findings that dump would pose health risks; general fear and alarm of nearby residents was reasonable and well-founded).
Owens' cited cases from other jurisdictions likewise all fit within these themes in that the object of fear (usually contamination) actually existed within near enough proximity to give rise to reasonable apprehension of harm or damage; or, the problem was inherent in the facility's operation. Lewis v. Gen. Elec. Co., 254 F. Supp. 2d 205, 218 (D.C. Mass. 2003) (proximity to PCB dump); Scheg v. Agway, Inc., 229 A.D.2d 963, 964 (N.Y.App.Div. 1996) (proximity to hazardous waste site deemed significant threat to environment); Allen v. Uni-First Corp., 558 A.2d 961 (Vt. 1988) (fear from widespread hazardous chemical contamination by commercial dry cleaner); DeSario v. Ind. Excess Landfill, Inc., 587 N.E.2d 454, 461 (Ohio Ct.App. 1991) (perception that toxic landfill "Superfund" would contaminate property), overruled in part by Ramirez v. Azko Nobel Coatings, 153 Ohio App. 3d 115, 120, 791 N.E.2d 1031 (2003) (stigma damages no longer available in Ohio)); Acadian Heritage Realty, Inc. v. City of Lafayette, 446 So. 2d 375, 379 (La.Ct.App.) (landfill odors were nuisance; stigma damages also recoverable due to mere existence of the new landfill), cert. denied, 447 So. 2d 1076 (1984); Criscuola v. Power Auth., 81 N.Y.2d 649, 621 N.E.2d 1195, 602 N.Y.S.2d 588 (1993) (perception of health risks from electromagnetic radiation generated by power lines; reasonableness of fear irrelevant); Willsey v. Kansas City Power Light Co., 631 P.2d 268 (Kan.Ct.App. 1981) (same).
In view of the above cases showing availability of stigma damages, the focus becomes whether Owens' claim of reduced real estate market value due to claimed future odor stigma has sufficient evidentiary support to defeat summary judgment. The outcome depends upon admissibility of the Card and Mundy opinions, which the trial court struck as speculative.
Owens points out that Mr. Card's assessment of likely future odor was based on his extensive knowledge and expertise in wastewater treatment facilities and odor modeling. And Dr. Mundy's opinion that the stigma damage has already occurred is factually supported and his damage valuation methods are generally accepted by real estate appraisers. Owens argues that because stigma damages are legally compensable, it cannot be contested that Dr. Mundy's testimony would be helpful to the jury in understanding the value of the property taken. Owens thus concludes the trial court's decision to strike these declarations effectively usurped its right to a jury trial under article I, sections 16 and 21 of the Washington Constitution. We reject these arguments.
With respect to admissibility of expert opinion, ER 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
ER 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Here, the qualifications of Dr. Mundy and Mr. Card are not at issue — only the content of their opinions.
Our review of evidentiary rulings made in conjunction with a summary judgment motion is also de novo. Cotton v. Kronenberg, 111 Wn. App. 258, 264, 44 P.3d 878 (2002), review denied, 62 P.3d 890 (2003); see also Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). But it is well established that conclusory or speculative expert opinions will not be admitted. Miller v. Likins, 109 Wn. App. 140, 148, 34 P.3d 835 (2001); Griswold v. Kilpatrick, 107 Wn. App. 757, 761-62, 27 P.3d 246 (2001). Such opinions cannot defeat a motion for summary judgment. See Watters v. Aberdeen Recreation, Inc., 75 Wn. App. 710, 714, 879 P.2d 337 (1994).
Dr. Mundy states:
The market value of real property is the present value of future benefits. Here, there is a definite loss in the present value of the Owens Sons, Inc. property as a result of the changes to the City of Cle Elum wastewater-treatment facility. Previously, odors from the facility reached the Owens Sons, Inc. property very rarely. Moreover, the structures on the site and traffic to the site had a minimal effect on the Owens Sons, Inc. property. Now, the City has constructed a large, sterile looking plant that is easily visible from the Owens Sons property. In addition, traffic through the property has and very likely will continue to increase significantly. Most significantly, as set forth in the Tom Card report, the change in the treatment process at the facility will create odor impacts that reach the Owens Sons, Inc. property on a regular basis as the volume of sewage entering the facility increases. Obviously, this information would have to be disclosed to anyprospective buyer and also affects the economic viability of Owens Sons, Inc.'s own development of its property.
As set forth in my expert report, the market value of the Owens Sons, Inc. property would be based on its use as an RV Park, which, absent the recent changes in the wastewater-treatment facility, is the property's highest and best use. The market value of property as an RV Park was $2.18 million as of October 11, 2004. But given the changes in the wastewater-treatment facility and the resulting odor impacts, the market value must be based on the property's value as an industrial use, which was $1.83 million as of October 11, 2004 (this latter calculation assumes, of course, that the County would allow the Property to be rezoned to allow industrial use, as it is not allowed under the current zoning). This loss in value is not a future loss but has already occurred.
Owens has never applied for a conditional use permit for an RV park and it is only speculation that any such permit would be granted after a mandatory adjudicative proceeding. Owens' several arguments to the contrary are without merit.
Clerk's Papers (CP) at 272-73 (emphasis added); see also Mundy Report, CP at 237-64.
Thus, Dr. Mundy's opinion of reduced market value due to future odor impact is based upon Mr. Card's report. The question then turns to whether Mr. Card's report and declaration set forth admissible evidence regarding likelihood of future odors that Dr. Mundy says have already impacted Owens' property value.
Mr. Card states the Facility has a high potential for odor that is well known in the wastewater treatment industry, even if the system is well-managed. Specifically with regard to odor emissions, Mr. Card states:
Initially, the new system should produce little odor, because the SBR can be operated in an extended aeration mode, and even one SBR cell can be used for sludge stabilization. This mode can remove a substantial portion of sludge volatile solids. But as the service population increases — according to the September 2002 facility plan the 2001 conditions for the previous facility was a population of 1,755 with 773 sewer connections, but the new facility will ultimately serve a population of 18,956 people — and the plant loading subsequently increases the SBR will need both reaction vessels and the aeration period will have to be reduced. This . . . will dramatically . . . increase the quantity and lower the quality (increase the fraction of volatile solids) of solids discharge to the lagoon.
Therefore, the . . . [f]acility, as designed and constructed, will more likely than not have a non-linear response to increasing solids loads. The most likely scenario is that the volatile solids loading to the lagoon will increase as the square of the population increases, due to the above described increase in both solids mass and volatile solids fraction. This will dramatically increase the total volatile solids loading to the sludge storage lagoon, and that will dramatically increase the potential for adverse odors.
CP at 285-86.
Mr. Card also states that even though the prevailing winds are directed away from Owens' property, atmospheric conditions are such that peak odor levels that do not necessarily occur during a prevailing wind event will be unaffected and still detectable to the human nose.
Mr. Card's declaration thus assumes the Facility will, at some unspecified future time, emit odor that is unacceptable or adverse. His report discusses this concept. He explains that Seattle's West Point Wastewater Treatment Plant is the one most analogous to Cle Elum's in that both have been upgraded. When the West Point Plant was expanded, the City of Seattle established an acceptable odor impact level of 2 odor units, i.e., a level that would not impact any adjacent land uses. Mr. Card states that the most common regulatory threshold in the United States is 5 odor units. He further explains that the City of Orting's lagoon system has been offered as the prototype system in communications between the City of Cle Elum and the Washington State Department of Ecology. Mr. Card then states he has extensively studied the Dublin-San Ramon sludge lagoon in California, where he documented extreme odor events and an average odor unit well above the Seattle standard. Next, in an effort to establish the appropriateness of his Dublin-San Ramon analysis to Cle Elum, he visited the Orting lagoon, which he states was well-operated and had an odor level similar to the average odor level at Dublin-San Ramon. Applying the same scientific principles used at Dublin San-Ramon and Orting, he is of the opinion that Owens' property will be impacted above previously established levels for similar facilities. He thus concludes it is likely that Owens' property will experience odor levels above the regulatory threshold at various intervals over the life of the Cle Elum facility.
It is undisputed, however, that no odor unit level has been established for the Cle Elum facility. To date, odor has never been an issue. Mr. Card has arbitrarily imposed on the Cle Elum facility a relatively strict odor impact level well below what he states to be the common regulatory threshold. He chose the Seattle odor level without making any factual comparison between the West Point and Cle Elum facilities, other than the fact both had been expanded. He used the Seattle odor standard to find Dublin-San Ramon and Orting average odor emissions in excess. According to Mr. Card, since the Orting odor level Page 20 exceeded the Seattle standard and Cle Elum's operation is similar to Orting's, Cle Elum's facility would exceed the two odor unit level and thereby impact Owens' property in the future.
But as the trial court observed, "Mr. Card in no way analyzes actual impacts of the City of Cle Elum's plant or the fact that it is in forest and range zone which is rural in nature." CP at 594. The court concluded that because Mr. Card established no foundation for either his personal knowledge of the Seattle facility or how it compares in fact to the Cle Elum facility, his opinion is based on pure speculation and must be stricken. And since Dr. Mundy's opinion that already-reduced property value in the form of stigma damages is based solely upon Mr. Card's opinion there will be future adverse odor impact, his opinion must also be stricken. We agree.
The Card analysis provides no proof of likely odor that at some level becomes adverse. Even under the Card analysis, there exist nonactionable odor levels, e.g., those meeting the Seattle standard. But here, there is no evidentiary foundation beyond conclusory allegation and speculation that any future odor from the Cle Elum facility will ever rise to the level of adverse. Thus, there are no evidentiary facts for a jury to weigh as applied to the Cle Elum facility. The trial court therefore properly struck the Card and Mundy opinions as speculative.
Without these opinions, there is no evidentiary basis for an award of stigma damages based upon future odor.
Moreover, the mere presence of the Facility is not an unconstitutional taking. As it stands, the Facility is most akin to the damnum absque injuria reservoir in Aubol v. City of Tacoma, 167 Wash. 442.
Owens' citation to the Journal of Real Estate Research for the proposition that the mere presence of a landfill (and hence the Cle Elum Facility) diminishes property value is unavailing. The theme of the article is that stigma can stem from either actual contamination or the fear engendered from nearby contamination. See CP at 580-91.
We conclude that the trial court correctly granted summary judgment dismissing Owens' inverse condemnation/future odor stigma claim.
B. 2004 Sewage Spill — Trespass/Nuisance/Negligence
The question is whether the trial court erred in granting the City's summary judgment motion to dismiss Owens' stigma damage claim based in trespass, nuisance, and negligence as a result of the 2004 sewage spill.
Owens contends Dr. Mundy's affidavit and Douglas Owens' deposition testimony provide evidence of diminished property value and stigma damage due to the 2004 spill. Owens also claims it is legally and ethically obligated to disclose the spill to potential purchasers or lending institutions, and whether it was merely an isolated incident must be weighed by the jury when determining what stigma damages may be appropriate.
The City responds that the trial court properly dismissed these claims, including stigma damages, because the one-time spill was cleaned up, there was no evidence that Owens suffered any damages, and there is no duty to disclose the spill when no defective or hazardous condition exists. We agree with the City.
Negligence, trespass, and nuisance claims all require a showing of actual and substantial damages in order to avoid summary judgment. Wallace v. Lewis County, 134 Wn. App. 1, 137 P.3d 101 (2006). Such damages can include stigma damages causing reduced real property value. E.g. Mayer, 156 Wn.2d 677.
Here, the parties have differing versions of the magnitude of the spill and whether it was confined primarily to horse pasturing areas or extended onto other areas of the property. But these are not disputes involving material facts impacting value or desirability of the property because Owens' CR 30(b)(6) designee Don Owens testified unequivocally that the spill caused no damages whatsoever to Owens' property or business activities. Furthermore, the City completely cleaned up the spill area while being monitored by the DOE. There is no evidence that any adverse effects from the spill presently exist. The 2004 spill was a one-time event and the problem was fixed. It is pure speculation that a similar event might occur.
Owens is correct that its vice president Douglas Owens was entitled by law to testify about the value of the company property. Cunningham, 60 Wn.2d at 436. He testified that the spill devalued the property by $50,000. CP at 1047. But he also admitted that he and Don Owens just "kind of came up" with the number as "[s]omething that the City wouldn't be too cheap to pay." CP at 1067, 1103-04. This unsupported conclusory assertion does not rebut the City's contention there were no damages, and is thus insufficient to create a genuine issue of material fact. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). Moreover, when a party has given clear answers that negate the existence of a genuine issue of material fact, that party cannot create an issue of material fact with a contradictory assertion. Robinson v. Avis Rent A Car Sys., 106 Wn. App. 104, 121, 22 P.3d 818, review denied, 145 Wn.2d 1004 (2001).
Dr. Mundy did state in a second declaration that irrespective of a duty to disclose, the spill has reduced the property value by $201,300, even for currently-allowed industrial use, and 20 percent of that amount ($40,260) is stigma damage attributable to the spill itself. But when there is no obligation to disclose the spill, when Owens admits it has suffered no damages, and when there is no known defect on the property, there is no basis for a claim of stigma damages. Dr. Mundy's opinion is thus also a conclusory assertion that does not create a genuine issue of material fact. Grimwood, 110 Wn.2d at 359.
With respect to disclosure of the spill, the existence of a duty is a question of law. E.g. Richland Sch. Dist. v. Mabton Sch. Dist., 111 Wn. App. 377, 385, 45 P.3d 580 (2002), review denied, 148 Wn.2d 1002 (2003). The cases Owens cites all relate to a duty by a seller to disclose existing known defects in residential property. Obde v. Schlemeyer, 56 Wn.2d 449, 451-52, 353 P.2d 672 (1960) (duty to inform of termites); Atherton Condo Apartment-Owners Ass'n Bd. v. Blume Dev. Co., 115 Wn.2d 506, 524, 799 P.2d 250 (1990) (duty to disclose known concealed defects); McRae v. Bolstad, 101 Wn.2d 161, 166, 676 P.2d 496 (1984) (failure to disclose chronic drainage and sewage problems); Svendsen v. Stock, 143 Wn.2d 546, 550, 23 P.3d 455 (2001) (fraudulent concealment of known drainage problems); see also Cunningham, 60 Wn.2d at 440 n. 7 (property owners are under a duty to disclose concealed defects to prospective purchasers). Unlike the above-noted cases, there is no known defect on Owens' property to disclose.
Owens further argues that disclosure of the spill is required on the standard Commercial Brokers Association Commercial Property Information Form. In particular, Owens points to the form's catchall inquiry (Item 20), which requires an answer to the question, "Are you aware of anything else which would adversely affect the value or desirability of the property?" CP at 1003. But again, Owens admits the spill caused no damage or interference with its business operations. Owens offers no evidence that its property is any less desirable due to the spill.
Owens also claims an ethical obligation to disclose the spill to potential buyers, but cites only to Douglas Owens' conclusory statements in his deposition regarding disclosure that "[I]t's an absolute. . . . It's something that you know." CP at 1045. Owens cites no authority that failure to disclose this spill would confer upon anyone a private remedy against Owens. See Bank of Am. v. David W. Hubert, P.C., 153 Wn.2d 102, 125, 101 P.3d 409 (2004) (RPC ethical violation does not create civil cause of action).
Owens cites no authority requiring it to disclose the 2004 sewage spill to any prospective buyer or lender. Any stigma would be self-created. As the trial court explained in its memorandum decision, "Whether a potential purchaser and/or lending institution would react or not react to knowledge of the spill is pure speculation." CP at 1155. The court also noted, "To the extent either Dr. Mundy or Doug Owens rendered an opinion concerning the speculative stigma damages the opinions lack any adequate foundation and are not considered." CP at 1155 n. 3. We agree and conclude that the trial court did not err in granting summary judgment on this claim.
C. Easement Overburdening.
The question is whether the trial court erred in granting the City's motion to dismiss its easement overburdening claim on summary judgment. Owens contends the City's increased use of the easement is an unreasonable deviation presents a question of fact that must be decided by a jury. Logan v. Brodrick, 29 Wn. App. 796, 800, 631 P.2d 429 (1981). We disagree.
The scope of an easement is determined by looking to the intention of the parties to the original grant, the nature and situation of the properties subject to the easement, and the manner in which the easement has been used and occupied. Id. at 799. What the parties intended by their grant is generally a question of fact. Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003); Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979). The legal consequence of that intent is a question of law. Id.
The servient owner, here Owens, has the burden of proving misuse of the easement. Logan, 29 Wn. App. at 800. Further, as this court stated in Logan:
It can be assumed the parties had in mind the natural development of the dominant estate. Accordingly, the degree of use may be affected by development of the dominant estate. The law assumes parties to an easement contemplated a normal development under conditions which may be different from those existing at the time of the grant. Normal changes in the manner of use and resulting needs will not, without adequate showing, constitute an unreasonable deviation from the original grant of the easement.
Id. (citations omitted). Thus, an easement will be construed to accommodate the reasonable use of the dominant estate, not the servient estate. Id.; see also Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 739, 844 P.2d 1006 (1993), cert. denied, 510 U.S. 1047 (1994); Veach, 92 Wn.2d at 575. Nevertheless, the question of reasonable use or unreasonable deviation is generally one of fact, unless reasonable minds could not differ. Logan, 29 Wn. App. at 800.
Here, the 1954 document granting the easement stated that the 15-foot wide easement was "in perpetuity for the purpose of constructing, using and maintaining a road along the following described course [over Owens' current property]." CP at 53. The grant placed no current or future restrictions on the amount of vehicle traffic and was otherwise silent on the topic.
Viewing the evidence in the light most favorable to Owens, the City's use of the easement has increased from two round trips per day in the 1950s to 20-30 round trips at present. But to overcome summary judgment, Owens must produce evidence that the increased traffic is an overburdening or misuse of the easement. Nothing in the original grant suggests that it is. And the record contains no other evidence of the intent of the original parties regarding the nature and scope of its use.
Most critically, Don Owens admitted in his CR 30(b)(6) deposition that the City's current use of the easement has no adverse impact on Owens' present use of the property and that its real concern was over how the increase in traffic was "going to possibly affect anything we want to do with our property in the future." CP at 664, 697-98, 876. Don Owens admitted his company has suffered no actual damages because of the City's use of the easement. Douglas Owens said the company was seeking $50,000 from the City on this claim, but admitted there was no basis for this figure other than his belief that amount could probably be extracted from the City "without too much of a problem." CP at 878, 917-20.
Owens also admits it would suffer no damages unless it changes the use of its property to an RV park, which, according to Dr. Mundy, can already be considered an overburdening of the easement causing damage to Owens because it would require berm construction to buffer the increased traffic. But again Owens' property is zoned Forest and Range, which does not allow RV parks without a conditional use permit. Owens has not applied for a permit.
Moreover, it is undisputed that the City's future use of the easement will be strictly for access to the Facility — the same use contemplated by the original grantors. Under Logan, it is assumed that the original parties contemplated the natural development of the dominant estate — here, the expansion of the Facility to accommodate an increase in area population. Again, Owens admits it has suffered no damage.
In this situation, Owens presents no genuine issue of material fact to support its misuse or overburdening of the easement claim. Owens' cited case, Richardson, is distinguishable because it involved a change in the use contemplated by the original grant. Richardson v. Cox, 108 Wn. App. 881, 892-93, 26 P.3d 970 (2002) (easement intended for ingress and egress to residential subdivision overburdened by heavy commercial truck traffic), review denied, 146 Wn.2d 1020 (2002).
We conclude that the trial court correctly granted summary judgment in favor of the City on this claim.
Finally, the City requests an award of attorney fees against Owens for a frivolous appeal and for misstating the record and citing irrelevant facts in its opening brief.
Factors in determining whether an appeal is frivolous so as to warrant sanction in the form of attorney fees include:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980).
Applying these principles, this appeal is clearly not frivolous. Owens' briefing also reflects appropriate advocacy. The City's fee request is denied.
Affirmed.
A majority of the panel has determined 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.
SWEENEY, C.J., SCHULTHEIS, J., Concur: